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[2014] ZACC 10
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National Union of Public Service & Allied Workers obo Mani and Others v National Lotteries Board (CCT 75/13) [2014] ZACC 10; 2014 (3) SA 544 (CC); 2014 (6) BCLR 663 (CC); [2014] 7 BLLR 621 (CC); (2014) 35 ILJ 1885 (CC) (10 April 2014)
Links to summary
CONSTITUTIONAL
COURT OF SOUTH AFRICA
Case
CCT 75/13
In the matter
between:
NATIONAL UNION
OF PUBLIC SERVICE & ALLIED
WORKERS obo
MANI AND NINE
OTHERS
............................................................
Applicant
and
NATIONAL
LOTTERIES
BOARD
...........................................................................
Respondent
Neutral
citation:
National Union of Public
Service & Allied Workers and Others v National Lotteries Board
[2014] ZACC 10
Coram:
Moseneke ACJ, Skweyiya ADCJ, Cameron J, Dambuza
AJ, Froneman J, Jafta J, Madlanga J, Mhlantla AJ, Nkabinde J, and
Zondo J
Heard
on:
19 November 2013
Decided
on:
10 April 2014
Summary:
Employees’ advice that CEO be given a
separation package in return for resignation – not demand for
dismissal of CEO
– advice can be accepted or rejected –
statement by employees that they cannot bear to be in the same
building with
CEO and that employer to ensure that certain day is his
last day in employer’s employ – advice to give him
separation
package – publication of complaints – lawful
activities in terms of
section 4(2)(a)
of the
Labour Relations Act 66
of 1995
and made in pursuit of conciliation process – not
insubordination and disrespectful behaviour – dismissal –
dismissal
automatically unfair – fully retrospective
reinstatement and costs
ORDER
On appeal from
the Supreme Court of Appeal (hearing an appeal from the Labour
Court):
1. Leave to
appeal is granted.
2. The appeal is
upheld.
3. The orders of
the Supreme Court of Appeal and the Labour Court are set aside.
4. The order of
the Labour Court is replaced with the following order:
“
(a)
The dismissal of the applicant employees was automatically unfair.
(b)
The respondent is ordered to reinstate the applicant employees in its
employ on terms and conditions of employment no less favourable
to
them than the terms and conditions that governed their employment
immediately before their dismissal.
(c)
The order in (b) above is to operate with retrospective effect from
the date of dismissal.
(d)
The respondent must pay the applicants’ costs.”
The
respondent must pay the applicants’ costs in the Labour Appeal
Court, Supreme Court of Appeal and in this Court.
JUDGMENT
FRONEMAN J
(Skweyiya ADCJ and Cameron J concurring):
Introduction
[1]
What
protection does the Labour Relations Act
[1]
(Act) afford to employees who demand the dismissal of their Chief
Executive Officer (CEO), with a threat to stop work if the demand
is
not met, and then also associate themselves with a letter about the
poor performance of the CEO, which their union leaks to
the press,
all during a conciliation process in terms of the Act? That is
the question to be determined in this matter.
[2]
The
respondent, the National Lotteries Board (employer or the Board),
dismissed the employees on the ground that the demand and
threat
constituted insubordination, and that the association with the press
leak constituted misconduct in the form of disrespect
and bringing
the CEO and employer into disrepute. At a disciplinary hearing the
employees were found guilty of these charges and
those who did not
make a formal apology were dismissed. The dismissals were
upheld in the Labour Court and Supreme Court
of Appeal. The
applicant (union) seeks further redress in this Court for the
dismissed employees.
[3]
The union does
so, on two alternative grounds. The first is that the
dismissals were automatically unfair under section 187
of the Act,
because the employees’ conduct amounted to participation in the
lawful activities of the union under the Act.
The alternative
ground is that if the dismissals were not automatically unfair, they
were nevertheless unfair under section
188 of the Act.
[4]
Briefly, what
happened is that the union was unhappy with the performance of the
CEO. It sought information about the CEO’s
terms of
contract from the employer. The employer refused to divulge it.
The union then referred the dispute about its alleged
right to obtain
the information to conciliation under the Act. During the
conciliation process the union and the employees
were given the
opportunity to motivate why the contract of the CEO should be made
public. The union did so in a letter (union
letter) that listed
a number of complaints against the CEO. The union letter did
not demand his dismissal, nor did it contain
any threats of a work
stoppage. The employer did not respond to a further request for
a meeting. The union letter was
leaked to the press. Again
the employer did not respond. The employees then wrote their own
letter (petition) supporting
the union, but went further in demanding
the dismissal of the CEO and stating that if it was not done by a
certain date, they would
not work in the same building with him
again. This conduct led to the institution of disciplinary
proceedings. Separately
the conciliation was declared a failure
and the employer’s contention that the union was not entitled
to the information
was upheld by the commissioner.
[5]
This judgment
holds that the enquiry should proceed by asking questions at three
different levels. The first is to determine whether
the employees’
petition and the publication of the union letter in the press
objectively amounted to insubordination and
bringing the CEO and
employer into disrepute. I find that they do, for reasons explained
later.
[6]
The second is
whether the Act contains provisions that make it automatically unfair
to dismiss employees for these transgressions.
The answer is
No.
[7]
As far as the
insubordination charge is concerned, the union letter did not demand
dismissal of the CEO and threaten a work stoppage.
The
employees’ petition did. To demand the dismissal of a
co-employee without a fair hearing is unlawful. The
employees
made that demand, the union did not. There is simply no room for the
employees to rely on the lawful activities of the
union under the Act
to justify their own, separate and unlawful, demand and threat.
[8]
Should a
dispute about the continued employment of the CEO be determined in
accordance with the dispute-resolution processes under
the Act? This
judgment says, Yes, but qualifiedly so. As will be seen later,
there are detailed and elaborate provisions
under the Act for that
kind of dispute to be resolved. Neither the union nor the employees
sought to pursue these dispute-resolution
provisions to their final
conclusion. Trade unions and employees have a choice whether to
follow or complete the dispute-resolution
route under the Act; they
cannot be compelled to do so. But if they decide to forgo that
process, they lose the protections
afforded to them under the Act
stemming from the dispute-resolution process. If there then is a
right to leak and publish that
information during the conciliation
process, it must lie outside the provisions of the Act. This
alternative source may be
the rights to petition and free expression
under the Constitution. But the automatically unfair protection
relates to union
activities in the exercise and participation of
rights under the Act, not outside it.
[9]
That
brings us to the third level. Here the question is whether the
dismissal, although not automatically unfair, is nevertheless
unfair
because the employer failed to prove that the reason for the
dismissal was a fair reason relating to the employees’
conduct
[2]
viewed in light of
all the circumstances. It is at this level that the right to
petition and free expression must play its
rightful role. Do
the rights to petition and freedom of expression in the Constitution
afford employees charged in disciplinary
proceedings with additional
independent protection outside the protection afforded under the Act?
This judgment again says,
Yes, but again only qualifiedly so.
Unions and employees may exercise their rights to petition and free
expression in parallel
to processes under the Act, but only to the
same extent as everyone else may generally exercise these rights, and
provided that
these rights may not be exercised in a way that
undermines the Act’s own processes.
[10]
It is
difficult to conceive how the union and the employees could rely on
the rights to petition and free expression outside of
the Act’s
processes without undermining those processes. The employees
sought the removal of the CEO from his position.
He can be
removed only in accordance with the provisions of the Act. To
do so otherwise would be unlawful.
[11]
The right of
employees to be protected when they participate in the lawful
activities of a union is a hard-won right. But
it forms part of
the cluster of fundamental rights that ensures fair labour practices
and the right to engage in collective bargaining
– rights that
are given expression in the Act. The dispute in this case is
one for which the Act provides elaborate
and detailed
dispute-resolution mechanisms. When participation in union
activities outside the Act is used as justification
for conduct that
is unlawful under the Act, the basic principles and structure of
collective bargaining under the Act are put at
risk. That is
cause for the gravest concern.
[12]
But this explanation has run ahead
of things. In coming to the outcome set out in this
introduction, what follows is a fuller
exposition of the facts, the
law and the reasoning in the application of the law to the facts.
Facts
[13]
The dispute stems from the union’s
dissatisfaction with the performance of the CEO. On 20 March
2008, the union sent
letters to the employer’s human resources
and administration manager seeking a meeting with him to obtain the
CEO’s
employment contract and to raise complaints about his
leadership style. The union was also dissatisfied with its
exclusion
from the interview process for the position of chief
operations officer. The human resources manager replied that
the union
was not entitled to see the contract and that an employee
who had a grievance had the right to follow the grievance procedure
in
terms of the employer’s Staff Policy. He also warned
that further misconduct would result in disciplinary action,
including
possible dismissal. The union took umbrage at this
reply, regarding it as a breach of the collective agreement between
it
and the employer.
[14]
As a result the union referred the
dispute to the Commission for Conciliation, Mediation and Arbitration
(CCMA) under section 16
of the Act. It sought disclosure of the
“terms of reference of the CEO”. The Commissioner issued
a directive
in the following terms on 9 May 2008:
“
In
view of the willingness of both parties to settle the matter, the
conciliation will be extended for 30 days to give the parties
the
opportunity:
1.
To draft a motivation to the Board of the National Lotteries Board
outlining the reasons why it is important for the contract
of
employment of the CEO to be made public.
2.
To specify in writing expectations of the staff in terms of overall
organisational performance and delivery.”
[15]
The union’s motivation came on
23 May 2008 in the form of the union letter. The union letter
is highly critical of the
CEO and lists some 17 paragraphs of
complaints about his performance. These included that the CEO
gave preferential treatment
to certain departments by allowing them
to appoint friends without advertising the vacancies, not applying
consistent contractual
terms and further, that he “failed to
guide the Board in ensuring that the Companies involved in the
re engineering
process were properly appointed through [Public
Finance Management Act] compliant tender processes.” The
union described
these problems as “directly linked to the
operations of the CEO and in turn adversely affecting both staff of
the [Board]
and [its] beneficiaries,” and asserted that they
had, inter alia, “culminated into job losses, non-delivery of
essential
services by NGOs to the communities of the country that are
affected by abject poverty.” The demand to see the CEO’s
contract and terms of reference is reiterated, but without any threat
to act outside the conciliation process. The letter
does not
ask for a further meeting with the employer. The union
subsequently leaked this letter and, on 30 May 2008, it was
published
in the
Mail & Guardian
.
[16]
A report in
the
Mail &
Guardian
on 30 May 2008 noted that the union letter had been sent to the
employer and that it contained “a lengthy list of concerns”.
The report notes that the CEO “is accused of treating
staff and board members autocratically and routinely failing
to meet
delivery deadlines for the handover of more than R2-billion in annual
grants to sports, arts and charities.” Among
the
complaints in the letter listed in the report are that the CEO:
failed to institute performance appraisals, skills development
and
HIV/Aids policies; purchased flat screen televisions and digital
satellite decoders instead of upgrading old computers
and printers;
introduced unreasonable access restrictions; delayed or reneged on
payment to beneficiaries; failed to institute
affirmative action; and
plotted the constructive dismissal of a staffer.
[17]
On 3 June 2008 – before the
extended period for conciliation had expired – the petition,
containing a vote of no confidence
in the CEO, signed by 41
employees, was sent to the employer. It read:
“
We
the undersigned employees of the National Lotteries Board and as
citizens of the Republic of South Africa, hereby submit a VOTE
OF NO
CONFIDENCE in the CEO of the National Lotteries Board, Prof Vevek
Ram.
In
addition to the letter dated 23 May 2008, attached herein as
‘Appendix A’, we the employees of the Board have lost
confidence in him and his ability to run the organisation. We,
the employees of the Board have suffered adversely under his
bureaucratic leadership style and his inept management approaches.
We, as the employees of the Board are no longer prepared
to
bear with him anymore.
In
light of the above, we urge the Board to request Prof Vevek Ram to
resign and further look at a suitable settlement for him as
deemed
fit by the Board. Failing which, Prof Vevek Ram must be
relieved of his duties due to the reasons stated in ‘Appendix
A’.
We
do not only submit this vote of no confidence on our behalf, but for
fellow South Africans who are currently adversely affected
by the
bureaucratic leadership style of Prof Ram. The poor, victims of
crime, the homeless, the future sporting stars and
the future artists
of this country are dependent on the public-centred service delivery
which they are currently being denied.
We
further urge the Board to take this matter seriously as we are no
longer prepared to spend a day with Prof Ram in the same building
with him at the helm of this organisation. We further urge the
Board to ensure that June 30th 2008 is the last day of his
employment.
We
the undersigned whole-heartedly support the vote of no confidence in
Prof Vevek Ram. We further state that we
were neither
coerced nor misled into signing this vote of no confidence. We fully
understand our actions.”
[18]
The union urged the employer not to
subject any of its members to “any form of intimidation or
victimisation” for the
decision they had taken. In reply
the employer, through its attorneys, wrote to the union setting out
its position in relation
to the various points raised. It
stated that in terms of the collective agreement the union had no
entitlement to the contract
of the CEO and that the union had also
breached the procedural and substantive commitments it bound itself
to in the collective
agreement. It warned that if this behaviour
continued, notice would be given for termination of the agreement. It
referred to the
publication of the union’s letter of 23 May
2008 in the media and warned that this was not a lawful activity of
the union
permitted under section 5 of the Act, but was intended to
undermine the authority of the Board, to bring it into disrepute and
to create conflict in the workplace. The demand contained in
the petition was unlawful and the threat not to work constituted
an
act of insubordination on the part of the employees who signed it.
[19]
In spite of this, the majority of
the employees who had signed the petition persisted in their demands.
[20]
The
conciliation process had been extended to 11 June 2008. On that
day the employer raised an objection to the jurisdiction
of the CCMA
to conciliate or arbitrate the dispute about the information the
union sought from the employer. A certificate
of non-resolution
was issued
[3]
and the matter was
set down on 24 July 2008 for a hearing on this issue.
[21]
On 17 June 2008 the Board brought
three charges against the remaining 38 employees. The
charges were:
(a)
Insubordination and disrespectful
behaviour, making the continued employment relationship intolerable,
by associating with and supporting
the contents of the letter dated
23 May 2008 and supporting the petition dated 3 June 2008.
(b)
Bringing the name and reputation of the
employer and the CEO into disrepute and making the continued
employment relationship intolerable
by associating with and
supporting the contents of the union’s letter dated 23 May
2008, the publication of the contents
of the letter in the media and
the union’s stated intention (conveyed in its letter of
5 June 2008) to make the
contents of its correspondence
with the employer available to the media and whomever it deems fit.
(c)
A material breach of the general duty to
act in good faith and to co operate with, and the refusal to
work under, the supervision
and control of the duly appointed CEO.
[22]
The
disciplinary hearing, after some postponements, commenced on
30 June 2008.
It
was conducted by Professor Andrè van Niekerk, an acknowledged
labour law expert.
[4]
He
found the charged employees guilty on the first two counts but also
found that, outside of the elements of insubordination
and disrespect
contained in the first two counts, there was no further indication of
an actual refusal to work or cooperate.
[23]
As far as the insubordination charge
was concerned, he stated that the question whether the employees
defied the employer’s
authority raised tension between the
employees’ right to freedom of expression and their obligation
to show a degree of respect
to the employer. Internal
procedures for the resolution of grievances contemplate an initial,
private attempt to resolve
workplace grievances at the lowest
possible level. At no stage did the union seek to have the
issues contained in the 23 May
2008 letter formally tabled as
grievances, nor did they seek a resolution in terms of any internal
process. There was no
evidence that the union had exhausted all
possible avenues in seeking to have their concerns addressed by the
employer. The
union’s allegations in the 23 May 2008
letter amounted to little more than conjecture. The union
failed to bring the
grievances to the attention of management through
the appropriate grievance procedure or any statutory mechanisms
available to
it. By associating themselves with the union’s
actions, the individual employees made themselves guilty of
insubordination
and disrespectful behaviour.
[24]
He also found that there was no
doubt that the union made the contents of the 23 May 2008 letter
available to the media. This
was in line with the union’s
express intentions as contained in the letter of 5 June 2008.
By associating themselves
with the publication of the contents of the
letter, and in particular, by stating that the CEO should resign,
failing which he
should be dismissed, the charged employees made
themselves guilty of insubordination and disrespect.
[25]
The charged employees were given an
opportunity to apologise unreservedly for their conduct at the
disciplinary inquiry prior to
the imposition of sanction. All
of the employees – except for those now before us – did
so. The employees
in the current appeal made a conditional
apology, but were nevertheless dismissed.
[26]
An internal
appeal failed and the matter was then taken further to the Labour
Court.
[27]
At no stage
during the disciplinary proceedings or in the Labour Court did the
union or dismissed employees attempt to rely on the
section-16
referral to the CCMA as a defence to the charges. As noted,
those proceedings were postponed on 11 June 2008
after a
certificate of non-resolution was issued. On 24 July 2008 the
commissioner heard argument on whether the union was
“entitled
to disclosure of information pertaining to the employment contract of
the CEO”. He handed down his
ruling on 1 August 2008,
finding that the union was not entitled to disclosure of information
concerning the CEO’s employment
contract.
The union did not seek a review of the decision on
that issue.
Constitutional
and legal context
[28]
The
Constitution guarantees every worker the right to join a trade union
and to participate in its activities and programmes.
[5]
It also provides that trade unions have the right to determine
their own administration, programmes and activities, to organise
[6]
and to engage in collective bargaining.
[7]
The Constitution, of course, also protects other fundamental
rights, including the right to freedom of expression,
[8]
the right to present petitions,
[9]
and the right to freedom of association.
[10]
[29]
The
Act seeks to give effect to the right to fair labour practices under
the Constitution.
[11]
It
provides that every member of a trade union has the right to
participate in the lawful activities of the union
[12]
and that every union has the right to plan and organise its
administration and lawful activities.
[13]
[30]
Under section 14(4) of the Act, a
trade union representative has the right—
“
(a)
at the request of an employee in the workplace, to assist and
represent the employee in grievance and disciplinary proceedings;
(b)
to monitor the employer’s compliance with the workplace-related
provisions of this Act, any law regulating terms and conditions
of
employment and any collective agreement binding on the employer;
(c)
to report any alleged contravention of the workplace-related
provisions of this Act, any law regulating terms and conditions
of
employment and any collective agreement binding on the employer to—
(i)
the employer;
(ii)
the representative trade union; and
(iii)
any responsible authority or agency; and
(d)
to perform any other function agreed to between the representative
trade union and the employer.”
[31]
An
employer must disclose to a trade union representative all relevant
information that will allow that representative to perform
these
functions effectively.
[14]
An
employer is not obliged to disclose information—
“
(a)
that is legally privileged;
(b)
that the employer cannot disclose without contravening a prohibition
imposed on the employer by any law or order of any court;
(c)
that is confidential and, if disclosed, may cause substantial harm to
an employee or the employer; or
(d)
that is private personal information relating to an employee, unless
that employee consents to the disclosure of that information.”
