AMCU obo Maluleke and Others v Gold Plat Recovery (Pty) Ltd (JS202/21) [2024] ZALCJHB 289; [2024] 10 BLLR 1043 (LC); (2024) 45 ILJ 2734 (LC) (29 July 2024)

THE LABOUR COURT OF SOUTH AFRICA, JOHANNESBURG

Reportable

case no: JS202/21

In the matter between:

AMCU OBO MALULEKE AND 4 OTHERS

Applicants

and

GOLD PLAT RECOVERY (PTY) LTD

Respondent

Heard: 13 – 17 May 2024. Heads filed on 7 June 2024.

Delivered: 29 July 2024.

Summary: Applicants claim that they were dismissed for joining union and participating in its lawful activities. Dismissals found to be automatically unfair. Reinstatement with retrospective effect granted.

JUDGMENT

DANIELS J

Introduction

[1] The applicant claims that five of its members (hereafter referred to as “the individual applicants”) dismissed by the respondent (hereafter “the company”) on or about 31 August 2016, were dismissed for joining, and actively campaigning for their fellow employees to join, the Association of Mineworkers and Construction Union (“AMCU”). The applicants claim that the dismissal of these members is automatically unfair in terms of section 187(1)(d) of the Labour Relations Act No 66 of 1995 as amended (the “LRA”). The applicant further claims that the dismissals were automatically unfair because they were in breach of the individual applicants’ rights to freedom of association, encompassed in section 5 of the LRA.

Application to admit hearsay evidence

[2] At the commencement of proceedings, respondent’s representative advised the court of its intention to call a single witness, who would present hearsay evidence. The respondent contended that it was obliged to present only hearsay evidence because its witnesses (with direct knowledge of the events) were too afraid for their safety and refused to testify. Unsurprisingly, the applicant strenuously opposed the application to present hearsay evidence and submitted that the respondent ought to have subpoenaed the recalcitrant witnesses.

[3] I enquired from the parties whether hearing evidence ‘in camera’ was not a solution to the problem. The applicant

submitted that it would oppose an application to hear evidence in camera because it was unnecessary. The respondent indicated that it would be amenable to presenting its evidence in camera, but it did not bring any application to do so.

[4] After argument (re the admission of hearsay evidence) both parties requested the Court to consider and determine whether such evidence should be admitted in terms of section 3(1) of the Law of Evidence Amendment Act No. 45 of 1988.

[5] Later that same day, the Court delivered its judgment holding that it was not in the interests of justice to admit hearsay evidence. The Court also found that the admission of hearsay evidence was not necessary.

[6] In the circumstances, any evidence, be it oral or written, presented by the respondent, the probative value of which depended on the credibility of any other person besides the witness (Mr Soldatos) was inadmissible. The hearsay evidence not admitted includes:

6.1 The content of the handwritten notes of Mr Soldatos during his interviews of the complainants,

6.2 Any evidence by Mr Soldatos in relation to acts of intimidation by the individual applicants,

6.3 Any manuscript notes referred to by Mr Soldatos in his evidence (including pages 13, 17, 21, 25, 29 and 30) in relation to which he had no personal knowledge.

6.4 Any evidence by Mr Soldatos disputing that: (1) Messrs Visagie, Nkuna, Kwake and Mohale were antagonistic to unions, and (2) they warned the individual applicants not to join AMCU;

6.5 Evidence of the motives of management when they decided to dismiss the individual applicants.

Manner in which evidence was presented

[7] The applicants commenced with the presentation of its evidence by calling Messrs. Simbala and Maluleke. By agreement, at that time, to accommodate Mr Soldatos, he was interposed as a witness. Thereafter, all the other individual applicants were called, viz Ms Majola, Mr Haekiso, and Mr Gwantshu.[1] The applicants closed their case, followed by the respondent.

Material facts

[8] Below, I summarise the common cause facts:

8.1 Prior to 2015 or 2016, the respondent’s workforce has never been unionised. Instead, employees were represented by a workers committee, a consultative forum elected by the workforce to engage with management on concerns or grievances raised by the workforce. Several of the individual applicants were also members of the workers committee.

8.2 The workers committee was ineffective in addressing the concerns raised by the workforce, and it was perceived (by the workforce) to be an instrument of management. The workforce had no faith in the workers committee because the chairperson (Mr Nkuna) would take some issues to management and not others. Furthermore, management would not reply to all the issues taken to it.

8.3 During 2015, AMCU began recruiting members in the respondent’s workforce.

8.4 By 2016, AMCU had made significant inroads and it therefore requested organisational rights from the respondent. When this was refused,

AMCU referred a dispute to the Commission for Conciliation, Mediation, and Arbitration (“the CCMA”) in terms of section 21(4) of the LRA. At conciliation, AMCU and the company agreed to a threshold of 30% for the granting of organisational rights.[2]

8.5 At the instance of the respondent, an independent institution, TOKISO, was engaged to conduct a union membership verification exercise to determine the level of membership held by AMCU.

