IN THE LABOUR COURT OF SOUTH AFRICA
HELD AT CAPE TOWN
REPORTABLE
CASE NO: C308/03
In the matter between:
NUMSA 1ST APPLICANT
D. WILLEMSE & 10 OTHERS 2ND & FURTHER
APPLICANTS
and
ATLANTIS FORGE (PTY) LTD RESPONDENT
JUDGEMENT
1. The first applicant, a registered trade union, (“NUMSA”) has referred a dispute to
this court on behalf of 11 of its members (“the individual applicants”) contending that
their dismissal for conduct allegedly amounting to participation in an unprotected
strike was both procedurally and substantively unfair. The individual applicants seek
reinstatement retrospective to the date of their dismissal.
2. The respondent, Atlantis Forge (Pty) Ltd, (“the company”) is a forging business
based in Atlantis, Western Cape. It comprises two distinct operations located one
kilometre apart at different plants. The one operation, the forge, is where metal
billets are forged into crankshafts as rough forgings, which thereafter are finished
on the machining line at the other plant for use by automotive assemblers. The
machining line (also referred to as “the crankline”) is where the rough forged
crankshafts are machined into final form. Until not long ago the two plants were
separate businesses. When DaimlerChrysler acquired an interest in both
businesses they became a single corporate entity. Now the crankline takes the
rough forgings exclusively from the forge and machines the products for export to
one or two clients overseas.
3. Second applicant (Dawie Willemse), third applicant (Mario Philander), sixth
applicant (Arnold Dirks), ninth applicant (Alexander Cloete) and twelfth applicant
(Erasmus Appolos) were employees at the crankline. Fourth applicant (Riaan
Visagie), fifth applicant (Allen Abrahams), seventh applicant (Desmond Pieterse),
eighth applicant (Gerhard Sauls), tenth applicant (Alice Khan) and eleventh
applicant (Ntombekhaya Jobo) were employees at the forge.
4. The events that led to the dismissal of the individual applicants took place on 4
December 2002. Early in the morning on that day, employees at the forge gathered
in the canteen not long after the commencement of the day shift (at 07h00) in
response to rumours that the annual bonus would be paid to employees on 10
December 2002 instead of on 6 December 2002, the date some employees
believed was the due date. News of the events at the forge soon reached the
employees at the crankline.
5. Shortly after 07h30, the employees gathered in the forge canteen were addressed
by Mr Johan Agenbach, the respondent’s production facilitator, and at his request
dispersed. There are disputes of fact, to which I will return presently, about
precisely what Agenbach conveyed to the meeting regarding the resolution of the
grievance.
6. Some time after 08h30 the forge employees gathered again in the canteen, and on
this occasion were joined by several crankline employees, who, having left their
workstations, had walked in a group down the road to the forge and assembled in
the canteen. Mr Ledgerwood, the company’s production manager at the crankline,
followed the crankline employees to the forge and on arrival convened a meeting
with the shop stewards in the boardroom. While this meeting was taking place, Mr
Mike Louw, an organizer employed by NUMSA, arrived at the forge canteen and
directly addressed the assembled employees, advising them to return to their
workstations, which they did almost immediately, though the crankline employees
workstations, which they did almost immediately, though the crankline employees
obviously took some time to return to the crankline plant, a kilometre away.
7. The incident was followed by three meetings between the company, the union and
the shop stewards at which the company took the position that the employees’
conduct constituted a strike not in compliance with the provisions of Chapter IV of
the Labour Relations Act (‘the LRA”) and in the light of previous similar action by the
workforce decided to initiate disciplinary proceedings. It is common cause that
several employees had been issued with final written warnings valid for 12 months
for participating in an unprotected strike in February 2002. In response to the
conduct of 4 December 2002 the company therefore decided to issue final written
warnings to all participants who had not previously received final written warnings
for the February strike. Those who were subject to the final written warnings arising
out of the February strike and who had participated in the events of 4 December
2002 were brought before disciplinary hearings. The second applicant, Willemse, a
shop steward, although not subject to a final warning, was brought before a hearing
as well because management felt he took exceptional responsibility for encouraging
his colleagues on the crankline to leave their workstations to go to the forge.
8. For different reasons the second and third applicants (Willemse and Philander) had
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individual disciplinary hearings, as did another employee, Blankenberg. The nine
other individual applicants were brought before a group hearing. All eleven
individual applicants were found guilty of participating in an illegal strike and were
dismissed. As stated, they all claim the dismissals were procedurally and
substantively unfair.
9. The proceedings in this court ran for 15 days and involved the testimony of 19
witnesses, much of it of limited relevance and cogency, nonetheless giving rise to a
several disputes of fact and problems of credibility.
10. The primary dispute between the parties is whether the employees’ abandonment
of their workstations at both the forge and the crankline to attend the second
meeting at the forge at 08h30 constituted a strike within the meaning of that term in
section 213 of the LRA. The company contends it did. The applicants argue to the
contrary that the conduct and assembly constituted a lawful gathering of the
workforce, duly authorised by the company’s management. Although the events at
the first meeting at the forge at 07h30 are of relevance in determining the issue, the
company did not seek to establish that such meeting of itself constituted a strike.
Events at the forge
11. A number of witnesses testified to the events at the forge prior to the 08h30
meeting. The testimony of three witnesses about these events was of particular
importance: namely that of Johan Agenbach, Gavin Plaatjies (on behalf of the
company) and Keenan van Wyk (on behalf of the applicants).
12. Agenbach, as I have said, was the production facilitator on the forge side. As such
he was accountable to the forge production manager, Mr Stan Ball (now deceased),
and was in effect second in command at the forge. On the day in question he
arrived at work at about 06h45, shortly before the commencement of the day shift.
At about 07h15 Keenan van Wyk, a shop steward, who had just completed the night
shift, approached Agenbach and informed him that a problem had arisen about the
payment of the annual bonus. Apparently some workers who had been expecting
the bonuses to be paid on Friday 6 December had become aware of an intrenal
memorandum instructing the wages department to pay them on Tuesday 10
December. Agenbach undertook to investigate the matter, to raise it with Ball, and
to come back to him once he had more information. Because the administrative and
clerical staff only came on duty after 08h00, Agenbach understood that he would be
in a position to report back only some time after that.
13. Agenbach proceeded straight away to Ball’s office to enlist his support in solving the
problem. Because the managing director, Mr Dave Lee, and the human resources
officer, Mr Natheem Joel, were out of office, and since the administrative staff in the
wages department were not expected until later, Ball and Agenbach were unable to
establish when in fact the bonuses were scheduled for payment. While they were
discussing the matter, van Wyk walked into Ball’s office and informed them that the
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forge employees had gathered in the canteen and were requesting Ball to come
address them on the bonus issue. Ball was reluctant to do so and therefore
instructed Agenbach to address the employees on his behalf, which Agenbach then
did, telling them that their gathering was illegal but that he would try sort the
problem out. With that the workers returned to their workstations.
14. The applicants’ version of these events differed from Agenbach’s account.
According to van Wyk, when he first discussed the bonus issue with Agenbach he
obtained his agreement to convene the first meeting in the canteen. It was
accordingly put to Agenbach in crossexamination that he had asked van Wyk to
remain at work (after completion of the night shift) to assist defuse the situation, had
specifically requested van Wyk to assemble the workers in the canteen so that he
(Agenbach) could address them and hence had in effect authorised the meeting.
Agenbach denied both those contentions, maintaining that when he addressed the
assembled employees at about 07h30, on the instruction of Ball, he at once advised
them that their conduct was illegal, requested them to return to work, assured them
that he would establish the correct situation once the financial staff came to work
and then would report back to them. Van Wyk, by contrast, claimed that the first
meeting was not illegal because it was authorised by Agenbach and accordingly
denied that Agenbach had said otherwise in the meeting. Van Wyk described the
mood of the employees at the time as “relaxed”. While I accept that the workers
were not overly agitated at this time, I doubt if the situation was as harmonious as
van Wyk tried to depict it, if only because Abrahams, the fifth applicant, somewhat
inconsistently with the impression created by van Wyk, stated that Agenbach had
admonished the workers to be calm.
admonished the workers to be calm.
15. I am inclined to accept Agenbach’s version of his involvement in the 07h30 meeting
for a number of reasons. Firstly, in paragraph 7.9 of their statement of case the
applicants averred that van Wyk had asked Agenbach to address the employees
and that he had agreed to do so. This is also recorded as a common cause fact in
paragraph 3.17 of the pretrial minute. Though the averment can be interpreted to
suit both versions, it is likely that had Agenbach gone further than agreeing to
address the meeting by actually authorising it, the applicants would have stated as
much in their statement of case. Secondly, Agenbach was an impressive witness.
He was forthright, answered questions directly and concisely, was consistent, was
certain of himself, and gave his evidence in an apparently honest manner. Van
Wyk, in contrast, was evasive and did damage to his credibility by puzzlingly
denying during crossexamination that he had given certain instructions to the
applicants’ legal representative during the earlier stages of the trial when he had
patently done so during an adjournment granted for that very purpose. Although not
much turned on the issuing of the instructions in questions, I agree with counsel for
the respondent that van Wyk’s inexplicable stance, as well as his persistence in it,
suggested a propensity on his part to deny truthful propositions put to him when he
considered it expedient to do so, thus demonstrating that he was prepared to be
untruthful even when presented with compelling proof to the contrary. Moreover, in
a fleeting unguarded moment, van Wyk referred to the 07h30 meeting as “my
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feedback meeting”, subtly signifying that it was neither authorised nor convened by
Agenbach. Additionally, it seems improbable that Agenbach would have instructed
the convening of an assembly half an hour after the commencement of the shift,
thereby significantly disrupting production, without the permission of Lee, the
managing director, or Ball, the forge production manager.
16. Against this, though, there is the uncontested evidence of Gavin Plaatjies, (a
reluctant witness, who testified under subpoena, but whose evidence was in most
respects satisfactory), that van Wyk had told him on the morning in question that
Agenbach had authorised the meeting. On the strength of this Plaatjies, a team
leader, had given his subordinates permission to attend it. As I understand the
respondent, it contends that van Wyk misled Plaatjies. Given van Wyk’s expediency
with the truth, that may be so. Yet the fact that van Wyk conveyed what he did may
have led to some confusion among the forge employees about whether the first
meeting was authorised or not.
17. Be that as it may, I accept Agenbach’s version that he did not authorize the meeting
and that when he addressed it he communicated that the stoppage was illegal. The
fact that the employees did not contest his position and immediately returned to
work, together with the confusion about the meeting’s legality, may partly explain
why the respondent did not impose discipline for attendance at it.
18. The next question is whether Agenbach authorised the second meeting. At the
conclusion of the 07h30 meeting, in the course of a conversation with van Wyk at
the door of the canteen, Agenbach gave an indication that he would revert to the
employees. The understanding of what he intended is in dispute. Agenbach
conceded that the employees wanted him to commit to a specific time. He was not
conceded that the employees wanted him to commit to a specific time. He was not
prepared to promise anything but said: “Look I’ll see what we can do for nine
o’clock”. When asked during his testimony what he had proposed to do by nine
o’clock, he replied that he had meant he would feedback through the production
team leaders and had no intention of stopping production for that purpose by
authorising another meeting. Considering the cost and time wasted, normal practice
is not to shut down the lines for feedback, and it was therefore unlikely that
management would have approved a shut down.
19. Van Wyk confirmed that Agenbach gave him an indication that he would provide
feedback at 09h00, which he claims to have understood as an authorisation to
convene a second meeting in the canteen at 09h00.
20. Abrahams (the fifth Applicant) testified that he had overheard the conversation
between van Wyk and Agenbach in which van Wyk had asked: “Wanneer gaan ons
‘n antwoord kry”, to which Agenbach had replied “by nege uur”. A reading of
Abrahams’ evidence as a whole reveals that he clearly did not hear Agenbach give
permission for a second meeting. His perception was more in line with the idea that
Agenbach intended merely to provide feedback. This is borne out further by
Abrahams’ testimony that he first heard of the second meeting when van Wyk
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summoned him and his colleagues to it at about 08h20 and that he sought the
permission of Lucas Josephs, his team leader, to attend. Both these facts point to
Agenbach not having authorised the second meeting during his conversation with
van Wyk at the canteen door. Being in immediate proximity while the conversation
was underway, Abrahams would certainly have heard if permission had been given.
Yet he never testified to that fact. If anything his explanation of subsequent events
contradicts it.
21. A number of averments in the pleadings are at odds with van Wyk’s assertion that
Agenbach gave permission for the second meeting. In paragraph 7.11 of the
statement of case it is stated that Agenbach undertook to approach the financial
manager to attempt sort out the situation and would revert back to the employees at
about 09h00. No mention is made of his having given permission for the convening
of a second meeting in the canteen. Likewise, it is stated in paragraph 7.37 that
after his address Agenbach told van Wyk that he would “come back” to the
employees by 09h00. The pleadings go on to set out a variety of specific instances
in which individual applicants sought and obtained permission from their
supervisors to regather in the canteen. Thus, it is stated that Riaan Visagie (fourth
applicant); Alice Khan (tenth applicant) and Ntombekhaya Jobo (eleventh applicant)
either left their workstations or attended the second meeting after being granted
permission by Gavin Plaatjies. Leaving aside the question of whether Plaatjies did
give permission (to which I will return later), had Agenbach indeed authorised the
meeting as van Wyk alleged, the pleadings would have been constructed
differently. The fact that these applicants felt constrained to put up defences based
on permission granted by their supervisors implies that they had no knowledge of or
on permission granted by their supervisors implies that they had no knowledge of or
confidence in van Wyk’s improbable claim that Agenbach authorised the meeting.
