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[2025] ZALCCT 112
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Premier FMCG (Pty) Ltd v Commission for Conciliation, Mediation and Arbitration and Others (C298/2022) [2025] ZALCCT 112 (12 November 2025)
THE
LABOUR COURT OF SOUTH AFRICA
AT CAPE TOWN
Of
Interest To Other Judges
Case
No: C298/2022
In
the matter between:
PREMIER
FMCG (PTY) LTD
Applicant
and
COMMISSION
FOR CONCILIATION,
MEDIATION
& ARBITRATION
First
respondent
COMMISSIONER
URSULA BULBRING
N.O.
Second
Respondent
FOOD
AND ALLIED WORKERS’ UNION
Third
Respondent
A
MBETHE & 35 OTHERS
Fourth
to 39
th
Respondents
Heard
:
28 November 2024
Delivered
: 12
November 2025
Summary:
(Review- unfair dismissal for strike
related misconduct – protected strike – lengthy strike -
Common purpose principle
considered - common purpose not
established – Cross-review – Failure to retrospectively
reinstate employees who
were not dismissed but were issued with
warnings and limited backpay for strikers acquitted of misconduct)
JUDGMENT
LAGRANGE, J
Nature of the application
[1]
This is an opposed application to review and set
aside various findings of an arbitrator on different charges of
misconduct which
it is alleged took place during a prolonged
protected strike.
There were a number of different
incidents which took place which gave rise to discrete charges
relating to each incident.
For the purposes of the review
application, the charges in question were charges 32, 35, 40, 62 and
63.
[2]
The respondents have also applied to cross-review the arbitrator’s
endorsement of the employer’s threshold for determining
when
dismissal was appropriate, the failure to make the reinstatements she
awarded retrospective in effect, and awarding individuals
whom she
found not guilty of any misconduct an allegedly arbitrary and
inadequate amount of three months back-pay each. The cross-review
is
also opposed.
[3]
Because of the voluminous nature of the transcribed evidence, the
parties have agreed to be bound by the Commissioner’s findings
of fact set out in her award in these review proceedings and that
this review be decided on the basis of those facts and the bundle
of
documents admitted as evidence during the arbitration proceeding
[4]
The arbitration took place of a prolonged period of many days
commencing with an inspection
in loco
at the picketing area
and gates to the Blue Ribbon bakery premises of the applicant,
Premier FCMG (‘Premier’ or ‘the
company’) on
31 October 2019 and ending on 4 May 2022. Its progress was also
hampered by the Covid-19 restrictions.
The transcript of evidence was
a little over 3200 pages and the arbitrator’s award comprised
about 50 pages of densely typed
text, which traversed 20 separate
incidents which were dealt with as discrete ‘cases’,
within the general context of
the strike.
Overview of events
[5]
The union FAWU, the second respondent, initiated a protected strike
on 28 November 2018, apparently over unresolved wage negotiations
and
alleged remuneration inconsistencies, amongst other things. It ended
around 8 March 2019, which made it a significantly long
strike, by
current standards. In an effort to support the strike, strikers also
embarked on a campaign to encourage consumers to
boycott the bakery’s
products.
[6]
At the time the strike began Premier employed approximately 1100 and
staff at the bakery, of which roughly 670 participated in
the strike.
After the strike ended, disciplinary inquiries were held. As a result
of the inquiries 83 employees were dismissed
after being found guilty
of various charges including intimidation, violence, multiple
breaches of picketing rules, making false
and inflammatory statements
and damage to property. A further 145 strikers were issued with final
written warnings on account of
being found guilty of a breach of
picketing rules. None of the strikers who were charged with
misconduct were completely acquitted.
[7]
Of the 83 strikers dismissed by Premier, the arbitrator upheld the
dismissals of 19 of them and confirmed the issue of 81 final
written
warnings, some of which related to dismissed strikers who were
reinstated by the arbitrator. The arbitrator reinstated
27 of the
dismissed employees and two others who had been misidentified by the
company. Some of the reinstated employees were reinstated
with back
pay, but others without.
[8]
The charges of misconduct arose out of different events which
occurred over the duration of the strike. For the sake of briefly
contextualising events, a brief chronology highlighting some of the
disciplinary charges emanating from the activity of the strikers
is
set out below.
[9]
On 13 November 2018, FAWU and the company concluded a picketing rules
agreement. In terms of the agreement certain designated picketing
areas included the main gate and depot gate, with specific limits on
the number of picketers.
[10]
The strike began on 28 November 2018. The company hired armed
security guards from the inception of the strike allegedly on account
of prior violent strikes in 2007.
[11]
On 29 November 2018, the first incident of alleged misconduct took
place (Case 3) in which a company truck was twice prevented
from
exiting the depot gate. During the course of the incident security
staff fired rubber bullets and ‘flashbangs’
to disperse
the crowd resulting in one striker suffering an ear injury. Police
arrived and the situation in Malta Road and Chatham
Road apparently
became chaotic, with strikers blocking traffic and picketing outside
designated areas. There were allegations of
disorderly conduct and
alcohol consumption by some of the strikers. As a result of this
incident the arbitrator imposed final written
warnings on those
identified in committing breaches of the picketing rules.
[12]
On 30 November 2018, the company obtained an interim interdict
restraining strikers from interfering with or obstructing the access
to and egress from the company premises and from committing various
unlawful action from intimidation to damage to property, amongst
other things.
[13]
On 5 December 2018 another incident which gave rise to Case 7
occurred. This involved a striker intimidating and assaulting a
service provider. The striker’s dismissal was upheld by the
arbitrator.
[14]
Events giving rise to case 10 occurred on 16 December 2018, in which
a striker visited a colleague at his home and threatened his
wife and
children. The arbitrator upheld the dismissal of the individual for
intimidation.
[15]
On 18 December 2018, strikers visited various company agents and
intimidated them to stop selling Blue Ribbon products. They also
apparently made false statements made about bread quality and foreign
workers. These facts were considered under case 10.
The
arbitrator found the accused employees guilty of intimidation and
issued them with final written warnings.
[16]
On 3 January 2019, events giving rise to case 28 occurred. Various
strikers were charged with making false statements over a loudspeaker
about the company’s bread being harmful. The arbitrator upheld
the dismissal of those involved.
[17]
On 11 January 2019, strikers block the weighbridge gate and chanted
threatening songs and gesticulated at a delivery truck and
the
vehicle escorting it. The arbitrator found those identified as being
involved guilty of a breach of the picketing rules and
issued them
with final warnings. These events were dealt with under the case 32,
and the company seeks to set aside the arbitrator’s
findings
and sanction imposed for the misconduct involved.
[18]
An incident on 16 January 2019 resulted in the charges addressed
under case 35. Strikers at Khayelitsha train station make xenophobic
and false statements about bakery’s bread and company staff.
Two of the strikers who were identified as speakers Mesuli Dywili
and
Sandile Deku were dismissed. However, other strikers who were present
were acquitted on the basis that the employer had not
proven that
they made common purpose with those making the utterances complained
of. Premier also seeks to set aside the arbitrator’s
findings
relating to this case.
[19]
On 17 January 2019, an incident occurred in which water provided by
the company was poured on the ground, allegedly because a striker
maintained it was contaminated. The arbitrator found that this
amounted to misconduct and issued a written warning relating to
the
incident to which was the basis for case 36.