[15]
[32]
Disputes about what information is
required to be disclosed may be referred to the CCMA. Section
16 of the Act states in relevant
part:
“
(6)
If there is a dispute about what information is required to be
disclosed in terms of this section, any party to the dispute
may
refer the dispute in writing to the Commission.
(7)
The party who refers the dispute to the Commission must satisfy it
that a copy of the referral has been served on all the other
parties
to the dispute.
(8)
The Commission must attempt to resolve the dispute through
conciliation.
(9)
If the dispute remains unresolved, any party to the dispute may
request that the dispute be resolved through arbitration.
(10)
In any dispute about the disclosure of information contemplated in
subsection (6), the commissioner must first decide
whether or
not the information is relevant.
(11)
If the commissioner decides that the information is relevant and if
it is information contemplated in subsection (5)(c) or
(d), the
commissioner must balance the harm that the disclosure is likely to
cause to an employee or employer against the harm
that the failure to
disclose the information is likely to cause to the ability of a trade
union representative to perform effectively
the functions referred to
in section 14(4) or the ability of a representative trade union to
engage effectively in consultation
or collective bargaining.
(12)
If the commissioner decides that the balance of harm favours the
disclosure of the information, the commissioner may order
the
disclosure of the information on terms designed to limit the harm
likely to be caused to the employee or employer.
(13)
When making an order in terms of subsection (12), the commissioner
must take into account any breach of confidentiality in
respect of
information disclosed in terms of this section at that workplace and
may refuse to order the disclosure of the information
or any other
confidential information which might otherwise be disclosed for a
period specified in the arbitration award.
(14)
In any dispute about an alleged breach of confidentiality, the
commissioner may order that the right to disclosure of information
in
that workplace be withdrawn for a period specified in the arbitration
award.”
[33]
To
complete the picture it is necessary to mention that the Act gives
generous protection to the constitutional right to strike.
[16]
It does so in three forms: primary strikes about demands,
grievances or disputes at the workplace;
[17]
secondary strikes in support of a strike by other employees;
[18]
and protest action for the purpose of promoting or defending the
socio-economic interests of workers.
[19]
[34]
No
person may discriminate against an employee for exercising any right
conferred by the Act.
[20]
If
an employer dismisses an employee for exercising rights conferred
under the Act, or if the reason for the dismissal is that
the
employee took action, or indicated that he or she would take action,
against the employer by exercising any right conferred
by the Act or
participating in any proceedings in terms of the Act, the dismissal
is regarded as automatically unfair.
[21]
[35]
What
thus emerges is that the Act comprehensively regulates workplace
disputes by procedures agreed to and established through collective
bargaining, as well as other dispute-resolution processes in terms of
the Act. The Act also recognises that workers have
a legitimate
interest in workplace issues of other workers that do not directly
affect them, by allowing secondary strikes, as
well as in promoting
and defending the general socio-economic interests of workers through
protest action. And though the
Act does not directly speak to
rights of petition and free expression, the Act’s prohibition
against unfair dismissals includes
otherwise unjustified dismissals
resulting from employees’ exercise of
constitutionally-protected rights, including the rights
fundamental
for engaging in public discourse.
[22]
[36]
Workers and
trade unions have the right to express themselves freely on all
issues in public and in private, in the same manner
as anyone else.
That freedom is not unlimited – it does not extend to
undermining the reputation and dignity of others.
When trade
unions and workers choose to pursue resolution of disputed issues
through the dispute-resolution machinery of
the Act, they are only
entitled to the protection of the Act to the extent that they comply
with the requirements of that process.
It may be permissible to
pursue disputed issues in public debate in parallel with the
dispute resolution process under
the Act, provided that the
integrity of this process is not unreasonably undermined by doing so
and the ordinary bounds of expression,
relating to the reputation and
dignity of others, are not transgressed.
Issues
[37]
From this, it appears that the
substantive issues are:
(a)
Did the dispute relate to an internal
workplace grievance?
(b)
If so, did the conduct of the
dismissed employees objectively amount to insubordination, and
bringing the name and reputation of
the employer and the CEO into
disrepute?
(c)
If it did, was
their conduct nevertheless protected under section 4(2)(a) of the Act
as participation in the lawful activities of
the union and thus was
their dismissal automatically unfair in terms of section 187 of the
Act?
(d)
If not, was
their dismissal nevertheless unfair for other reasons in terms of
section 188(1)(a)(i) of the Act?
(e)
Was dismissal
justified as a sanction if the dismissed employees were properly
found guilty?
[38]
Before dealing with these issues,
the preliminary question to be disposed of is whether leave to appeal
should be granted.
Leave to
appeal
[39]
The
Labour Court dismissed the union’s argument that the employees’
dismissal was automatically unfair under the Act
because they were
dismissed for their mere association with the union’s
legitimate activities. Basson J found that
the union’s
activities were not legitimate activities under the Act and that the
employees unequivocally declared that they
personally accepted the
consequences of their conduct.
[23]
The alternative claim, for otherwise unfair dismissal, was also
dismissed on the basis that there were existing grievance
procedures
that were not pursued.
[24]
The dismissed employees were given a fair opportunity to retract
their support for the petition at the disciplinary hearing
but failed
to do so.
[25]
The
sanction of dismissal was thus justified.
[40]
The
Labour Court and the Labour Appeal Court refused leave to appeal, but
the Supreme Court of Appeal granted special leave to appeal
to
it.
[26]
[41]
The
Supreme Court of Appeal held that the reason for the employees’
dismissal was not the petitioning itself, but the communication
of
the offensive material contained in the petition.
[27]
Correctly construed the employees were not dismissed for petitioning,
but for their acts of insubordination manifested in
the content of
the petition.
[28]
It
also upheld, as procedurally and substantively fair, the sanction of
dismissal.
[42]
Before this Court, the union bases
its application for leave to appeal on the same grounds as it did in
the other courts: that the
dismissals were automatically unfair under
section 187 of the Act and in the alternative, that they were
“ordinary”
unfair dismissals under section 188 of the
Act. Given the constitutional importance of the right to
freedom of expression
and fair labour rights, the union argues, leave
to appeal should be granted.
[43]
The employer argues that leave
should be refused because the findings in the Labour Court and
Supreme Court of Appeal are largely
fact-based and do not establish a
constitutional issue of any import. In any event, the prospects of
success are not good either.
Hence the interests of justice do
not favour granting leave.
[44]
NEHAWU
established
the parameters for granting leave to appeal to this Court in labour
matters. It held that the interpretation and
application of a
statute that seeks to give effect to a fundamental right under the
Constitution raises a constitutional matter.
[29]
But Ngcobo J cautioned:
“
This
does not mean that this Court will as a matter of course hear appeals
against decisions of the [Labour Appeal Court] dealing
with the
interpretation and application of the [Act].”
[30]
[45]
In
that case, relevant considerations to the interests of justice
enquiry were: prospects of success,
[31]
including a difference of opinion in the Labour Court and Labour
Appeal Court on the proper construction of a provision of the
Act;
[32]
the fact that it was
the first time this Court had to consider and lay down the proper
approach to interpreting a section of the
Act;
[33]
the importance of respecting the expertise of specialised courts like
the Labour Court and the Labour Appeal Court;
[34]
and the need for labour disputes to be resolved speedily. In
regard to the latter consideration the Court stated:
“
By
their very nature labour disputes must be resolved expeditiously and
be brought to finality so that the parties can organise
their affairs
accordingly. They affect our economy and labour peace. It
is in the public interest that labour disputes
be resolved speedily
by experts appointed for that purpose. This Court will
therefore be slow to hear appeals from the [Labour
Appeal Court]
unless
they raise important issues of principle
.
The present application raises such issues.”
[35]
(Emphasis added.)
[46]
This
is consistent with this Court’s general approach that, to
obtain leave, a party must not only raise a constitutional
issue, but
must also demonstrate that the interests of justice favour granting
leave.
[36]
Ordinarily,
no appeal lies against mere dissatisfaction with the factual findings
of a preceding court’s decision or
its application of an
accepted legal test.
[37]
[47]
What is the “important issue
of principle” at stake here that needs to be decided by this
Court? This case concerns
the interpretation and application of
a number of provisions of the Act, particularly those dealing with
the nature and extent
of lawful union activities and the right of
employees to take part in them. Moreover, this case requires us
to clarify the
extent of the Act’s protection for public
employees who speak out on matters of public concern. This
Court has not
authoritatively dealt with these issues. It is in
the interests of justice to do so now.
[48]
Leave to appeal must be granted.
The appeal
[49]
Where
legislation seeks to give effect to constitutional rights, a party
must bring its case within the regulatory framework of
the statute
and may not rely directly on the constitutional right.
[38]
If it does wish to rely on the constitutional right directly it
needs to challenge the constitutional validity of the Act
that
purports to give content to the constitutional right.
[50]
The
dismissed employees do not challenge the constitutional validity of
any provisions of the Act. They do not rely directly
on the
constitutional right to petition,
[39]
nor any other constitutional right,
[40]
as an independent right outside the provisions of the Act, which
entitles them to relief. It is important to recognise this
because a failure to do so gives rise to the potential for conflating
the material issues referred to in [37] above.
A workplace
issue
[51]
The
first issue is whether the dispute relates to a workplace or
employment issue. As we have seen, the Act deals with workplace
or employment issues only. It is not necessary for the purposes
of this case to attempt to delineate the limits or boundaries
of
these kinds of issues. The Act itself contains no definitional
limits to the kind of demand, grievance or dispute that
may be dealt
with under its dispute resolution processes.
[41]
The union and dismissed employees alleged that they were
entitled to disclosure of the CEO’s employment contract. The
employer disputed the right to this information on the basis of
certain terms of the collective agreement.
[52]
The point is, however, that none of
the parties relied on any assertion that the dispute was not subject
to the provisions of the
Act. The union referred the
information dispute to the CCMA under section 16 of the Act. The
employer brought charges
of insubordination and bringing it and the
CEO into disrepute, by disclosure and publication in the media, on
the basis that the
union and employees disregarded the collectively
agreed grievance procedures as well as the provisions of the Act.
[53]
The union initiated the
dispute-resolution procedure in terms of section 16 of the Act. That
is not challenged.
It
did not complain that it was in some way forced or under duress to do
so, and that this amounted to an unfair labour practice.
It is
also unchallenged that it did not pursue the dispute-resolution
process it initiated under the Act. At no stage
of the
disciplinary proceedings, or before the Labour Court, did it raise
the objection that the disciplinary proceedings were
premature or
unfair. It made the choice not to take the CCMA finding in the
information dispute on review as it was entitled
to do under the Act.
Once again it did not complain that it was forced or under
duress to discontinue the process, and that
requiring it to do so was
some form of unfair labour practice. So, on the undisputed
facts on the record before us, the union,
of its own free accord,
initiated a dispute-resolution process under section 16 of the Act
and did not pursue it to its full conclusion.
[54]
There is no
obligation on a party to a labour dispute – in this case, the
union – to pursue the dispute-resolution process
under the Act
if it does not wish to do so. That is true, but misses the
essential point. If the union pursued the
dispute-resolution
process under the Act, the employer may not have been justified in
using disciplinary proceedings whilst the
statutory
dispute-resolution process, initiated by the union under section 16
of the Act, remained unresolved. The union
freely chose not to
pursue the dispute-resolution process it initiated. By doing so
it forswore the protections the Act ordinarily
affords to conduct
occurring within formalised dispute resolution structures. Put
in plain language – if the union
and employees objected to the
institution of disciplinary proceedings on the basis that it was
premature to do so, given the pending
dispute-resolution process
under the Act, they would have had good grounds to do so. They
never did. Not in the disciplinary
proceedings, not in the
Labour Court, not in the Supreme Court of Appeal, nor before this
Court.
[55]
With all that out of the way, one
can then proceed to deal with the issues set out earlier.
Insubordination
and disrepute
[56]
The
next issue that arises is whether the conduct of the dismissed
employees objectively amounted to insubordination and bringing
the
name and reputation of the employer and CEO into disrepute. The
determination of this question depends on an objective
assessment of
the conduct complained of and its effect on the employment
relationship. In
Malan
the Labour Court held that the “issue of whether conduct
justifies termination of an employment contract requires an analysis
of the conduct and its effect on the employment relationship.”
[42]
This is not the same inquiry as to whether the conduct of the
employees was wrongful in a delictual sense, or unlawful and
illegal
in a criminal sense. It is not necessarily decisive or even
helpful to analyse objectively the workplace conduct
of employees and
its effect on the employment relationship by relying on these
concepts from the law of delict and criminal law.
[43]
[57]
Insubordination
in the workplace context generally refers to the disregard of an
employer’s authority or
lawful
and reasonable
instructions.
[44]
Further, in this case, the Staff Policy specifically prohibited
harming
the interests and dignity of the Board and disobeying those in the
chain of command, including the CEO.
The
employer warned the union and the employees that their actions
amounted to misconduct and contravened the terms of the collective
agreement.
[45]
[58]
Had the
employees restricted themselves to the purpose of the CCMA’s
ruling, namely to “draft a motivation to the Board
. . .
outlining the reasons why it is important for the contract of
employment of the CEO to be made public” and to “specify
in writing expectations of the staff in terms of overall
organisational performance and delivery”, there would have been
no cause for any complaint by the employer.
[59]
Instead, they
abused the opportunity by demanding that the Board terminate the
CEO’s employment and threatening that, if this
was not done,
they would stop working. The petition stated:
“
In
light of the above, we urge the Board to request Prof Vevek Ram to
resign and further look at a suitable settlement for him as
deemed
fit by the Board. Failing which, Prof Vevek Ram must be
relieved of his duties due to the reasons stated in ‘Appendix
A’.
.
. .
We
further urge the Board to take this matter seriously as we are no
longer prepared to spend a day with Prof Ram in the same building
with him at the helm of this organisation. We further urge the
Board to ensure that June 30th 2008 is the last day of his
employment.”
[60]
Objectively
construed this was a demand that the CEO’s employment should be
ended without a fair hearing and a threat that,
if the demand was not
met, the employees would stop working. This was in blatant
disregard of the employer’s earlier
instructions and the
conciliation process that was instituted to resolve the dispute
relating to the CEO. On the accepted
test for insubordination
it could be regarded as nothing else. In
TSI
Holdings
the
Labour Appeal Court held that the purpose of a refusal to work
“cannot be conduct that would constitute a violation of
the
right not to be dismissed unfairly provided for in section 185 read
with section 188 of the Act”.
[46]
[61]
The
demand that Prof Ram “be relieved of his duties” was
therefore unlawful. This demand, and the associated threat
to
stop work, are issues that the employer was urged, and indeed
entitled, to take seriously. The petition itself states
that
the employees “urge the Board to take the matter seriously”
and “urge the Board to ensure that June 30th
2008 is the last
day of his employment.” The employer was entitled to take
the employees at their word, when they made
demands and when threats
were made. And as stated earlier, neither the employees nor the
union claimed that this demand and
threat was merely part of the
statutory dispute-resolution process under the Act to which they
wanted to return. It is simply
not correct that they regarded
the petition as part of the conciliation process and that, if
conciliation failed, they would proceed
under the dispute-resolution
process that the union instituted.
[47]
Bringing into
disrepute
[62]
Did
the dismissed employees’ association, with the leaking of
information to the media and its publication, have an adverse
effect
on the employer’s and CEO’s name and reputation? It
certainly violated the Staff Policy, which prohibited
the
unauthorised disclosure of any material regarding the Board’s
activities and it did not meet the requirements of the
Protected
Disclosures Act.
[48]
But
to determine whether the employer’s and CEO’s name and
reputation were adversely affected one needs to examine the
contents
of the union letter leaked to the media.
[63]
The union
letter lists a number of complaints against the CEO and the Board.
For the moment we are not concerned with the
question whether
the union was entitled as part of its right to free expression to
leak the letter to the media. The question
is simply whether
anyone reading the contents would think the CEO and the Board were
doing their duties properly? I think
not.
[64]
The report in
the
Mail &
Guardian
indicated that the union letter had been sent to the employer and
that it contained “a lengthy list of concerns”. The
content of the report is referred to in paragraph [16]
above and shall not
be repeated.
[65]
These
allegations do not, to put it mildly, reflect well on the CEO and the
employer.
Lawful
participation in union activities: automatically unfair dismissal?
[66]
That
brings us to the third issue, namely whether the dismissed employees’
conduct was nevertheless protected under section
4(2)(a) of the Act,
as participation in the lawful activities of the union. The
section makes it clear that their right to
participation is
restricted to the union’s lawful activities.
[49]
Their right to protection in relation to union activities under
sections 5 and 187 of the Act thus extends only to participation
in
lawful union activities.
[67]
The essential issue is thus what is
meant by the “lawful activities” of a trade union. Once
again care must be
taken not to confuse this enquiry with the
different issues of delictual wrongfulness or criminal unlawfulness
or illegality. “Lawful
activities” of the union in
terms of section 4(2)(a) of the Act are activities in accordance with
the Act’s provisions.
The enquiry into lawfulness here is
a specific one, namely lawfulness under the Act. It is not an
enquiry into criminal illegality
or civil wrongfulness. These
may coincide with unlawfulness under the Act, but they are not the
final determinants of the
enquiry.
[68]
But even if I
am wrong in holding that “lawful activities” of the union
means unlawfulness under the Act, and not criminal
illegality or
civil wrongfulness, the end result will not be different.
Participation in criminally illegal acts will obviously
not
assist the dismissed employees. Nor will participation in
otherwise “lawful” activities,
unless
those “lawful” activities also entail protection under
the Act
.
Thus the opposite of “lawful activities” may
perhaps more accurately be termed
unprotected
instead of
unlawful
.
An example will illustrate the point.
[69]
Employees have
a constitutional right to strike. The Act regulates the manner
in which that right can be exercised. There
is no obligation on
employees to use the regulated dispute-resolution procedures under
the Act, but there are consequences if they
do not. If they
start by using these regulated procedures, but then abandon them and
simply stop working, they are not committing
a crime. They are,
in that sense, still acting “lawfully”. But that
“lawfulness” does not afford
them the benefits of a
protected strike under the Act. By failing to adhere to the Act
the strike becomes unprotected, and
an employer will be in a position
to take disciplinary steps against them for not coming to work –
something that would not
have been possible had they complied with
the requirements of the dispute-resolution process under the Act.
The same applies
to the facts here. The actions of the
employees may not be unlawful or illegal in the criminal sense, but
they are unprotected.
[70]
The
process leading to the eventual dismissal of the employees started
with the union’s demand to obtain a copy of the CEO’s
contract. When the employer refused, the union referred this
dispute to the CCMA in terms of section 16 of the Act.
[50]
The commissioner then provided the union with an opportunity to
draft a motivation outlining the reasons the CEO’s
contract of
employment should be made public. She also gave the employees
the opportunity to specify in writing the expectations
they had in
terms of overall organisational performance and delivery. It is
important to note that the conciliation was extended
for 30 days to
give the union and the employees the chance to present their views to
the employer.