22. The absence of prior authorisation for the meeting is further borne out by the
testimony of Plaatjies. As I have said, Plaatjies, a team leader at the forge, was a
reluctant witness compelled to testify for the respondent under subpoena. He
denied giving Visagie permission to attend the second meeting. On the contrary he
urged Visagie (his friend) not to go. Visagie, at the time walking at the front of a
group of employees leaving the shop floor, had in response dismissively gestured in
a way indicating his intention to ignore Plaatjies’ advice. Visagie in his testimony
could offer no convincing explanation for why Plaatjies, his friend, would incriminate
him in this way.
23. In addition, for the reasons stated earlier, Agenbach is to be preferred as more
credible than van Wyk, whose credibility was damaged further by his transparent
equivocation about the timing of the second meeting. Having initially committed
himself to Agenbach giving permission to reconvene at 09h00, he experienced
evident discomfort under crossexamination in explaining why the preponderance of
evidence revealed that the employees had assembled between 08h30 and 08h50.
He perceptibly understood the possible implications of conceding that the
employees had gathered earlier (namely that there had been no authorisation to
gather at 09h00) and, despite persuasive confirmatory evidence, stubbornly refused
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to concede they had done so, not even attempting to tender a plausible innocent
explanation for their conduct.
24. But, once more, there are inherent probabilities against Agenbach having given
permission for the second meeting. Firstly, considering the difficulty Agenbach had
experienced in getting information about the bonuses, he naturally would have
hesitated before convening a meeting at a specified time when there was a
possibility that he would have nothing to report. Secondly, Agenbach credibly
explained that he was reluctant to commit himself, saying he would see what he
could do to get information to feedback by 09h00. Thirdly, Agenbach further testified
that when it came to his notice that the employees had assembled for a second
time he informed Ball that he would not address them again, but that he (Ball) and
management should deal with the situation. That he did not address the second
meeting is common cause. Had he authorised the meeting, it is inherently
improbable that he suddenly and inexplicably would have refused to address it.
Fourthly, it is equally improbable that Agenbach, a senior employee with a lengthy
period of service, would have authorised a meeting resulting in production coming
to a complete halt at a time when the company was under pressure to meet
immediate production targets and especially when it was feasible to feedback the
information to the workforce through either the shop stewards or the team leaders.
Added to that, one must enquire, if the meeting was authorized as alleged, why did
the employees return immediately to work once advised by the union organiser,
Mike Louw, that the gathering could be construed as an unprocedural strike? Had
the workers genuinely believed they were assembled with Agenbach’s blessing it is
the workers genuinely believed they were assembled with Agenbach’s blessing it is
probable that at least someone present would have challenged Louw’s
apprehension about the legality of the gathering. This did not happen. Finally, it is
also unlikely that six of the eleven applicants would have pleaded guilty to
participating in an illegal strike, as they did in the collective disciplinary hearing, had
they really believed the gathering had been authorized.
25. In a nutshell, therefore, the probabilities are overwhelmingly against the proposition
that Agenbach, in his conversation with van Wyk at the conclusion of the first
gathering, authorized the convening of a second gathering at 09h00.
26. Returning to the chronology of events. After the first meeting Agenbach went back
to Ball’s office to give him feedback. At this point in time he was appreciative of the
manner in which the employees had conducted themselves and reported to Ball
that the situation was under control. He and Ball then set about investigating the
bonus issue. They first looked at the minutes of previous shop steward meetings to
determine if a date for the payment of bonuses had been agreed. As Agenbach did
not as a matter of course attend shop steward meetings he had no personal
knowledge of the bonus payment date, agreed or otherwise. He and Ball thus
looked for a memo from the human resources or financial departments recording an
agreed date. While they were doing this Ball received a telephone call from Simon
Ledgerwood, the production manager at the crankline. From what Agenbach heard
of the conversation it appeared that the bonus issue had reared its head at the
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crankline. Ball conveyed to Ledgerwood that the situation at the forge was under
control.
27. Around about 08h30 van Wyk and Kenneth Booysen, (a shop steward at the
crankline who had been given permission by his team leader to assist resolve the
problem at the forge), entered Ball’s office. They confronted Ball and Agenbach with
the information that Natheem Joel, the human resources officer, had in a memo
unilaterally changed the bonus payment date from Friday 6 December 2002 to
Tuesday 10 December 2002. They also informed them that the workers had
reconvened in the canteen. When he heard this Agenbach, in his own words, “saw
trouble” and said to Ball: “Look, now you handle this, I had my bit and you must take
over from here.” From then on Agenbach had nothing further to do with the
unfolding events.
28. Booysen testified that Ball was unable to give them any guarantee that the bonus
would be paid on 6 December 2002. He and van Wyk therefore left his office and
went to the meeting in the canteen, where the employees who had marched over
from the crankline soon joined them.
29. Booysen accepted that Ball had been taking steps to locate the memo dealing with
bonus payment dates, but, despite the obvious difficulties in locating the managing
director, the human resources officer and the staff in the wages department, he did
not consider it unreasonable to have expected Ball to come up with an answer
before 08h30.
30. The testimony of the witnesses regarding the timing of the second meeting varies.
Not much turns on this, other the fact that the diversity of versions possibly gives
the lie to the proposition that a meeting scheduled for 09h00 had been agreed.
Agenbach put Booysen and van Wyk’s arrival at Ball’s office at about 08h30. If he
was correct it means that the forge employees had returned to the canteen some
was correct it means that the forge employees had returned to the canteen some
time shortly before that. Van Wyk said he and Booysen left Ball’s office between
08h10 and 08h20 and that the workers only gathered in the canteen at 08h50.
Abrahams put the time of the meeting at 08h25–08h30, saying at one point that he
had returned to his workstation by 08h55. Sauls (the eighth applicant) testified that
by 08h25 certain machinery had already been switched off. Visagie, who went to
the meeting in a group claimed to have arrived at the canteen by 08h55. Plaatjies
put his interaction with Visagie at about 08h30–08h35. The workers at the crankline
on hearing about events at the forge walked out at about 08h30.
31. Whatever the case, at some time between 08h20 and 08h45 the workers at the
forge left their workstations and went to the canteen. On Agenbach and Plaatjies’
versions they did so without permission. This too was confirmed by Lucas Josephs,
one of the forge team leaders, who, notwithstanding their assertions to the contrary,
denied giving permission to Abrahams (fifth applicant) and Pieterse (seventh
applicant). Both Plaatjies and Josephs mentioned that little production had been
possible between the two meetings and that it was necessary to shut down the
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machines and production process when the workers left the shop floor to go back to
the canteen for the second meeting.
32. As the forge workers gathered in the canteen, those who had marched over from
the crankline joined them. At the same time, Simon Ledgerwood, the production
manager on the crankline, who had followed the crankline workers in his car,
convened a meeting of the shop stewards in the company’s boardroom at the forge.
Prior to leaving the crankline, Ledgerwood had phoned the local NUMSA office to
inform the union of the events taking place. The union dispatched two organizers,
Mike Louw and Simon Arries, to deal with the situation. They arrived at the forge
while the meeting between Ledgerwood and the shop stewards was under way in
the boardroom. Louw, as I have mentioned, addressed the workers assembled in
the canteen, informed them that their conduct might be construed as illegal and
urged them to return to their workstations, which they did some minutes later.
Events at the crankline
33. Before turning to the ensuing negotiations between the union and management, it is
necessary to set out the events at the crankline where several of the workers left
their workstations to join their fellow workers assembled in the forge canteen.
Evidence about what transpired at the crankline was given by Ledgerwood, Visser
and Wilds, on behalf of the respondent; and by Philander and Willemse on behalf of
the applicants. Once again some of the material facts are in dispute.
34. Mr Grant Wilds is employed as one of the production team leaders on the crankline,
with supervisory responsibility for overseeing the needs of the line, the performance
of a team of 10–15, ensuring quality and meeting production targets. He is directly
responsible to Mr Gert Visser, the crankline production facilitator, and through him
to Ledgerwood. The second applicant, Mr Dawie Willemse, a shop steward and the
to Ledgerwood. The second applicant, Mr Dawie Willemse, a shop steward and the
then secretary of the shop steward’s committee, was one of the members of his
team, who, as will be seen presently, played a significant part in the walk out at the
crankline.
35. Wilds testified that on the morning in question Willemse was repeatedly on the
telephone next to the production line and noted that he appeared agitated,
describing him as “a bit uptight”. Wilds instructed him to get back to work. The
crossexamination of Willemse’s fellow shop steward, Kenneth Booysen, who had
been given permission to leave the crankline in order to go over to the forge,
revealed that Booysen had been in telephonic contact with Willemse about events
of the forge. Although Booysen was unable to recall the precise content of his
telephonic conversations with Willemse, he denied responsibility for inciting him to
action. However, it is clear that during more than one phone call he gave Willemse
feedback on the meeting with Ball and Agenbach and had described the disquiet of
the forge employees about the bonuses being paid on 6 December rather than 10
December.
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36. When Wilds asked Willemse to refrain from telephone calls, Willemse told him that
he needed to go to the forge. Because there were shop stewards employed at the
forge, Wilds declined Willemse’s request. Willemse became visibly upset, turned to
one of his colleagues, Mario Philander, (the third applicant) and said “we cannot just
allow this to happen, we need to do something, the people have walked out at the
forge”, or words to that effect. On hearing this Wilds thought it best to consult
Ledgerwood. He accordingly phoned Ledgerwood to tell him that the workers at the
forge had walked out and that Willemse sought permission to go to the forge.
Ledgerwood requested Wilds to come to his office, where a production meeting was
in progress. In the presence of Wilds, Visser and other persons, Ledgerwood
phoned Ball and enquired whether Willemse’s presence was required at the forge.
Ball, relying on what Agenbach had told him, informed Ledgerwood that everything
was under control and that there was no need for Willemse to come over to the
forge. Ledgerwood instructed Wilds to convey this to Willemse and then continued
with the meeting.
37. Wilds went back to the shop floor and explained the situation to Willemse, who took
the information badly and requested to see Ledgerwood personally. Wilds phoned
Ledgerwood and the latter instructed him send Willemse up to the office.
38. There is a material dispute about what happened during the encounters between
Ledgerwood and Willemse in the vicinity of Ledgerwood’s office that morning.
Willemse testified that he initially had accepted Wilds’ assurance that he did not
need to go to the forge but had soon after received another call from Booysen
telling him that the workers “were moving about the bonus issue”. He claims to have
started panicking and that Philander advised him to speak to Ledgerwood. He then
started panicking and that Philander advised him to speak to Ledgerwood. He then
went up to Ledgerwood, with Wilds’ permission, and found Ledgerwood alone in his
office. He conveyed to Ledgerwood what Booysen had told him. Ledgerwood, so he
said, replied: “Dawie dit is nie reg nie, go back to your workstation and I’ll try sort it
out,” or words to that effect. From this Willemse understood that Ledgerwood had
concurred with him that the bonus payment date was indeed 6 December. Willemse
then walked back towards the shop floor. As he came down the stairs he noticed
that the workforce had left the shop floor and were busy walking out into the yard.
39. Wilds confirmed that during Willemse’s absence there had been a “buzz” on the
shop floor and that the majority of the workers had left their workstations to stand on
the concrete slab outside the door of the factory, apparently awaiting Willemse’s
return from Ledgerwood’s office. According to Willemse, when he observed what
was going on he realised that something was wrong because the people were
shouting: “meeting, meeting …” He then claims to have turned around, gone back
to Ledgerwood’s office and told him that the workers were walking out. This news,
he stated, upset Ledgerwood to the point that he became rude to Willemse,
allegedly saying: “Fuck out of here and get the fucking people back to work.”
Willemse testified that this outburst “disturbed his mood” and that he consequently
told Ledgerwood to speak to the workers himself.
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40. Ledgerwood’s version of his encounter with Willemse is somewhat different. Almost
immediately after the conclusion of the production meeting at 08h30 Gert Visser
informed him that the workers were leaving the shop floor. He instructed Visser to
summon the shop stewards to his office. Visser testified that Willemse was the only
shop steward he saw, that he communicated Ledgerwood’s instruction to him, that
Willemse heeded the instruction and then went up to Ledgerwood. Taking Wilds
and Visser’s evidence together, along with Ledgerwood’s statement that he asked
Visser to send up a shop steward, it would seem that Willemse went up to
Ledgerwood twice, once with Wild’s permission and once on Visser’s instruction.