[20]
On 22 January 2019, a bread promotion at Siyazingiza Primary School
was disrupted, during the course of which a loudspeaker was
used to
make xenophobic and inflammatory statements. One of the strikers
involved, Mr K Mqhitsana , was found guilty and dismissed.
As in the
case of the railway station incident, other strikers present were not
found to have made common purpose with the speaker
and were
acquitted. This incident was captured under case 40, and is also one
in which premier takes issue with the arbitrator’s
findings.
[21]
In case 44, on 24 January 2019 two of the strikers, Mqhitsana and Mr
A Mbethe (‘Mbethe’) were involved in intimidating
a
temporary worker. The former was dismissed and the letter received a
final written warning.
[22]
On 29 January 2019 (case 51) three other strikers assaulted a female
employee at her home. Their dismissals were upheld.
[23]
On 4 February 2019 (Case 61) another striker sent a threatening
WhatsApp message to a supervisor. The arbitrator upheld the dismissal
in this case.
[24]
In another case where Premier contests the arbitrator’s
findings (case 62), on 4 February 2019, strikers in Khayelitsha
followed a gold coloured vehicle with loudspeakers, making false
statements about bread being stale and harmful. The arbitrator
found
there was no direct evidence of the various individuals involvement
and acquitted all of those charged.
[25]
On 6 February 2019, a similar activity occurred in Gugulethu with
statements being made on loudspeakers about the origin and quality
of
bread (case 63). As in case 62, the arbitrator found no direct
evidence of the involvement of those charged and acquitted all
of
them of the charge.
[26]
On 8 February 2019 three strikers were involved in a violent attack
on a company truck in Govan Mbeki Avenue (case 65). They were
all
identified and their dismissals were upheld.
[27]
On 15 February 2019, the interim order issued on 30 November 2018 was
made final.
[28]
What is apparent from the above is that regular instances of actual
and threated intimidation, were a feature of the strike and
that the
campaign to persuade the public not to buy Premier’s bread was
a significant component of the strikers’ strategy.
A cursory
review of the transcripts also reveals there were at least ten
instances of actual assaults on non-strikers during the
strike.
Thirteen strikers were also reportedly injured in the police rubber
bullet shootings on 29 November 2019.
Legal principles relating
to Premier’s review application
[29]
A key issue
in all four of the cases under consideration in this review is the
application of the common purpose doctrine in determining
if strikers
present in an incident, were either the principal actors in the
misconduct in question or demonstrated their support
for the
misconduct being committed. In the case of
NUMSA
obo Aubrey Dhludhlu & Others and Marley Pipe Systems (SA) (Pty)
Ltd
[1]
the central question in the case concerned whether 148 employees of
the employer had acted with common purpose when about a dozen
of them
assaulted the head of the Human Resources department. The employer
argued that all the employees directed their disgruntlement
in the
form of a serious crime: those that were able to confront the head of
human resources in person, physically assaulted him,
and those that
could not, incited the others to assault him and rejoiced at the
outcome.
[30]
According
to the Labour Court the employees who were identified as being on
site, had acted with common purpose in associating themselves
with
events on the day. The Labour Court referred to the Constitutional
Court decision in
National
Union of Metalworkers of South Africa obo Nganezi and Others v Dunlop
Mixing and Technical Services (Pty) Limited and Others
[2]
.
In
Dunlop
it was held that it was unnecessary to place each employee on the
scene to prove common purpose, as this could be established by
inferential reasoning having regard to the conduct of the employees
before, during and after the incident of violence.
[31]
In
Marley
Pipe, the
Constitutional Court reaffirmed the basic principles for establishing
liability based on common purpose in situations where there
was
neither evidence of prior agreement nor that the accused individual
was a factual cause of the misconduct. Relying on the criminal
law
derivation of the of the principes, the court cited with approval the
Appellate Division judgment in
S
v Mgedezi & others
[3]
where
that court held:
“‘
In the
absence of proof of a prior agreement, accused No 6, who was not
shown to have contributed causally to the killing or wounding
of the
occupants of room 12, can be held liable for those events, on the
basis of [common purpose], only if certain prerequisites
are
satisfied
.
In the first place, he must have been present at the scene
where the violence was being committed. Secondly,
he
must have been aware of the assault
on the inmates of room 12.
Thirdly,
he must have intended to make common cause with those who were
actually perpetrating the assault
.
Fourthly,
he must have manifested his sharing of a common purpose with the
perpetrators of the assault by himself performing some
act of
association with the conduct of the others
.
Fifthly,
he must have had the requisite mens rea
[criminal intent]; so, in respect of the killing of the deceased, he
must have intended them to be killed, or he must have foreseen
the
possibility of their being killed and performed his own act of
association with recklessness as to whether or not death was
to
ensue.”
[4]
(emphasis added)
[32]
In the
Labour Appeal Court decision in
Marley
Pipe
[5]
,
the court found that, of the 148 dismissed employees, twelve had been
directly implicated in the assault. Another 95 were identified
as
being part of the group and were directly associated with the
misconduct. The LAC held that the most natural inference to be
drawn
from the evidence that the remaining 41 unidentified employees had
also left their workstations to participate in the strike
and were
part of the group that had proceeded to the manager’s office
was that they were also present when the assault took
place. There
was no evidence to suggest that only the 95 identified employees were
present and no other alternative explanation
was raised by the union
on their behalf why the 41 others had not been present. The LAC noted
that none of the 148 employees had
done anything to disassociate
themselves from the assault before after or when it took place. To
the contrary, the court found
that the strikers celebrated the
assault after the fact
[6]
. The
court concluded that, on the evidence, the 41 employees associated
themselves with the actions of the group before, during
and after the
misconduct, were present at the scene of the assault and associated
with the other events of the day. The only alternative
version of
events union witnesses testified to was that the assault never took
place. In the circumstances, the evidence established
that the 148
employees had the requisite intention of associating themselves with
the assault and the LAC confirmed the Labour
Court finding that they
were guilty of the misconduct and their dismissal was fair, given the
seriousness of it
[7]
.
[33]
However,
the Constitutional Court took issue with the LAC’s finding that
the dismissed strikers needed to actively disassociate
themselves
from the misconduct to escape responsibility for it. The court found
that mere bystanders at such an event could not
be held accountable
for the assault that took place. Likewise, the fact that employees
were singing while the assault took place
was not sufficient to
demonstrate that they associated with the assault because they had
already been singing and dancing prior
to that so it could not be
seen as a conduct approbating the assault merely because it continued
while the assault was taking place,
even if it was morally
reprehensible that it did continue
[8]
.
Moreover, the fact that the singing and dancing commenced when they
left the workplace to go to the manager’s office also
meant
that it could not be interpreted as a celebration of the assault
[9]
.
Secondly, misconduct could occur spontaneously in someone’s
presence without being anticipated and guilt could not be imputed
them merely because that person was present when the misconduct took
place
[10]
. Further, complicity
could not be attributed to an employee who was present merely because
they did not come forward to explain
what happened, because workplace
dynamics were such that a fear of being the target of ostracism or
animosity might cause a person
to remain silent
[11]
.
