IN THE LABOUR COURT OF SOUTH AFRICA
(Held at Cape Town)
Case No : C194/98
In the matter between:
MORKELS STORES (PTY)LTD Applicant
and
DAVID WOOLFREY N.O First Respondent
JOHN BARENDS Second Respondent
REASONS FOR JUDGEMENT
REVELAS J :
[1] This is an unopposed application for the review of an
arbitration award, delivered by the first respondent,
in favour of the second respondent on 2 April 1998.
The application is brought in terms of section 145 of
the Labour Relations Act, No 66 of 1995 (“the Act”).
[2] The second respondent was dismissed by the applicant
during November 1997, following charges of intimidation,
and the breaching of picketing rules allegedly
perpetrated during a protected strike.
[3] The applicant and the South African Commercial
Catering and Allied Workers Union(“SACCAWU”) agreed
to certain picketing rules which provide that access
to and exit from any service centre or store will in
no manner whatsoever be rendered impossible. There
was also a rule that employees and customers will not
be interfered with and a further rule that picketing
will at all times be conducted in an orderly and
lawful manner and that neither party will display a
hostile attitude or use insulting language.
[4] The strike in question was a nation wide strike. Some
employees engaged in strike action committed a number of
serious breaches of agreed picketing rules in the period
of 11 to 16 September 1997. At the applicant’s outlet.
The applicant thereafter conducted investigations into a
hundred cases where a serious transgression of strike
rules had been committed. Fifty disciplinary enquires
were held, nine of which resulted in the dismissal of
employees. The second respondent is such an employee. The
second respondent did not oppose the application and
therefore, the aforesaid facts as they appear in the
founding papers of the applicant are undisputed.
[5] The second respondent was reliably identified as
having played an active part in the following
incidents, the facts of which were before the first
respondent:
1. The second respondent and another employee
succeeded in intimidating a truck driver and
preventing him from off loading his delivery at the
applicant’s premises.
2. The second respondent stopped a Mrs Theron and
her customer from leaving the premises and retaining
them against their will for approximately ten minutes.
3. The second respondent refused to allow a Mr
Morton access to the applicant’s premises in
order to collect a vehicle, and persisted in
such refusal, contrary to the advise of SACCAWU
and an instruction from Mr Harvey who was a
deponent to the applicant’s founding papers.
[6] According to the applicant, the facts as placed
before the first respondent show that the second
respondent was guilty of not one, but three serious
breaches of picketing rules, some which amount to
intimidation, a very serious offence in my view.
[7] The second respondent’s conduct was aggrivated by the
senior position which he held within SACCAWU and the fact
that prior to the commencement of the strike, he attended
a meeting where Mr Harvey specifically went through the
strike and picketing rules with him and made him aware
of the fact that SACCAWU had assented to these.
Furthermore, certain of the acts complained of were in
defiance of a court order granted on 16 September 1997.
[8] It also appears from the award that the evidence led
by Mr Morton was ignored.
[9] The first respondent made the following finding :
“There is no question that the conduct of the picketers
was contrary to both the agreed picketing rules and to
accept the disciplinary norms. I am satisfied that the
actions of the picketers was sufficiently serious to
justify their dismissal. However, the employer chose not
to take disciplinary action against the group. Instead it
singled out individuals for discipline based on specific
acts of misconduct. The employee was one of those whom
the employer chose to discipline individually.”
[10] In my opinion, an employer is not restricted to
collectively disciplining employees, neither is an
employer prevented from taking particular measures
against specific individuals who have perpetrated
specific acts of misconduct. Such individualised
disciplinary action was held to be fair in RECKITT
COLEMAN (SA) PTY LTD v CHEMICAL WORKERS INDUSTRIAL UNION
AND OTHERS (1991) 12 ILJ 806 AT 814 J the court said the
following:
“It has not been suggested that the appellant had any
ulterior motive in disciplining those whom he chose to
discipline and not disciplining those that were not in
fact disciplined. Furthermore, as was recognised by the
Industrial Court, it is not unreasonable to take
disciplinary action against those individuals who could
be identified. It is clear that the appellant had no
evidence at his disposal to identify any other individual
transgresses.”