Willemse claims to have gone once with Wild’s permission and then to have turned
back on his own accord. Visser’s testimony on the point was confused,
contradictory and altogether unsatisfactory. To compound the difficulty, Ledgerwood
in his testimony described only one encounter with Willemse whom he assumed
came to see him in response to his instruction to Visser. He made no mention of
giving Wilds permission to send Willemse up. Although much was made of this
issue in the crossexamination of Visser, little was made of the contradictions during
argument. The only possible finding in the circumstances, and in the face of four
possible versions, is that some discussion took place between Ledgerwood and
Willemse in the vicinity of Ledgerwood’s office immediately after the production
meeting, which had ended around about the same time as the workers left the shop
floor.
41. Ledgerwood’s recollection of the content of the conversation with Willemse also
differs significantly from Willemse’s. He said that Willemse’s opening words were:
“Mr Ledgerwood this is not your fault, but we must leave now, there’s a problem
“Mr Ledgerwood this is not your fault, but we must leave now, there’s a problem
with the bonuses.” He then claims to have told Willemse that the conduct was illegal
and unacceptable and that he was trying to contact NUMSA. He also cautioned him
that any illegal conduct could result in dismissal of employees subject to a current
final written warning. After that he busied himself with contacting NUMSA. He
denied categorically that Willemse told him the situation was getting out of hand and
requested his assistance for that reason. He neither confirmed nor denied
becoming abusive and using foul language, intimating essentially that he might
have, but could not remember. He was adamant though that Willemse had not
taken a cooperative stance, and was plainly of the opinion that Willemse and
Philander were the persons who had encouraged the workers to leave their
workstations in the first place.
42. The truth of the content of the encounter most likely lies somewhere between the
two versions. Ledgerwood struck me as an honest witness, but also as a man of
quick temper not usually given to restraining his choice of language. Willemse on
the other hand was not an impressive witness. What counts most tellingly against
his version is that Ledgerwood’s loss of temper and abusive language were never
raised at any time before the trial. No mention of the outburst was made in
Willemse’s disciplinary hearing, even though both he and Philander questioned
Ledgerwood during the proceedings. The version put at the disciplinary hearing was
limited to the assertion that Willemse had sought Ledgerwood’s assistance and had
11
been rebuffed. Similarly, the version put in the statement of case is confined to an
averment that Ledgerwood responded to Willemse’s request by telling him to go
back and tell the workers that everything (regarding the bonus) would be sorted out
and that they should return to work. And although it was put to Ledgerwood in
crossexamination that he had become abusive, it is notable that the exact version
subsequently testified to by Willemse in chief was never put to him.
43. The improbability of Ledgerwood having become abusive to an offensive degree is
strengthened by the fact that on a previous occasion, some months earlier,
Willemse had lodged a grievance concerning Ledgerwood’s use of abusive
language, which when not resolved internally was referred to the bargaining council.
Accordingly, I am in agreement with Mr KirkCohen, who appeared for the
respondent, that if this was the manner in which Willemse had previously reacted to
offensive language he most certainly would have raised the fact that Ledgerwood
swore at him on the morning of 4 December 2002 at an earlier time in the dispute.
That he did not do so sooner, points to the accusation being either an exaggeration
or a fabrication, casting considerable doubt upon his credibility. Moreover, if he was
indeed merely trying to assist, it is unlikely that Ledgerwood would have succumbed
to directing a sudden outburst of foul language at him. But even allowing for the
possibility of a less than courteous interchange, I do not accept that Ledgerwood
was guilty of an outburst of a magnitude justifying Willemse’s subsequent conduct,
which after all was the apparent purpose of his making this belated accusation
during his testimony in court.
44. Wilds testified that while Willemse was with Ledgerwood, he and Visser stood at the
44. Wilds testified that while Willemse was with Ledgerwood, he and Visser stood at the
door of the factory and observed the workers leave their workstations to stand on
the concrete slab in the yard. He discussed what action to take with Visser and they
decided to wait until Willemse had returned from Ledgerwood’s office. When
Willemse appeared, Wilds approached him to ascertain if the problem had been
resolved. Willemse ignored him, walked through the factory door and started
shouting slogans, to which somebody in the crowd responded: “All right guys, let’s
go”. Whereupon the group of workers proceeded towards the factory gate and
headed off in the direction of the forge. When asked under crossexamination why
he had not intervened to exhort the employees not to leave, Wilds described how
the group had started to cheer, shout slogans and become excited, and that
because of an unpleasant incident he had experienced in the past, he thought it
might have been unwise to intervene.
45. Visser corroborated this in his testimony. After Willemse returned from speaking to
Ledgerwood, Visser saw Willemse speak to Philander at the factory door and then
heard him say: “Kom laat ons loop”. When asked to whom Willemse had addressed
those words, Visser replied that they were directed to a group of about 10 workers
standing around him on the concrete slab in the yard. The rest of the workers on the
slab then followed them to the gate.
46. Willemse himself confirmed that Wilds and Visser were standing at the door of the
12
factory at this time. He admitted that after his encounter with Ledgerwood (and
perhaps frustrated at being denied permission to go the forge) he was, in his own
words, “baie omgekrap” and “disturbed in mood because of the way he spoke to
me”. And so he got caught up in the mood of the workers. He had no recollection of
Wilds and Visser speaking to him at the door. When asked in chief if he had told the
people to go, he replied that when he arrived downstairs “the people were already
in front”. Asked if the collective conduct of the workers constituted a strike he
insisted it was not, saying “ons het uitgestap to the meeting”. As for Ledgerwood’s
instruction to him to tell the workers to return to their workstations, he claimed not to
have had the chance (despite walking a full kilometre with them to the forge). He
qualified this with an explanation that “the people were in the mood”, that he thought
the best way to talk to the people would be at the meeting and by admitting that he
was curious about what the union would say at the meeting. He described the mood
as “high”. He disagreed with the contention that the workers were shouting slogans,
but volunteered that they were screaming, “meeting, meeting” and “I want my
money”. He denied leading them to the forge, maintaining instead to have merely
followed the group that were moving off when he returned from Ledgerwood.
47. This testimony is at variance with what he said at his disciplinary enquiry. The
recorded minute reflects him as saying:
Op daai stadium toe ek daar onder was het ek gesien G Wilds en G Visser het daar onder
gestaan by die mense. Sommige mense het by die hek gestaan. Mood was so hoog –
onbeheerbaar – dat dit vir my tevergeefs was om die mense tot bedaring te bring. Ons is toe
almal daar uit – ook weg na Forge. Ek was ook verstrengel in die mood – ek was een van
almal daar uit – ook weg na Forge. Ek was ook verstrengel in die mood – ek was een van
die voorlopers na Forge om daar by te kom……”
He offered no satisfactory explanation, when pressed under crossexamination,
for the obvious discrepancy in his descriptions of his role.
48. Ledgerwood’s account of Willemse’s behaviour and role was in line with the version
offered by Willemse at the disciplinary enquiry. By the time Ledgerwood got to the
factory door the workers were midway between the factory and the gate to the main
road, about 100 metres away. He proceeded after them at a quick pace and caught
up with the stragglers close to a bus terminus. He then shouted to Willemse, who by
then was about 3050 metres in front of him, and requested him to come talk to him.
The fact that Willemse immediately turned around and looked towards him
convinced Ledgerwood that Willemse had heard him. In spite of this, he saw
Philander take Willemse by the arm and motion forward. Effectively ignoring
Ledgerwood’s call to them, they turned away and carried on walking in the direction
of the forge. Ledgerwood after that headed back to the factory. On the way he met
Mr Wesley Kelley, a former shop steward and elicited his help in making contact
with NUMSA. He next fetched his car, drove to the forge and convened the
meeting with the shop stewards in the boardroom. Willemse denied that he saw
Ledgerwood or heard him calling out to him. Philander admitted to seeing
Ledgerwood standing at the factory door between Wilds and Visser, but not at the
bus terminus. He also denied hearing him call Willemse.
13
49. Once again I prefer Ledgerwood’s version on this disputed fact. As I have said,
Willemse failed to impress as a witness. He was evasive and at times did not
answer questions promptly or at all. His explanations for not giving effect to
Ledgerwood’s earlier instructions are entirely implausible and lead easily to the
conclusion that, caught up in the mood, he preferred not to heed the call to return.
The immediate aftermath and the intervention of the union
50. As already mentioned, while the employees from both the forge and crankline sides
were busy assembling in the canteen, Ledgerwood arrived in his car at the forge
and immediately summoned the available shop stewards to a meeting in the
boardroom. The meeting was attended by Ledgerwood, Ball, Agenbach, Ms
Charlene Kemp (the IR officer), van Wyk, Booysen and Willemse. Ledgerwood told
the shop stewards that the workers’ conduct amounted to an illegal strike that could
result in dismissals. In response to requests from the union for guarantees he
undertook that there would be no victimization but would not guarantee that
disciplinary action would not follow. He requested the shop stewards to get the
workers back to work and reminded them that some of the workers were on final
written warning for disobeying a Labour Court interdict in February 2002. While this
meeting was going on, Mike Louw arrived at the canteen and addressed the
workers requesting them to return to work, with which request they immediately
complied.
51. Once the workers started to return to work, Ledgerwood convened another meeting
in the boardroom, this time with the union representatives, Arries and Louw,
together with the shop stewards van Wyk, Booysen and Willemse. This meeting
together with the shop stewards van Wyk, Booysen and Willemse. This meeting
was minuted as having commenced at 09h00. The minutes reflect that the principal
concern of the organizers and the shop stewards was to obtain a guarantee that
there would be no discipline. The minutes provide a strong contemporaneous
indication that all present understood the action to have been a strike. Arries in
particular is recorded as saying that the workers had been very upset, but that the
union had succeeded in calming them down. Louw is recorded as describing both
parties’ behaviour as “unprocedural”. And van Wyk is minuted as having said: “we
know what was done was unprocedurable” (sic).
52. Louw, for reasons unknown, was not called to testify. Arries, on the other hand, did
give evidence. At times he vacillated and was observably reluctant to commit
himself. He was compelled to concede that the workforce had indeed become
agitated, but still tried to exculpate the workers by seeking to categorise their
behaviour as attending a meeting without permission. When crossexamined on
whether he shared Louw’s reported view, conveyed to the workers assembled in
the canteen, that the conduct could be construed as an illegal strike, his cagey
response in the witness box, if anything, intimated that he did indeed share such a
view. Van Wyk, who as I have stated was also not a particularly reliable witness, did
not deny the statement attributed to him in the minutes, but nevertheless persisted
14
in the view that the conduct was not an illegal strike.
53. Later that day another meeting was convened at 11h30 with the shop stewards and
Arries, at which the managing director, Mr Dave Lee, was in attendance. From the
minutes of the meeting it emerges that Lee was of the unwavering opinion that the
conduct was an illegal stoppage. Even so he gave an undertaking, without
guarantees, that he would try to pay out the bonuses on 6 December 2002 (which is
what actually happened), but at the conclusion of the meeting deliberately reserved
the right to impose discipline.
54. None of the minutes of the meetings records any complaint by the worker
representatives that there had been a departure from previous practice in regard to
the payment of bonuses. The company representatives, particularly at the later
meeting at 11h30, took the position that noone of management had conveyed that
the bonus payment date would be 6 December 2002, rather than 10 December
2002 in accordance with the internal memo prepared by Joel (the HR officer), which
it transpired had been leaked to the workers on 3 December 2002. No counter
argument was raised that there had been a departure from previous practice.
Instead, Lee testified, the grievance was that Joel had told them 6 December 2002
would be the bonus payment date.
55. Early the next day, 5 December 2002, Ledgerwood emailed Lee a proposal that
discipline be considered against certain individuals. He pointed out, amongst other
things, that several employees, who were on warning for previous unprocedural
industrial action, aware of the dangers, had not participated in the previous day’s
events. Another meeting was then held at about 08h30 on 5 December 2002 at
which it was communicated to Arries and the shop stewards that discipline was
which it was communicated to Arries and the shop stewards that discipline was
likely to follow. The minutes record Arries, while denying there was a strike,
conceding that the conduct was illegal, and van Wyk contending that no single
person was responsible, that there had been emotion on the shop floor and the
workers as a collective had decided “to take action”. Neither Arries nor van Wyk in
their evidence in court could offer a convincing explanation for these utterances.
Van Wyk’s clarification of his statement that the workers had decided “to take
action” was especially implausible. When asked what action the workers had
decided to take he replied: “they went to a meeting.”
The disciplinary enquiries
56. The company moved almost immediately to impose discipline. Those employees
who had participated in the action of 4 December 2002, but who were not on final
warnings for participating in the strike of February 2002, were issued with final
warnings. Those employees who had received a final warning in February 2002,
being all the individual applicants besides Willemse, were called before disciplinary
enquiries and dismissed.
57. As explained at the outset, there were three distinct disciplinary enquiries of
15
relevance. Separate disciplinary enquiries were held for Willemse and Philander.
The other nine applicants attended a collective enquiry. Another individual enquiry
was held for Johannes Blankenberg, which resulted in the charges against him
being withdrawn. A separate enquiry was convened in his case because he
exercised his right to have one. He denied involvement in the action and claimed to
have sought to persuade his colleagues to desist with their conduct.