[71]
Had
things gone according to the purpose of the conciliation proceedings,
the union and the employees would have presented their
views to the
employer. If they then reached agreement the conciliation
process would have ended. If not, the matter
should have gone
back to the commissioner for further efforts at conciliation. Part
of that process required the commissioner
to determine whether the
information sought by the union – the CEO’s contract of
employment – was relevant. The
provisions of the Act in
this regard are detailed and exhaustive.
[51]
[72]
If
any party was unhappy with the arbitration award, review proceedings
could have been brought to set it aside.
[52]
There thus exists a detailed and regulated framework under the
Act to resolve the dispute that the union initially took to
the CCMA.
[73]
Neither the
union nor the dismissed employees chose to continue on the route the
Act provided. The union, if dissatisfied
with the arbitration
award, was entitled to take it on review to the Labour Court. It did
not do so.
[74]
The result is that the union and the
dismissed employees forfeited the protection of the Act when they
decided, and freely chose,
not to utilise the Act’s
dispute resolution process. One cannot abandon, mid-step,
the protected pathway of dispute-resolution
under the Act’s
provisions, and then cry foul when called to a halt for doing so.
[75]
There is
another reason why the reliance on the lawful activities of the union
cannot afford the employees automatically unfair
dismissal protection
in relation to the insubordination charge. The union did not
make the unlawful demand for the CEO to
be dismissed or the unlawful
threat that work would stop. The employees did. There is no logic in
attempting to protect the unlawful
conduct of the employees by
relying on the lawful conduct of the union.
[76]
Was
the leaking of the union letter for publication in the press
protected under the Act? One of the principles on which this
judgment is premised is that unions and
employees
may use the fundamental rights of petition and freedom of expression
in the Constitution in parallel to the Act’s
dispute-resolution
processes, provided that they have no greater right in that regard
than anyone else, and do not undermine the
integrity of the Act’s
dispute-resolution process by the purported exercise of those rights.
Do
these “parallel rights” provide automatically unfair
dismissal protection in terms of the direct and express provisions
of
the Act? The answer must be No, precisely because they are
rights that run in parallel to the dispute-resolution process
and not
as part of it in terms of the Act. They are not rights
exercised by the union or by the employees under the Act.
[53]
[77]
There
are further reasons why there can be no automatically unfair
dismissal protection. The staff policy of the employer
forbade
publication
[54]
and the
disclosure was not justified by the provisions of the Protected
Disclosures Act.
[55]
[78]
But why, even
if there are these prohibitions, should a trade union not be allowed
to publish information that it considers important
and in its
interest and the public interest? The answer is that it is of
course entitled to do so in terms of the right to
freedom of
expression under the Constitution, but that is a different question
to whether that attracts the protection of the Act.
[79]
And here one
must look a bit more closely at what the union sought to achieve by
leaking the letter to the press. In the letter,
and in the
process under the Act, it asserted that it had a right to information
about the CEO’s employment contract. The
Act provides a
detailed process for the correctness of that assertion to be
determined. The union leaked its letter to the
press and sought
its publication while conciliation was still in process. For
what purpose? To put added pressure on
the commissioner to make
a finding in its favour? If so, it was not a legitimate purpose
under the Act. To force the
employer to accede to its concerns?
If so, that too was not a legitimate purpose under the Act.
And if its purpose
had nothing to with the process under way in
terms of the Act, then how could it possibly attract the Act’s
protection?
Otherwise
unfair?
[80]
Is
that the end of the matter? Not according to section 188 of the
Act. Its relevance at this stage is that it provides
that a
dismissal that is not automatically unfair may yet be unfair if the
employer fails to prove that the reason for the dismissal
is a fair
reason related to the employees’ conduct.
[56]
As explained above, section 188(2) requires that a
determination of the fairness of a dismissal “take into
account”,
in this case, the Act’s Schedule 8, the Code of
Good Practice: Dismissal.
[57]
And in considering the Code of Good Practice, due weight must be
given to employees’ constitutional rights and their
understanding of those rights.
[81]
I cannot agree
with the view that the employer is entirely to blame for the
employees not persisting with the instigated resolution
process under
the Act, or that the union was entitled to pursue its views in the
media without having regard to its possible effect
on the integrity
of the Act’s dispute-resolution procedures.
[82]
It is true
that the employer did not accede to a meeting after the union’s
letter of 23 May 2008. But the union letter
did not ask for a
meeting, nor did the petition. This much was conceded under
cross-examination by the union official. He
admitted it was a
deliberate strategy:
“
You
agree that you could have asked for a meeting, but did not? Instead,
you employed the strategy to say, ‘We are not
going to work
with the CEO one day’. − Correct.
And
you have used this, you said this is a strategy you and [the] union
sometimes use. – Correct.”
Later on the
following exchange occurred:
“
Yes.
I put it to you that it is highly reckless of you and your
union to advise and encourage your members to take this so-called
strategy, to say what they do not mean in a letter and then expect to
get off. Any comment?
–
I
cannot comment on that.”
[83]
Of course,
unions may determine their own strategies. No one should
dictate to them in that. But I find it difficult
to understand
how it can be found that it was an unfair reason for the employer to
take the union and the employees at their word
and chosen strategy.
If one makes the point that unions must be allowed to determine
their own strategies, then surely it
must follow that they must also
accept the consequences of embarking on those strategies.
[84]
The Labour
Court made factual findings in relation to whether the employees
meant what they said when they demanded the dismissal
of the CEO and
threatened to stop working and also in relation to their association
in the leaking and publication of the union
letter. It must be
remembered that the evidence of the union and employees’
witnesses was that they never meant to
demand the CEO’s
dismissal or to stop work, even though that was what was stated in
the petition. It was also their
evidence that the union never
leaked the letter and that the employees knew nothing of the leak.
This evidence was rejected
as false in the Labour Court. I
cannot find anything on record to justify overturning those factual
findings. In addition,
it would be inconsistent to reject the
finding on the one aspect – whether the demand and threat were
meant seriously –
but to accept the other – that the
publication was leaked.
Sanction
[85]
Similarly, there is insufficient reason
to interfere with the imposed sanction of dismissal. The
employees could have persisted
with the formal dispute-resolution
process by following the grievance procedure to completion. They
were also given an opportunity
to apologise and continue working.
They chose not to.
Concluding
remarks
[86]
It is not lawful under the Act to demand
the dismissal of a fellow employee without a fair hearing. That
is what the employees
did here. The Act provides the process
for determining whether employees are entitled to information about
the employment
contract of the CEO. A determination under the
Act was made that the union was not entitled to that information.
The
effect of finding that all this may be ignored by reliance
on union activities outside the Act undermines the integrity of the
collective bargaining process under the Act. This extension of
the hard-won right of employees to participate in the lawful
activities of their union will, ironically, have an adverse effect on
the underlying rationale for that participation: to bargain
collectively and effectively under the Act for their interests. I
repeat that this will be cause for grave concern.
Costs
[87]
This is a
labour matter where the circumstances have changed materially since
the dismissals occurred. The union has lost
its representative
recognition and the CEO has departed. Awarding costs is not
called for.
Order
[88]
I would have granted leave to appeal
but dismissed the appeal.
ZONDO J (Moseneke
ACJ, Jafta J, Madlanga J, Mhlantla AJ and Nkabinde J concurring):
Introduction
[89]
I
have had the opportunity of reading the judgments prepared by my
Colleagues, Froneman J (main judgment) and Dambuza AJ. For
the
reasons that Froneman J gives I agree that this Court has
jurisdiction in this matter and that we should grant leave to
appeal.
However, I am unable to agree with him that the
dismissal of the employees (the applicant employees) was neither
automatically
[58]
nor
substantively
[59]
unfair and
that the appeal should be dismissed. In my view the dismissal
of the applicant employees was automatically unfair
and the Supreme
Court of Appeal
[60]
and the
Labour Court
[61]
erred in
finding differently.
Brief
background
[90]
Although the main judgment has set
out the background, I need to refer to certain parts of the
background for a proper understanding
of my approach to the issues.
This is necessary because there are differences of emphasis on the
facts between my approach
and that of the main judgment.
[91]
The
dispute between NUPSAW
[62]
(union) and the applicant employees, on the one hand, and the
respondent, on the other, is whether the dismissal of the applicant
employees by the respondent was automatically unfair or,
alternatively, substantively unfair and, if so, whether they should
be
reinstated. The applicants contend that the dismissal was
automatically unfair or alternatively substantively unfair whereas
the respondent contends that the applicant employees were fairly
dismissed for certain acts of misconduct.
[92]
The
applicant employees were dismissed by the Chairperson
[63]
of the disciplinary inquiry (chairperson) after he had found them
guilty of insubordination and disrespectful behaviour and of
bringing
the name of the Chief Executive Officer (CEO) of the respondent
and that of the respondent into disrepute.
However, a reading
of the chairperson’s ruling reveals that the employees were
also dismissed for other conduct about which
more will be said
later. They challenged the fairness of that dismissal in the
Labour Court. The Labour Court upheld
the decision of the
chairperson and concluded that the dismissal was not automatically or
substantively unfair. The Labour
Court took the view that the
applicant employees’ unfair dismissal claim was without any
merit, dismissed it and ordered
them to pay costs.
[93]
In September 2007 the union and the
respondent concluded a collective agreement. The union had the
majority of the employees
of the respondent in its workplace as its
members. In terms of clause 1.6 of that agreement the union and
the respondent
agreed to “
negotiate
and/or consult
(as may be the case)
in
good faith in
seeking
reasonable and satisfactory solutions
”.
(Emphasis added.) Clause 1.5 of the collective agreement
provided that the agreement was legally binding.
[94]
On
20 March 2008 the union, through three trade union
representatives
[64]
employed
by the respondent, addressed a letter to the Manager: Human Resources
and Administration of the respondent, namely Mr
Sikonela. In
that letter the union said that it would like to meet the HR
Committee of the respondent in relation to—
(a)
“
[t]he Employment Contract of the
Chief Executive Officer of the [respondent]”; and
(b)
“
[t]he nature of the contract as to
whether it is within the Generally Acceptable Practice where
occupation of similar positions
within the public sector and
government agencies is governed by a set of rules and prerequisites”.
[95]
The trade union representatives also
said that they “would like to raise complaints on, inter alia,
the leadership style and
modus operandi
of the current CEO and the bad causal-effects this has had on staff
and that we’re no longer prepared to bear with his leadership
style any longer.” They further stated: “We
request
you to kindly meet us in
due
course
so that we can get
the
latter ironed out
and
put
to rest with immediate effect
”.
(Emphasis added.) Finally, they expressed the hope that
Mr Sikonela would find “the above in order”.
[96]
On the same day the trade union
representatives addressed another letter to Mr Sikonela about
the position of the Chief Operations
Officer (COO). They
complained about the fact that the respondent had not invited the
union to participate in the interviews
for candidates for the
position of COO. The union questioned the “objectivity
and fairness of the process.”
They said that they would
not recognise “the interviews and the due appointment that
would emanate from [them]”.
They stated that, therefore,
they would not recognise the person who would be appointed as the COO
and would “not give him
or her any kind of co-operation and
assistance in whatever way.” They said that they would
isolate such a person and
ensure that he or she did not feel welcome
until due process had been followed and the union had been involved.
They demanded
that the “process be reopened and all parties be
recalled to the interviews.”
[97]
On 1 April 2008 Mr Sikonela
addressed two letters to the General Secretary of NUPSAW-Gauteng, one
replying to the union’s
letter of 20 March 2008 concerning the
CEO and the other responding to the other letter of the union of the
same date concerning
the interviews for the position of COO. Mr
Sikonela asked the union whether the shop stewards or trade union
representatives
had authority to write the letters of 20 March 2008.
In regard to the letter concerning the CEO one would have expected
that
Mr Sikonela would have contacted the HR Committee to find out
what its attitude was to the union’s request for a meeting with
it on the issues raised. However, in his reply Mr Sikonela did
not indicate that he had approached the Committee nor did
he indicate
what its attitude to the union’s request was. It seems
that he simply took it upon himself to respond to
the contents of the
letter.
[98]
I
pause here to point out that section 7(1)(a) of the Lotteries Act
[65]
provides as follows about the functions and duties of the CEO of the
respondent:
“
The
Board shall in the performance of its functions under this Act, be
assisted by—
(a)
a suitably qualified and experienced person as chief executive
officer, appointed by the board or seconded in terms of subsection
(3) and solely accountable to the board
for the performance of all
financial, administrative and clerical functions of the board and any
duties which may be delegated to
him or her by the board in terms of
subsection (4)
”. (Emphasis added.)
[99]
It is clear from section 7(1)(a)
that a CEO of the respondent performs all financial, administrative
and clerical functions of the
respondent and any other “duties
which may be delegated to him or her by [the respondent] in terms of
subsection (4)”.
The delegation of further duties by the
respondent to the CEO in terms of section 7(4) could have been
contained in the contract
of employment of the CEO or in a separate
document. The union wanted to see his contract of employment in
the context of
the fact that its members were very unhappy with the
CEO’s leadership style and “modus operandi”.
It is
obvious that the union wanted to see whether, in terms of his
contract of employment and the duties delegated to him by the
respondent,
the CEO was performing his duties or carrying out his
mandate properly.
[100]
Mr Sikonela rejected out of hand the
union’s statement that they had complaints about the leadership
style and
modus operandi
of the CEO. It is difficult to understand why the respondent
did not provide the union with the CEO’s contract but
made sure
that any parts thereof that were considered confidential were
deleted. I am sure that the part of the CEO’s
contract of
employment which identified his job was not confidential. I
also do not understand why the respondent had an
objection to making
available to the recognised trade union a copy of the document
containing the mandate given to the CEO.
[101]
Furthermore, Mr Sikonela did not
explain why the respondent was not prepared to agree to the union’s
request for a meeting
with the HR Committee of the respondent to
discuss its complaints. The suggestion that any employee who
had a grievance should
follow the grievance procedure was not a good
response because good labour practice is that, as far as possible,
attempts should
be made to resolve complaints informally before
formal procedures may be invoked.
[102]
Mr Sikonela told the union that it
was the prerogative of the respondent to interview and employ
personnel. He said that neither
the union nor its
representatives had “a right to be involved in interviews for
any position.” He threatened
the union, its officials and
members with an urgent application for an interdict, should they
“interfere in the functioning
and efficient operations of the
respondent.” He warned that “[t]he threats of the
non-recognition of the COO
and non co-operation with the COO [would]
constitute insubordination or other misconduct to the extent that
such threats [interfered]
with the activities of the COO and the
functioning of the [respondent].” In the last sentence he
wrote that “any
misconduct would result in disciplinary action
which could include dismissal.” By way of a letter dated
3 April 2008
the union’s provincial organiser
responded to the respondent and assured it that the shop stewards
were entitled to raise
with the respondent on behalf of the union the
issues they raised in the letters of 20 March.
[103]
In the Labour Court Mr Mani, one of
the applicant employees and a shop steward of the union, testified
that, prior to the interviews
for the position of COO, the union had
been invited to, and, participated in, a number of interviews for the
appointment of employees
in the respondent. This was not
challenged. Under cross examination it was put to Mr Mani
that there had been
no precedent of the union being involved in
interviews of candidates for senior positions. The suggestion
was that the practice
of involving the union in interviews was
limited to cases where junior staff members were to be appointed.
Mr Mani’s
reply was that there had not been interviews for
senior positions but he maintained that the union was entitled to
participate
in all interviews.
[104]
There was no suggestion that the
respondent had ever told the union that the practice was limited to
certain positions. Mr
Sikonela’s statement that the union
was not entitled to participate in any interviews for any position
must have been untrue
because at the trial Mr Mani’s evidence
was that, prior to the interviews for the position of COO, the union
had been involved
in a number of interviews and this evidence was not
disputed.
[105]
Since, prior to the interviews for
the position of COO, the union had been invited to interviews and it
had never been told that
it would not be invited to interviews for
senior positions, one would have expected that the respondent would
have informed the
union, before the interviews, that it would not be
invited to the interviews for the position of COO because this was a
senior
position. This would have made sure that the union was
not taken by surprise by its exclusion from the interviews for the
position of COO. The respondent did not do this. One
would also have expected that, when the union raised the issue,
the
respondent would have apologised for not informing the union before
that it would not be invited to interviews for senior positions
and
explained its stance properly. However, the respondent did not
do this either.
[106]
The respondent’s conduct in
ignoring the union’s request for a meeting and its refusal to
furnish the union with the
CEO’s contract or his “terms
of reference” gave rise to a dispute (disclosure dispute)
between the parties.
In April 2008 the union referred the
dispute to the Commission for Conciliation, Mediation and Arbitration
(CCMA) for conciliation
in terms of the LRA. In the relevant
part of the CCMA referral form the union said that the outcome that
it wanted to achieve
through the conciliation process was the
disclosure of “the terms of reference of the CEO.”
I think this was
a reference to the mandate or targets given to the
CEO by the respondent.
[107]
A
conciliation meeting
[66]
was
held at the CCMA on 9 May 2008. The meeting was chaired by a
commissioner of the CCMA, Ms Ann Hofmeyr. She was
of the view
that both parties were willing to settle the matter.
Accordingly, with the consent of both parties, she extended
the
statutory conciliation period for 30 days to give the parties a
further opportunity to resolve the dispute.
[67]
That extension would take the conciliation period to 9 June 2008.
In a note the commissioner wrote that—
“
[i]n
view of the willingness of both parties to settle the matter, the
conciliation will be extended for 30 days to give parties
the
opportunity . . .
1.
To draft
a motivation
to the Board of the National Lotteries
Board
outlining the reasons why it is important for the Contract
of Employment of the CEO to be made public.
2.
To specify in writing expectations of the staff in terms of
overall organisational performance delivery
.” (Emphasis
added.)
This note was
signed by the commissioner and the representatives of the parties.
In my view item 2 of the note meant that
the union should not just
give the motivation required in item 1 but should also address itself
to what its members saw as the
way to resolve the dispute – in
other words, their proposed solution.
[108]
On 23 May 2008 the union addressed a
letter to Mr Sikonela on the “Position of the CEO and Terms of
Reference”.
I do not propose to quote the contents of
that letter but will refer to certain parts of its contents.
That letter is one
of two upon which the subsequent disciplinary
charges were based. The union said in the opening paragraph of
the letter that
it was giving “motivation for demanding access
to the contract of the CEO and Terms of Reference.” That
the union
said this is quite important because it puts beyond doubt
the fact that the contents of that letter were intended as
motivations
for the union’s stance on the dispute then pending
before the CCMA. In the letter the union raised complaints or
grievances
about the CEO and about how certain things were done in
the organisation. The context of the articulation of these
complaints
is that they were being relied upon to justify the union’s
contention that the respondent should let it have a copy of the
CEO’s
contract of employment and his mandate from the respondent.