[34]
The last
dictum reaffirmed the line drawn through previous jurisprudence
[12]
by
Dunlop.
Previously,
employees who were present when serious misconduct took place had an
obligation to disclose what they knew of the misconduct,
if they were
called upon to do, failing which they could be held liable for
‘derivative’ misconduct. Absent any express
contractual
obligation to that effect, employees do not have a fiduciary or
implied contractual obligation to come forward with
such information
to distance themselves from the misconduct.
[35]
In consequence, the Constitutional Court in
Marley Pipe
set
aside both the judgments of the Labour Court and Labour Appeal Court
and remitted the matter back to the Labour Court to consider
a
sanction on the charge of participation in an unprotected strike.
[36]
I note in passing that the dismissals took place before the
Constitutional Court decision in
Marley Pipe,
which was in
August 2022, and it seems a large number had also taken place before
that court’s decision in
Dunlop Mixing
which was handed
down on 28 June 2019.
Analysis of the
arbitrator’s findings contested by Premier
Case 32 The weighbridge
gate incident of 11 January 2019
[37]
The charge relating to this incident against each of the twelve
strikers implicated was that, on that day, “
when an agent
driver and escort vehicle of the company attempted to enter the
companies site situated at 23 Malta Road, Salt River,
at the
weighbridge entrance gate, you together with others, blocked the
entrance to the site and intimidated the agent driver,
intimidated
the driver of the escort vehicle and also caused obstruction to the
escort vehicle”.
It was also alleged that in doing so they
had contravened the picketing rules and, or alternatively the interim
court order issued
on 30 November 2018.
[38]
Mr R Lambert (‘Lambert’), the company’s Health
Safety and Security Officer narrated the contents of what he observed
on video footage of the incident. The accuracy of his narration was
not challenged in any material way. The contentious question
was the
interpretation of what that evidence demonstrated. Ms K
Ferreira ("Ferreira"), former Risk Investigator
identified
the twelve individuals who had been charged from amongst the many
other strikers appearing in the video footage of the
incident. This
evidence was also not challenged.
[39]
The arbitrator’s analysis of this case reads:
“
The union did not
lead any evidence on this charge. Lambert, Ferreira and Ishmael
testified in respect of this charge. Lambert testified
with regard to
video footage taken on 11 January 2019 at around 12h18 outside the
weighbridge gate. The picketers were on corner
Lower Scott / Chatham
Roads; Lower Scott Road leads into the Weighbridge gate; the
picketers were blocking the entrance to the
gate. An agent driver and
support vehicle are seen in the road ahead hesitant to move down the
road to enter at the gate. Strikers
are seen dancing in the road,
pointing towards the agent driver vehicle and the security vehicle
with one of the strikers filming
them (to intimidate them, said
Lambert). Lambert said that the vehicle would have been in contact
with the control room as to whether
the vehicle should approach or
not. An instruction was given to the security vehicle to escort the
truck in through the weighbridge
gate. As the security vehicle
approaches strikers block the entrance and dance in front of the
vehicle. The strikers move out of
the way and clap and chant as the
truck enters. The pointing may have been part of the dancing but the
message was one of intimidation.
Another video of the same incident
(MV 07/63 with sound) records the strikers chanting / singing in
Xhosa with the agreed translation
being ‘shoot, shoot, shoot
with a gun the cowards are scared’ with strikers pointing in
the direction of the agent
driver. The song was threatening. Some
employees walk away but Lambert observed that the video still shows a
big group in front
of the Weighbridge gate.
Lambert said that the
bread trucks did not normally go in there but during the strike
trucks were escorted and the controller would
say which gate was safe
and suggest which gate gets used and there has been nobody at the
gate earlier but strikers had moved to
that gate to ‘block and
intimidate’. Once the truck had gone down that road it would
have to pass the Main / Weighbridge
gate even if it wanted to use
another gate. Roads are narrow and there are cars either side.
Lambert said that there was a section
to the right where 30 strikers
could legally stand on the pavement at the Main gate (the Weighbridge
gate is to the right as one
faces it) but the strikers stood in front
of the gates. The trucks would normally go in at the weighbridge gate
(to get weighed
and sign in) but during the strike some trucks exited
there (the call would be made on the day). The weighbridge gate was
not a
gate at which the strikers could picket. Where they were
standing on that day was in breach of the picketing rules. Security
was
hired for the strike; it was not a normal thing for trucks to be
escorted in and out. Lambert said it was ‘ordinary innocent
picketing’; the truck wanted to come through and there was
chanting and picketing. Lambert said that the strikers breached
the
picketing rules every day in terms of where they assembled. Strikers
never stood in designated areas; they stood all over the
place.
Lambert said that the one video of this incident was 8 minutes 32
seconds which suggests a long time for a truck to make
its way
through a gate.
Ferreira testified that
she identified the 12 charged employees. She only identified the ones
known to her. Ishmael addressed the
inconsistency challenges and
testified that some employees were not charged because the photos
were not clear, others were not
identified by anybody and others were
missed.
My finding is that the
weighbridge gate, which was not a demarcated picketing area, was
blocked by strikers. They were not as suggested
by the union on
either side of the road at the gate. The union’s members did
not testify and its efforts to persuade during
argument that some
were against the wall and not in the road were not persuasive. I am
persuaded that they moved around. Also,
they may have been in a
public road but they were still blocking that entrance and making it
difficult for the truck to enter.
This was in breach of the picketing
rules. Whether it was stated that it was in breach of the picketing
rules in the charge cannot
assist the employees. The strikers were
blocking the entrance, caused obstruction to the vehicles and
attempted to frighten and
deter the agent vehicle (with gesturing and
pointing) from going into the premises, which is intimidation. I note
though that the
truck did enter as did the escort vehicle although it
took some time with the driver and the escort vehicle being hesitant.
Yet there is no evidence
of the truck driver being intimidated by any of the 12 employees
specifically. Struggle songs are part
of the South African landscape
and can be sung during strikes; they have a place in society to unite
workers and give comfort.
This was confirmed in the constitutional
court case of Duncanmec (Pty) Ltd v Gaylard No and others CCT248/17
although it dealt
with a racist struggle song; what the workers
chanted here was not racist. The finding of the chairperson at the
enquiry is that
employees that associated themselves with this
incident only should receive a final written warning. Others that
associated themselves
with this incident and other incidents should
be summarily dismissed. To find that the 12 made common purpose with
the acts of
intimidation and to find the 12 guilty of intimidation is
not appropriate here. Yes, they were there; they were on strike; they
were protesting but I cannot impute the acts of intimidation to any
of the 12. As Lambert stated, the strikers were all over the
place;
they did not act as a cohesive group in effecting the intimidation. A
lesser sanction of a final written warning for blocking
the entrance
and breaching the picketing rules is appropriate.”
[13]
(
sic
)
[40]
The arbitrator’s summary is a largely accurate account of the
material evidence and neither party took issue with it.
[41]
Premier argues that the arbitrator’s failure to find the
individual applicant’s guilty of intimidation could not be
justified on the evidence because all the pre-requisites for
establishing intimidation were met, namely: they were all present
at
the scene, and were aware of the intimidation, which they associated
themselves with and demonstrated by blocking access to
the gates. It
also claims they foresaw the probability of intimidation. Lastly,
they argue that the arbitrator’s finding
is unsustainable
because she acknowledged there was intimidation herself. To the
extent that she did not appreciate that the requirements
for proving
intimidation were met, she misconstrued the test for intimidation.