58. The hearing in respect of the “Group of 9” was conducted on 10 and 12 December
2002 and was chaired by the company’s services manager, Mr I le Roux. The nine
applicants all received notice to attend the disciplinary hearing on 9 December
2002. The notice charged the employees for participating in illegal and unprotected
strike action and notified them to attend the hearing at 15h00 on 10 December
2002. The notice further advised each employee of his or her right to be
represented by a shop steward. Paragraph 4 of the notice stated that if the
employee alleged that his or her participation in the strike was not voluntary and/or
that he or she disassociated him or herself from the unlawful action that he or she
would have the right to make written or verbal submissions to the chairperson of the
enquiry in that regard. As just intimated, Blankenberg availed himself of this
opportunity and was granted a separate hearing, ultimately leading to the
withdrawal of charges against him.
59. The applicants allege that at the commencement of the hearing, which they
considered to have been convened on short notice, they requested a postponement
in order to have sufficient time to prepare. They claim the request was turned down,
that they were instead only afforded 30 minutes to consult and that the hearing thus
that they were instead only afforded 30 minutes to consult and that the hearing thus
commenced at 15h30 on 10 December 2002. The minutes do not reflect such a
request for a postponement, but do record that the hearing commenced at 15h30.
Le Roux in his evidence in chief denied that such a request was made, saying that
had one indeed been made he would have granted it. When it was specifically put
to him in crossexamination that van Wyk had asked for a postponement and that
he had instead granted 30 minutes he unconvincingly replied that it “might have
been”, but was not sure. He qualified his answer by saying that normally 30 minutes
would be enough, but that if more caucus time was needed he usually would give it.
60. Van Wyk’s testimony in relation to this issue, like much of his evidence, was less
than convincing. His claim to have requested a postponement was in response to a
leading question and when asked why the meeting had started 30 minutes late
replied that he was unable to recall.
61. Booysen, who assisted in the representation of the group of nine, testified that he
had arrived late for the hearing, while the discussion of additional time was taking
place, and had added his voice to the call for more time. His explanation for Le
Roux’s recordal in the company’s pro forma question and answer sheet
(“Guidelines for a Disciplinary Enquiry”) of an affirmative answer to the question of
whether sufficient time to prepare had been given, was that Le Roux was under the
influence of Ledgerwood who dominated the proceedings.
16
62. While it seems a 30minute adjournment was in fact granted at the commencement
of the hearing, I am unable to find conclusively that the applicants requested and
were denied a longer postponement. Besides the fact that such a request is not
reflected in the minutes, no allegation of procedural irregularity on this score was
alleged in the statement of case alongside the other allegations of procedural
unfairness. Nor was it pleaded as an issue to be determined in either the statement
of case or pretrial minute. The first time the issue emerged was when midway
through the trial the respondent sought further particulars to the applicants’ general
prayer for a declaratory order that the dismissal was procedurally unfair. Accepting
fully the applicants’ right to amend and particularize further, the evidentiary burden
nevertheless remained on the applicants and the absence of any averment on the
issue in the pretrial pleadings tilts the probabilities against the applicants in the
face of an irresolvable dispute of fact in relation to the issue.
63. Whatever the truth of the situation, I am in any event not persuaded that additional
time was necessary, and besides not discharging the burden of showing that a
request was made, the applicants have not established that any prejudice arose
from the failure to postpone the proceedings.
64. As just indicated, Le Roux commenced the proceedings by following a set of typed
guidelines which in accordance with company practice he was obliged to read out
and complete in order to ensure procedural fairness. The questions relate to notice,
timing, the particulars of the offence alleged, and the rights to representation. After
doing this, Le Roux asked the nine to plead. Each employee answered separately.
With the exception of the fourth (Visagie), tenth (Khan) and eleventh (Jobo), the
applicants pleaded guilty.
applicants pleaded guilty.
65. Ledgerwood, who was acting as the initiator of proceedings on behalf of the
company, then requested that each employee who had pleaded not guilty be invited
to offer an explanation of their plea before he proceeded with the charges. Visagie,
Khan and Jobo then did so. Thereafter, there was a short adjournment. The
minutes reflect that when the hearing reconvened van Wyk raised the fact that there
was some confusion about the plea of guilty by the six applicants who had done so.
He is recorded as saying that the six had intended to plead guilty “for standing
outside with impression that they are going to a meeting” (sic).
66. Le Roux in his testimony denied that this interchange amounted to a request to
change the plea from guilty to one of not guilty, stating that had that been the case
he would have sought advice and allowed a change. When it was put to him in
crossexamination that the six had indeed wanted to change their plea to one of
attending an unauthorised meeting, he replied that he would not have denied them
that, presumably had they persisted with it. However, the minutes reflect Le Roux
responding to van Wyk as follows: “I asked very clearly does everyone understand
– Asked does everyone say they participated in an illegal strike”. Van Wyk’s
recorded response is that the employees were guilty of being outside and going to a
17
meeting. In effect, according to van Wyk, they had intended to plead guilty to the
offence stipulated in paragraph 1.22 of the disciplinary code under serious offences,
namely, “attending an unauthorised meeting on company premises” and not to the
dismissible offence in paragraph 1.30 of the code, namely, “any other reason
recognized in law as being sufficient grounds for instant dismissal”.
67. Despite the confusion around the plea, and his evident failure to grasp the issue at
stake, which was confirmed during his crossexamination, Le Roux continued with
the enquiry by hearing submissions and testimony (in one instance telephonically)
only in respect of the applicants who had pleaded not guilty. Immediately after
hearing the evidence, Le Roux made his finding. It is not apparent from the minutes
whether he heard argument, but the minutes record his finding as follows:
“People who pleaded guilty – find them guilty as pleaded – 3 people who pleaded not guilty
did not prove that they did not attend an illegal strike not enough evidence – find all
employees guilty of attending illegal strike.”
68. Le Roux then adjourned the proceedings to the following day and requested the
applicants to make written submissions regarding mitigation of penalty by the
following morning. The record confirms that various written submissions were made
to Le Roux and that some employees requested to make oral submissions. The
hearing was reconvened at 15h15 on 11 December 2002. Four of the applicants,
Sauls, Visagie, Abrahams and Khan addressed Le Roux, as did van Wyk. Le Roux
then called in all the applicants and advised them that he intended to adjourn again
to consider the submissions on mitigation, some of which he had just received, and
because he wanted an opportunity to read the written submissions.
69. The hearing was reconvened the following afternoon, 12 December 2002, on which
69. The hearing was reconvened the following afternoon, 12 December 2002, on which
occasion Le Roux communicated his decision to dismiss all the applicants. He
concluded by saying that because Mr Lee, the managing director, had been
involved in settling the strike it was not possible to use him as the appeal forum.
Consequently, if the applicants wanted to take the matter further they would have to
lodge a dispute with the bargaining council.
70. The applicants, in addition to their grievances about not being granted a
psotponement and the right to amend their plea, have alleged that the hearing of
the group of nine was procedurally flawed in a number of other respects. I will revert
to these matters, as well as the individual applicants’ conduct, later in the
judgement.
71. Le Roux also presided over the hearing into the conduct of the third applicant, Mario
Philander, which was convened on 15 January 2003. The only reason Philander
was given a separate hearing was because he was on leave at the time of the
hearing of the group of nine. At the outset he requested a postponement. This was
granted and the hearing continued on 21 and 22 January 2003.
72. Philander pleaded not guilty to participating in an illegal strike. At the
18
commencement of the proceedings Philander objected to Le Roux serving as
chairperson of the inquiry on the ground that he had served as the chairperson of
the enquiry into the misconduct arising out of the previous strike of February 2002
and in respect of which Philander had received a written warning. Le Roux took the
view that this was not good enough reason for his recusal. This was followed by an
objection to the initiator, Mr Mike Hartung, on the ground that he had not been
involved in the events of 4 December 2002. By this time Ledgerwood had left the
company and was unable to act as initiator. Le Roux also dismissed this objection
holding in effect that it was unnecessary for the initiator to have any direct
involvement in the events in order to act as such.
73. Le Roux heard evidence from Visser and Wilds, which cast Philander in a central
role in the events that took place at the crankline. Visser is also recorded as having
witnessed Philander exhorting Willemse to ignore Ledgerwood’s calling out to him
at the bus terminus. Wilds attested to Philander being instrumental in exhorting the
crankline employees to leave their workstations. Philander was the only witness to
testify in his own defence during which he stated that the mood was high, he
wanted his money and assumed he was headed to a legal meeting. He admitted he
had left his workstation without permission and that each employee had taken his or
own decision. On that basis, Le Roux found him guilty of the offence and after
hearing submissions in mitigation, dismissed him. Philander, as mentioned, like the
applicants making up the group of nine, had received a final warning for his
participation in the strike of February 2002.
74. The second applicant, Willemse, owing to his perceived role in instigating and
inflaming the events at the crankline, was singled out for different treatment. A
separate notice of a disciplinary hearing was sent to him by Ledgerwood on 9
December 2002 in which six charges were levelled against him, including:
participating in illegal industrial action; intimidation; serious disrespect; impudence
or insolence; restricting output or influencing others to do so; refusal to obey
instructions, insubordination or refusal to work; and gross negligence and/or
incompetence.
75. Willemse’s hearing was scheduled initially for 11 December 2002 but was re
scheduled on more than one occasion for various reasons and eventually took
place between 17 and 21 February 2003. It was chaired by Mr D Bouwer, the
company’s production manager. There are allegations of procedural irregularity in
regard to this hearing too. In particular, the applicants allege that Bouwer colluded
with Ledgerwood, Wilds, Visser and Hartung prior to the hearing thereby prejudicing
Willemse’s right to a fair hearing and that Bouwer’s refusal to recuse himself on this
ground was unreasonable and unfair. Secondly, it was submitted that the
company’s failure to call Visser as a witness during the hearing was also a
procedural flaw. I will return to these issues later.
76. After hearing the evidence of ten witnesses, and relying principally on the evidence
of Ledgerwood and Wilds, but also taking account of admissions made by Willemse
19
that he had walked out aggrieved and was caught up in the mood, Bouwer found
Willemse guilty of all the charges against him except intimidation, serious
disrespect, impudence and insolence. After hearing submissions in mitigation,
Bouwer handed down a penalty of dismissal, even though Willemse had not
received a prior warning for the strike of February 2002. Clearly Bouwer was much
influenced by the key role Willemse played at the crankline and his defiance of
Ledgerwood’s instructions to return to his workstation and to inform the other
crankline employees to do likewise.
77. Willemse appealed against his dismissal to Lee, the managing director. Lee held an
appeal hearing on 10, 11 and 13 February 2003. He approached the appeal from
the point of view of considering additional evidence, issues of mitigation and
procedural problems in the hearing a quo. He heard the evidence of two additional
witnesses. He too accepted that Willemse had got caught up in the mood of the
day, but felt the leading role he had played justified strict action especially in the
light of his position as a shop steward. He accordingly confirmed Bouwer’s findings
of guilt and sanction.
Did the events of 4 December 2002 constitute a strike?
78. The applicants contend that their dismissal was substantively and procedurally
unfair. The respondent contends the dismissal of the applicants was fair because
they had participated in an unprotected strike while on valid warning, or in
Willemse’s case because his conduct had exceeded reasonable bounds.
79. Section 68(5) of the LRA provides that participation in a strike that does not comply
with the LRA may constitute a fair reason for dismissal. In determining whether or
not a dismissal is fair this court is obliged to have regard to the Code of Good
Conduct: Dismissal in Schedule 8 of the LRA. Item 6 (1) of the Code deals with the
substantive fairness of strike dismissals and requires determination of that issue in
the light of the facts of the case, including the seriousness of the contravention,
attempts made to comply with the legislation and whether or not the strike was in
response to unjustified conduct by the employer. Factors that the courts consider
relevant include: the duration of the strike, the harm caused by the strike, the
legitimacy of the strikers’ demands, the timing of the strike and the conduct of the
strikers.
80. The starting point accordingly is to determine whether the work stoppage in
question constituted a strike. If it did, then section 68(5) and item 6(1) have specific
application. If not, any breach of company rules may constitute other but similar
misconduct.
81. A “strike” is defined in section 213 of the LRA as:
20
The partial or complete concerted refusal to work, or the retardation or obstruction of work,
by persons who are or who have been employed by the same employer or by different
employers, for the purpose of remedying a grievance or resolving a dispute in respect of any
matter of mutual interest between employer and employee ……………….”
82. In the present matter there were two stoppages, one at the forge and one at the
crankline, which culminated in a single assembly at the forge. For that reason it is
necessary to determine whether each stoppage independently constituted a strike.
83. In relation to the events at the forge the primary question is whether there would
have been “a concerted refusal to work, or retardation or obstruction of work”, if
permission for the assembly had been granted. As I understand the case for the
applicants, the forge employees did not engage in a concerted refusal, retardation
or obstruction of work because they reasonably believed that Agenbach had
authorised the meeting for the purpose of feedback.