Most, if not all, of the issues raised in the letter
can be accepted
as having been legitimate for a trade union to raise with its
members’ employer if its members were concerned
about, or, felt
aggrieved by, such issues.
[109]
The letter of 23 May 2008 is
lengthy. The union must have taken a lot of trouble to prepare
such a detailed letter.
There is no suggestion that in taking
the trouble the union was motivated by anything other than a genuine
desire to achieve a
resolution of the dispute or of the grievances of
its members. It seems to me that, seeing the dissatisfaction
with the CEO’s
leadership style and
modus
operandi
, the union wanted to examine
the terms and conditions of his contract of employment as well as his
mandate and targets, if any,
given to him by the respondent so as to
see what power he had and what mandate he had been given by the
respondent and whether
he was executing his mandate properly.
[110]
It has never been suggested that the
contents of the letter were not a true reflection of the concerns or
grievances of the union’s
members. Therefore, the matter
must be decided on the basis that the contents of that letter
reflected the union members’
bona fide views, concerns or
grievances.
[111]
By
3 June 2008 the respondent had not responded to the union’s
letter of 23 May. It also had not agreed to have
a meeting
with the union. The union then wrote another letter to Mr
Sikonela. The letter was dated 3 June 2008. Its
subject
was: “VOTE OF NO CONFIDENCE IN THE CEO OF THE NATIONAL
LOTTERIES BOARD, Prof Vevek Ram.” The letter has
been
referred to as a petition and has been quoted in the main
judgment.
[68]
Since it
has been quoted in the main judgment, I shall discuss its contents
without quoting it in full. The respondent
accepted that the
petition was written by the union and the employees.
[69]
[112]
In the first paragraph of the
petition the union and the employees said that, as employees of the
respondent and as citizens of
the Republic, they were submitting “a
vote of no confidence in the CEO” of the respondent, Prof Vevek
Ram.
[113]
In the second paragraph the union
and the employees said that “
[i]n
addition to the letter of 23 May 2008
,
attached herein as Appendix A, we the employees have lost confidence
in the CEO and in his ability to run the organisation”.
(Emphasis added.) The phrase “[i]n addition to the letter
of 23 May 2008” is indicative of the fact that the
letter of 3
June 2008 or the petition was an extension of, or follow up on, the
letter of 23 May 2008. This is important
for the point I make
later in this judgment that the statements made by the employees and
the union in this letter were made in
pursuit, and, in the course, of
the statutory conciliation process and as part of collective
bargaining aimed at resolving the
disclosure dispute. They also
said that the employees had “suffered adversely under [the
CEO’s] bureaucratic
leadership style and his inept management
approaches.” They added: “
We,
as the employees of the [respondent] are no longer prepared to bear
with him anymore.
” (Emphasis
added.)
[114]
In the third paragraph the union
went on to say:
“
In
the light of the above we
urge
the [respondent]
to request Prof Vevek
Ram to resign and further to look at a suitable settlement for him
deemed fit by the [respondent]. Failing
which, Prof Vevek Ram
must be relieved of his duties due to the reasons stated in Appendix
‘A’.
” (Emphasis
added.)
Appendix A was
the union’s letter of 23 May 2008. I draw attention here
to the use of the verb “urge” to
give expression to what
the employees and the union were seeking to do in this letter.
An appreciation of the meaning of
that word and its role in that
sentence is very important. The Concise English Oxford
Dictionary says the verb “urge”
means—
“
encourage
or entreat earnestly to do something – strongly recommend –
encourage to move more quickly – (urge someone
on) encourage
someone to continue.”
The Cambridge
International Dictionary of English gives the following meaning to
the verb —
“
to
strongly advise or ask (someone) to do a particular thing or for
(something) to happen. The dogs are urged into fighting
more
fiercely by loud shouts from the crowd. I urge you all to take
the time to read at least three novels on the list.
Lawyers
will
urge
the parents to take further legal action if necessary.”
(Emphasis added.)
[115]
It is clear from the meaning of the
verb “urge” that what the union and employees said in
that sentence is that they
were earnestly encouraging or entreating
or strongly recommending or strongly advising the respondent to offer
the CEO a suitable
monetary compensation in return for his
resignation failing which they were strongly advising or recommending
that the CEO be relieved
of his duties. They did not say that
they were demanding that the CEO be dismissed. With reference
to the last sentence
used in the quotation in the Cambridge
International Dictionary of English, one cannot say that that
sentence means the same as
saying: “Lawyers will
demand
the parents to take further legal action if necessary”.
It is to be noted that in the petition the employees use the
verb
“urge” three times to describe what they were seeking to
do. They use the verb two times in the fifth paragraph.
[116]
In the fourth paragraph the union
and employees said that they were not submitting the vote of no
confidence only on their behalf
but also “for fellow South
Africans who are currently adversely affected by the bureaucratic
leadership style of the [CEO].”
They continued: “The
poor victims of crime, the homeless, the future sporting stars and
future artists of this country are
dependent on the public-centered
service delivery which they are currently being denied.”
[117]
In the fifth paragraph the union and
employees said:
“
We
further
urge
[the respondent] to take this matter seriously as we are no longer
prepared to spend a day with Prof Ram in the same building with
him
at the helm of this organisation. We further
urge
the [respondent] to ensure that June
30th 2008 is the last day of his employment.” (Emphasis
added.)
I once again draw
special attention to the fact that in this paragraph the union and
employees used the verb “urge”
twice to articulate what
they were seeking to do. All in all the union and the employees
used the word “urge”
three times in the petition.
In my view this was not accidental. The word must have been chosen
intentionally. I shall
elaborate on this shortly.
[118]
In the last paragraph of the letter
the employees said that they supported the vote of no confidence in
the CEO “whole-heartedly”
and had neither been coerced
nor misled into signing the vote of no confidence. They
concluded: “We understand our
actions.”
[119]
A reading of the letter of 23 May
and the petition reveals that in the letter of 23 May the union
sought to provide motivation
for its stance on the dispute whereas in
the petition it and the employees proposed a solution or a way of
resolving the disclosure
dispute. Accordingly, in writing both
the letter of 23 May and the petition, the union sought to give
effect to items 1 and
2 of the agreement reached at the conciliation
meeting. At that time it was about two and a half months since
20 March when
the union had asked the respondent for a meeting, a
copy of the CEO’s contract and mandate and nothing was
forthcoming from
the respondent. This must have begun to cause
the union and its members some degree of frustration.
[120]
Earlier on I drew special attention
to the fact that in the petition the union and employees used the
verb “urge” to
describe what they sought to do.
They did so in the third and fifth paragraphs. In the third
paragraph they said that
they were
urging
the respondent to request the CEO to
resign in return for a suitable separation monetary package failing
which the CEO should be
relieved of his duties. There are two
points I wish to make in this regard.
[121]
The first point is that, in the
light of the meaning of the verb “urge” used in that part
of the petition, the meaning
of the third paragraph is that the union
and the employees were giving the respondent strong advice or
recommendation to offer
the CEO a suitable separation monetary
compensation in return for his resignation. The meaning of that
paragraph is also
that if that failed, the union’s and
employees’ strong advice or recommendation was that the CEO be
relieved of his
duties. The second point is that the
proposition that the employees demanded the dismissal of the CEO is
not consistent with
the use of the verb “urge”. The
union and employees were giving the respondent strong advice or a
recommendation
which it could accept or reject. In that letter
they did not spell out what they would do if the respondent rejected
the
advice. It must also be mentioned that the petition was not
the only letter in which the union and employees used the verb
“urge”
to describe what they sought to do. They also used that verb in
the letter of 5 June 2008 to which reference
will be made shortly.
[122]
The petition was delivered to the
respondent on 4 June 2008. On 5 June and before the respondent
could reply to the petition,
the union addressed another letter to
the respondent. That letter was dated 5 June 2008. The
union warned the respondent
not to intimidate or victimise union
members because of the letter of 23 May. It also pointed out
that it had a right to
communicate the contents of its correspondence
to the public through the media without any fear of scrutiny or
victimisation.
[123]
The union reminded the respondent
that it was a public institution and the public was entitled to know
of the activities in the
organisation that are of public interest.
The union wrote: “The union can also not be dictated to on how
to conduct
its business and this should also be respected by the
[respondent] regardless of its objection to the position of the
union.”
The union said that, whenever it saw fit, it
would publish information to the public “for information and
support.”
It said: “The union has a right to seek
advice and the intervention from whichever quarters.”
[124]
More importantly, the union said in
its letter:
“
We
therefore
urge the [respondent] to
address the current impasse with the representatives of the Union.
We have always indicated that
dialogue is key in problem-solving and
it is still advisable for the [respondent] to pursue dialogue and
nothing else in dealing
with the current impasse
.
Any form of intimidation will be met with unprecedented resistance
and we shall not allow anyone for whatever reason to
attempt to
intimidate our members in whatever fashion and style.”
(Emphasis added.)
Here, too, I draw
special attention to the use by the union of the verb “urge”
to describe what they were seeking to
do. The union’s
call to the respondent to engage in a dialogue with it to resolve the
dispute between the parties was
in accordance with the undertaking
that both parties had made to each other in clause 1.6 of their
collective agreement.
In terms of that clause the parties had
undertaken to “negotiate and/or consult in good faith in
seeking reasonable and satisfactory
solutions” to problems and
disputes.
[125]
In concluding the letter of 5 June
2008 the union said that there needed to be a change of leadership at
the respondent “for
the interest of all concerned be it the
public, staff at the Board or government as a shareholder.”
[126]
The respondent did not respond to
the union’s plea for the issues to be resolved through
dialogue. Instead, it handed
the matter over to a firm of
attorneys to correspond with the union. In a letter to the
union dated 6 June 2008 those attorneys,
who also acted for the
respondent in these proceedings, contended that the union’s
request for the CEO’s contract of
employment and his “terms
of reference” was “misconceived” and “lacked
legal justification”.
This response by the respondent’s
attorneys lacks an appreciation that, in collective bargaining, a
union does not normally
ask for things to which it is entitled in law
but asks or demands things to which it or its members are not legally
entitled but
will be contractually entitled if an agreement is
reached.
[127]
The attorneys said that the
demand contained in the petition was unlawful but failed to explain
the legal basis for that contention.
They also said that the
“threat that employees will not work should Prof Ram continue
to serve as CEO after 30 June constituted
an act of insubordination”
by all individuals who had signed the petition. In this letter
the respondent’s attorneys
suggested that there was such a
threat in the petition. They said that the threat was an act of
insubordination.
[128]
It is factually untrue that in the
petition the employees threatened that they would not work beyond 30
June 2008 if the CEO continued
to be the CEO of the organisation.
What the employees said in the petition was that they could not bear
to be with the CEO
anymore in the same building while he was at the
helm of the organisation. They also urged the respondent to
ensure that
30 June 2008 was his last day of employment. They
did not say what they would do if, after 30 June 2008, he was still
there
as CEO of the organisation. The respondent’s
attorneys read into the petition a threat not to work that was not in
the petition. The main judgment does the same thing. A
reading of the petition sentence by sentence reveals that there
is no
such threat nor is there any statement referring to stopping work.
[129]
Even
if there was a threat to stop work, the respondent would have had to
establish how that work stoppage would come about and
not assume that
it would be an illegal work stoppage. This would be important
because the work stoppage could well be a protected
strike. It
is possible that if, after 30 June 2008, the CEO was still there as
CEO, the union and the employees could have
taken the necessary steps
to comply with section 64 of the LRA
[70]
in
order to embark upon a collective refusal to work in support of a
demand that the CEO be dismissed. Provided that his dismissal
would be substantively and procedurally fair and the requirements of
section 64 of the LRA had been complied with, a work stoppage
in
support of the demand would be a protected strike in terms of the
LRA. In such a case the dispute between the parties
would not
be the disclosure dispute. It would be whether or not the CEO
should be dismissed because, for example, of serious
misconduct or
poor performance or his anti-union attitude. In
TSI
Holdings
[71]
the Labour Appeal Court left the question open whether a work
stoppage in support of a demand for the dismissal of a manager or
co employee would be protected where the dismissal would not
infringe the relevant co employee’s or the manager’s
right not to be dismissed unfairly.
[130]
In the present case the union and
the employees would have had to apply their minds to that after 30
June 2008. Furthermore,
in the present case we have to decide
this matter on the assumption that the complaints against the CEO
were legitimate and true
because both the chairperson of the
disciplinary inquiry and the Labour Court did not investigate whether
those complaints were
valid and they were prepared to assume so.
[131]
In their letter of 6 June 2008 the
attorneys for the respondent said that “[t]he delivery of such
an unlawful ultimatum is
subversive of the integrity and the
authority of the [respondent] and its capacity to continue to perform
its statutory functions.”
The reference to “an
unlawful ultimatum” must be a reference to the alleged threat
they read into the petition that
the employees were threatening to
stop work if, after 30 June 2008, the CEO had not been
dismissed. They called upon
the union and each one of its
members who had signed the petition to withdraw the petition
unequivocally by close of business on
Monday 9 June 2008 failing
which the respondent would institute disciplinary action against the
signatories. The effect of
this ultimatum was that the
respondent would not bring disciplinary charges against the employees
if the union and employees withdrew
the petition. The fact that
the respondent issued an ultimatum calling upon not just the
employees but also the union to
withdraw the petition suggests that
the respondent accepted that the petition had been written or issued
by both the union and
the employees.
[132]
The choice of 9 June as the deadline
for the employees to withdraw the petition was important. It
was either the last day
of the extended statutory conciliation period
or it was the day after the expiry of that period. Subsequent
to the conciliation
meeting, the union had written the letter of 23
May 2008 giving its motivation for its stance on the dispute pending
at the CCMA.
It was still waiting for a reply from the
respondent when it wrote the petition on 3 June 2008 giving its own
solution to the dispute.
It had then written the letter of 5
June 2008 suggesting a dialogue between the parties to resolve the
dispute when, on 6 June
2008, the respondent responded by issuing a
demand to the union and employees to withdraw the petition on or
before 9 June
2008 failing which the employees would face
disciplinary action. The ultimatum came a day or two before the
expiry of the
extended conciliation period. The main judgment
finds that the union abandoned the conciliation process. This
sequence
of events from 23 May to the end of the conciliation period
shows that it cannot be said that the union abandoned the
conciliation
process.
[133]
On 9 June 2008 the union responded
to the letter of 6 June from the respondent’s attorneys.
It claimed the “Freedom
of expression and the right to
assembly, demonstration, picket and petition”. The union
said that, when it thought
that the CEO’s performance was not
satisfactory and not in line with the Lotteries Act, it would be
entitled to raise these
issues. The union also pointed out that
according to the Oxford Dictionary the word “petition”
means a “formal
request, typically signed by many people
appealing to the authority in respect of a course.” It
seems to me that by
saying this the union meant that there was no
demand in the petition but requests.
[134]
With regard to the statement in the
letter of 6 June 2008 that in the petition there was a threat to stop
work, the union said:
“[t]here is no reference to strike or
work stoppage on or after 30 June 2008 by our members on the letters
of 23 May 2008
and 3 June 2008 respectively.” This
statement by the union should have put to bed the allegation that in
the petition
the employees had threatened to stop work if the CEO was
not dismissed. Both the chairperson and the Labour Court
impliedly
rejected that allegation. The union pointed out that
the respondent’s ultimatum that the union and employees
withdraw
the petition was “an infringement of workers’
rights.”
[135]
Arising out of the exchange of
correspondence, the union members were charged with acts of
misconduct. Before I discuss the
charges or allegations of
misconduct, it is necessary to refer to the relevant constitutional
and statutory framework.
Constitutional
and statutory framework
[136]
In
terms of section 16(1) of the Constitution everyone has the right to
freedom of expression.
[72]
Section 17 provides that everyone has the right, peacefully and
unarmed, to assemble, to demonstrate, to picket and to present
petitions.
[73]
Section
18 provides that everyone has the right to freedom of
association.
[74]
[137]
Section 23(1) of the Constitution
provides that everyone has the right to fair labour practices.
Section 23(2) reads as follows:
“
Every
worker has the right—
(a)
to form and join a trade union;
(b)
to participate in the activities and programmes of a trade union
;
and
(c)
to strike.” (Emphasis added.)
Section 23(4)
confers upon every trade union and every employers’
organisation the right—
“
(a)
to determine
its own administration,
programmes and activities
;
(b)
to organise
; and
(c)
to form and join a federation.” (Emphasis added.)
Section 23(5) of
the Constitution provides:
“
Every
trade union, employers’ organisation and employer
has
the right to engage in collective bargaining.
National legislation may be enacted to regulate collective
bargaining. To the extent that the legislation may limit
a
right in this chapter, the limitation must comply with section
36(1).” (Emphasis added.)
[138]
The LRA is the legislation
contemplated in section 23(5) of the Constitution which regulates
collective bargaining. Among
other things the LRA gives effect
to every trade union’s right to engage in collective bargaining
and to most, if not all,
the rights in section 23. Chapter 2 of
the LRA deals with freedom of association and general protections.
Section 4(2)(a)
and (d) of the LRA provides:
“
Employees’
right to freedom of association
.
. .
(2)
Every member of a trade union has the right, subject to the
constitution of that trade union—
(a)
to participate in its lawful activities
;
.
. .
(d)
to stand for election and be eligible for appointment as a trade
union representative and, if elected or appointed,
to carry out
the functions of a trade union representative in terms of this Act or
any collective agreement
.” (Emphasis added.)
[139]
Section 5(1) of the LRA provides
that “[n]o person may discriminate against an employee for
exercising a right conferred by
this Act.” Section 5(2)
provides that:
“
Without
limiting the general protection conferred by subsection (1), no
person may do or threaten to do, any of the following:
.
. .
(b)
prevent an employee from exercising any right conferred by this
Act or from participating in any proceedings in terms of this Act
;
or
(c)
prejudice an employee
because of past, present or
anticipated
—
.
. .
(iii)
participation in the lawful activities of a trade union
,
federation of trade unions or workplace forum;
(iv)
failure or refusal to do something that an employer may not
lawfully permit or require an employee to do
;
.
. .
(vi)
exercise of any right conferred by this Act
; or
(vii)
participation in any proceedings in terms of this Act
.”
(Emphasis added.)
[140]
The effect of section 5(2)(b) is to
preclude anyone from preventing or threatening to prevent any
employee from exercising any right
conferred by the LRA or to
preclude anyone from preventing or threatening to prevent any
employee from participating in any proceedings
in terms of the LRA.
The effect of section 5(2)(c)(iii) is to preclude anyone from
prejudicing any employee because of past,
present or anticipated
participation in lawful activities of a trade union, or federation of
trade unions or workplace forum.
The effect of section
5(2)(c)(iv), (vi) and (vii) is to preclude anyone from prejudicing
any employee for past, present or anticipated
exercise of any right
conferred by the LRA or for past, present or anticipated
participation in any proceedings in terms of the
LRA. It is
convenient at this stage to point out that section 187(1)(d)(ii) of
the LRA provides that a dismissal—
“
is
automatically unfair if the employer, in dismissing the employee,
acts contrary to section 5 or, if the reason for the dismissal
is—
.