[42]
By
contrast, FAWU argues that the arbitrator’s findings were
perfectly reasonable. The Commissioner only found, correctly,
that that the twelve individuals were present and were possibly aware
of intimidation, but there was no evidence any of them were
directly
implicated in the acts of intimidation. FAWU conceded that one
of the strikers, who was not one of the twelve charged,
could be seen
pointing at the van, but none of the others were identified making
similar gestures. Although FAWU did not dispute
the arbitrator’s
findings, it argued that blocking the gate could not be construed as
intimidatory action, but merely a breach
of picketing rules, for
which a final written warning was appropriate. Further, relying on a
passage in the LAC judgment in
Solidarity
obo Kruger v Transnet SOC Ltd t/a Transnet National Ports Authority
and Others
[14]
,
it contended that the arbitrator could not have inferred that their
action was intimidatory in the absence of corroborative evidence
from
the persons they allegedly intimidated.
[43]
In
reviewing an award on grounds of reasonableness, the ultimate
question is whether the outcome is one that no reasonable arbitrator
could reach
[15]
.
[44]
Was the arbitrator’s finding a tenable one on the available
evidence? It is common cause that the individuals were
present and
aware of the intimidation. The act of intimidation was identified as
the action of one or two employees gesticulating
at the truck in a
threatening manner. Although one might read the arbitrator’s
reasoning to mean that the strikers’
action of blocking the
entrance amounted to intimidation
per se
, that does not seem
to be consistent with all of her reasoning. I am satisfied that the
intimidatory action, which she identified
was that of the one or two
individuals making threatening gestures with their hands and,
possibly, the singing of a struggle song.
However, although Lambert
interpreted the song to be threatening, the arbitrator discounted the
intimidatory significance of the
singing on the basis that it was
just part of the typical backdrop to a strike, in the absence of the
strikers acting in a focussed,
cohesive way rather than milling
around all over the place.
[45]
The evidence was that the only individual who was identified as
making the threatening gesture was not one of the persons
facing this
charge, but they were no longer employed by the company. To the
extent the company maintains that the action of the
strikers in
blocking access was plainly intimidatory, I accept that their obvious
aim of trying to bar the truck’s entry
or at least make it
difficult that might have been a common objective they shared with
the individuals making threatening gestures
in an effort to scare the
personnel on the vehicle to abandon their attempt to enter the
premises. However, I am not persuaded
that because they probably
shared a common goal of preventing the truck from entering by one
means or another, that they must have
also endorsed the intimidatory
methods undertaken by a few individuals amongst them. From what one
can discern from the evidence,
the movement of the strikers in the
path of the truck shows they were not acting in unison. The
arbitrator’s finding that
they were ‘all over the place’
and not acting as a cohesive group, is not an unreasonable inference
to have drawn.
On this basis, I am satisfied the finding of the
arbitrator is within the band of reasonable outcomes she could have
arrived at
in this case.
Case 35 - The xenophobic
statements and product disparagement over loudspeakers at Khayelitsha
station
[46]
The charge against each of the 19 employees implicated in this case
in this case was that on 16 January 2019, together
with others, they
had entered Khayelitsha station where they were complicit with
intimidatory and xenophobic remarks made about
a fellow employee
namely, “Rodney is from Zimbabwe”, “Rodney is the
biggest dog”, and making false statements
relating to the
company products.
[47]
There was evidence that the company had received reports of striking
employees approaching shop owners and intimidating
them not to buy
bread from the company. There was no dispute that the 19 employees
who were charged were part of the group present
at the station when
the shop steward Mr A Mbethe was using a megaphone to warn people
that the flower being used in the bakery’s
bread was not fresh.
Another individual , Mr M Dywili then took the microphone and made
more inflammatory statements such as claiming
that the bread the
company was supplying was supposed to be pig feed and referring to
Lambert as ‘the biggest dog’.
His performance on the
megaphone was followed by that of Mr S Deku who made false statements
about Lambert being a foreign national
from Zimbabwe. Video footage
was played confirming the conduct of the speakers. Apart from the
evidence of the conduct of these
three individuals there was precious
little evidence of anything the other strikers were doing there apart
from being with the
speakers at the station.
[48]
The only other evidence was offered by Mbethe himself to the effect
that, seemingly on the same day, the group was going
from shop to
shop and were told by some of the shop owners that the bread was
stale and maze meal and flour (presumably from Premier)
was stringy.
[49]
The arbitrator concluded her examination of the evidence on this
charge thus:
“
They were present
but I cannot find that the associated themselves with or demonstrated
an association with the statements made
by the three, particularly
the xenophobic statements. To make this finding would require more
than just them being there at the
station.
…
Mbethe's false statement
about the bread and flour not being fresh on own does not warrant
dismissal. As to whether he made common
purpose with Deku and Dywili,
Mbethe gave no comment on the statements made by them, neither at the
time nor at arbitration. To
call them out in the moment would have
been exceedingly diffcult. Even if legally his silence and presence
close to the microphone
indicates his common purpose, I find that a
lesser sanction would have been appropriate for Mbethe. He should not
have to face
an equivalent sanction as who made comments. The
comments made were in reaction to the company security being present,
and would
not have been planned in advance (which would have gone to
intention and made him complicit). A warning here is an appropriate
sanction for Mbethe.”
[50]
The company contends that the arbitrator reached a conclusion which
no reasonable decision maker could have reached on
the evidence
before her at the arbitration proceedings and thereby committed a
gross irregularity in the conduct of the arbitration
proceedings by
finding that the individual respondents in Case 35 had not associated
themselves with the false remarks made at
the Khayelitsha Train
Station.
[51]
FAWU argues that there is nothing to undermine the reasonableness of
the arbitrator’s award and retorts that there
is simply no
evidence of the other strikers at the station showing active support
for the utterances of the speakers. The photos
of the group at the
station do not portray a crowd that is animated in any way.
[52]
It is not in dispute that the group was going around together to try
and persuade consumers and retail outlets not to
buy or sell the
bakery’s bread. But, if the persons with access to the
megaphone made statements that were false or defamatory,
does the
mere fact that the individuals charged were part of a group traipsing
from shop to shop in the company of the individuals
in control of the
microphone make them complicit in the speakers’ conduct of
broadcasting any of those unacceptable statements?
Just because
the individual respondents were part of a group of strikers engaging
with consumers and retailers to support the consumer
boycott, and
that they remained with the group when the offensive statements were
made by those controlling the megaphone, that
does not automatically
give rise to the inference that their presence made them complicit in
the expression of those utterances.
It is not unreasonable to infer
that their conduct of remaining part of the group was insufficient
proof that they positively associated
themselves with the actions of
the few individuals making the offensive statements. To suggest they
needed to actively demonstrate
that they disapproved of that conduct
and disassociated themselves from it, to escape being found to be
complicit with the perpetrators,
seems to imply a resurrection of
derivative misconduct principles.