84. As I have stated, I found Agenbach to be a particularly credible witness and the
probabilities are overwhelmingly against him having authorized the 09h00 meeting.
Agenbach’s unchallenged evidence was that he did not authorise the meeting. He
made no announcement on this to the general meeting at 07h30. He spoke only to
van Wyk, perhaps in earshot of a few others, in response to a specific question as
he was leaving the canteen. He said only that he would give feedback, which he
understood to be through the team leaders and shop stewards. Van Wyk’s evidence
on the point is less credible, not least because of the contradictions in it, but also for
the reasons already discussed, his tendency to be evasive in his responses and his
blatant untruth about not giving instructions to his representative.
85. Moreover, as I have explained, it is more than improbable that Agenbach would
85. Moreover, as I have explained, it is more than improbable that Agenbach would
have authorised a meeting significantly disrupting the production schedule, without
the permission of the managing director, and then refuse to address it. It is also
improbable, had the meeting indeed been authorized, that the events at the
crackline would have proceeded in the atmosphere in which they did. More than
one applicant testified to the existence of an exuberant mood, the shouting of
slogans and a sense of grievance about the bonus. Far more likely is it that the
crankline employees became agitated, as they did, when Booysen informed
Willemse that the forge employees had downed tools. Had Agenbach given
permission, Booysen would have communicated that fact to Willemse, who would
then surely have requested Ledgerwood to attend an authorized meeting. He has
never said that he did this. For that matter, there is no evidence that any employee
at the crankline ever requested any person in authority, Ledgerwood, Visser or
Wilds, for permission to attend an authorised meeting.
86. I am accordingly in no doubt that no employee at the forge ought reasonably to
have believed that permission was granted by Agenbach. Both Plaatjies and
Josephs made it clear in their testimony that they saw the meeting as unauthorised,
Plaatjies in particular reluctantly conceding that he had prevailed on Visagie to
21
leave the matter to the shop stewards, who in turn had ignored his advice and
gestured to the employees on the shop floor to follow him out.
87. Finally, as also already discussed, had the meeting indeed been authorised it is
unlikely that the workers would have yielded to Mike Louw’s caution that their
conduct was illegal. If the workers believed they had Agenbach’s permission, the
probabilities are they would have told him so. The unexplained failure of Louw to
testify, moreover, leads not unreasonably to the inference that he was reluctant to
explain to the court why his first priority, before sitting down to negotiate with
management, was to get the workers back to their workstations. The most obvious
reason suggesting itself was that he knew he was dealing with an unprotected
strike.
88. I am also of the opinion that the stoppage at the crankline was equally a concerted
refusal of work. Some halfhearted attempt was made to persuade me that the
crankline workers left their workstations to observe the solar eclipse that occurred
that morning. The largely unchallenged evidence of Wilds tells a different story. As
discussed earlier, he described how Willemse, agitated in response to the repeated
calls he had received from the forge, had announced: “You know, we cannot just
allow this to happen, we need to do something, the people have walked out at the
forge”. Wilds further depicted the atmosphere on the shop floor as “a buzz”.
Additionally, Willemse himself conceded that “iets was verkeerd” and that the
people were shouting: “meeting, meeting”. Various witnesses confirmed that the
mood was running “high” and that the workers were shouting slogans. Moreover not
a single witness professed that the crankline employees had permission to leave
a single witness professed that the crankline employees had permission to leave
their workstations. In fact, to the contrary, Willemse in his evidence in chief
volunteered that the crankline employees did not have permission to leave their
workstations, explaining perhaps the reason for their readiness to plead guilty to
attending an unauthorised meeting. What is more, under crossexamination
Willemse conceded that at his disciplinary enquiry he had described the events at
the crankline as being out of hand. There can also be little doubt, accepting his own
version of what transpired, that following his encounter with Ledgerwood, Willemse
was left in no uncertainty at all that the workers had no permission to go to the
forge.
89. In the face of such irresistible probabilities, Mr Vazi, who appeared for the
applicants, eventually wisely conceded in argument that the stoppage on the
crankline was illegal. Despite that, he sought to justify it on two bases. The first was
that the workers stopped work to watch the eclipse. The explanation is frankly
disingenuous. I agree with Mr KirkCohen that the evidence demonstrates that the
watching of the eclipse was coincidental and that the true purpose of the gathering
on the concrete slab outside was to await Willemse’s return from his meeting with
Ledgerwood. The second, equally spurious, argument was that Wilds and Visser
had a duty to stop the workers from striking once their intention became evident. In
addition to being destructive of the contention that the crankline employees were
not on strike, the argument has no merit particularly in view of the testimony of
22
Wilds and Visser that they had instructions from management not to interfere in
volatile industrial relations situations.
90. Accordingly the probabilities support the conclusion that the workers at the
crankline concertedly refused to work.
91. The purpose of both concerted refusals to work was incontrovertibly to remedy the
grievance or resolve the dispute about the bonus payment date. This much is
evident from the testimony of the applicants’ own witnesses that the workers were
shouting “my money, my money”. Willemse in particular when asked in chief
whether he recalled workers shouting “Viva COSATU”, replied that slogans were
not being shouted, but the workers in his words were screaming: “meeting, meeting
– I want my money”.
92. Mr Vazi has sought to argue that with such outbursts the workers were merely
expressing concern about their bonus money, that they were not aware of any
attempts to resolve the problem and hence were not making a demand as a pre
condition for their return to work. The argument so put, to my mind, misstates the
requirements for a strike. The definition in section 213 does not require there to be
a demand, the fulfilment of which is considered a precondition to a return to work. It
is sufficient if the concerted refusal to work is aimed at remedying a grievance or
resolving a dispute about a matter of mutual interest. There was clearly a grievance
about the perceived change of date for the payment of bonuses. The purpose of the
refusal to work was to remedy or resolve the issue. This inference can safely be
drawn from the slogans shouted at the crankline, the demand made to Agenbach
that management resolve the issue and Arries’ request at the meeting in the
boardroom at 09h00 on 4 December 2002 that the workers be given a guarantee
boardroom at 09h00 on 4 December 2002 that the workers be given a guarantee
that the bonuses would be paid by 6 December and not on 10 December 2002 as
stated in Joel’s memo – a demand to which management ultimately acceded.
93. In the premises, I agree with Mr KirkCohen that quite apart from the direct
evidence on the issue, the probabilities are overwhelming and the inferences
inescapable that the purpose of the stoppage was to put pressure on management
to pay the bonus on 6 December 2002. It follows that the stoppages were indeed a
strike within the meaning of that term as defined by section 213 of the LRA.
The participation of the individual applicants in the strike .
94. It is next necessary to determine whether the applicants participated in the strike
with the requiste blameworthy state of mind. Of the eleven individual applicants only
five testified as to their involvement in the events of 4 December 2002.
95. The second applicant, Willemse, on his own admission got caught up in the mood
at the crankline, was aggrieved as a result of his conversation with Ledgerwood,
played a central role in communicating to the crankline workers the events taking
place at the forge and was seen by Wilds and Visser to actively encourage the
23
workers to march over to the forge and thereafter ignored the calls of Ledgerwood
to come back, as well as the prior instruction to tell the workers to return to their
workstation. I will return to a fuller discussion of his role later. Suffice it for present
purposes to say that he knowingly defied Ledgerwood and was an active participant
in the strike.
96. The third applicant, Philander, was the only other crankline employee to testify. The
evidence shows that he was alongside Willemse throughout most of the events that
morning. Wilds placed him in the vicinity of Willemse during the telephone
conversations with Booysen and other persons at the forge. He also accompanied
Willemse during the latter’s discussion with Wilds. Visser put Philander in the
company of Willemse after the latter returned from Ledgerwood’s office and walked
into the crowd of workers gathered on the slab. He then witnessed a conversation
between Willemse and Philander just before Willemse addressed himself to the
group of gathered workers saying “kom laat ons loop”. Visser confirmed
Ledgerwood’s testimony that Philander was with Willemse when Ledgerwood called
out to Willemse at the bus terminus and that Philander spoke to Willemse before
they both turned away and carried on walking in the direction of the forge. In
addition, though he tried to limit his involvement to merely following the other
workers as they left the shop floor, Philander acknowledged in his testimony that he
left his workstation without permission. He admitted seeing Ledgerwood while they
were marching away but denied hearing him call out after them. He too described
the mood of the workers as “high”, saying that there was much screaming and
shouting, that he knew there was a problem about the bonus and that he was taken
shouting, that he knew there was a problem about the bonus and that he was taken
by the mood. Accordingly, there can be no doubt that Philander consciously
participated in the strike.
97. The three other individual applicants who worked at the crankline, Arnold Dirks
(sixth applicant), Alexander Cloete (ninth applicant) and Erasmus Appolos (twelfth
applicant) did not testify. All three were part of the group of nine and of the six who
pleaded guilty before Le Roux at the commencement of the collective hearing. No
evidence was tendered implicating them individually. None of them addressed Le
Roux on mitigation by means of oral submissions. All three handed in written
submissions in mitigation asking for leniency on the basis that they did not know
what they were doing was illegal. On this incomplete evidence it is nonetheless safe
to conclude that these applicants left their workstations, marched to the forge and
attended the assembly in the canteen. No direct evidence or argument was
adduced on whether they knowingly participated in the strike. Given previous
events at the company in February 2002, the fact that this court had interdicted the
February strike, a fact which was communicated to the workforce, and that all three
of these applicants had received a final written warning for their involvement in the
February strike, I accept that at the very least they foresaw the possibility that their
conduct constituted participation in an unprotected strike but were reckless as to the
consequence. Such an inferential finding is strengthened by the failure of all three
of them to testify. Their attendance at the assembly in the forge canteen called for
an answer or explanation, and in the absence of such an explanation I am satisfied
24
on a balance of probabilities that they knowingly or recklessly participated in an
unprotected strike.
98. Of the applicants employed at the forge only Riaan Visagie (fourth applicant),
Gerhard Sauls (eight applicant) and Allen Abrahams (fifth applicant) testified.
99. Visagie was one of the group of nine who pleaded not guilty on the grounds that he
did not believe the meeting was a strike. During his testimony in court he testified
that he had only attended the second meeting briefly for about 3–5 minutes. This
conflicted with the version he gave at his disciplinary hearing where he stated: “Ek
het daar gesit en wag vir die meeting”, implying that he went to the canteen before
the meeting actually started. The latter would be more in line with Plaatjies version
of Visagie’s conduct that morning. Plaatjies, it will be recalled, was Visagie’s friend
and team leader who testified reluctantly under subpoena. According to him, he,
Van Wyk and Visagie witnessed the crankline employees marching towards the
forge. Visagie then spoke to several people on the shop floor. Plaatjies tried to
discourage Visagie from going to the canteen and urged him to leave the dispute to
the shop stewards to resolve. Visagie responded by making a dismissive gesture
with his hand before walking out at the head of a group of workers. Thus, his
departure to and attendance of the meeting was deliberate and not happenstance
as he hoped to convey in his evidence in chief. Taking account of the events in
February 2002 and the fact that he had received a warning, I am persuaded that he
too knowingly or recklessly participated in the strike.
100. Abrahams was one of the group of nine who pleaded guilty in the collective hearing.
During his testimony in court he was evasive and contradicted himself on more than
one occasion. Contradicting the view proffered on behalf of all the forge employees
one occasion. Contradicting the view proffered on behalf of all the forge employees
that Agenbach gave permission for the meeting, he explained that he had received
permission to attend from his team leader Lucas Josephs. Called on behalf of the
company, Josephs denied having done so. There was no significant challenge to
his evidence. Abrahams’ attempts to explain why he had initially pleaded guilty at
the disciplinary hearing when he supposedly had obtained permission from Josephs
were unconvincing in the extreme, his justification being that he had pleaded guilty
to standing outside. His attempts to explain the remorse he had forcefully
expressed during mitigation as being regret for attending a meeting were equally
less than compelling in view of his conflicting assertion of having done nothing
wrong by attending the meeting. He too, therefore, participated in the strike
knowingly or recklessly.
101. Sauls also pleaded guilty at the collective hearing for the group of nine. His position
was somewhat different to the forge employees who worked on the shop floor. He
was employed as a senior laboratory assistant in the metallurgy laboratory located
at the forge. His testimony in court was entirely unsatisfactory. He was disobliging,
evasive, inconsistent and came across as easily given to dishonesty. When asked
who gave him permission to attend the second meeting he testified that he had
used his own discretion. When pressed under crossexamination about the basis of
25
his assumed discretion he was notably evasive. Then asked to clarify why had not
asked for permission from his supervisor, Mr Poswa, with whom he had watched
the eclipse, he was less than honest. First he retracted his earlier testimony that he
had been with Poswa at the relevant time by unconvincingly putting a different time
to their observing the eclipse together. Asked why he did not contact him on his
cellphone, he weakly claimed that the company discouraged the use of cellphones
and then that there was a technical problem with the phone. He too offered an
implausible explanation for his plea of guilty. Generally, the perceptibly evasive and
inconsistent manner in which Sauls performed as a witness leads easily to the
conclusion that he knew full well that he was participating in an unprotected strike.