. .
(d)
that the employee took action, or indicated an intention to take
action, against the employer by—
(i)
exercising any right conferred by this Act; or
(ii)
participating in any proceedings in terms of this Act.”
[141]
Section 8(b) of the LRA provides
that—
“
[e]very
trade union and every employers’ organisation has the right—
.
. .
(b)
to
plan
and
organise
its administration and
lawful
activities
.” (Emphasis added.)
Section 12(1)
provides:
“
Any
office-bearer or official of a representative trade union is entitled
to enter the employer’s premises in order to recruit
members or
communicate with members, or
otherwise
serve members’ interests
.”
(Emphasis added.)
[142]
Earlier I referred to every trade
union’s right in section 23(5) of the Constitution “to
engage in collective bargaining”
and the fact that the LRA was
enacted to give effect to the rights in section 23 of the
Constitution. About collective bargaining
it has been said:
“
[B]y
bargaining collectively with organised labour, management seeks to
give effect to its legitimate expectation that the planning
of
production, distribution, etc should not be frustrated through
interruptions of work. By bargaining collectively with
management, organised labour seeks to give effect to its legitimate
expectations that wages and other conditions of work should
be such
as to guarantee a stable and adequate form of existence and has to be
compatible with the physical integrity and moral
dignity of the
individual, and also the job should be reasonably secure. This
definition is not intended to be exhaustive.
It is intended to
indicate (and this is important for the law) that the principal
interest of management in collective bargaining
has always been the
maintenance of industrial peace over a given area and period, and
that the principal interest of labour has
always been the creation
and the maintenance of certain standards over a given area and
period, standards of distribution of work,
of rewards, and of
stability of employment”.
[75]
As to what
collective bargaining entails, it has also been said:
“
By
collective bargaining we mean those social structures whereby
employers (either alone or in coalition with other employers) bargain
with the representatives of their employees about terms and
conditions of employment, about rules governing the working
environment
(eg the ratio of apprentices to skilled men) and about
the procedures that should govern the relations between unions and
employer.
Such bargaining is called ‘collective’
bargaining because on the workers’ side the representative acts
on behalf
of a group of workers.”
[76]
[143]
In Chapter III the LRA seeks to give
effect to trade unions’ and employers’ constitutional
right to collective bargaining.
Section 14, which falls under
Part A of Chapter III, makes provision for the election of trade
union representatives in a workplace
where the employer has no less
than 10 employees who are members of a union that has the majority of
the employer’s employees
in the workplace as its members.
Section 14(4)(a), (c) and (d) reads as follows:
“
A
trade union representative has the right to perform the following
functions
—
(a)
at the request of an employee in the workplace,
to assist and
represent the employee in grievance and disciplinary proceedings
;
.
. .
(c)
to report any alleged contravention of the workplace-related
provisions of this Act, any law regulating terms and conditions of
employment
and any collective agreement binding on the employer
to—
(i)
the employer;
(ii)
the representative trade union; and
(iii)
any responsible authority or agency; and
(d)
to perform any other function agreed to between the representative
trade union and the employer.” (Emphasis added.)
[144]
Section 16(2) of the LRA says in
part:
“
Subject
to subsection (5),
an employer must
disclose to a trade union representative all relevant information
that will allow the trade union representative
to perform effectively
the functions referred to in section 14(4).
”
(Emphasis added.)
Section 16(3)
places upon such an employer a similar duty to disclose to—
“
the
representative trade union all relevant information that will allow
the representative trade union to
engage
effectively in consultation or collective bargaining
.”
(Emphasis added.)
Section 16(4) and
(5) reads as follows:
“
(4)
The employer must notify the trade union
representative or the representative trade union in writing if any
information disclosed
in terms of subsection (2) or (3) is
confidential
.
(5)
An employer is not required to disclose information—
(a)
that is legally privileged;
(b)
that the employer cannot disclose without contravening a prohibition
imposed on the employer by any law or order of any court;
(c)
that is confidential and
, if disclosed,
may cause
substantial harm to an employee or the employer
; or
(d)
that is private personal information relating to an employee, unless
that employee consents to the disclosure of that information.”
(Emphasis added.)
[145]
There is no absolute preclusion of
the disclosure of confidential information to a trade union
representative. If the information
is confidential, it may
still be disclosed to a trade union representative or to a
representative trade union provided that the
employer notifies the
union or the representative that the information is confidential.
If the confidential information is
private personal information
relating to an employee, it may be disclosed if the employer secures
the consent of the employee concerned.
If the confidential
information is not private personal information relating to an
employee, whether it may be disclosed will depend
upon whether its
disclosure may cause substantial harm to an employee or the
employer. If the disclosure of confidential
information may
cause harm, it may not be disclosed. If the disclosure may not
cause such harm, then the employer may disclose
the information
provided that, as I have already said, the employer informs the trade
union that the information is confidential.
[146]
This matter requires an
interpretation of certain provisions of the LRA that confer certain
rights on trade unions, employees and
union members. For that
reason it is important to bear in mind certain provisions of the
Constitution and the LRA relevant
to interpretation. These
include section 39 of the Constitution, the primary objects of the
LRA as well as section 3 of that
Act.
[147]
Section 39(1) and (2) of the
Constitution reads:
“
(1)
When interpreting the Bill of Rights, a court, tribunal or forum—
(a) must promote
the values that underlie an open and democratic society based on
human dignity, equality and freedom;
(b) must consider
international law; and
(c) may consider
foreign law.
(2) When
interpreting any legislation, and when developing the common law or
customary law, every court, tribunal or forum must
promote the
spirit, purport and objects of the Bill of Rights.”
[148]
The
purpose of the LRA is to advance economic development, social
justice, labour peace and the
democratisation
of the workplace
by
fulfilling
the primary objects of that Act
.
[77]
Those objects include—
“
(a)
giving effect to section 23 of the Constitution;
(b)
giving effect to obligations incurred by the Republic as a member
state of the International Labour Organisation;
(c)
to provide a framework within which employees and their trade
unions, employers and employers’ organisations can—
(i)
collectively bargain to determine
wages, terms and conditions
of employment
and other matters of mutual interest
; and
.
. .
(d)
to promote—
(i)
orderly collective bargaining;
.
. .
(iii)
employee participation in decision-making in the workplace
;
and
(iv)
the
effective resolution of labour disputes
”.
[78]
(Emphasis
added.)
In the context of
this case, I draw special attention to the primary objects in (c)(i)
and (d)(iii) and (iv).
[149]
Section 3 of the LRA provides that
any person applying the LRA must interpret its provisions—
“
(a)
to give effect to its primary objects;
(b)
in compliance with the Constitution; and
(c)
in compliance with the public international law obligations of the
Republic.”
It is now
convenient to refer to the charges or allegations of misconduct that
the respondent brought against the applicant employees.
[150]
I return to the provisions of
section 4(2)(a), 5(2)(c) as well as section 187(1)(d)(i) and
(ii) of the LRA. Section 4(2)(a)
has been quoted above.
Section 5(2)(c) precludes anyone from prejudicing an employee for
“participation in the lawful
activities of a trade union”,
for exercising any right conferred by the LRA and for participating
in any proceedings in terms
of the LRA. Section 187(1)(d)(i)
provides that the dismissal of an employee because he took action
against the employer by
exercising any right conferred by the LRA is
automatically unfair. Section 187(1)(d)(ii) provides that the
dismissal of an
employee for participating in any proceedings in
terms of the LRA is automatically unfair.
[151]
The meaning of the phrase “lawful
activities” in sections 4(2)(a) and 5(1)(c)(iii) plays an
important role in the present
case. In interpreting this phrase
we must be guided by various factors and principles. These
include that—
(a)
in accordance with the interpretive
injunction in section 39(2) of the Constitution we must prefer the
meaning of the provision
that promotes the workers’ right to
“participate in the activities and programmes of a trade union”
to an interpretation
that undermines that right;
(b)
in compliance with the instruction in
section 3 of the LRA, we must promote the LRA’s primary object
of giving effect to and
regulating the fundamental rights conferred
by section 23 of the Constitution;
(c)
section 4(2)(a) must be construed
restrictively so as to give the workers a full measure of the
protection afforded by section 23
of the Constitution; and
(d)
we
must heed the rule of constitutional interpretation that
constitutional rights conferred without an express limitation should
not be cut down by reading implicit restrictions into them.
[79]
[152]
We
must also bear in mind what this Court said in
SAPS
v POPCRU
[80]
and in
SATAWU
v Moloto.
[81]
In
SAPS
v POPCRU
it said:
“
The
provisions in question must thus not be construed in isolation, but
in the context of other provisions of the LRA and the SAPS
Act. For
this reason, a restrictive interpretation of essential services must,
if possible, be adopted so as to avoid impermissibly
limiting the
right to strike. Were legislation to define essential services
too broadly, this would impermissibly limit the
right to strike”.
[82]
In
SATAWU v
Moloto
it said:
“
The
relevance of a restrictive approach is to raise a cautionary flag
against restricting the right more than is expressly provided
for.
Intrusion into the right should only be as much as is necessary to
achieve the purpose of the provision and this requires
sensitivity to
the constraints of the language used”.
[83]
[153]
Although
it may not be necessary on the facts of this case to give an
exhaustive definition of the phrase “lawful activities”
in sections 4(2)(a) and 5(2)(c)(iii), it seems to me that, on a
proper restrictive approach, the phrase must exclude illegal
activities
or activities that constitute contraventions of the law.
It definitely excludes conduct that constitutes criminal offences.
The provisions include participation by union members in union
activities that form part of the core functions of a trade union.
These include taking up its members’ complaints or grievances
with their employer, representing them in grievance and disciplinary
proceedings, collective bargaining, attending statutory tribunals to
represent their members’ interests and communicating
with its
members’ employer about workplace issues. In this regard
section 200 of the LRA is important. It provides
that a trade
union may act in any one or more of three capacities “in any
dispute to which any of its members is a party”,
namely, in its
own interest, or on behalf of any of its members or in the interest
of any of its members.
[84]
The first
charge
[154]
The essence of the first charge was
that the employees were guilty of “insubordination and
disrespectful behaviour making
the continued employment relationship
intolerable” “by associating [themselves] with and
supporting”—
(a)
“
the contents of the union’s
letter dated 23 May 2008 and the petition dated 3 June 2008 in which
the CEO [was] grossly defamed
by the false accusation of ineptitude,
favouritism, racial bias, unlawful acts and mismanagement”;
(b)
“
the statement that you are not
prepared to continue working with the CEO in the same building with
him at the helm”; and
(c)
“
the call to the [respondent] to
relieve the CEO of his duties.”
The second
charge
[155]
The essence of the second charge was
that the employees were guilty of bringing “the name and
integrity of the [respondent]
and the CEO into disrepute and making
the continued employment relationship intolerable by associating
[themselves] with, and,
supporting”—
(a)
“
the contents of the union’s
letter of 23 May 2008 in which the CEO was falsely accused of
ineptitude, favouritism, racial
bias, unlawful acts and
mismanagement”;
(b)
“
the publication of the contents of
that letter in the media”; and
(c)
“
the union’s stated intention
in its letter dated 5 June 2008 to make the contents of its
correspondence with the [respondent]
available to the media whenever
it deems fit.”
The chairperson’s
findings and decision
[156]
In his ruling the chairperson of the
disciplinary inquiry said in relation to the first charge:
“
By
associating themselves with these actions, in particular by stating
that Prof Ram should resign, failing which he should be dismissed,
by
stating that they were no longer prepared to spend a day with Prof
Ram in the same building with him at the helm and that the
Board is
urged ‘to ensure that June 30th 2008 is the last day of his
employment’, the individual employees made themselves
guilty of
insubordination and disrespectful behaviour.”
[85]
(Emphasis added.)
[157]
When the chairperson referred to
“these actions” in the first line of this passage, he was
referring to that part of
paragraph 32 of his ruling where he said—
(a)
“
the union failed to bring the
subject matter of the accusations to the attention of an appropriate
manager, or failing redress at
that level to the attention of a
higher level of management, through the grievance procedure”;
and
(b)
the
union “also failed to utilise the statutory mechanisms at its
disposal” and “[i]nstead . . . it chose a confrontational
path, one that involved an attack on the personal integrity of Prof
Ram. In sporting parlance the union decided not to play
the
ball but rather to play the man.”
[86]
Accordingly, the
conduct to which the chairperson refers as “these actions”
in the quoted passage and the conduct which
he specified in the
passage refer to the conduct that the employees—
1.
associated themselves with the union’s
failure to bring the subject matter of the accusations to the
attention of an appropriate
manager or higher level of management by
using the grievance procedure;
2.
associated themselves with the union’s
failure to use “the statutory mechanisms at its disposal”;
3.
supported the statement that the CEO should
resign failing which he should be dismissed;
4.
said that they were no longer prepared to
spend a day with the CEO in the same building at the helm of the
organisation; and
5.
supported the statement urging the Board
“to ensure that June 30th 2008 [was] the last day of CEO’s
employment.”
[158]
It needs to be highlighted that the
conduct in 1 and 2 of [157]
did not form
part of the charges that were brought against the employees. It
is to be noted that the chairperson made no finding
to the effect
that the employees had said that they would not work. He
refrained from making that finding despite the fact
that the
allegations of fact upon which the first charge was based included a
statement that the employees had said that they would
stop working.
Therefore, in the light of that, this Court cannot decide the matter
on the basis that the employees made such
a statement.
[159]
The
passage quoted above
[87]
from
the chairperson’s ruling suggests that the employees’
support for, or association with, the statements referred
to in 3, 4
and 5 in [157]
above
was viewed by the chairperson as the most serious under the first
charge. This is in line with the fact that each one
of these
statements was either in the petition or was understood by the
respondents to be in the petition and it was the refusal
of the union
and employees to withdraw the petition on or before 9 June 2008 that
led the respondent to bring the disciplinary
charges against the
employees. If the employees had withdrawn the petition, they
would not have been dismissed. Accordingly,
in so far as the
first charge is concerned, the conduct for which the employees were
dismissed consists of the “actions”
listed in 3, 4 and 5
of [157]
above.
The chairperson said that, through the acts listed in 1 to 5 in
[157]
the
employees made themselves guilty of insubordination and disrespectful
behaviour.
[160]
I draw special attention to the fact
that the chairperson did not base his finding of guilt in respect of
the first charge on the
allegation that the employees had associated
themselves with or supported the contents of the union’s letter
of 23 May 2008.
As far as finding the employees
guilty of the first charge, he based his finding on certain
statements he understood the employees
to have made, or to have
associated themselves with in the petition as well as their conduct
referred to in 1 and 2 of [157].
However, under the second
charge he did base his finding of guilt on the allegation that the
employees had associated themselves
with the contents of the union’s
letter of 23 May 2008.
[161]
The chairperson dealt with the
second charge only in paragraph 33 of his ruling. He made a
finding that the union had leaked
the letter dated 23 May 2008 to the
Mail & Guardian
.
He then gave his reasons. Thereafter, he said that “[b]y
associating themselves with the letter of 23 May 2008
and with the
publication of that letter in the
Mail &
Guardian”
, the applicant
employees “associated themselves with a campaign clearly
designed to bring the Board and its CEO into disrepute.”
He said that “[t]he individual employees are accordingly guilty
of the misconduct described in charge 2.”
[162]
Although the employees were never
charged with associating themselves with or, supporting, a
confrontational stance adopted by the
union in its dealings with the
respondent, the chairperson dismissed them for that as well. I
shall deal with this later.
(f)
[163]
The employees’ conduct in
associating themselves with the contents of the letter of 23 May 2008
appeared under both the first
charge and the second charge. I
shall say something about this later. The chairperson of the
disciplinary inquiry concluded
that the conduct described in 3, 4 and
5 of [157]
above fell under the first
charge and constituted insubordination and disrespectful behaviour.
I pause here to make the observation
that, although one of the acts
on which the first charge was based was that the employees had
associated themselves with and supported
the petition, the
chairperson did not base his finding of guilt in respect of the first
charge on that conduct.
[164]
In regard to the petition the
chairperson found the employees guilty of associating themselves with
or supporting certain statements
in the petition. Those
statements are reflected in 3, 4 and 5 of [157]
above.
He concluded that the employees’ conduct in associating
themselves with the letter of 23 May 2008 and with the
union’s
publication of that letter in the
Mail &
Guardian
fell under the second charge
and constituted bringing the name and integrity of the respondent and
the CEO into disrepute.
The Labour
Court
[165]
The Labour Court upheld the findings
of the chairperson on virtually the same grounds upon which the
chairperson had based them.
A reading of the ruling of the
chairperson reveals that there are essentially seven pillars upon
which the chairperson found the
employees guilty of the first two
charges and dismissed them. A reading of the judgment of the
Labour Court reveals that
the judgment rests upon the same pillars.
These pillars are that—
(a)
the union was obliged to follow the
internal grievance procedure in raising the grievances but it failed
to do so;
(b)
there were statutory mechanisms at the
union’s disposal the union was obliged to utilise but did not
utilise;
(c)
the union adopted a “confrontational
stance” in pursuing the employees’ grievances;
(d)
in the petition a demand was made that the
CEO be dismissed;
(e)
a statement was made in the petition that
the employees were no longer prepared to work with the CEO;
(f)
a statement was made in the petition that
the employees were no longer prepared to be in the same building with
the CEO “at
the helm of the organisation”; and
(g)
in the petition the respondent was urged to
ensure that 30 June 2008 was to be the CEO’s last day in the
respondent’s
employment.
[166]
I shall now consider whether the
conduct for which the employees were dismissed constituted
misconduct. In the course of discussing
each conduct, I shall
deal with the question whether dismissal for that conduct would be
automatically unfair.
Employees’
statement about the CEO’s separation package or possible
dismissal
[167]
The chairperson’s finding that
the employees stated that the CEO should resign failing which he
should be dismissed is not
accurate. Whatever the employees
said along those lines is to be found in the petition. The
petition does not anywhere
contain a statement that the CEO should
resign failing which he should be dismissed. The employees
said:
“
In
the light of the above
we urge
the [respondent]
to request
Prof Vevek Ram to resign and
further to
look at a suitable settlement for him deemed fit
by the [respondent]. Failing which, Prof Vevek Ram must be
relieved of his duties due to the reasons stated in Appendix ‘A’.”
(Emphasis added.)
[168]
As mentioned, the union and the
employees gave the respondent their strong advice or recommendation
that it should offer the CEO
a suitable separation package in return
for his resignation failing which their strong recommendation was
that the CEO be relieved
of his duties. It is also important to
point out that in the petition this was not put as a demand.
The recommendation
that the CEO be relieved of his duties was an
alternative recommendation in case the respondent made the offer to
the CEO but no
agreement was reached involving his resignation.