Case 40 -
Disruption of product promotion at Siyazingiza Primary School and
xenophobic and inflammatory statements over loudspeakers
on 22
January 2019
[53]
The charge relating to this case was formulated as an accusation that
each of the 24 individuals charged had participated
in blocking the
entrance to Siyanzinga Primary School, where the bakery was holding a
promotion and that they were present when
various false statements
were made through a loudspeaker claiming there was poison in the
bread and that customers should not eat
it. It was also alleged that
it was broadcast that children were getting ill from eating the bread
and that it was inferior to
bread distributed in ‘white’
areas. Further, it was broadcast that Lambert was from Zimbabwe and
was ‘
here to kill the black nation’
.
[54]
Apart from Mbethe, Dywili and Deku, the following six individuals
were identified on the video footage as being present
at the school:
Lucy Ntamo; Yolisa; Samla Ntane; Mr Madlabu and Samla Musi Dam.
[55]
Lambert testified that he received a call from the promotion team
reporting that FAWU strikers were blocking the school
entrance. When
he arrived he saw Mr K Mqhitsana’s vehicle parked in the
entrance with loudspeakers on the roof. A masked
individual inside
the vehicle was speaking over the loudspeaker. He testified that the
promotion was cancelled due to safety concerns.
The videos he played
showed the car blocking the gate and corroborated his allegations
about the statements broadcast on the loudspeaker
alleging racial
discrimination, xenophobia, and health risks relating to the bread.
The video footage also showed SAPS involvement
and the promotion
truck leaving the school premises to the clapping and cheers of the
strikers.
[56]
Mqhitsana testified and confirmed the vehicle was his, but denied he
had blocked the vehicle gate, claiming he had parked
near a
pedestrian gate. He testified that the purpose of being at the school
was to solicit support from teachers and categorically
denied making
or hearing any statement broadcast over the loudspeakers mounted on
his car. He also testified that the school principal
had no issue
with their presence and that there was no intimidation or disruption.
When police asked him he moved his vehicle,
he obliged.
[57]
The arbitrator’s analysis reads:
“
I note that the
company promotion team felt intimidated but there were no direct acts
of violence or intimidation. Employees working
when their colleagues
are on strike naturally feel unsettled by it when there is a strike.
I understand the company concern that
a truck had been vandalised
(case 65) and that there was a reported incident of a promotional
stabbed at Samora Machel (in dispute
and charge not pursued) and that
it felt that Security was necessary to protect the trucks, driver and
promotional employees but
insofar as strikers were there to boycott
and protest
, it did not fall to the company to discipline them
without any direct act of intimidation. Nobody was prevented from
going in and
out and when Mqhitsana was requested to move his
vehicle, he complied.
The truck left the school under the watch
of the police and the company’s security were all present at
the scene
. The strikers were there to disrupt the promotion. They
would not have been there if there was no promotion but I cannot find
this
is wrongful or unlawful conduct or that there was any
intimidation
.
I take issue though with
the words uttered over the loudspeaker. There is a difference between
statements made to cause economic
harm and ones that constitute
economic sabotage. Not all bets are off during a consumer boycott and
protest. The company could
not prove that the word ‘poison’
was used; this would have been going too far given that it would have
implied that
the company was trying to kill the consumers but it was
not said.
The voices on the loudspeaker tried to discourage
customers from consuming a product of a company faced with a strike.
This is not
unlawful conduct if in furtherance of a strike
. The
reference to Lambert being a Zimbabwean and being in South Africa to
“kill the black nation” are xenophobic and
inflammatory
and would certainly justify dismissal. Mqhitsana was a particularly
poor witness and untruthful when testifying under
this case number.
He was evasive and misleading. At first we were told during cross
examination that it was not his vehicle but
that of the community,
SANCO. Then he conceded in his evidence that it was his vehicle, but
says that he did not know who was sitting
in it speaking on the
loudspeaker (“there was a mix of us there, male and female).
This is inexplicable and highly unlikely.
He is seen on the video
right next to the vehicle. His attempts to evade an association with
the person on the loudspeaker leads
me to conclude that he made
common purpose with those statements. If he did not, then as a shop
steward and marshal it fell to
him to call them out and dissuade them
from making the inflammatory and racist statements. He would
certainly have known better.
Mqhitsana is guilty of this charge and
dismissal is appropriate.
In general, that false
statements were made is wrongful, as is the making of other
statements that are racist and inflammatory
. However, again I
cannot jump from there to find that all the named employees are
guilty of the charge. They were in the area when
the statements were
made because they were on a consumer boycott. They cannot be held to
be account for everything everybody said
in the area
. There are
different levels of liability.
There is no evidence that they
acted as a cohesive group.
Cheering and clapping after achieving
their consumer boycott purpose is not unlawful. The statements
complained of were made by
two people that the company failed to
identify. I find the employees are not guilty of this charge.”
(
sic –
emphasis
added)
[58] The arbitrator
found that the picketing rules did not apply to off-site locations
like schools, so discipline for off-site
picketing was not within the
company’s purview unless unlawful conduct occurred. While she
was not willing to find the persons
facing this charge guilty of
being complicit in the offensive statements made on the vehicle
loudspeakers, she did find Mqhitsana
had made common cause with the
person making the announcements because of his ownership of the
vehicle and his ability to exert
some influence over the speaker in
his role as shop steward.
[59]
It is noteworthy that Mqhitsana’s inactivity in curbing the
conduct of the speaker, despite being the owner of
the vehicle from
which the offense broadcasts were being made and his position as a
shop steward, were interpreted by the arbitrator
as factors
evidencing his complicity with the author of the offensive
statements. In the circumstances, his omissions were tantamount
to
acts of association with the conduct of the speaker.
[60]
In conclusion, the arbitrator found Mqhitsana guilty and upheld his
dismissal, but she acquitted the other 23 employees
on the charge.
[61]
Premier contends her conclusion was one which no reasonable decision
maker could have reached on the evidence before
her because they had
associated themselves with the undermining of the Blue Ribbon bread
promotion at the Siyazing Primary School.
It referred to the review
pleadings about Mqhitsana making offensive statements but no
reference was made to the transcript itself,
which bears out the
arbitrator’s account.
[62]
As in the other cases, it cannot be said that the arbitrator was
remiss because she did not find evidence of active association
with
the offensive broadcasts. In the circumstances, it was not
unreasonable of her to find that the requirements of common purpose
had not been satisfied for the rest of those charged under case 40.
Cases 62 and 63 :
Strikers in Khayelitsha and Gugulethu following a gold coloured
vehicle with loudspeakers, broadcasting false
statements about
bread being stale and harmful on 4 and 6 February 2019,
respectively
[63]
The specific charge against each of the 17 strikers implicated in
respect of the Khayelitsha incident was that on 4 February
2019,
together with others, each of them had attempted to sabotage the
company’s business and tarnish its good name and reputation
by
maliciously making various disparaging, defamatory or false
statements to stockists of Premier products and to the general
public, including school learners, such as saying: “
Do not
stock Blue Ribbon bread as it is old, stale and will make you sick.”
[64]
The charge relating to the Gugulethu incident on 6 February 2019
(case 63) was identical except that a different disparaging
statement
about the bread taking eight days to come from Lesotho to Cape Town
was referenced. The Gugulethu incident involved 14
individuals, four
of whom were also charged in case 62.