102. The other three forge employees, Desmond Pieterse (seventh applicant), Alice
Khan (tenth applicant) and Ntombekhaya Jobo (eleventh applicant) failed to testify.
All three were in the group of nine. Pieterse pleaded guilty, while Khan and Jobo
pleaded not guilty.
103. From his plea of guilty I accept that Pieterse attended the second assembly in the
forge canteen. The only reference to him in the evidence before me was in the
testimony of Lucas Josephs, his team leader, who denied giving him permission to
attend the meeting. There was also some suggestion in argument that Pieterse was
denied the opportunity to mitigate before Le Roux. The record shows that he
submitted a request in writing to be allowed to make oral submissions to Le Roux,
while the minutes do not reflect him having done so. Without the benefit of his
testimony on the matter, however, I am unable to conclude that there was any
irregularity on that score. Furthermore, his failure to offer any sworn explanation for
irregularity on that score. Furthermore, his failure to offer any sworn explanation for
his attendance at the assembly in the canteen and the fact of his prior warning lead
to the reasonable inference that he too knowingly or recklessly participated in the
strike.
104. The same must be held in regard to Jobo, about whom no evidence at all was led.
105. The position of Alice Khan is in some respects different. Her defence at the
disciplinary enquiry was that she had sought and obtained permission from
Plaatjies, her team leader, to make a telephone call to sort out work related
problems concerning her uncle. Plaatjies confirmed that he gave her permission
because he had in any event shut down the machines. However, he testified that
she was gone from the shop floor for about an hour, much of which time coincided
with the second meeting. Accordingly, Khan’s absence called for an explanation of
the lengthy period it took her to make the call. The failure to give sworn testimony to
clarify this aspect, for the same reasons above, leads to the legitimate inference
that she knowingly or recklessly participated in the strike.
106. In the final analysis, therefore, all the individual applicants participated in the strike
with the requisite blameworthy state of mind. The strike was not in compliance with
the provisions of chapter IV of the LRA in that the underlying dispute was not
referred to the bargaining council in terms of section 64(1)(a) of the LRA and 48
26
hours notice was not given in terms of section 64(1)(b) of the LRA. For that reason
participation in the strike may indeed constitute a fair reason for dismissal in terms
of section 68(5) of the LRA.
Substantive fairness – the third to the twelfth applicants .
107. As I have indicated, the position and participation of the second applicant, who was
treated differently from the other applicants by the company from the outset,
requires separate consideration on account of the role he played. Nevertheless,
some of the findings regarding substantive fairness apply equally to him by virtue of
their general nature and effect. Accordingly it is best to consider the issues in
relation to the other individual applicants first.
108. The determination of whether participation in unprotected strike action constitutes a
fair reason for dismissal requires a weighing of all the facts with particular regard to
the cause, nature, extent and objectives of the strike; its timing and duration; the
conduct of the employees; and the consequences of the strike.
109. An enormous amount of time and effort was expended by the applicants during the
trial in an attempt to show that the cause of the strike was the employer’s bad
management of its industrial relations, and more particularly its supposedly
illegitimate changing of the bonus payment date.
110. The applicants put forward two positions regarding their professed entitlement to be
paid the bonus on 6 December 2002. The first was that Natheem Joel, the human
resources officer, agreed that the bonus would be paid on 6 December 2002. The
second was that a proper interpretation of the practice prevailing at the company
over the preceding five years, gave rise to a reasonable expectation that the bonus
would be paid on the 6 December 2002. On my assessment, neither proposition
would be paid on the 6 December 2002. On my assessment, neither proposition
has merit. However, because I incline to the opinion that neither scenario adds
much justification for the strike, I do not propose to canvass the evidence on this
aspect in much detail.
111. There is no documentary evidence on record supporting the claim that the workers
were entitled to the payment of their bonuses on 6 December 2002. The minutes of
the shop stewards’ committee meeting of 26 November 2002 record that certain
employees had volunteered to work during the annual shutdown period, that the last
day of work would be Friday 13 December 2002 and that “the bonus and leave
payout dates remain unchanged”. The minute does not identify the dates in
question. On management side, the meeting was attended by Lee, Ledgerwood,
Joel and Ball. Lee, Ledgerwood and Joel explained during their testimony that the
intention was to pay the bonus in the week of the shutdown date. The union claimed
that the norm and the agreement favoured payment on the Friday in the week
before the shutdown.
112. The incident sparking the strike, we have seen, was Joel’s issuing of the memo on
27
3 December 2002 for the attention of Ms Mariette Lang, the wages administrator, in
which he advised her that the bonus was to be paid to the employees on Tuesday
10 December 2002 and that annual leave pay would be paid with the weekly wages
on Friday 13 December 2002. This memo, as I have said, was apparently leaked to
some of the nightshift employees on 3–4 December and led directly to the events of
the morning of 4 December 2002.
113. Joel testified that he issued the memo after getting the go ahead from Charles van
der Merwe, the financial manager who had agreed to the 10 December payout date
with Lee, the managing director. He conceded however that there had been some
discussion of a payout on 6 December 2002 at a shop steward’s weekly meeting
that took place on 29 November 2002. During the exchange he had asked the shop
stewards where they had come up with that date, seeing that no management
decision had been made in that regard.
114. The evidence of Lang established that in the 5year period between 1999 and 2003
there was no clearly discernible pattern to the bonus payout. Sometimes it was paid
in the week before the shutdown. Other times it was paid in the week of the
shutdown. Whatever the case, I am persuaded that in the year in question there
must have been some basis for the expectation on the part of the workers that the
bonus would be paid on 6 December 2002. Absent that expectation it is highly
unlikely that they would have become as agitated as they did, prompting conduct
putting their employment in jeopardy. However, there is no reliable evidence
establishing convincingly that the workers’ expectation was legitimate in the
circumstances.
115. Even if I were to assume that during the meeting of 29 November 2002 Joel
negligently led the shop stewards to believe that 6 December 2002 would be the
negligently led the shop stewards to believe that 6 December 2002 would be the
payment date, I do not accept that the subsequent change of the date to 10
December 2002 justified the strike. While I appreciate that the payment of a bonus
is important to relatively low paid workers in Atlantis, in this instance the move to
industrial action, before management was able to ascertain the true position or the
take steps to rectify the problem, was precipitous and foolhardy. Neither Lee nor
Joel was available on site, and the workers ought reasonably to have given Ball and
Ledgerwood an opportunity to consult with them. The demand that Ledgerwood and
Ball in effect give an immediate assurance of payment on 6 December was
illegitimate in the circumstances. Accordingly, despite the confusion and the
possibility that Joel might have contributed to it, no element of management’s
conduct was egregious to a degree mitigating the unprocedural nature of the
workers’ conduct.
116. At the same time, it must be said, there were many indications that industrial
relations at the company were less than harmonious, with more than one grievance
having been lodged against Ledgerwood and Joel, complaining of foul language,
victimization and disrespectful behaviour, and calling for their dismissal.
Ledgerwood was conspicuously no shrinking violet in the conduct of his personal
28
relations. As I have said, he came across as a man accustomed to putting his point
across forcefully. Joel too had something of a conflictual relationship with the shop
stewards, explicable due to his having risen through the ranks of NUMSA before
joining management. By the same token, the applicants who testified did not
impress me as men adept in bringing charm, insight or a conciliatory attitude to their
conduct of industrial or personal relations. Yet, whatever the fractious relations, I
doubt the dynamic exceeded the bounds of what one might normally expect on the
factory floor and I accordingly hesitate to apportion blame on this score for the
purpose of assigning legitimacy to one or the other parties’ case, particularly in view
of none of the disputes alleging unfair labour practices having reached final
resolution before the bargaining council.
117. The general problem of poor relationships found particular expression in Willemse’s
desire to attribute the walkout at the crankline to Ledgerwood's alleged outburst and
foul language. Ledgerwood, to his credit, did not hasten to deny that he might have
used foul language. Assuming for the purpose of argument that he did, only
Willemse (on his version) would have witnessed it and hence it had no direct impact
on the workers already assembled some distance away on the concrete slab, thus
contributing little if anything to the decision to walk out. It moreover provided
insufficient justification for Willemse’s disobedience of Ledgerwood’s instruction to
try get the workers back to work.
118. Even though I consider the demands of the strikers to have been illegitimate, their
conduct during the strike was not unruly or marked by criminal behaviour. Many of
the applicants conceded that the mood was highspirited and spoke of shouting and
the applicants conceded that the mood was highspirited and spoke of shouting and
the bandying of slogans. But no damage was inflicted on company or personal
property, there were no assaults and when instructed by Mike Louw to return to
work, the workers did so immediately without demur. Clearly the union intervened
responsibly and assisted appreciably in bringing the matter under control. Albeit
irresponsible, the strike was not timed to afflict maximum damage. It was a
responsive strike, in reaction to a perceived grievance, even if impulsive. At most
the action endured from 08h15 until 10h00, when normal production would have
been restored. There is no evidence quantifying the financial loss caused by the
stoppage, if any.
119. On balance therefore it cannot be said that the strike was a particularly disruptive,
damaging or unruly affair. Were it not for the fact that the company had suffered a
similar occurrence 10 months earlier it is unlikely that discipline in the form of
dismissal would have been meted out. This is verified by the fact that by far the
majority of participants in the strike received final written warnings – in itself an
indication that the strike did not render the continuation of the employment
relationship intolerable. With the exception of the second applicant, the company
chose to dismiss the individual applicants not because their participation in the
strike of 4 December 2002 was particularly damaging. They were dismissed
because they had done it before and to give effect to the company’s preferred
policy of “second strike and you are out”.
29
120. Hence in order to determine whether dismissal was for a fair reason in respect of
the third to twelfth applicants, careful consideration must be given to the general
requirements that dismissal should be the appropriate remedy in the light of the
facts of the case. Whether this is the case depends upon a number of factors and
variables including the gravity of the offence, assessed in accordance with the
employer’s disciplinary code, the employee’s disciplinary record, length of service
and personal circumstances.
121. In this context the prior warnings issued to the individual applicants assume added
significance. The strike in February 2002 that led to the individual applicants
receiving a final written warning had its origins in a dispute that arose in mid 2001.
In July and August 2001 the shop stewards’ committee wrote to management
expressing their frustration about the company’s alleged failure to implement its
affirmative action and preferential procurement policy. In September 2001 the
dispute was extended to embrace issues concerning team centre meetings, the
public display of employee attendance records without permission and the unilateral
grading of employees. There was also disquiet about the alleged unsatisfactory
manner in which grievances were processed. Various complaints were made
against Joel and in particular his alleged disrespectful behaviour and provocative
attitude towards employees. Eventually when matters were not resolved, the union
gave the company notice on 20 September 2001 of its intention to call upon its
members to embark upon a protected strike, which they then duly did. It is not clear
how long this protected strike lasted. My sense is that it did not endure too long
before being called off. The union claims its intention in calling off the strike was
before being called off. The union claims its intention in calling off the strike was
merely to suspend it in order to allow the parties to meet over a period of months to
try and settle nineteen unresolved issues. Joel acknowledged that such an
agreement was mooted and that the term “suspended” was used. However, the
agreement proposed was eventually not signed by the company because,
according to Joel, the union introduced new issues that had not formed part of the
original dispute. After the dispute dragged for about three months, evidently
contributing to tension and an atmosphere of hostility, the union gave notice on 22
February 2002 of its intention to embark on further strike action on 25 Feburary
2002.
122. The workers on the morning shift of 25 February 2002 embarked upon strike action
as expected. The company urgently approached the Labour Court for a rule nisi
declaring the strike illegal and an interim order interdicting the workers from
participating in it. An order to that effect was handed down at about 12h00 on that
day by Waglay J “by agreement between the parties.”
123. Shortly after the interdict was granted, discussions took place between NUMSA and
Joel in which the union made the proposal that the morning shift workers be allowed
to return to work the following morning, that the afternoon and night shift would
report as normal, and that a policy of no work no pay would apply in respect of the
morning shift. The union made the proposal, it seems, because it doubted its ability
to ensure compliance with the interdict before the end of the morning shift at 15h00.
30
Joel responded in a letter addressed to Simon Arries, the union organizer, in with
he dealt with the request as follows:
The request is denied. The company reserves the right to take disciplinary action against
employees who have been on strike and who continued with the strike despite the granting
of the interdict and who are unable to justify their departure from the workplace beyond the
time that the order was granted. We urge you to advise those employees who were
gathered outside the premises from 07h00 until they dispersed to immediately tender their
services before their shift ends at 15h00. In the absence of an explanation it would appear
that the strikers deliberately dispersed in order to avoid the consequences of the interdict.
124. The union wrote back bemoaning the difficulty it faced in getting the morning shift
back in time. It is common cause that the morning shift did not resume, but that the
afternoon and night shifts commenced as required.
125. Some time thereafter the company instituted disciplinary action against the morning
shift workers who failed to report between 12h00 and 15h00 on 25 Februay 2002
and thereby, according to the company, had not complied with the court order. The
company was motivated in part by the fact that prior to the commencement of the
strike it had communicated in more than one memo to the workers that the strike
would be illegal.