[169]
The union’s and employees’
conduct in making this statement must be viewed in its proper
context. The union and
the respondent had agreed at the
conciliation meeting that the union should furnish its motivation for
its stance on the dispute
pending at the CCMA as well as provide the
employees’ expectations of how the dispute could or should be
resolved.
When one reads the union’s letter of
23 May 2008, one will realise that that letter deals only
with the motivation
for the union’s stance on the dispute and
does not deal with how the employees thought the dispute could or
should be resolved.
It was in the petition that the employees’
solution, as they saw it, was articulated. That was that the
respondent
should offer the CEO a suitable separation package in
return for his resignation.
[170]
In furnishing its motivations in the
letter of 23 May and its “remedy” in the petition, the
union was taking forward
the conciliation process. In the
petition the union and employees specifically wrote that the petition
was “[i]n addition
to the letter dated 23 May 2008”.
The employees were taking part in a lawful union activity and in
proceedings in terms
of the LRA as provided for in section 4(2)(a)
read with section 187(1)(d)(i) and (ii) respectively.
[171]
The parties never got to the
alternative solution because the respondent did not even want to
enter into a discussion with the union
about the first solution they
proposed nor did it want to open any discussions between itself and
the CEO to see whether there
was any possibility of the conclusion of
a separation agreement with him.
[172]
The articulation by the union and
the employees of their proposed solution was part of collective
bargaining and, therefore, was
a lawful activity of the union in
which the employees were entitled to participate in terms of section
4(2)(a) of the LRA.
It was also participation in proceedings in
terms of the LRA as contemplated in section 5(2)(b)(c)(vii),
namely, conciliation
proceedings aimed at resolving the disclosure
dispute. The employees were entitled, as members of the union,
to participate
in those proceedings. The dismissal of employees
for this conduct would constitute an automatically unfair dismissal
as envisaged
in section 187(1)(d)(i) and (ii) of the LRA.
Employees’
attitude towards the CEO and 30
,
June 2008 as his last day
of employment
[173]
Under this heading I discuss the
statement made by the employees in the petition that they were no
longer prepared to spend a day
with the CEO in the same building at
the helm of the organisation. I also discuss their association with
the union’s conduct
in urging the respondent “to ensure
that June 30th 2008 [was] the last day of [the CEO’s]
employment” with the
respondent. In making this statement and
in associating themselves with this conduct on the part of the union,
the employees were
attempting to convince the respondent—
(a)
how deeply unhappy they were with the CEO;
and
(b)
how seriously and urgently the respondent
should take their statement that it should offer him a suitable
compensation in return
for his resignation.
[174]
The contents of the petition must be
understood against the background that the bargaining that would have
taken place at the conciliation
meeting, if that meeting had not been
adjourned before there was a discussion of the issues, subsequently
took place through letters.
What the letters contained were
statements that the union could have articulated at the conciliation
meeting. However, the
fact that collective bargaining took
place away from the conciliation meeting does not make it any less of
collective bargaining
than it would have been if it had taken place
in a conciliation meeting. This is more so in this case because
that bargaining
occurred pursuant to an agreement reached at a
conciliation meeting. Viewed in this context it follows that,
the employees’
statement and association under discussion were
part of collective bargaining and are lawful.
[175]
In making the statement under
discussion and in associating themselves with the union’s
conduct in question, the union and
employees were engaging in
collective bargaining with the respondent so as to ensure that the
respondent agreed with the union
that it should offer the CEO a
separation package in return for his resignation. In this
regard it must be borne in mind
that this was during the extended
statutory conciliation period and the union was making bona fide
efforts to resolve the dispute
pending at the CCMA. The
articulation of this statement and the employees’ conduct in
associating themselves with the
union’s conduct in this regard
constituted lawful union activity within the meaning of section
4(2)(a) of the LRA in which
the employees were entitled to
participate. The articulation of this statement by the
employees was also participation in
conciliation proceedings in terms
of the LRA and fell under section 187(1)(d)(ii) of the LRA. The
statement was articulated
in pursuit of and in the course of
conciliation proceedings aimed at resolving a dispute pending before
the CCMA. The same
is true of the employees’ conduct in
this regard. A dismissal of employees for that conduct and for
making that statement
is an automatically unfair dismissal as it
falls under section 187(1)(d)(i) and (ii).
Failure to
comply with the internal grievance procedure
[176]
Both the chairperson and the Labour
Court criticised the union for not using the internal grievance
procedure for the grievances
or complaints in the letter of
23 May 2008. They both based their findings that the
employees were guilty of insubordination
and disrespectful behaviour
partly on the statement that the employees associated themselves with
this failure by the union.
In paragraph 32 of his ruling the
chairperson said in part: “Secondly, the union failed to bring
the subject matter of the
accusations to the attention of an
appropriate manager, or failing redress at that level, to the
attention of a higher level of
management, through the grievance
procedure”. In criticising the union for this, the
chairperson overlooked the fact
that the grievances were against the
CEO and there was no other manager higher than the CEO to which the
grievances could have
been brought. He also overlooked the fact
that the union had requested a meeting with the HR committee of the
respondent
but that its request had been ignored.
[177]
That the employees had associated
themselves with the union’s alleged failure to follow the
grievance procedure was not conduct
that formed part of the charges
brought against the employees in the disciplinary inquiry. Nor
was there an allegation that
the union had failed to bring its
complaints about the CEO to the attention of any manager. The
chairperson was not entitled
to take that conduct into account as
part of the conduct constituting insubordination and disrespectful
behaviour. The employees
could not be dismissed for misconduct
for which they had not been charged.
[178]
Was the union obliged to use the
internal grievance procedure? In my view the union was
not. The grievance procedure
was not applicable to grievances
against the CEO. This is because in stage three – which
is the last stage and is the
stage at which the CEO gets involved –
clause 16.3.3 provides that “[t]he decision
reached
at this stage will be final
.”
(Emphasis added.) This decision would be that of the CEO.
The grievance procedure did not contain any
provision for the CEO’s
recusal in a case where the grievance or complaint was against him.
This means that, if the
union had utilised the internal grievance
procedure, the CEO would have been required to make a final decision
on the union’s
complaints or grievances against him and his
decision would have been the final decision within the organisation.
[179]
In my view, the grievance procedure
was inapplicable to grievances against the CEO. This is because
the procedure made the
CEO’s decision final in regard to any
grievance even when the grievance was against him or her.
Employees’
association with union’s alleged failure to utilise statutory
mechanisms
[180]
The employees’ conduct in
associating themselves with the union’s failure “to
utilise the statutory mechanisms
at its disposal” was part of
the conduct that the chairperson and the Labour Court found to
constitute insubordination and
disrespectful behaviour on the part of
the employees for which, in part, they were dismissed. The
chairperson made this criticism
in paragraph 32 of his ruling.
There he said:
“
[The
union] also failed to utilise the statutory mechanisms at its
disposal. Instead, as I have already noted, it chose a
confrontational path, one that involved an attack on the personal
integrity of Prof Ram.”
After saying that
the union decided to play the man and not the ball, the chairperson
said in the next sentence that by associating
themselves with these
“actions”, the employees “made themselves guilty of
insubordination and disrespectful behaviour.”
[181]
This finding by the chairperson,
which was upheld by the Labour Court, has no statutory basis.
Neither the chairperson nor
the Labour Court referred to the
provisions of the LRA that they believed the union was obliged to
utilise but did not utilise.
There are no mechanisms in the LRA
which the union was obliged to use but did not use. Instead the
union used the dispute
resolution mechanisms of the LRA by—
(a)
referring the dispute to the CCMA for
conciliation;
(b)
attending the conciliation meeting;
(c)
concluding an agreement at the conciliation
meeting on the way forward;
(d)
writing the letter of 23 May giving the
motivation it was required to give in terms of the agreement reached
at the conciliation
meeting;
(e)
writing the petition as part of its
bargaining with the respondent in the course of a statutory
conciliation process; and
(f)
writing the letter of 5 June 2008 calling
for a dialogue between itself and the respondent.
[182]
The main judgment says that, because
the union and employees did not pursue the disclosure dispute through
all the LRA processes
up to finality, they forfeited the protection
against an automatically unfair dismissal. It says that the
union and employees
should have brought a review application in
regard to that dispute and, because they did not do so, they waived
their right not
to be dismissed for a reason that rendered their
dismissal automatically unfair. With respect this proposition
is untenable.
The union and the employees were at liberty not
to pursue the disclosure dispute further than they did if, for
example, it would
be too expensive to do so or if it was not worth
pursuing beyond the conciliation process. There is no reason
why that should
result in them losing their protection against
automatically unfair dismissals or why that should be a bar to a
court finding that
the dismissal was for a reason listed in section
187(1) of the LRA and, therefore, automatically unfair. There
were no statutory
mechanisms that the union and employees were
required to observe which they did not observe.
The employees’
association with the union’s letter of 23 May 2008
[183]
If the position is that the union
was entitled to write the letter of 23 May to the respondent, then
its members were entitled to
associate themselves with that letter.
It is important to remember how that letter came about and what it
was about.
The union wrote that letter to honour the agreement
reached at the conciliation meeting that it should provide motivation
for its
stance on the dispute pending before the CCMA. In that
letter the union provided motivation for its stance on the dispute.
[184]
There was nothing unlawful or wrong
that the union said in the letter of 23 May. Indeed, it
could have articulated the
contents of that letter at the statutory
conciliation meeting. If it had done that, that could not have
formed a basis for
the respondent to later take disciplinary action
against the union’s members. In writing that letter the
union was
performing a normal union activity or function of seeking
to negotiate the resolution of a dispute affecting its members.
The union’s members were entitled to associate themselves with
the union’s performance of that function. In the
letter
of 23 May there was no basis for the finding of insubordination and
disrespectful behaviour.
[185]
The dismissal of the employees for
associating themselves with the contents of that letter would be a
dismissal of union members
for participation in a lawful activity of
their union as provided for in section 4(2)(a), a dismissal of
employees for the reason
of exercising their right as contemplated in
section 187(1)(d)(i) of the LRA. Such a dismissal would also be
a dismissal
for participation in proceedings in terms of the LRA as
contemplated in section 187(1)(d)(ii). The proceedings involved
here
are the conciliation proceedings under the LRA because the
conciliation meeting was adjourned and the conciliation period was
extended
to enable the parties to make efforts to try and resolve the
dispute through conciliation. This means that the conciliation
process was being taken further through correspondence.
Dismissing employees for associating themselves with that process
is
automatically unfair.
Publication of
union’s letter of 23 May 2008
[186]
The other conduct that the
chairperson took into account in dismissing the employees was that
the union caused the publication of
its letter of 23 May in the
Mail & Guardian
and
that it stated in its letter of 5 June 2008 that it would publish
correspondence with the respondent whenever it deemed it necessary
to
do so. The chairperson disapproved of the union members
associating themselves with that publication and with that
statement.
This fell under the charge of bringing the name of
the CEO and the respondent into disrepute.
[187]
In my view there was nothing
unlawful in the union causing the publication of any parts of the
contents of its letter of 23 May
in a newspaper. Firstly, the
union and its members have a right to freedom of expression under
section 16 of the Constitution.
Secondly, under the LRA the
union has a right to serve the interests of its members and to decide
its own programmes and its activities
relating to how best to serve
the interests of its members. The fact that the respondent or
the Court may not agree with
the activities or programmes that the
union initiates to serve the interests of its members is no ground to
interfere with its
activities or programmes as long as they are not
unlawful. Thirdly, the respondent is a public institution.
Fourthly,
the public has an interest in how the respondent as a
public institution is run. Fifthly, in terms of the Lotteries
Act,
which established the respondent and regulates it, the
respondent is bound by the values in section 195 of the Constitution.
[188]
In relevant parts section 195 reads:
“
Basic
values and principles governing public administration
(1)
Public administration must be governed by the democratic values and
principles enshrined in the Constitution, including the
following
principles:
(a)
A high standard of professional ethics must be promoted and
maintained.
(b)
Efficient, economic and effective use of resources must be promoted.
.
. .
(d)
Services must be provided impartially, fairly, equitably, and without
bias.
(e)
People’s needs must be responded to, and the public must be
encouraged to participate in policy making.
(f)
Public administration must be accountable.
(g)
Transparency must be fostered by providing the public with timely,
accessible and accurate information.
.
. .
(i)
Public administration must be broadly representative of the South
African people, with employment and personnel management practices
based on ability, objectivity, fairness, and the need to redress the
imbalances of the past to achieve broad representation.”
[189]
In terms of section 195(2) the above
principles apply to organs of state and public enterprises. The
respondent is an organ
of state. The union and the employees
were unhappy with the leadership style and way of doing things of the
CEO of a public
institution. One of the issues they raised was
linked to the principle contained in section 195(1)(i) of the
Constitution.
That relates to ensuring that the organisation
was broadly representative of the South African people and taking
measures to address
the imbalances of the past in the workplace.
The public had a right to know whether the CEO of the respondent as a
public
institution was implementing this important constitutional
principle.
[190]
In all of these circumstances the
union was entitled to cause the publication of those parts of its
letter of 23 May that got published.
It was also entitled to
seek support from the public for its complaints about the Head of a
public institution. Indeed, it
was right to say that it was
entitled to publish its correspondence with the respondent when it
deemed it appropriate to do so
provided that there was nothing in
that correspondence which would render the publication thereof
unlawful. There was nothing
in the letter of 23 May that would
render publication unlawful. In the end the employees were
entitled to associate themselves
with the union’s stance on
this issue and with its publication of certain parts of its letter.
Their dismissal for
associating themselves with the publication of
certain parts of the letter of 23 May was a dismissal of union
members for participating
in a lawful union activity and for
exercising their rights under the LRA that rendered their dismissal
automatically unfair.
Union’s
alleged confrontational stance
[191]
It
also seems to me that the chairperson’s view that the union had
been confrontational played an important, if not a critical,
role in
his decision to find the employees guilty of the first charge.
In one part of his ruling he said “[t]he union
consciously
resolved to adopt a confrontational stance and it must live with the
consequences of that decision.”
[88]
In another part he said about the union:
“
It
also failed to utilise the statutory mechanisms at its disposal.
Instead, as I have already noted,
it
chose a confrontational path, one that involved an attack on the
personal integrity of Prof Ram
.”
[89]
(Emphasis added.)
[192]
The
view that the adoption of a confrontational stance by a trade union
in its dealings with an employer is unacceptable and that
in the
present case the union adopted a confrontational stance also
influenced the Labour Court in upholding the decisions of the
chairperson.
[90]
In one
part of its judgment the Labour Court said:
“
The
ten applicants must therefore stand [or] fall by their own decision
to support the petition and to remain steadfast in associating
themselves with the union’s confrontational stance
.”
[91]
(Emphasis added.)
A few paragraphs
later the Labour Court said about confrontation:
“
I
am therefore of the view that the union could have used other means
of dealing with their grievances and that it was certainly
not
warranted to have opted [for] the confrontation route that resulted
in the dismissal of ten of its members.”
[92]
[193]
A trade union has a right to
determine its own strategies and tactics in dealing with an employer
concerning grievances, or complaints,
disputes of right or disputes
of interests, and, generally, on how to handle consultations,
negotiations, discussions and collective
bargaining with an
employer. It is not for a court to dictate to a trade union how
to handle its discussions or negotiations
with an employer or what
tactics and strategies it should use and at what stage it should use
them in its dealings with an employer.
[194]
It is the union’s prerogative
to decide how to handle those matters. Sometimes it may deem it
fit to handle these matters
“gently”. Sometimes it
may decide to handle these matters in a confrontational way.
Sometimes it can decide
to resort to industrial action and sometimes
it may decide to take the route of negotiation without any threat of
industrial action.
The same can be said of an employer or an
employers’ organisation as well. Provided that a trade
union does not act
unlawfully, it may adopt a confrontational
stance. There is nothing unlawful in adopting a confrontational
stance per se
where it does not involve any physical harm to any
person or damage to property. This does not mean that a trade
union is
free to say whatever it pleases. There are limits to
that right but, on the facts of this case, those limits were not
exceeded
and there is no need to define them with any precision.
[195]
To the extent that it can be said
that the union adopted a confrontational stance in its dealings with
the respondent, it was entitled
to do so. That was part of
legitimate collective bargaining. It was a lawful activity
within the meaning of that phrase
in section 4(2)(a). The
applicant employees were entitled to participate in that activity in
terms of section 4(2)(a) of
the LRA. Their dismissal for taking
part in that activity was a dismissal for exercising their right and
constitutes an automatically
unfair dismissal. The union was
also entitled to be supported by its members. The employees
were also entitled to give
their union support for the stance it
took. It was also participation in the conciliation
proceedings. Accordingly,
the respondent had no right to take
disciplinary action against the union members just because their
union had adopted a confrontational
stance in its dealings with it.
A dismissal of employees for that conduct falls under section
187(1)(d)(i) and (ii) and is
automatically unfair.
The main
judgment
[196]
The main judgment concludes that the
chairperson’s finding that the employees were guilty of the
first two charges was justified.
It then goes on to determine
whether they were dismissed for associating themselves with a lawful
activity of the union in which
case their dismissal would be
automatically unfair. It accepts that what the employees
supported was union activity but finds
that the activity was not
lawful. A reading of the judgment suggests that, if it had
found that the union activity was lawful,
it would have held that the
dismissal of the employees for associating themselves with that
activity infringed their right under
section 4(2)(a) of the LRA and
would have been automatically unfair.
[197]
The main judgment says that the
meaning of the word “lawful” in section 4(2)(a) of
the LRA is “lawfulness
under the Act”. It says: “It
is not an enquiry into criminal illegality or civil wrongfulness.”
I
have already dealt above with the interpretation of section
4(2)(a).
[198]
The main judgment seems to rest on
five propositions. They are that—
(a)
a demand by employees that their employer
dismiss a co-employee or a manager or CEO is an unlawful demand;
(b)
in this case the employees’ demand
was that the CEO be dismissed;
(c)
the employees demanded that his dismissal
be without a fair hearing;
(d)
the employees threatened to stop work if he
was not dismissed and this was an unlawful threat; and
(e)
the employees’ dismissal could not be
automatically unfair because they failed to pursue the disclosure
dispute through all
processes under the LRA up to finality, including
review proceedings.
[199]
As to (a), in my view a proposal or
demand for the dismissal of a co-employee or a manager or CEO is not
necessarily unlawful.
It depends on whether the dismissal will
be unfair or not. In this case both the chairperson and the
Labour Court dealt with
the matter on the basis that they were not
going to investigate whether the allegations against the CEO were
true or not.
We should adopt the same approach. As to
(b), the union and the employees did not demand the CEO’s
dismissal but they
strongly recommended his dismissal. As to
(c) a reading of the petition reveals that there is no justification
for the suggestion
that the employees demanded that the CEO’s
dismissal be without a fair hearing. The respondent could have
put the allegations
to him to deal with before deciding to dismiss
him if there was a fair reason for his dismissal. As to (d),
again a reading
of the petition reveals that the employees did not
threaten to stop working after 30 June if the CEO was still employed
as CEO.