[65]
Lambert and Mr N Armien (‘Armien’), a risk investigator
at Premier, gave evidence on the events supporting
the charges.
Lambert did so by commenting on video evidence which was played
during the course of which the offensive statements
which were
broadcast from the vehicle were confirmed. In neither case did they
specifically identify the persons charged, but neither
were they
challenged on the question whether those charged were part of the
group of strikers accompanying the vehicle.
[66]
On 4 February, The provocative statements broadcast over the
loudspeakers on the vehicle were that:
66.1 “
The
workers are on strike since 28 November up until today. The workers
don’t make the bread. The bread you are getting is
from other
provinces.”
66.2
“
The bread that you are buying is not the bread being
made by the workers. The people making the bread are on strike that’s
why they are giving you old bread that is crumbling/sticky. The bread
is from other provinces and can make your children ill.”
[67]
On 6 February, the offensive statements emanating from the vehicle
were that:
67.1
“
They won’t have mercy when our
children get sick.”
67.2
“
They will give old bread that will
make our children ill.”
67.3
“
They are selling old bread in our
community to us black people.”
[68]
The arbitrator assessed both cases together. This was apparently
owing to the fact that the evidence was presented in
the form of a
single narrative attested to by Lambert and Armien, and that the
factual matrix in both instances was very similar.
[69]
The arbitrator found that statements made over the loudspeaker were
false, disparaging and intended to damage the company’s
reputation. On the evidence, she found that the disparaging
statements were untrue.
[70]
However, the company failed to identify which of the 17 strikers were
responsible for making the statement or to establish
if any of them
directly supported the statements. She accepted that the charged
employees were present in the vicinity of the vehicle
and the
loudspeakers but there was no evidence demonstrating that they acted
as a cohesive group or made common purpose with the
statements. In
relation to hearsay evidence that they had been involved in
intimidating shop owners, they had not even been charged
with
intimidation.
[71]
Although the statements were false and damaging, the company failed
to prove individual culpability of the charged employees,
as there
was no evidence presented which showed that the employees made or
endorsed the statements. Accordingly, the arbitrator
acquitted all of
the strikers charged under case 62.
Arbitrator’s
Assessment In Case 63:
[72]
Fourteen strikers were charged with the misconduct of attempting to
to sabotage the company’s business and tarnish
its reputation,
by maliciously making or associating themselves with false and
disparaging statements broadcast via loudspeaker
to the public. The
offensive statements have been identified above.
[73]
She noted that the vehicle was driven by a since dismissed shop
steward, who was not part of the case. The crux of her
reason for
dismissing the charge against the 14 individuals in this case was
expressed thus:
“
They were in the
area when the statements were made because they were on a consumer
boycott. They cannot be held to be accountable
for everything
everybody said in the area. There are different levels of liability.
There is no evidence that they acted as a cohesive
group... I find
that the employees are not guilty of this charge.”
[74]
As in the other cases, the company argues that the fact that the
identified strikers were accompanying the vehicle from
which the
unacceptable statements were broadcast made them complicit with the
unidentified person who made the announcements. However,
if one
evaluates this contention against the Constitutional Court’s
analysis of the conduct of the strikers in the
Marley Pipe
scenario, it is hard to believe that the facts in this situation
present a more compelling case for imputing complicity when measured
against the standard set in that case. Accordingly, the court is
bound to apply that approach here. Consequently, the arbitrator’s
acquittal of the fourteen individuals cannot be held to be one that
no reasonable arbitrator could have reached.
The Cross Review
FAWU’s locus standi
[75]
Premier
claimed FAWU had no
locus
standi
to
launch the cross-review without joining the individual members
affected by this application. I agree with the union that it is
well
established that a trade union has legal standing and may litigate on
behalf of and represent its members in proceedings in
the Labour
Courts under s 200(1) of the LRA.
[16]
First Ground – The
arbitrator’s adoption of Premier’s threshold for
dismissal
[76]
FAWU claims that the arbitrator’s endorsement, without more, of
Premier’s view that two or more breaches
of the picketing rules
were sufficient to render the dismissal of the guilty employee, fair
was arbitrary. More particularly, it
argues that she upheld the
dismissal of the employees listed in paragraph 52 of her award, only
because they had been found guilty
of more than one offence of
breaching the picketing rules even though, on their own, neither
warranted dismissal and each offence
only merited a final written
warning.
[77]
Paragraph 52 of the award reads:
“
52. I find that
the dismissals of those employees found guilty of more than one
office are also substantively fair. The company
set the benchmark at
the commencement of its disciplinary proceedings that those employees
found guilty of more than one offence
would face dismissal. It is
reasonable and fair that I follow through on this save if there are
strongly mitigating circumstances.
Those employees found guilty of
two charges and attracting two final written warnings each are
Kamvelihle Mambudlu, Deon Otto,
Athini Mrawuzeli, Malibongwe Ralayo
and Lucy Samla Ntamo. There are no extraordinary mitigating factors
to warrant a lesser sanction.
Their dismissals are substantively
fair.”
[78]
Ms L Ntamo (‘Ntamo’) was found guilty in cases 3 and 11.
The other four employees were found guilty in cases
3 and 32.
[79]
Case 3 concerned an event early in the strike on 29 November 2018.
Employees were accused of blocking access and egress
at the milling
gate premises of the company, conducting themselves in a violent
aggressive and disorderly manner having the potential
to endanger the
safety of employees or the general public the driver of one of the
vehicles attempting to exit the gate. Twenty-eight
strikers were
implicated by this charge. Although the arbitrator found that the
driver had not been intimidated, she concluded
that on that occasion
the strike is in question had acted in breach of the picketing rules:
“…
this
conduct is misconduct and in breach of the picketing rules (rule 5).
Having surveyed the footage I find that on 29 November
2018 a company
truck attempting to exit the site at the depot gate was blocked from
doing so twice. The argument that the strikers
were provoked because
the milling / depot gate is not normally used for trucks to exit is
opportunistic. It was not business as
usual; the entire site was
compromised and Lambert's evidence that different gates were used on
different days to mitigate harm
is accepted. The strikers only moved
out of the way after Security fired rubber bullets into the air. I do
believe though that
it was unseemly, ill-timed and with undue haste
that the company engaged armed Security on day 2 of the strike
knowing that a previous
strike in 2007 had been violent. The company
did not show what other alternatives were considered other than the
previous day emailing
the union to advise of a breach of the
picketing rules. That said, the fact of the matter is that picketing
rules have been agreed
and designated picketing areas agreed, the
main gates [30 people on the paving] and the depot gate [25 people on
either side of
the gate]. These rules were not followed. To what end
does one negotiate picketing rules if these are going to be ignored?
Those
employees identified at the Applegate are guilty of this
charge. Employees should not have picketed outside gate 4… By
picketing
in front of gate 4 was in breach of the picketing rules.
Their conduct blockaded and obstructed egress to and access from gate
4… Regarding the third allegation of those in Malta Road,
MVI-0116 shows strikers singing and dancing in Malta Road followed
by
police with cars attempting to pass… Picketing in the public
road blocking one lane and half into the other was also
in breach of
the picketing rules… Those employees identified are guilty of
this charge.”