126. The minutes of this collective disciplinary hearing (Exhibit F1 pg 1012) reflect that
the union sought leniency for the workers on account of their belief that the strike
was legal, being in its view the reactivation of a suspended strike, at least until
such time as the court order was granted. It was also not, in the opinion of the
union, a wildcat strike, but was embarked upon at the instance of the union. The
union argued further that it had insufficient time to get the morning shift back to
union argued further that it had insufficient time to get the morning shift back to
work. The company rejected both these contentions: firstly because the workers
had been warned in advance in circulated memoranda that their conduct would be
illegal and that the morning shift workers had breached the court order. In the result,
the morning shift employees were found guilty of both participating in an illegal
strike and failing to return to work timeously in accordance with the court order.The
company therefore decided to apply the “no work no pay rule” and issued all the
morning shift workers (except two) with a “final written warning valid for 12 months
and permanently on record”. The minute reflects that the company was not
prepared to entertain an appeal against the warnings and advised the union and the
workers to proceed to the bargaining council if they wished to challenge the
warnings.
127. On 14 March 2002 the union referred a dispute regarding the warnings to the Metal
and Engineering Industries Bargaining Council challenging their validity in terms of
the company’s disciplinary code.
128. Surprisingly, the section of the disciplinary code dealing with the company rules
does not specifically identify participation in unprotected strike action as an offence.
However, such conduct falls within the ambit of various offences categorized by the
code as “minor”, “serious” or “dismissible”. For instance, “absence without
31
reasonable cause” is considered a minor offence. Clause 1.22 defines “attending an
unauthorised meeting on company premises” as a serious offence. And clause 1.30
contains a catch all provision providing as a dismissible offence “any other reason
recognized in law as being sufficient grounds for instant dismissal”. Most
importantly the code ends with a note that reads:
The omission of any offence from the Code does not preclude disciplinary action against the
offender for good cause.
These provisions taken together support the conclusion that the company may at its
discretion regard participation in unprotected strike action as serious or dismissible
misconduct, depending on the circumstances of the strike, its nature, duration and
timing.
129. Clause 3 of the disciplinary code contains a number of general provisions regarding
its scope and application. Clause 3.4 provides that contravention of the employer’s
rules will be dealt with in accordance with the disciplinary procedure. Clause 3.5
provides that the disciplinary procedure shall form part of the contract of
employment of all employees.
130. Clause 3.6 is of particular relevance. It reads:
Disciplinary warnings issued in terms of the disciplinary procedure shall be kept in the
personal file of the relevant employee for a period of six months from the date of latest
breach. Disciplinary warnings that are removed from the personal file of the employee after
the elapsed period are to be destroyed in the presence of the employee.
131. Clause 3.8 is equally important. It provides:
Employees shall not be dismissed from employment unless the disciplinary procedures have
been complied with.
132. Clause 6 of the disciplinary procedure, which forms part of the disciplinary code,
identifies the nature of the disciplinary measures available to the company, which
include the five standard forms of disciplinary action: recorded reprimand; written
include the five standard forms of disciplinary action: recorded reprimand; written
warning; final written warning; suspension without pay; and dismissal.
133. Clause 7.2 of the disciplinary procedure deals with written warnings providing for
their issuance for offences of a more serious nature or as a means of progressive
discipline for repeated less serious infractions. Clause 7.2.1.6 deals with the
currency and validity of written warnings and provides as follows:
The written warnings shall remain valid for a period of six (6) months after which, provided
that no further transgression occurs during the six (6) month period, it will be removed from
the employee’s personal file and destroyed.
134. Clause 7.3 of the disciplinary procedure deals with step 3 of the procedure that
allows for a formal disciplinary enquiry, inter alia, when the offence may require
more than a written warning. Clause 7.3.1.6 authorizes the chairperson of a formal
32
disciplinary enquiry to issue a final written warning. It states:
If the offence is of a more serious nature, and a final warning is the appropriate discipline to
be meted out, then such final written warning will be delivered by the Chairman.
Clause 7.3.1.7 regulates the effect of a final written warning. Consistent with the
general policy regarding warnings in clause 7.2.1.6, it stipulates:
The Supervisor shall ensure that the employee and the employee’s Shop Steward are aware
of the fact that should the employee commit a further offence within the period of six (6)
months following the receipt of the final warning, then depending on the decision reached at
a formal disciplinary enquiry, that offence may result in the disciplinary action of dismissal.
135. As I understand the submissions made on behalf of the union, it has always been
its position, in view of these provisions of the disciplinary code and procedure, that
the warnings issued to the morning shift employees who participated in the strike of
25 February 2002 were invalid because it is not permissible for the company to
issue warnings that remain current for 12 months. The maximum currency being
explicitly restricted to 6 months, it is also not permissible to record the warning on
an employee’s record permanently, especially if one has regard to the instructions
in clauses 3.6 and 7.2.1.6 to remove and destroy warnings from an employee’s file
after the expiry of the sixmonth period.
136. The unavoidable implication of the union’s argument, if correct, is that the warnings
issued to the third to twelfth applicants in late February 2002 were in fact invalid, or
at the very least had expired in terms of the disciplinary code and procedure in
September 2002. If that is so, then they ought not to have been taken into account
when disciplining the individual applicants for their participation in the strike of 4
December 2002. And, as a result, the individual applicants were in the same
position as the other strikers who merely received a final written warning. Put
differently, because the warnings of February 2002 were objectively invalid, or had
expired, the individual applicants were in the same position as their fellow strikers
who were not dismissed, and hence there was no legitimate or legal basis for their
differential harsher treatment.
137. As I have mentioned, a dispute about the validity of the warnings was referred to
the bargaining council on 14 March 2002. A certificate of outcome declaring that
conciliation had failed and that the dispute remained unresolved was issued by the
council on 3 April 2002. It seems the matter was subsequently referred to arbitration
but was not actively pursued and no arbitration award was issued resolving the
matter.
138. Mr KirkCohen, during argument, sought to down play the significance of this issue.
When it emerged that the question had greater importance than he had initially
assumed, he requested a postponement and leave to supplement his heads of
argument, both of which I granted. Unfortunately, scheduling difficulties made it
impossible for the court to reconvene and I am restricted to the submissions he
made in court and those contained in his original and supplementary written heads
33
of argument, which have been of considerable assistance to me.
139. The company’s original arguments on the point were three. Firstly, it was submitted
that because the union did not persist with the arbitration, the 12month final written
warning should stand and hence remained current at the time of the December
strike. Secondly, though it was permissible for the company to have dismissed the
workers who participated in the February strike, the company in a spirit of leniency
had opted for a lesser sanction and it was inappropriate for this court now to
secondguess that sanction. Thirdly, even if the warnings had expired, the offence
committed in December 2002 remained a dismissible one and the fact that a lesser
sanction was meted out to the employees with a clean record did not render the
dismissal unfair on the basis of differential discipline.
140. The supplementary heads elaborate on and add to these themes. With reference to
the LRA’s prescriptions advancing speedy dispute resolution of alleged unfair
labour practices relating to disciplinary action short of dismissal, it was submitted
that disputes about disciplinary sanctions should be dealt with promptly, failing
which they should stand and only the CCMA has jurisdiction to pronounce upon
them (sections 186(2)(b) and 191 of the LRA). It was further contended that it would
be undesirable to permit a court, upon dismissal, to enquire into the past history of
progressive discipline for two reasons. Firstly, this will “double up” the ambit of
issues upon which admissible evidence can be led, making them “impossibly
broad”, and the proceedings unwieldy. Secondly, the purpose of the warning in
immediately correcting behaviour would be lost.
141. Finally, it was submitted, albeit tentatively, that the disciplinary code’s prescriptions
with regard to warnings did not have the effect that the warnings lapsed at the
expiry of the 6month period.
142. Mr KirkCohen’s arguments pose difficult policy dilemmas. They suffer, in my
opinion, from one critical defect: they make no reference whatsoever to the
provisions of the disciplinary code and procedure, which in terms of clause 3.5 are
expressly incorporated into the contracts of employment of the employees. In three
separate clauses of the code (3.6; 7.2.1.6 and 7.3.1.7) the unambiguous intention
appears that warnings are current for a period of 6 months and that after that period
they are to be removed from an employee’s file and destroyed. Clause 3.6 goes so
far as to mandate that the destruction of the warning take place in the presence of
the employee concerned. There can be only one plausible explanation for this ritual
of physical and symbolic destruction: that is, the warning no longer exists and will
not be taken into consideration in the future. For better or for worse, such are the
terms of the contract between the parties and no compelling argument has been
made that justifies treating the relevant clauses as prononscripto.
143. The argument that the company was entitled to rely on both the union’s failure to
persist with the arbitration and the workers knowingly electing not to pursue the
matter, has the ring of an estoppel or waiver argument. Estoppel normally requires
34
a deliberate or negligent representation that a state of affairs is true and reliance
upon that representation. Neither the union nor the individual applicants ever made
any representation that they accepted the objectively invalid warnings as valid or as
enduring for more than 6 months. On the contrary, they took issue straight away
and represented unequivocally that they considered the warnings to be invalid. The
company’s chosen reliance upon its own interpretation was at its own peril, once if
had been forewarned. That the union may not have acted conscientiously does not
change the situation. If the warnings were objectively invalid there was no duty on
the union to seek a declarator to that effect. Indeed, it could be argued, once the
union had put the warnings in contention, management, rather than the union, had
a duty to the company and the shareholders to seek a declarator. Likewise, the
failure to pursue a specific statutory remedy within a legislative time frame does not
of itself constitute a waiver of an entitlement to assert the invalidity of conduct not
contractually sanctioned.
144. Nor am I able to accept the policy argument that reconsideration of previous
sanctions will lead to an unacceptable broadening of the range of admissible
evidence in subsequent dismissal proceedings. Whether a sanction in any given
case was in accordance with the employer’s disciplinary code and the employee’s
disciplinary record has always been a relevant consideration when determining the
substantive fairness of a dismissal. Importantly though, in the present case, the
company consciously chose to premise its selective disciplinary action in response
to the strike of December 2002 upon the disciplinary record of the employees, and
while dismissal might very well have been justified for all the employees involved, it
while dismissal might very well have been justified for all the employees involved, it
elected for its own reasons to spare those employees without a warning and
thereby put the validity of the warnings, and its reliance upon them, directly in issue.
In view of the earlier challenge to the warnings, it did so knowingly. It is
consequently a matter of reason and common sense that the validity of the
warnings would assume relevance. Admittedly this extended the ambit of the
issues, but evidence was in any event led on the issue and though taking up some
time it did not render the trial any more unwieldy than it otherwise in fact was.
145. Lastly, albeit correct that the CCMA is the appropriate body to pronounce upon
whether the warning of February 2002 constituted an unfair labour practice, that
does not preclude this court from pronouncing upon the validity of the warnings in
terms of the contract between the parties. Accepting, in accordance with the
principle ommia praesumuntur rite esse acta, that the warnings may have been
presumptively valid, if objectively they were in fact and in law invalid, this court and
the applicants are free to disregard them. Unlawful or wrongful conduct cannot be
regarded as lawful merely because it has not been challenged or pronounced upon
in an appropriate forum.
146. Lest these be any further doubt, there is an additional forceful policy consideration
applicable in the peculiar context of our pluralistic system of industrial relations and
collective bargaining. Rycroft and Jordaan, in A Guide to South African Labour Law
(Juta, 2 nd Ed) pg 119 – 120, point out that the pluralistic model has as its
35
cornerstone the conception that a divergence of interests exists between
management and labour and that conflict is inherent in their relationship. They
continue:
Yet it postulates that management and labour have at least one interest in common, namely
that inevitable and necessary conflicts should be regulated from time to time by reasonably
predictable procedures.
147. To allow Mr KirkCohen’s arguments to prevail would be to sweep away this
cardinal principle of pluralism by which the parties are held to their preordained
standards and procedures, especially in the context of collective bargaining of
which the strike weapon is an integral part. The game must be played strictly in
accordance with the rules. And the rules in this instance provide that the warning for
the February strike was invalid, or at least had expired. And, consequently, all
strikers were entitled to equal treatment. As I have said, management’s decision to
issue a final written warning to the majority of the strikers confirms that it did not
view the strike and participation in it as dismissible conduct per se . The imposition
of dismissal for repeated offences, while legitimate, cannot be substantively fair
unless applied consistently in accordance with the prevailing code.
148. The idea of ignoring previous misconduct, especially when it has been committed
relatively recently, will not sit comfortably with some. That much is evident from our
case law. In Shoprite Checkers (Pty) Ltd v Ramdaw N.O and others (2000) 21 ILJ
1232 (LC), Wallis AJ held:
The fact that a person no longer has a final written warning hanging over their lead no more
extinguishes prior misconduct than the lapsing of a suspended prison sentence extinguishes
the conviction from a person’s criminal record.