They refrained from saying what would happen if he was
still the CEO after 30 June 2008. I have dealt with (e)
earlier.
Judgment of
the Supreme Court of Appeal
[200]
In its judgment the Supreme Court of
Appeal suggested that the union should have used the mechanisms in
section 191 of the LRA to
resolve its complaints or grievances.
It made this suggestion on the basis that the complaints or
grievances were unfair
labour practices as defined in the LRA.
The part of the definition of “unfair labour practice”
the Supreme Court
of Appeal quoted is the one referring to—
“
unfair
act or omission between an employer and an employee involving—
.
. .
(a)
unfair conduct by the employer relating to the promotion, demotion,
probation (excluding disputes about dismissals for a reason
relating
to probation) or training of an employee or relating to the provision
of benefit to an employee.”
[201]
With respect, this suggestion is not
correct. Firstly, when regard is had to the definition of
“unfair labour practice”
in section 186(2) of the LRA, it
is clear that most, if not all, of the complaints that the union
articulated could not conceivably
fall within that definition.
Secondly, the effect of the Supreme Court of Appeal’s
suggestion is that the trade union
and the employees were wrong to
ask the respondent for a meeting to discuss their concerns or
grievances in the workplace and they
should have resorted to
statutory dispute procedures before requesting a meeting with the
respondent. This view presupposes
that, if workers have
grievances or complaints, they must refer them to statutory
mechanisms for resolution without first seeking
to resolve them in
the workplace with their employer through discussion. In my
respectful view, that suggestion does not
correctly reflect the legal
position. As I understand it, the correct legal position is
that one of the principles that underlies
the dispute resolution
system under the LRA is that, as far as possible, workplace problems
must be resolved in the workplace.
In other words: workplace
solutions for workplace problems.
[202]
In conclusion, the dominant, if not
the sole, reason for the dismissal of the employees in the present
case is that they engaged
in conduct in which the LRA entitled them
to engage. In this regard it must be borne in mind that, by way
of its attorney’s
letter of 6 June 2008, the respondent called
upon the union and employees to withdraw the petition to avoid the
disciplinary charges.
This means that, if the union and
employees had agreed to withdraw the petition, no disciplinary
charges would have been brought
against the employees and they would
not have been dismissed. This means that what the respondent
found most objectionable
and what called for the bringing of
disciplinary charges against the employees was what they said in the
petition. Therefore,
it is what the union and employees said in
the petition that constitutes the important or real reason for the
dismissal of the
employees. I have already found that, in
saying what they said in the petition, the union and employees were
engaging in
a lawful activity of the union, were exercising their
rights, and were taking part in conciliation proceedings and
collective bargaining.
Their dismissal for such conduct was
contrary to section 5(2)(c) and fell within section 187(1)(d)(i) and
(ii). That means
that their dismissal was automatically unfair
in terms of section 187(1) of the LRA. Once it is accepted
that the main
or real or dominant reason for dismissal was, or
related to, such conduct, there is no room for a conclusion that the
dismissal
was not automatically unfair but only substantively
unfair. In other words to reach the conclusion that the
dismissal was
only substantively unfair one would have to conclude
that the dismissal had nothing or very little to do with legitimate
union
activities and the conciliation proceedings. In my view,
both on the facts and the law that cannot be said.
Remedy
[203]
A dismissal of employees for
supporting the lawful activities of a union and for exercising their
rights under the LRA is a very
serious violation of workers’
constitutional rights given effect to in the LRA that may be
committed by an employer.
The dismissal of employees for that
conduct is even more serious when the employer is a public
institution or an organ of state
because government departments and
other organs of state are expected to take a lead in the protection
and promotion of these rights
in our society.
[204]
Section 7(2) of the Constitution
obliges the state to respect, protect, promote and fulfil the rights
in the Bill of Rights.
The respondent, as an organ of state,
was obliged to observe this injunction. It failed to do so.
Instead it violated
the employees’ rights. Indeed, it
also violated the rights of the trade union to engage in any lawful
activity and
to serve the interests of its members in the workplace.
[205]
This Court must vindicate the
union’s rights and the rights of its members. In my view
the only appropriate way to vindicate
the union’s rights and
the rights of the employees in this case would be to order the
reinstatement of the applicant employees.
In the Labour Court
the respondent was entitled to lead evidence that would show that,
even if the dismissal of the employees was
found to have been
automatically unfair or simply substantively unfair, reinstatement
would not be an appropriate remedy.
It led no evidence of this
kind. It was represented by an experienced senior counsel who
would have ensured that this evidence
was led if it existed.
[206]
Section
193(2) of the LRA obliges the Labour Court to require the employer to
reinstate an employee whose dismissal has been found
to be
automatically unfair or substantively unfair unless one of four
situations listed therein is present. None of those
situations
is present in this case. Where the dismissal has been found to
have been automatically unfair, the Labour Court
has a discretion to
order the reinstatement to operate retrospectively from the date of
dismissal. In my view the order that
the Labour Court should
have made is one of reinstatement with retrospective effect from the
date of dismissal. Accordingly,
this Court should make an order
to that effect.
[93]
[207]
In the circumstances the following
order is made:
1.
Leave to appeal is granted.
2.
The appeal is upheld.
3.
The orders of the Supreme Court of Appeal and the Labour Court are
set aside.
4.
The order of the Labour Court is replaced with the following order:
“
(a)
The dismissal of the applicant employees was automatically unfair.
(b)
The respondent is ordered to reinstate the applicant employees in its
employ on terms and conditions of employment no less favourable
to
them than the terms and conditions that governed their employment
immediately before their dismissal.
(c)
The order in (b) above is to operate with retrospective effect from
the date of dismissal.
(d)
The respondent must pay the applicants’ costs.”
5.
The respondent must pay the applicants’ costs in the Labour
Appeal Court, Supreme Court of Appeal and in this Court.
DAMBUZA AJ:
[208]
Having read the judgments by my
brothers Froneman J and Zondo J, I agree that the appeal should
succeed and the employees should
be reinstated. My reasoning,
however, differs in part from that of both my Colleagues. I
find that the dismissal was
only substantively unfair, and not
automatically unfair.
[209]
More
specifically, my view is that the charge of insubordination and
disrespectful behaviour is unfounded. However, I agree
that
dissemination of the letter of 23 May 2008 could have the effect of
bringing the name and integrity of the Board and the CEO
into
disrepute. It is also my view that both the acts of
disseminating the contents of the letter of 23 May 2008 and seeking
termination of the CEO’s employment contract are a departure
from the dispute-resolution procedures provided for under the
Act.
I agree that, for employees to enjoy protection under the Act, as
specifically provided under section 187,
[94]
the dispute-resolution method utilised had to fall within the
prescripts of the Act.
[210]
In its judgment, the Supreme Court
of Appeal found that the appeal turned on the contents of the
petition. Indeed, the Labour
Court had already found that the
letter of 23 May 2008 served as the motivation required by the
Commissioner in her interim ruling
on 9 May 2008. The letter of
23 May 2008 remains relevant only insofar as its dissemination was
impugned.
Insubordination
and disrespectful behaviour
[211]
The Labour Court narrowed down the
basis for the finding of insubordination to the petition. It
found the employees to have
been “grossly disrespectful,
confrontational and insubordinate” in expressing an intention
not to respect the CEO and
threatening not to obey the instructions
of their employer. The Supreme Court of Appeal endorsed this
finding.
[212]
In the petition the employees
complain about the CEO’s “bureaucratic leadership style
and his inept management approaches”.
They state that
they “are no longer prepared to bear with him anymore”.
They “urge the Board to take this
matter seriously as
[they] are no longer prepared to spend a day with [the CEO] in the
same building with him at the helm of this
organisation”. They
further urge the Board to ensure that 30 June 2008 is the last day of
the CEO’s employment.
[213]
It
is so that, as a basic principle, insubordination occurs when an
employee refuses to accept the authority of a person in a position
of
authority over him or her. Insubordination is misconduct
because it assumes a calculated breach, by the employee, of the
duty
to obey the employer’s lawful authority.
[95]
I accept that in expressing unwillingness to “bear with [the
CEO] anymore” or to “spend a day with [him]
. . . at the
helm of this organisation” the employees signified a
repudiation of the CEO’s authority.
[214]
However, the threat issued by the
union and employees and the finding by the Supreme Court of Appeal
that, once a threat to repudiate
authority is issued, an employer
need not wait until the threatened refusal actually takes place
before it takes action, require
closer consideration. A threat
to repudiate authority must be understood in the context in which it
occurs. The full
conduct of both the employer and the employee
must be taken into account in determining whether a threat actually
constitutes insubordination.
This is nothing new. It has
been said that––
“
[t]he
gravity of insubordination (or indeed whether the refusal to obey an
instruction amounts to insubordination at all) depends
on a number of
factors, including the action of the employer prior to the alleged
insubordination, the wilfulness of the employee’s
defiance and
the reasonableness or otherwise of the order that was defied.”
[96]
(Footnotes omitted.)
[215]
The threat was made after many
attempts to alert the Board to the employees’ complaints about
the CEO. The employees
had repeatedly drawn to the Board’s
attention aspects of the CEO’s exercise of his authority, which
they viewed as
having a negative effect on their work environment and
beyond. I am not pronouncing on the veracity of the complaints.
But
the Board’s unwillingness to deal with the
allegations and the consequent disrespect shown to the employees is a
significant
factor in the assessment of the employees’ conduct.
[216]
The disregard by the Board of the
trouble that the union and the employees had taken to comply with the
interim ruling of the Commissioner
was, itself, disrespectful. The
Board never signalled an intention to respond to the letter of 23 May
2008, not even to indicate
a view that, despite its motivation, the
union was not entitled to the information it sought or an explanation
of how the Board
intended to deal with the complaints levelled
against the CEO.
[217]
The Board must, all along, have been
aware of the shortcomings in the internal grievance procedure insofar
as there is no provision
for complaints against the CEO. The
chairperson of the disciplinary hearing referred to this
discrepancy. He highlighted
the importance of initial private
attempts to resolve workplace grievances. (It seems to me that
this is what the employees
had been attempting to do from
March 2008.) The chairperson acknowledged that there were
no structures in place “to
establish effective channels through
which the union was able to articulate grievances.” But
the Board had insisted
that the employees use the internal grievance
procedures.
[218]
The Board attended the conciliation
meeting of 9 May 2008. At that stage it did not register its
objection to the jurisdiction
of the CCMA. I can only conclude
from the interim ruling of 9 May 2008 that the Board must have
signalled a willingness to
discuss the subject of the dispute.
Its later conduct proves that such show of willingness was not in
good faith. It
did not signal any intention of responding to
the letter of 23 May 2008. It is only on the last day of
extended conciliation
that the Board objected to the CCMA’s
jurisdiction. What is more, only at that stage did the Board
register its view
that disclosure of the information sought by the
union and employees was not a dispute as contemplated by the Act.
[219]
The conduct of the Board is
unacceptable. In terms of the Collective Agreement, both
parties undertook to negotiate and consult
in good faith in seeking
reasonable and satisfactory solutions to their disputes. My
view is that the conduct of the Board
was in breach of its duty to
negotiate in good faith and, in fact, constituted an abuse of power.
Such lack of good faith
by the Board features throughout the process
of attempting to resolve the dispute, from the Board’s
insistence that the employees
utilise the inadequate internal
grievance procedures to its deliberate strategy of withholding its
stance on conciliation until
the very last day.
[220]
Whether the employees were correct
in thinking that the solution to their dissatisfaction lay in the
contract is, for me, not the
question in these proceedings. But
the union and employees do state in the letter of 23 May 2008 that
“the contract
should have been able to guard against . . . the
problems which are directly linked to the operations of the CEO and
in turn adversely
affecting both the staff of the [Board] and
beneficiaries”. The content of the letter sets out a
connection (at least
insofar as the union was concerned) between the
contract and the CEO’s performance of his duties. The
accusations were
a serious indictment of the CEO’s management
capacity. However, that should not be a bar to the employees’
right
to have their workplace misgivings afforded proper
consideration.
[221]
The conduct of the employees
following the petition is also relevant in determining the
reasonableness of their conduct. The
facts relating to this
conduct are properly set out in the other two judgments.
Although the contents of the petition exceeded
the parameters of the
dispute-resolution processes provided for in the Act, the
post-petition correspondence from the union showed
the union and
employee’s clear desire to have their grievances resolved
through discussions. This is a position they
maintained until
they were confronted with the Board’s belated objection to the
jurisdiction of the CCMA.
[222]
In this context, I cannot agree that
the threat to repudiate authority constituted insubordination and
disrespectful conduct.
The threat was made when the employer
had persistently shown disrespect for the conciliation that was
underway, to the extent that
that process degenerated into a
“brawl”. That said, I cannot agree that the call
for termination of the CEO’s
contract of employment is a lawful
act under the Act. That is not to say the conduct is proscribed
under the Act. But
a call for termination of the services of an
employee violates the right to fair disciplinary procedures. I
can find no reason
why the employees did not agitate for disciplinary
process if that is what they intended. The fact that the
employees may
have used it as a strategy to get a response from the
employer does not detract from its nature and implications.
[223]
Both the Supreme Court of Appeal and
the Labour Court dealt with the call for termination of the CEO’s
contract of employment
in the context of insubordination, and not on
the basis of the impropriety of the demand itself. The
impropriety of a demand
for termination of the services of an
employee as a dispute-resolution mechanism does not depend on the
position held by that employee.
The demand is equally unlawful
whether it relates to an employee who occupies a position of
authority or to an ordinary employee.
[224]
I do not agree that this call was
made in response to the Commissioner’s provisional ruling of 9
May 2008, as part of the
conciliation process. The CCMA ruling
was that the employees should “specify expectations of the
staff in terms of
overall organisational performance and delivery”.
It was not the case of the union and employees that the call for
termination of the CEO’s services was made in response to the
interim ruling of 9 May 2008 as their “expectation of
organisational performance and delivery”. Their case was
that this was a strategy to get a response from the employer.
[225]
The
union and employees strayed from the dispute-resolution mechanisms
provided for under the Act insofar as they disseminated the
contents
of the letter of 23 May 2008 and petitioned their employer,
calling for termination of the CEO’s services.
The reason
behind the special protection afforded under section 187 is to enable
employees to exercise rights conferred on them
under the Act without
fear of reprisal. Otherwise the rights provided for under the
Act would be meaningless.
[97]
It makes sense that this protection would be available for a closed
list of rights rather than an open-ended one. Therefore
to
enjoy special protection under section 187 an employee must have been
exercising a right specifically provided for in the Act.
Apart
from the fact that I can find no express or implied reference in the
Act to the right to freedom of expression (other than
within the
context of protected processes), I do not think that this right was
envisaged in the protection provided under section
187. This
must be because this right is often subject to legal limitations such
as I refer to in the paragraph below.
[98]
Bringing the
Board and the CEO into disrepute
[226]
This
brings me to the charge of bringing the Board and the CEO into
disrepute. Whilst I accept the rights of the employees
and the
union to make their grievances available for publication, it does
need to be said that the rights of the subject of the
publication
should also be borne in mind. Whereas the disseminated
allegations may be proved to be incorrect, the implications
or
effects of publication may be irreversible. For that reason the
right to publish is subject to some limitations
[99]
and I can only conclude that the Legislature intentionally omitted it
from general protection under the Act.
[227]
Whether
or not a dismissal is automatically unfair requires a factual enquiry
to establish the true reason for the dismissal. The
legal issue
is whether the identified reason is covered by one of the provisions
of section 187.
[100]
In this case, it is my view that both the dissemination of the letter
of 23 May 2008 and the contents of the petition for
which the
employees were dismissed are not rights or conduct envisaged in
sections 5 and 187 of the Act. It is for this reason
that I
cannot find that their dismissals were automatically unfair.
[228]
However,
in terms of section 188 of the Act, a dismissal that is not
automatically unfair may still be substantively unfair if the
employer fails to prove that the dismissal was for a fair reason
related to the employees’ conduct or capacity. In
terms
of section 188(2) of the Act, any person considering whether or not
the reason for dismissal is fair must take into account
the contents
of Schedule 8 to the Act.
[101]
[229]
It is a key principle of the Code
that employers and employees must treat one another with respect.
Both the Labour Court
and the Supreme Court of Appeal did not take
into account the disrespectful conduct of the Board. It is this
conduct that
drove the union and employees to resort to measures
outside of the Act.
[230]
For these reasons the dismissals in
this case were substantively unfair. I agree that the dismissed
employees should be reinstated,
and that costs must be awarded in
their favour.
For the
Applicant:
Advocate
V Ngalwana
and
Advocate
N Mbelle
instructed
by Ndumiso Voyi Inc.
For the
Respondent:
Advocate
H Maenetje SC and
Advocate
J
Brickhill i
nstructed by Cheadle
Thompson & Haysom Inc.
[1]
66
of 1995.
[2]
Section
188(1) of the Act reads, in relevant part:
“
A
dismissal that is not automatically unfair, is unfair if the
employer fails to prove—
(a) that the
reason for dismissal is a fair reason—
(i) related to
the employee’s conduct . . . ”.
[3]
Section
135(5) of the Act.
[4]
He
currently serves as a judge of the Labour Court.
[5]
Section
23(2) of the Constitution states that:
“
Every
worker has the right—
(a) to form and
join a trade union;
(b) to
participate in the activities and programmes of a trade union; and
(c) to strike.”
[6]
Section
23(4) of the Constitution states that:
“
Every
trade union and every employers’ organisation has the right—
(a) to determine
its own administration, programmes and activities;
(b) to organise;
and
(c) to form and
join a federation.”
See also
Food
and Allied Workers Union v Ngcobo NO and Another
[2013] ZACC 36
;
2014 (1) SA 32
(CC);
2013 (12) BCLR 1343
(CC) at para 26.
[7]
Section
23(5) of the Constitution states that:
“
Every
trade union, employers’ organisation and employer has the
right to engage in collective bargaining. National
legislation
may be enacted to regulate collective bargaining. To the
extent that the legislation may limit a right in this
Chapter, the
limitation must comply with section 36(1).”
[8]
Section
16 of the Constitution states that:
“
(1)
Everyone has the right to freedom of expression, which includes—
(a) freedom of
the press and other media;
(b) freedom to
receive or impart information or ideas;
(c) freedom of
artistic creativity; and
(d) academic
freedom and freedom of scientific research.
(2) The right in
subsection (1) does not extend to—
(a) propaganda
for war;
(b) incitement
of imminent violence; or
(c) advocacy of
hatred that is based on race, ethnicity, gender or religion, and
that constitutes incitement to cause harm.”
[9]
Section
17 of the Constitution states that:
“
Everyone
has the right, peacefully and unarmed, to assemble, to demonstrate,
to picket and to present petitions.”
[10]
Section
18 of the Constitution states that:
“
Everyone
has the right to freedom of association.”