[80]
Case 11 was a charge of intimidation based either on direct
involvement or being complicit in the misconduct of telling
third
parties not to buy Blue Ribbon products and that if they did they
would suffer the consequences because company trucks would
be
attacked. More particularly one of the long-standing customers import
bread from the company was told that the strikers knew
the routes
that the customer’s trucks took and their trucks would be
attacked. The arbitrator accepted that the customer
had been
intimidated and dismissed Ntamo’s claim that she had not been
outside the house of the customer. The arbitrator
found that she and
the other employee had identified with the statements made to the
customer. Because the chairperson had handed
down a sanction of a
final written warning for this offense alone, the arbitrator followed
suit and also issued them with final
written warnings.
[81]
Case 32 has already been dealt with in detail above. In that matter
the arbitrator imposed a final written warning on
those involved.
Accordingly, in the case of all five of the individuals mentioned by
the respondents, each of them had been awarded
two final written
warnings. Ntamo was issued with a warning for a breach of the
picketing rules and intimidation, whereas the other
four were
involved in two instances of breaching picketing rules entailing the
obstruction of vehicles entering or exiting the
premises of the
company.
[82]
The union argues that it was completely arbitrary for the arbitrator
to apply the principle, which the employer had used,
namely of
dismissing strikers who had been found guilty of two forms of
misconduct during the strike. It is apparent that the employer
had
adopted this approach to dealing with all misconduct that had arisen
during the strike. The general application of this approach
was not
challenged by the union in the course of the arbitration, which ought
to have occurred if the union objected to it in principle.
I
find it difficult to accept that the application of the principle is
only challenged on review and then only in respect of certain
of the
employees. It was also argued that accumulative approach of
treating two warnings for separate acts of misconduct
flouted the
principle of progressive discipline because none of the individuals
had a sanction of dismissal imposed for either
of the two charges on
which they were found guilty. That may be so, but that should have
been raised in the arbitration proceedings.
The arbitrator can hardly
be criticised for following a general rule adopted by Premier in the
determination of sanctions for misconduct
committed during the
strike, if it was never raised directly as an issue in contention at
the arbitration. It was not even canvassed
in the union’s
extensive closing written submissions in the arbitration proceedings.
[83]
Another point raised in this regard was that the arbitrator was
inconsistent because she did not apply the ‘two
infractions’
principle in the case of Mr A Mbethe, a shop steward. In his case, he
had been found guilty of three acts of
misconduct, and she imposed a
final written warning and two written warnings for his misconduct
under cases 44, 35 and 36 respectively.
[84]
The arbitrator did explain why she did not apply the principle to him
in some detail. There is no clear reason why similar
exceptional
circumstances warranted a departure from the principle in the case of
the five strikers identified by the union.
Failure to award
retrospective reinstatement and awarding three months’
remuneration as compensation to those acquitted of
misconduct.
[85]
The arbitrator did not make any retrospective award of reinstatement
of the strikers who were issued with warnings.
The strikers who
were completely acquitted were awarded retrospective reinstatement of
three months.
[86]
Her reasoning for not awarding backpay to those who were issued with
warnings was multifaceted, as follows:
“
56. REMEDY
Albert Mbethe, Tembelani
Apile, Thandiswa Dubha, Phakamani Mhlongo, Mongezi Dumisani,
Nkosinathi Galadini, Vuyani Kenkebe, Siphelele
Luzipho, Siyabonga
Mimi, Mawetu Mazwi, Patrick Mbalo, Mzwarafana Monakali, Fezile
Njengele, Luyanda Ntetye, Jeffrey Ntezo, Andile
Qashani, Akhona
Sidloyi, Zitha Sphambo, Nkosana Tapleni, Zoyisile Calu, Bethwell
Khumla, Yandiswa Lukashe, Lutando Magazi, Kamvelihle
Mambudlu, Andile
Mlandeli and Vuyisani Tyelo are reinstated. Reinstatement is the
primary remedy and there was no evidence that
such an order shall be
impracticable. However the reinstatement is without back-pay.
The applicants have been
the perpetrators of acts of misconduct, which cannot be diminished
;
the witnesses who testified on their behalf were not forthcoming and
were unreliable. Not one employee took me into their confidence
and
openly stated the truth
.
It was only after a painstaking
process of identification the applicants admitted being where they
were said to be.
Also,
I do believe
that there were acts of intimidation on shop owners and customers but
that the company was not able to provide direct
evidence
.
However
, the entire context of the strike through the overall
evidence presented at the arbitration made it clear that blame cannot
be
apportioned in only one direction
.
Also, the company was
willing to engage in a conciliation exerc
ise and offer certain
employees reinstatement during the course of the arbitration
(this
was off the record but placed on the record during the argument
).
The union did not want to know the names of those being offered
reinstatement and rejected the proposal and it may have been
that
many of the above could have gone back to work significantly earlier.
Also,
the company
should not have to carry the weight of the administrative delays as
well as the delay caused by the Covid-19 pandemic
.
No back-pay is awarded to
these employees.
In this regard,
the
matter commenced in late 2019 with the Covid-19 pandemic which
directly impacted this matter, being heard throughout 2020 and
2021
and further CCMA practice effectively precluded the matter being
heard for more than a few days in any month
.”
[87]
The arbitrator expressly referred to these reason as informing her
decision of limiting the backpay she awarded to those
acquitted of
all misconduct to three months’ remuneration, save that she
made some allowance in their case:
“
Bulelani Chewu,
Shanki Ketso, Nosiphiwo Lawana, Celile Makapela, Bonga Mayimayi,
Lunga Mdudi, Thobela Memeza, Mandla Mfundisi, Buyiswa
Thiwani and
Ziyagida Sonyabashe are reinstated with three months back pay
each. The comments above apply (again, they could
have been
reinstated earlier) but my sense is that to award no back pay
here would mean that they were punished for simply
being on strike.
They were there, they were identified as part of the group and so
they get punished. This cannot be fair. Employees
have the right to
strike.”
[88]
The union accepts that a commissioner has a discretion, to be
judicially exercised, whether to make reinstatement retrospective
to
the date of dismissal or some lesser period. It argues that none of
the considerations relied on by the arbitrator were fair
and relevant
factors for determining backpay of those reinstated with warnings.The
union argues that these were not a rational
foundation for refusing
backpay and the arbitrator should at least have awarded 12 months’
salary, which was the period that
they had been unemployed even if
the impact of Covid is discounted.
[89]
Premier argues that the arbitrator was entitled to exercise her
discretion and consider the factors she did in deciding
not to award
backpay.
Legal
principles applicable to reviewing a decision not to award
retrospective reinstatement or to limit its extent
[90]
It is trite
that the extent to which an award of reinstatement is made
retrospective under s 193(1)(a) of the LRA involves an exercise
of a
true discretion on the part of the adjudicator which a court will
only interfere with if the discretion was exercised capriciously
or
upon a wrong principle, or it has not brought an unbiased judgment to
bear on the question or has not acted for a substantial
reason
[17]
.
In the
Fibre
Flair
decision
that LAC cited with approval an extract from an article on the
exercise of discretion, viz:
“
(A) truly
discretionary power is characterised by the fact that a number of
courses are available to the repository of the power”
(Rubinstein Jurisdiction and Illegality (1956) at 16).’