True as that may be in the field of criminal law, the Labour Appeal Court, perhaps
True as that may be in the field of criminal law, the Labour Appeal Court, perhaps
more consciously attuned to the pluralist and voluntantist nature of our industrial
relations system, felt a different emphasis was called for. In the same matter on
appeal it held:
In our law there is no statutory provision that deals with what the duration of a disciplinary
warning is nor is there a statutory provision that deals with what the effect is in law of the
lapsing of a disciplinary warning. An employer and an employee may deal with these matters
in their contract of employment. This may also be dealt with in a collective agreement ….
These matters may also be governed by an established practice in a particular workplace.
Depending on what the contract of employment ….or the applicable collective agreement
provides, or what the established practice is in the particular workplace the fact that an
employee’s previous warning has lapsed or expired may well mean in a particular workplace
that such employee must be treated as having a clean record when he is next found guilty of
misconduct.
Grogan, in Dismissal (Juta) at pg 101, commenting on this passage of the
judgement observes:
This extract indicates that employers must follow the requirements of their disciplinary codes
or the employee’s contract as the case may be, when they refer to past warnings. If the
36
disciplinary code or contract of service provides that the warnings lapse after a particular
period, they cannot be held against employees after that period.
Accordingly, finding myself in respectful agreement with both the Labour Appeal
Court and Grogan, the conclusion is inescapable that in terms of the contracts of
employment and the prevailing disciplinary code and procedure, the warnings given
to the third to twelfth applicants in February 2002, if not invalid, lapsed after 6
months and ought to have been removed from the files and destroyed in September
2002, meaning that the applicants should have been treated as having a clean
record when they were next found guilty of misconduct in December 2002 –
January 2003.
149. It follows that in differentiating between the strikers in the way it did, the employer
made itself guilty of contemporaneous inconsistency in its disciplinary action.
Taking account of the code and contractual provisions there was no rational or
justifiable basis for the differential treatment. In the premises, the dismissal of the
third to twelfth applicants was not for a fair reason and was substantively unfair.
150. The applicants have raised other grounds of supposed inconsistency as well.
Basically they relate to the company’s failure to take action against van Wyk and
Booysen, and the withdrawal of charges against Blankenberg, which conduct is
presented as an indication of the employer’s assumed arbitrary approach. The
contentions in this regard have no merit. Van Wyk was not on duty, having stopped
worked after the completion of the night shift. Booysen had permission to leave the
crankline and go to the forge. Accordingly, neither could be said to have gone on
strike. In so far as van Wyk might have made himself guilty of other disciplinary
strike. In so far as van Wyk might have made himself guilty of other disciplinary
offences they were not the same as those for which the applicants were disciplined.
As regards Blankenberg, the charges against him were withdrawn owing to his
efforts to persuade the other employees to return to work. The failure of
management to discipline these employees does not smack of capricious discipline
or a discriminatory policy, and accordingly has had no bearing on my finding of
substantive unfairness.
Substantive fairness – the second applicant, Dawie Willemse.
151. As discussed earlier, the dismissal of the second applicant was not predicated upon
the application of the principle of progressive discipline for repeated participation in
unprotected industrial action. Willemse was a first offender. His dismissal was
based upon the key role he played, his disobedience of specific instructions and his
not living up to the standard expected of him as a shop steward.
152. Willemse, we have seen, admitted that he had got caught up in the mood, had
ignored Ledgerwood’s instruction to get the crankline employees back to work (or at
least to try) and headed off to the forge because by his own account he was curious
about what would be said at the meeting.
153. Willemse failed to impress as a witness. He was obstructive, evasive and slow to
37
answer questions. At times he remained silent and failed to answer questions
completely. His attempt to seek justification for his impetuous conduct in
Ledgerwood’s alleged use of foul language gives credence to the proposition that
he knew what he did was wrong and beyond the bounds of the conduct reasonably
expected from him. The fact that the question of abusive language was raised for
the first time at the trial, not being foreshadowed in the pleadings, disciplinary
hearing or appeal, reveals it in all probability to have been an ex post facto stab at
validation, and one of dubious merit in its own right.
154. That Willemse harboured a strong sense of grievance towards Ledgerwood was
obvious from much of this testimony. That some of it may have been justified does
not of itself excuse his impetuous conduct. If anything his testimony throughout
confirms that of Wilds and Visser that he was agitated, upset and frustrated. He did
not deny being repeatedly on the phone and later accusing Wilds of restricting him.
Nor did he counter Wilds’ testimony that he turned to Philander, clenched his fists
and in apparent frustration uttered words to the effect that they could not allow this
to happen and that the crankline employees needed to do something, seeing that
the forge employees had walked out. Nor did he challenge or convincingly deny
Visser’s testimony that after speaking to Philander, he had said “Kom laat ons loop”,
in effect suggesting that he took the lead in the crankline employees’ decision to
march to the forge. Even were I inclined to give him the benefit of the doubt on
whether or not he heard and understood Ledgerwood to be calling him back from
the terminus, the other evidence sufficiently captures him in a mood of defiance
exhorting his fellow workers to take industrial action.
exhorting his fellow workers to take industrial action.
155. The multiplicity of charges levelled at Willemse involves a measure of splitting and
duplication and, frankly, are a bit of an overkill. Nevertheless, Bouwer’s findings that
Willemse participated in the strike, ignored Ledgerwood’s instructions, exhorted his
fellow workers and failed in his duty as a leader to advise them of the
consequences of their conduct, cannot he faulted. Looked at together, his conduct
amounted to a dismissible offence in terms of the disciplinary code. To some the
sanction of dismissal might be harsh. However, I am unable to coonclude that it falls
beyond the bounds of reasonableness. Accordingly, there was a fair reason for his
dismissal and I find his dismissal was substantively fair. The fact that Willemse saw
himself as acting as a shop steward in the situation does not mitigate his conduct.
He had no licence to resort to defiance and needless confrontation. Good sense
required him to heed Ledgerwood’s advice and not to expose his coworkers to
unnecessary risk.
Procedural unfairness
156. As mentioned earlier, after several days in trial, the legal representative of the
company, understandably concerned not to be ambushed by questions of
procedural fairness, sought an order compelling further particulars. The existing
pleadings clearly were not satisfactory and in the interest of allowing an opportunity
for better preparation, and in the vain hope of curtailing proceedings, I granted the
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order. The respondent was rewarded for its folly by a plethora of largely spurious
allegations of procedural irregularity pertaining to the three disciplinary hearings that
preceded the dismissal. Although I have already dealt with some of them, I turn now
to deal with them as pleaded.
157. The first allegations relate to the notice and timing of the hearing of the group of
nine, which I have discussed fully above, and in respect of which I found that the
applicants did not satisfy the evidentiary burden of showing that a postponement
had been requested and refused or that they had suffered prejudice as a result of
the short notice and timing of the hearing.
158. The second allegation of procedural unfairness arises from Le Roux’s dealing with
the request by the six applicants to change their plea. From his testimony in court it
was plain to me that Le Roux did indeed misconstrue his duties in the situation. In
effect, the applicants were seeking to change their plea to one of guilty for attending
an unauthorized meeting under clause 1.22 of the code, a lesser offence, and not
guilty to the more serious offence under clause 1.30 of participating in a strike. Mr
KirkCohen endeavoured to persuade me that because the applicants did not
persist with their attempt to change the plea, I should regard it as essentially a
tactical stunt or opportunistic manoeuvre. And, in the end, had Le Roux allowed the
change, it would have made no difference. I disagree. The minutes of the
disciplinary hearing, together with Le Roux’s obvious inability to grasp the issues at
stake, indicate that he impatiently and prematurely dismissed a legitimate
application to change the plea. Procedural fairness obliged him to enter a plea of
not guilty on the strike charge on which he then ought to have invited evidence. He
not guilty on the strike charge on which he then ought to have invited evidence. He
did not do this. The fact that the evidence before this court admits a finding of
participation in the strike on a balance probabilities does not excuse the procedural
irregularity. Public policy obliges fair procedure if only because justice must be seen
to be done. The “no difference principle” therefore has no place in our law. It follows
that the dismissal of the group of nine was procedurally unfair on this count.
159. The allegation that the withdrawal of charges against Blankenberg amounted to a
procedural irregularity is without merit for the reason already discussed. The
allegation that the chairperson unreasonably and unfairly prohibited the applicants
from raising pertinent evidence by not allowing Blankenberg to testify during the
collective hearing is also dubious seeing that no evidence was led during the trial in
support of this allegation.
160. The applicants further alleged that Le Roux acted improperly and unfairly by
allowing Plaatjies to testify by way of telephone as regards Alice Khan’s obtaining
permission to be absent from her workstation. Ideally Plaatjies should have been
asked to testify in person. However, his evidence was not challenged at the time
and was limited to his statement that he had indeed given Khan permission to use
the phone at the same time as the second meeting at the forge and that she was
absent for about one hour. Throughout the proceedings this evidence has remained
uncontroversial. I do not consider it a procedural irregularity to obtain
39
uncontroversial evidence of this nature by way of a telephonic interview conducted
on an openspeaker phone. The situation might have been different had there been
a contemporaneous objection, persisted with on valid grounds.
161. I also find no merit in the complaints that Ledgerwood should not have acted as the
initiator of the proceedings in respect of the forge employees on the spurious
ground that they did not fall under his direct line of supervision. Nor am I persuaded
that there was any flaw in the consideration of the submissions in mitigation. Le
Roux requested and obtained written submissions, which he considered together
with the oral submissions by those who made them – a proper opportunity to
mitigate was granted.
162. The contention that Le Roux should have recused himself as chairperson because
he had served as chairperson in prior proceedings is specious, hardly worthy of
comment, as are the various unsupported allegations of bias. Likewise the attempt
for make something of the company’s failure to call Visser as a witness in the
disciplinary hearing cannot be entertained either. Had the applicants wanted to hear
his version at the hearing they could have called him.
163. The applicants further allege that Bouwer colluded with Ledgerwood, Visser, Wilds
and Hartung prior to the hearing of the second applicant, which alleged collusion
prejudiced the second applicant’s right to a fair hearing. The evidence on this issue
is scanty. The accusation is premised on some workers having witnessed what
management saw as a chance, informal encounter and an exchange about the
logistics of the disciplinary process. The evidence is not sufficiently cogent to draw
the adverse inference sought by the applicants.
Remedy and costs
164. From the preceding analysis, therefore, I am persuaded that the dismissal of the
164. From the preceding analysis, therefore, I am persuaded that the dismissal of the
group of nine was both substantively and procedurally unfair, that the dismissal of
the third applicant, Philander, was substantively unfair for the same reason as the
group of nine, but procedurally fair (there having been no procedural challenge to
his hearing during the trial) and that the dismissal of the second applicant was both
substantively and procedurally fair.
165. Once this court concludes that a dismissal has been substantively fair, it is obliged
in terms of section 193(2) of the LRA normally to reinstate the employees unless
continued employment would be intolerable, the employees do not want
reinstatement, or the remedy is not reasonably practicable. There is no evidence
supporting or making any claim that continued employment would be intolerable, or
that reinstatement would not be reasonably practicable. Hence, I am constrained to
grant the employees the relief they seek. However, in terms of section 193(1)(a),
reinstatement need not be retrospective to the date of dismissal, the operative date
being left at the discretion of the court, taking account of the conduct of the
40
litigation, the behaviour of the parties and the circumstances of the employer.
166. The conduct of litigation in this matter did not proceed smoothly. The union ranged
far and wide, putting almost every pertinent fact in issue, often unnecessarily so.
Much time was wasted on irrelevancies, and the matter was on more than one
occasion delayed by a lack of preparation. As for the applicants who gave evidence,
they were altogether an unimpressive lot. They evaded, obstructed, contradicted
themselves, equivocated and sporadically told lies in service of an extremely
implausible version. Their case was poorly conceived, badly constructed and
exposed at times to be plainly untrue. The finding of substantive unfairness in their
favour does nothing to vindicate their behaviour. The finding flows mainly as a
consequence of a tactical error on the part of the company to effect selective
discipline and the necessity for this court to enforce legal policy in accordance with
the prevailing norms of collective bargaining. It certainly should not serve as any
indication that this court approves of the manner in which the applicants have
conducted themselves in their industrial relations or before this court.
167. On that basis, compelled as I am to make an order of reinstatement, as an
expression of the court’s displeasure, I use my discretion not to do so
retrospectively at all and to reinstate the third to twelfth applicants from the date of
this order. For similar reasons I decline to make an order of costs in favour of the
applicants.
168. I accordingly make the following orders:
a. The dismissal of the second applicant is declared to be substantively and
procedurally fair.
b. The dismissal of the third applicant is declared to be substantively unfair and
procedurally fair.
procedurally fair.
c. The dismissal of the fourth to the twelfth applicants is declared to have been
substantively and procedurally unfair.
d. The respondent is directed to reinstate the third to twelfth applicants on the
same terms and conditions of employment that prevailed at the date of their
dismissal but only prospectively with effect from the date of this order.
e. There is no order as to costs.
MURPHY A.J.
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DATE OF HEARING: 1 923 July 2004; 1728 January 2005
DATE OF JUDGEMENT:
APPLICANT’S REPRESENTATIVE: Mr. N Vazi, a trade union representative
RESPONDENT’S REPRESENTATIVE: Adv S KirkCohen instructed by Guy and
Associates
42