[11] When a commissioner sits as an arbitrator,
arbitrating disputes under the auspices of the CCMA the
following is of great importance:
[12]Save for the powers of review created by section 145
of the Act, the commissioner serves as the final
arbiter in respect of all the legal and factual
issues before him.
[13] Such a commissioner is enjoined, by section 138(1)
of the Act to determine the dispute before him or
her quickly and fairly and to deal with the
substantial merits of the dispute. Commissioners are
empowered to make determinations which are important
and wide ranging consequences for parties.
Commissioners are inter alia, empowered to reinstate
employees in the employ of employers who dismissed
them and to award compensation which often amounts to
large sums of money, payable by the employer.
[14] The power to afford relief to an employee in a
dismissal dispute, depends on the commissioner
finding that there was no fair reason for the
dismissal.
[15] In exercising such a power a commissioner is
assisted by a considerable body of jurisprudence that has
evolved in this country in relation to unfair labour
practices and unfair dismissals in general. Employers
generally, do not dismiss employees for no reason. When
an employer has chosen to discipline and ultimately
dismiss an employee commissioners must be careful to take
all the relevant factors into consideration, before
deciding that an employer has dismissed the employee
unfairly.
[16] Commissioners should also not readily substitute a
employers’ decision to discipline with their own opinions
as to what should have been decided, without giving due
consideration to applicable principles and facts.
[17]Equally, employees are entitled to expect
commissioners to take all circumstances into
consideration in coming to a finding that their
dismissals were indeed for a fair reason.
[18] In other words, both employers and employees are
entitled to expect commissioners to make findings in
accordance with the facts and labour principles in a
manner which is consistent, fair and logical.
[19] Employers cannot be precluded from taking
disciplinary action against individuals, properly
identified as having conducted acts of misconduct simply
because given the nature of the strike action and the
number of employees involved, the employer is unable to
identify all of the individual transgresses.
[20] As shown, a hundred investigations were held and
they did not all have the same result, which indicates
that the applicant did not view all the breaches of
picketing rules in the same light, as suggested by the
first respondent’s reasoning.
[21] In the matter of CAREPHONE (PTY) LTD V MARCUS NO AND
OTHERS 1998 (10) BCLR 1326 (LAC) it has been held
that an award in arbitration proceedings before the
CCMA, may be reviewed on the various grounds as set
out in section 145 of the Act.
[22] It was also held in this judgement, that an
[22] It was also held in this judgement, that an
arbitrator may not, when making an award, exercise his
powers in conflict with constitutional values which
include the right to administrative action which is
justifiable in relation to the reasons given for it.
Consequently, an award that is not justifiable, having
regard to the factual material which was placed before
the arbitrator, will be reviewable. The test ultimately
adopted by the Labour Appeal Court in the CAREPHONE
matter is similar to that found in SHOPRITE CHECKERS
(PTY) LTD V CCMA AND OTHERS (1998) 5 BLLR 510 (LC) where,
at 5181 Pretorius A J said the following:
“Applying this test an administrative decision will be reviewable where the
conclusions reached by the administrative officer are not capable of reasonable
justification when regard is held to the factual premises on which they are
based.”
[23] The first respondent finds that the conduct of the
picketers complained of is dismissable, but finds
that the applicant acted unfairly because the
applicant did not act against the entire group. The
first respondent does not deal with the three
specific incidents involving the second respondent,
for which the group of picketers weren’t collectively
responsible, only the second respondent. This
reasoning does not make sense.
[24]On the undisputed facts placed before me, it appears
that the first respondent did not come to a
justifiable conclusion, on the evidence before him.
[25] Consequently, the review falls to set aside.
[26] As all the relevant facts were before me, no purpose
would be served in remitting the matter to the CCMA.
[27] In the circumstances, I made the following order:
The arbitration award issued by Commissioner
David Woolfrey of the Commission for
Conciliation, Mediation and Arbitration under
case number WE 7315 is set aside.
E REVELAS
For the applicant
Marais Muller Inc
For the Second Respondent
No appearance
This Judgement is also available on the Internet at the
following Website:
http//www.law.wits.ac.za/labourcrt