[11]
National
Education Health and Allied Workers Union v University of Cape Town
and Others
[2002] ZACC 27
;
2003 (3) SA 1
(CC);
2003 (2) BCLR 154
(CC)
(
NEHAWU
).
See also
NAPTOSA
and Others v Minister of Education, Western Cape, and Others
2001
(2) SA 112
(CPD) at 123, cited with approval in
Minister
of Health and Another NO v New Clicks South Africa (Pty) Ltd and
Others
[2005] ZACC 14
;
2006 (2) SA 311
(CC);
2006 (8) BCLR 872
(CC) at
paras 434-6.
[12]
Section
4(2)(a) of the Act states that:
“
Every
member of a trade union has the right, subject to the constitution
of that trade union to participate in its lawful activities”.
[13]
Section
8 of the Act states that:
“
Every
trade union and every employers’ organisation has the right—
(a) subject to
the provisions of Chapter VI—
(i) to determine
its own constitution and rules; and
(ii) to hold
elections for its office-bearers, officials and representatives;
(b) to plan and
organise its administration and lawful activities;
(c) to
participate in forming a federation of trade unions or a federation
of employers’ organisations;
(d) to join a
federation of trade unions or a federation of employers’
organisations, subject to its constitution, and to
participate in
its lawful activities; and
(e) to affiliate
with, and participate in the affairs of, any international workers’
organisation or international employers’
organisation or the
International Labour Organisation, and contribute to, or receive
financial assistance from, those organisations.”
[14]
Section
16(2) of the Act.
[15]
Section
16(5) of the Act.
[16]
Section
23(2)(c) of the Constitution.
[17]
Sections
64 and 65 of the Act.
[18]
Section
66 of the Act.
[19]
Section
77 of the Act.
[20]
Section
5(1) of the Act.
[21]
Section
187(1) of the Act states in relevant part:
“
A
dismissal is automatically unfair if the employer, in dismissing the
employee, acts contrary to section 5 or, if the reason
for the
dismissal is—
(a) that the
employee participated in or supported, or indicated an intention to
participate in or support, a strike or protest
action that complies
with the provisions of Chapter IV;
(b) that the
employee refused, or indicated an intention to refuse, to do any
work normally done by an employee who at the time
was taking part in
a strike that complies with the provisions of Chapter IV or was
locked out, unless that work is necessary
to prevent an actual
danger to life, personal safety or health;
(c) to compel
the employee to accept a demand in respect of any matter of mutual
interest between the employer and employee;
(d) that the
employee took action, or indicated an intention to take action,
against the employer by—
(i) exercising
any right conferred by this Act; or
(ii)
participating in any proceedings in terms of this Act;
. . .
(h) a
contravention of the
Protected Disclosures Act, 2000
, by the
employer, on account of an employee having made a protected
disclosure defined in that Act.”
[22]
Section
188(2)
of the Act requires that “Any person considering
whether or not the reason for dismissal is a fair reason . . . must
take
into account any relevant code of good practice issued in terms
of this Act.”
The relevant
code of good practice – the Code of Good Practice: Dismissal –
is in Schedule 8 of the Act. Item 3(5)
provides:
“
When
deciding whether or not to impose the penalty of dismissal, the
employer should in addition to the gravity of the misconduct
consider factors such as the employee’s circumstances
(including length of service, previous disciplinary record and
personal circumstances), the nature of the job and the circumstances
of the infringement itself.”
In addition,
under item 7(b)(i) of Schedule 8, an employer should also consider
whether the workplace rule or standard contravened
by an employee
“was a valid or reasonable rule or standard”. When
considering these and the other factors set
forth in the Code of
Good Practice: Dismissal, a court must give due weight to the
constitutional rights of employees.
[23]
NUPSAW
obo Mani and Others v National Lotteries Board
[2011]
ZALCJHB
199
at
para 26.
[24]
Id
at paras 28-51.
[25]
Id
at para 41.
[26]
As
a result of the Constitution Seventeenth Amendment Act of 2012, this
right of appeal to the Supreme Court of Appeal no longer
exists.
Section 168(3)(a) of the Constitution now reads:
“
The
Supreme Court of Appeal may decide appeals in any matter arising
from the High Court of South Africa or a court of a status
similar
to the High Court of South Africa, except in respect of labour or
competition matters to such extent as may be determined
by an Act of
Parliament.”
[27]
National
Union of Public Service and Allied Workers on behalf of Mani and
Others v National Lotteries Board
[2013] ZASCA 63
;
[2013] 8 BLLR 743
(SCA); (2013) 34 ILJ 1931 (SCA)
(Supreme Court of Appeal judgment) at para 29.
[28]
Id
at para 32.
[29]
NEHAWU
above
n 11 at paras 13-7.
[30]
Id
at para 18.
[31]
Id
at para 25.
[32]
Id
at para 26.
[33]
Id
at para 28.
[34]
Id
at paras 30-1.
[35]
Id
at para 31.
[36]
See,
for example,
Coetzee
v National Commissioner of Police and Another
[2013] ZACC 29
;
2013 (11) BCLR 1227
(CC) at para 19.
[37]
Id
at para 27;
Mankayi
v AngloGold Ashanti Ltd
[2011] ZACC 3
;
2011 (3) SA 237
(CC);
2011 (5) BCLR 453
(CC) at para
12;
Minister
of Safety and Security v Luiters
[2006] ZACC 21
;
2007 (2) SA 106
(CC);
2007 (3) BCLR 287
(CC) at para
27;
Phoebus
Apollo Aviation CC v Minister of Safety and Security
[2002] ZACC 26
;
2003 (2) SA 34
(CC);
2003 (1) BCLR 14
(CC) at para
9; and
S
v Boesak
[2000] ZACC 25
;
2001 (1) SA 912
(CC);
2001 (1) BCLR 36
(CC) at para
15.
[38]
NEHAWU
above
n 11 at para 17.
[39]
See
section 17 of the Constitution above n 9.
[40]
For
example, freedom of expression in section 16 of the Constitution
above n 8.
[41]
Section
213 of the Act defines “dispute” as including “an
alleged dispute”, and defines “issue in
dispute”
in relation to a strike or lock-out as “the demand, the
grievance, or the dispute that forms the subject
matter of the
strike or lock-out”.
[42]
Malan
v Bulbring NO and Others
[2004]
ZALC 52
;
[2004] 10 BLLR 1010
(LC) at para 23. See also
Matsekoleng
v Shoprite Checkers (Pty) Ltd
[2012] ZALAC 41
;
[2013] 2 BLLR 130
(LAC) at paras 66-7.
[43]
The
Supreme Court of Appeal
at
para 30 of its judgment (above n 27)
appears
to have regarded these concepts as decisive:
“
A meeting
of trade union officials and shop stewards cannot, for example, be
convened to plot and plan the murder of a disagreeable
employee at
the workplace or to burn down the buildings of the employer, no
matter how justified the participants may believe
such action to be.
So too, pickets, protests, meetings, pamphleteering cannot, as
the court a quo also mentioned by way
of illustration, be organised
contrary to our law of defamation. Trade union activities
which constitute unlawful acts
of insubordination are not protected.
The law does not dissemble unlawful acts through the
invocation of a constitutional
banner.”
[44]
In
National
Union of Mineworkers on behalf of Selemela v Northam Platinum Ltd
[2013] ZALAC 10
; (2013) 34 ILJ 3118 (LAC) at para 39 the Labour
Appeal Court considered failing to obey a lawful instruction to be
insubordination.
It made a similar finding in
Motor
Industry Staff Association and Another v Silverton Spraypainters and
Panelbeaters (Pty) Ltd and Others
[2012] ZALAC 42
; (2013) 34 ILJ 1440 (LAC) at para 43.
Dismissal for insubordination was dealt with in
National
Trading Co v Hiazo
(1994) 15 ILJ 1304 (LAC);
(1994) 12 BLLR 53
(LAC) at 1308H-J where
the Court held that the wilful flouting of the instructions of the
employer justified dismissal.
[45]
The
collective agreement, entered into between the employer and the
union, states at clause 6.3 that “[t]he Trade Union
recognises
management’s authority and responsibility to plan, organise
and manage.”
[46]
TSI
Holdings (Pty) Ltd and Others v National Union of Metalworkers of SA
and Others
[2006] ZALAC 1
; (2006) 27 ILJ 1483 (LAC) (
TSI
Holdings
)
at para 48.
[47]
The
union’s letter to the employer in defence of the petition,
dated 9 June 2008, makes no mention at all of the dispute-resolution
process.
[48]
26
of 2000. Section 9 provides:
“
(1)
Any
disclosure
made
in good faith by an
employee
—
(a) who
reasonably believes that the information disclosed, and any
allegation contained in it, are substantially true; and
(b)
who does not make the
disclosure
for purposes of personal gain, excluding any
reward payable in terms of any law;
is
a protected disclosure
if—
(i)
one or more of the conditions referred to in
subsection
(2)
apply;
and
(ii)
in all the circumstances of the case, it is reasonable to make the
disclosure.
(2) The
conditions referred to in subsection (1)(i) are—
(a)
that at the time the employee
who
makes the
disclosure
has
reason to believe that he or she will be subjected to an
occupational
detriment
if
he or she makes a disclosure to his or her employer in accordance
with
section
6
;
(b)
that, in a case where no person or body is
prescribed
for the purposes of
section
8
in
relation to the relevant impropriety, the
employee
making the disclosure
has
reason to believe that it is likely that evidence relating to the
impropriety
will
be concealed or destroyed if he or she makes the disclosure
to
his or her
employer;
(c)
that the
employee making the
disclosure has previously made a
disclosure
of
substantially the same information to—
(i)
his or her
employer; or
(ii)
a person or body referred to in
section
8
,
in respect of
which no action was taken within a reasonable period after the
disclosure; or
(d)
that the
impropriety
is
of an exceptionally serious nature.
(3)
In determining for the purposes of subsection (1)(ii) whether it is
reasonable for the
employee
to
make the
disclosure, consideration must be
given to—
(a)
the identity of the person to whom the
disclosure
is made;
(b)
the seriousness of the
impropriety;
(c)
whether the
impropriety
is
continuing or is likely to occur in the future;
(d)
whether the
disclosure is made in breach
of a duty of confidentiality of the
employer
towards any other person;
(e)
in a case falling within
subsection
(2)(c)
,
any action which the
employer
or
the person or body to whom the
disclosure
was
made, has taken, or might reasonably be expected to have taken, as a
result of the previous
disclosure;
(f)
in a case falling within
subsection
(2)(c)(i)
,
whether in making the disclosure
to
the
employer
the
employee
complied
with any procedure which was authorised by the employer; and
(g) the public
interest.
(4)
For the purposes of this section a subsequent disclosure may be
regarded as a
disclosure
of
substantially the same information referred to in
subsection
(2)(c)
where
such subsequent
disclosure
extends
to information concerning an action taken or not taken by any person
as a result of the previous
disclosure.”
None of the
pre-conditions in section 9(2) is applicable.
[49]
See
section 4(2)(a) of the Act above n 12.
[50]
Section
16 of the Act is quoted in relevant part at [32].
[51]
Id.
[52]
Section
145 of the Act.
[53]
Section
187(1) of the Act above n 21.
[54]
See
[62]
above.
[55]
Id.
[56]
Section
188(1) of the Act above n 2.
[57]
See
above n 22.
[58]
Under the Labour Relations Act 66 of 1995 (LRA) a dismissal is
automatically unfair if the reason for the dismissal is one of
those
set out in section 187 of the LRA. They include a dismissal
where the reason therefor is that the employee exercised
his or her
rights under the LRA or supported a lawful activity of his or her
trade union.
[59]
A dismissal is substantively unfair in terms of the LRA if there is
no fair reason for it and it is not an automatically unfair
dismissal.
[60]
The
judgment of the Supreme Court of appeal is reported as follows
National
Union of Public Service and Allied Workers on behalf of Mani and
Others v National Lotteries Board
[2013] ZASCA 63
;
[2013] 8 BLLR 743
(SCA); (2013) 34 ILJ 1931 (SCA).
[61]
The
judgment of the Labour Court is reported as follows
NUPSAW
obo Mani and Others v National Lotteries Board
[2011]
ZALCJHB
199
.
[62]
NUPSAW stands for National Union of Public Service and Allied
Workers. In this case it represents ten of its members
previously employed by the respondent who were dismissed. For
convenience I refer to the dismissed employees as the applicant
employees.
[63]
The Chairperson was Prof A van Niekerk.
[64]
In terms of section 213 of the LRA a trade union representative is
a
member of a trade union who is elected to represent employees in the
workplace where he or she works.
[65]
57
of 1997.
[66]
When
a party has referred a dispute to the CCMA for conciliation, the
CCMA assigns the dispute to one of its commissioners to
conciliate
the dispute or to assist the parties to resolve it through
conciliation. The LRA does not anywhere oblige any
party to
attend a meeting in which attempts are made to reach a resolution of
the dispute through conciliation but parties normally
do attend such
a meeting convened by the CCMA. Once a dispute has been
referred to the CCMA, the parties have 30 days from
the date of
receipt of the referral to try and resolve the dispute before
another step becomes open to one or both parties in
the dispute
resolution process. Such a step might be referring the dispute
to arbitration or adjudication or giving a notice
of strike or
lock-out. The period of 30 days may be extended by agreement
between the parties.
[67]
Section
135(2) of the LRA provides for such an extension.
[68]
See [17] of the main judgment.
[69]
It
did so in Annexure A to the disciplinary charges against the
employees.
[70]
Essentially section 64 lays down the procedural requirements that
must be complied with for a strike or lock out. to be
a
protected strike or lock-out. A protected strike is one for
which employees cannot be penalised by the employer.
Such a
strike or lock-out also does not give rise to civil liability.
Such protection does not cover criminal conduct by
the union or the
employees in the course of the strike.
[71]
TSI
Holdings (Pty) Ltd and Others v National Union of Metalworkers of SA
and Others
[2006] ZALAC 1
; (2006) 27 ILJ 1483 (LAC).
[72]
Section 16(1) of the Constitution reads: “Everyone has the
right to freedom of expression.”
[73]
Section 17 of the Constitution reads: “Everyone has the right,
peacefully and unarmed, to assemble, to demonstrate, to
picket and
to present petitions.”
[74]
Section
18 of the Constitution reads: “Everyone has the right to
freedom of association.”
[75]
National
Union of Mineworkers v East Rand Gold and Uranium Co Ltd
[1991]
ZASCA 168
;
1992 (1) SA 700
(A) (
NUM
)
at 716 quoting Davies and Freedland
Labour
Law: Text and Materials
2 ed (Weidenfields, United Kingdom 1979).
[76]
Id
at 734.
[77]
Section 1 of the LRA.
[78]
Id.
[79]
Kentridge
AJ in
S
v Zuma and Others
[1995]
ZACC 1
;
1995 (2) SA 642
(CC);
1995 (4) BCLR 401
(CC) at para 15.
[80]
South
African Police Service v Police and Prisons Civil Rights Union and
Another
[
2011]
ZACC 21
;
2011 (6) SA 1
(CC);
2011 (9) BCLR 992
(CC) (
SAPS
v POPCRU
).
[81]
South
African Transport and Allied Workers Union and Others v Moloto NO
and Another
[2012] ZACC19;
2012
(6) SA 249
CC;
2012 (11) BCLR 1177
(CC) (
SATAWU
v Moloto
).
[82]
SAPS
v POPCRU
above
n 80 at para 30.
[83]
SATAWU
v Moloto
above
n 81 at para 54.
[84]
Section 200(1) of the LRA reads:
“
A
registered trade union or registered employers’ organisation
may act in any one or more of the following capacities in
any
dispute to which any of its members is a party—
(a) in its own
interest;
(b) on behalf of
any of its members;
(c) in the
interest of any of its members.”
[85]
Para
32 of the ruling of the Chairperson.
[86]
I reach this conclusion upon an analysis of paragraph 32 of the
Chairperson’s ruling.
Obviously,
the “actions” to which the Chairperson was referring in
the passage could only be found in the part of
the ruling which
preceded that reference. The reference to “these
actions” appears in the last third of paragraph
32 of the
ruling. “These actions” are to be found in the
first two-thirds of paragraph 32. In the first
sentence of
paragraph 32 the Chairperson said: “In my view, the union
overstepped the mark in its campaign to have its
grievances
addressed.” What follows after that up to where the
quoted passage commences (in other words up to where
the Chairperson
says “[b]y associating themselves with these actions”
which takes up the first two thirds of paragraph 32),
the
chairperson gives his reasons for the conclusion that the union
overstepped the mark. The only things that the Chairperson
says in the balance of the first two-thirds of paragraph 32 of his
ruling that can possibly fall within the word “actions”
are reflected in (a) and (b) of [157]
of
this judgment.
[87]
See the passage in
[156]
above from the Chairperson’s ruling.
[88]
Para
31 of the Chairperson’s ruling.
[89]
Id at para 32.
[90]
See paras 10, 11, 22, 31, 33, 35 and 37 of the judgment of the
Labour Court above n 61.
[91]
Id at para 32.
[92]
Id at para 37.
[93]
Section 193(2) reads as follows:
“
The
Labour Court or the arbitrator must require the employer to
reinstate or re-employ the employee unless—
(a) the employee
does not wish to be reinstated or re-employed;
(b) the
circumstances surrounding the dismissal are such that a continued
employment relationship would be intolerable;
(c) it is not
reasonably practicable for the employer to reinstate or re-employ
the employee; or
(d) the
dismissal is unfair only because the employer did not follow a fair
procedure.”
[94]
Section
187 above n 21.
[95]
Grogan
Dismissal,
Discrimination and Unfair Labour Practices
2
ed (Juta & Co Ltd, Cape Town 2007) at 307 11.
[96]
Id
at 309.
[97]
Grogan
above n 95 at 227.
[98]
See,
for example,
National
Media Ltd and Others v. Bogoshi
[1998] ZASCA 94
;
1998 (4) SA 1196
(SCA) and
Holomisa
v Argus Newspapers Ltd
1996 (2) SA 588
(W);
1996 (6) BCLR 836
(W).
[99]
See
further,
Laugh
It Off Promotions CC v SAB International (Finance) BV t/a Sabmark
International (Freedom of Expression Institute as Amicus
Curiae)
[2005]
ZACC 7
;
2006 (1) SA 144
(CC);
2005 (8) BCLR 743
(CC);
Khumalo
and Others v Holomisa
[2002] ZACC 12
;
2002 (5) SA 401
(CC);
2002 (8) BCLR 771
(CC);
Case
and Another v Minister of Safety and Security and Others; Curtis v
Minister of Safety and Security and Others
[1996] ZACC 7
;
1996 (3) SA 617
(CC);
1996 (5) BCLR 609
(CC) at para
27; and clause 14 of the Regulations regarding the Code of Conduct
for Broadcasting service licensees issued in
terms of
section 54
of
the
Electronic Communications Act 36 of 2005
.
[100]
Grogan
above n 95 at 225.
[101]
The
Code of Good Practice: Dismissal.