8.6 The verification exercise, conducted on 25 August 2016, found that AMCU had 23.3% of the workforce as its members. The uncontradicted evidence of the applicants was that TOKISO took steps to verify that every completed membership form was genuine and voluntarily made.

8.7 Following the verification, AMCU commenced a recruitment drive to secure additional members. The individual applicants testified that AMCU did not inform its members about the outcome of the verification exercise. This was uncontradicted by the respondent.

8.8 The respondent contended that, after the verification, the workforce was tense because there were two camps of employees - those who wanted AMCU and those who did not (because they were satisfied with the workers committee). All of the individual applicants testified, and they all disputed this. They testified that they believed AMCU had achieved some measure of success in the verification (they testified that after the verification AMCU “was in”) because AMCU had the support of all the employees, and, accordingly, there was no tension. The respondent’s only witness had no first-hand knowledge of the alleged “tension”.

8.9 The respondent believed that the showing of 23.3% in the verification exercise was a true measure of the support of AMCU. However, membership and support are different matters. TOKISO did not measure the level of support for AMCU, it only considered membership.

8.10 During the recruitment drive (which occurred after the verification) management was approached by three employees; namely Mr Vasco Nkuna (hereafter “Mr Nkuna”), Ms Zanele Nkoane (hereafter “Ms Nkoane”) and Mr Zamile Manyike. They alleged that the individual applicants were threatening and intimidating employees into joining AMCU. In most instances, they reported what had been reported to them by other employees. These individuals (hereafter “the complainants”) met with the then non-executive director of the company, Mr Aristidis Soldatos (hereafter “Mr Soldatos”). They told him that they were afraid to testify against the individual applicants and they did not wish to reveal their identities. Mr Soldatos, believing that they were genuinely scared, agreed not to reveal their identity or require that they testify.

8.11 It is necessary to note that Mr Nkuna, one of the complainants, who was employed by the company as its materials supervisor, was also the chairperson of the workers committee. In addition, Mr Nkuna was used by management to source employees for recruitment.

8.12 The applicants’ testimony was consistent, and uncontradicted, that Mr Nkuna was antagonistic to unions and he actively campaigned against AMCU at the workplace. Mr Nkuna informed the individual applicants that unions, such as AMCU, make unrealistic demands of management. This evidence from the applicants could only be refuted by Mr Nkuna, which did not occur.

8.13 The evidence from the applicants was that management was hostile to AMCU. The evidence from respondent’s sole witness was that management was “apprehensive” about AMCU. According to the respondent’s only witness, management was concerned that the presence of AMCU may result in “another Marikana”.[3]

8.14 The individual applicants, all members of AMCU, played an active role in campaigning for AMCU in the workplace. They attempted to recruit members for AMCU, sometimes directly and at other times less directly.

8.15 On 31 August 2016, the individual applicants were summoned, individually, by Mr Nkuna to the company boardroom. There the individual applicants were informed that they had been accused of intimidation by their fellow employees (who were not identified) and that the company believed the allegations. They were handed letters indicating that they had been dismissed with immediate effect. The short meeting did not constitute a disciplinary hearing. The letters of dismissal had been signed by management before the individual applicants entered the boardroom.

8.16 AMCU referred a dispute concerning the fairness of the individual applicants’ dismissal to the Commission for Conciliation, Mediation and Arbitration (the “CCMA”). AMCU advised the individual applicants that they should not inform the CCMA that the true reason for the dismissal related to their membership of AMCU, and their recruitment for the union, because this would result in the dispute being referred to this Court and many years would lapse before their dispute was heard. When conciliation failed, the dispute was referred to the CCMA for arbitration.

8.17 At arbitration, Mr Soldatos testified for the company. In his evidence he revealed the identity of the three complainants but he did not call them to testify. The applicants called, as witnesses, two of the individual applicants, Mr Simbala and Mr Maluleke.

8.18 During arbitration, despite the advice of AMCU, two of the individual applicants revealed that they believed they were dismissed for their union membership and related activities. Although this raised jurisdictional issues, the commissioner paid no heed to it. Instead, on 14 June 2017, the commissioner issued an arbitration award in which he found that the individual applicants’ dismissal was procedurally and substantively fair.

8.19 The applicants brought an application to review and set aside the arbitration award. The respondent opposed the application. The Court heard argument on 9 January 2020, but only issued its judgment more than a year later, on 8 February 2021. The Court found that the CCMA had no jurisdiction to hear and determine the dispute. The applicants therefore referred this dispute, to this Court, for adjudication, on 3 March 2021.

[9] I now consider the evidence presented by each witness, with particular reference to the contested issues.