The essence of a
discretion in this narrower sense is that, if the repository of the
power follows any one of the available courses,
he would be acting
within his powers, and
the
exercise of power could not be set aside merely because a court would
have preferred him to have followed a different course
among those
available to him
.”
[18]
(emphasis
added)
[91]
To
illustrate the extent to which the court will defer to the exercise
of an arbitrator’s discretion on the retrospectivity
of
reinstatement two examples from the cases cited illustrate the point.
In
Fibre
Flair
employees
were found to have committed misconduct in the form of unprotected
industrial action, but it did not warrant their dismissal.
Nonetheless, despite the fact that two years had elapsed between
their dismissal and the Labour Court judgment the court reinstated
them with no retrospective effect. The LAC found that on the facts of
the case, a number of reasonable persons could have decided
on
different effective dates of reinstatement but that did not warrant
interference in the absence of the appellants being able
“
to
show
that
the court a quo acted capriciously, or upon a wrong principle, or in
a biased manner, or for insubstantial reasons, or committed
a
misdirection or an irregularity, or failed to exercise its
discretion, or exercised its discretion improperly or unfairly.”
[19]
In the
Shoprite
case,
an unfair dismissal case, originating in December 2000, had been
arbitrated and reviewed twice. In the second arbitration
award handed
down in 2003, the arbitrator had found the employee had been unfairly
dismissed and reinstated him with a severe written
warning, but the
reinstatement was not retrospective. The Labour Court ordered the
matter to be remitted for a third arbitration
but on appeal, the LAC
upheld the unfairness of the dismissal and the imposition of the
warning. However, in 2007, it found the
arbitrator’s failure to
award retrospective reinstatement was not justifiable, reasonable or
rational and therefore ordered
reinstatement with full retrospective
effect to the date of dismissal. The SCA found the LAC had
substituted its own discretion
for that of the commissioner in
circumstances where it had not been shown the commission had
exercised his discretion capriciously
or upon a wrong principle or
any other ground warranting interference
[20]
.
[92]
The SCA also held that both employee and employer parties suffered
from the systemic delays of the dispute resolution
process and while
it was unfair on employees to bear the consequences of that, it was
equally unfair to expect employers to bear
the brunt of those
failures.
[93]
Even though I am of the view that the arbitrator, ought not to have
speculated about the prospect of some of the cases
being resolved,
nor was it correct in principle to rely on intimidation, which was
suspected but not proven, I cannot say that
it was improper to have
considered the fact that the proceedings were lengthy, in part
because concessions which should have been
made were not, and in part
because of the restrictions adopted during the Covid pandemic.
[94]
Similarly, in keeping with the approach of the SCA in
Shoprite
,
the distribution of the burden of the dispute resolution process
delays was not a matter to be resolved by balancing the burdens
of
the parties. For the reasons discussed, in the circumstances I do not
believe the court is entitled to step into the arbitrator’s
shoes and modify her orders of reinstatement. The same
considerations apply to the limited orders of reinstatement she
awarded
for those who were ultimately dismissed.
[95]
In passing, it is worth mentioning that parties in labour disputes
concerning multiple incidents of misconduct occurring
over an
extended period of industrial action, need to bear in mind that a
failure to resolve the resulting disputes early on through
conciliation and negotiation can result in very protracted litigation
requiring voluminous evidence to be led and the resulting
delays will
inevitably raise the risks for both parties.
[96]
Considering the discussion above, the cross review cannot succeed.
Conclusion
[97]
The outcome of the review and cross-review is that neither
application succeeds. As the parties have an ongoing
relationship and neither pressed the issue of costs. I am satisfied
that both should bear their own.
Order
1.
The Applicant’s review application
and the Third and Further Respondents’ cross review application
are both dismissed.
2.
No order is made as to costs.
R Lagrange
Judge
of the Labour Court of South Africa
Appearances
For
the Applicant:
M
Van As instructed by Fluxmans Inc
For
the Respondents:
M
Eiujen, SC instructed by Cheadle Thompson &
Haysom
Attorneys
[1]
(2022) 43
ILJ
2269 (CC)
[2]
2019 (8) BCLR 966
(CC); (2019) 40
ILJ
1957
(CC)
[3]
1989 (1) SA 687
(A)
[4]
NUMSA
obo Dhludhlu
at
paragraph 17
[5]
National
Union of Metalworkers of SA on behalf of Dhludhlu & others v
Marley Pipe Systems SA (Pty) Ltd
(2021) 42
ILJ
1924
(LAC)
[6]
At
paragraph 21
[7]
At
paragraph 25
[8]
At
paragraph 26.
[9]
At
paragraph 30.
[10]
At paragraph 34.
[11]
At paragraph 35.
[12]
Originating
in
Food
& Allied Workers Union & others v Amalgamated Beverage
Industries Ltd
(1994) 15
ILJ
1057 (LAC) (FAWU v ABI) and crystalised in
Chauke
& others v Lee Service Centre CC t/a Leeson Motors
(1998)
19
ILJ
1441 (LAC)
[13]
Pleadings,
Arbitration Award, para 47 pp 73-4
[14]
[2021] 5 BLLR 484
(LAC); (2021) 42
ILJ
852 (LAC) at paragraph 25:
“
[25]
Counsel for the employee contended that the arbitrator’s
reliance on Adcock
Ingram was misplaced since the threat in that
matter was made in the context of a violent strike, which was
distinguishable from
the circumstances of the current matter. It is
so that the facts in Adcock Ingram are not on all fours with the
facts of this
appeal. The evidence in the current matter was that
the employee was angered by the fact that disciplinary action was
being taken
against him, an anger which was not without foundation
given the findings above
. Although his words constituted a
threat and must reasonably have aimed to intimidate, it is not clear
precisely what he meant
by them. There was no suggestion that Mr
Dlamini or Mr Shezi were fearful of the employee or considered their
lives to be in
danger and the arbitrator did not indicate how the
words were “meant to inflict fear and subjugation”. In
fact, Mr
Dlamini immediately took charge of the discussion and
cautioned the employee not to aggravate the situation, conduct which
clearly
reflected that he understood the employee to be angry.
Neither Mr Dlamini nor Mr Shezi called on the Security Manager, who
was
in the immediate vicinity, to come to their aid and both left
for lunch at a restaurant after the inciden
t.”
(emphasis added)
[15]
Sidumo
and Another v Rustenburg Platinum Mines Ltd and Others
2008 (2) SA 24
(CC) ; (2007) 28
ILJ
2405 (CC); 2008 (2) BCLR 158 (CC)
[16]
See
NUM
v Hernic Exploration (Pty) Ltd
(2001)
22
ILJ
203
(LC) at paragraph 32 and
Afgri
Animal Feeds v NUMSA and Others
(2024) 45
ILJ
1937
(CC) at paragraph 39.
[17]
NUMSA &
others v Fibre Flair CC t/a Kango Canopies
[2000]
6 BLLR 631
(LAC) at page 633, citing
Ex
parte Neethling and others
1951 (4) SA 331
(A). See also
Shoprite
Checkers (Pty) Ltd v Commission for Conciliation, Mediation &
Arbitration & others
2009 (3) SA 493
(SCA) at paragraph 32.
[18]
At
page 631
[19]
At
page 634
[20]
At
paragraphs 33 and 34.