Mr Aristidis Soldatos (“Mr Soldatos”)

[10] He gave evidence as follows:

10.1 Mr Soldatos testified that he is a practicing attorney with many, many, years of experience in employment law.

10.2 During 2016, and for several years before then, he was a non-executive director of the respondent.

10.3 At the invitation of management, he interviewed the three complainants regarding their complaints against the individual applicants. In his view, the complainants were genuinely scared. He accepted, as bona fide, their refusal to reveal their identities to the applicants, and their refusal to testify against them. They told Mr Soldatos that the individual applicants were intimidating employees into joining AMCU.[4] They told him that the individual applicants had threatened to burn the homes of employees who refused to join AMCU[5] and threatened to assassinate Mr William Kwake, the erstwhile human resources manager.

10.4 He testified that the car belonging to Mr Nkuna was burnt at that time, and it could not have been a coincidence.

10.5 Mr Soldatos conceded that management was “apprehensive” about the presence of AMCU in the workplace because they feared this could lead to “another Marikana”.[6] He took steps to educate management on the rights of all employees to be unionised.[7]

10.6 He testified that the workers committee was formed at his suggestion[8] but he denied that it was an extension of management. He also denied that Mr Nkuna (chair of the workers committee) was a member of management.

10.7 Mr Soldatos testified that the individual applicants had not been dismissed for their union membership and activities. It was put to him that he could not testify on behalf of management, because he is not management. Mr Soldatos conceded that he was not management and management did not report to him. It was clear that Mr Soldatos had no personal knowledge of the true reasons for the individual applicants’ dismissals.

10.8 Mr Soldatos struggled to explain why no criminal charges had been laid against the individual applicants. In addition, he struggled to explain why, when the complainants’ identities had been disclosed at the CCMA several years earlier (with no adverse consequence) it was still necessary to protect them against testifying.

[11] To his credit, under cross-examination, Mr Soldatos made a number of important concessions. He testified that:

11.1 Startlingly, he testified that no employer desires the presence of a trade union.[9] Instead, he said, employers learn to accept unions, because they have no choice. This concession clearly revealed that AMCU was not warmly welcomed into the fold, and any warmth was superficial.

11.2 He did not personally see the vehicle of Mr Nkuna, which was allegedly burnt. He was informed of the incident and the damage.[10]

11.3 The dismissal of the individual applicants may have had a chilling effect on AMCU’s ability to recruit more members, or retain its existing members. Mr Soldatos conceded that, after the applicants’ dismissals, several other employees resigned from the union.

11.4 The dismissal of the individual applicants was procedurally unfair.[11]

11.5 Currently, AMCU represents 60% to 70% of the workforce.[12] AMCU has both organisational rights and collective bargaining rights, although no recognition agreement has been concluded with it.

[12] Mr Soldatos could not deny that Mr Visagie, the then chief operating officer, told one of the individual applicants (Mr Simbala) that the reason he was dismissed was because he had joined AMCU. Mr Soldatos testified that he remains in contact with Mr Visagie, who now lives in Spain.

[13] Mr Soldatos could not deny that several of the individual applicants were warned[13] that, if they joined AMCU, they would be dismissed.

[14] Various reasons why the individual complainants may have lied about the individual applicants were put to Mr Soldatos.[14] This was speculative. Understandably, Mr Soldatos was not in a position to answer these questions. Nevertheless, these questions

revealed the importance of procedural fairness – to ensure substantive fairness. The complaints against the individual applicants should not have been accepted without proper investigation and interrogation.

[15] Mr Edgar Simbala (“Mr Simbala”)

15.1 When asked if he played any role in recruiting for AMCU, Mr Simbala testified: “I can say I did but first, when I was asked I was scared because I knew that I was going to be. I was going to get fired…”[15]

15.2 He testified that the company was hostile to AMCU because it was afraid that unfeasible financial demands would be made by the union. He was privately told by Mr Visagie that the real reason for his dismissal was the fact that he “brought AMCU to the company”.[16] In public, the company would say that it had no problem with unions, but, in private, they would say that unions are unnecessary and problematic.

15.3 The workers committee was useless because it was controlled by management, which is why workers were excited about the arrival of AMCU.

[16] Mr Hlengani Maluleke (“Mr Maluleke”)

16.1 Mr Maluleke denied that he said to Ms Nkoane that Mr Kwake was an “impimpi” and he must be killed. He testified that he was warned by Mr TG Mohale[17] not join a union because the company was still very young. He kept AMCU membership forms in his locker and would give them to any employee who wished to join.

16.2 He participated in the verification exercise, but thereafter took leave to attend to his brother’s funeral (his brother passed away on 12 August). He testified that he took 3 days compassionate leave, and a further 5 days annual leave.[18]

[17] Ms Nonhlanhla Majola (“Majola”)

17.1 She was dismissed for bringing AMCU to the company. When she heard that AMCU was coming to the company; she shouted in excitement and told everyone how excited she was. She believes that one of the complainants (Ms Nkoane) lied to management (that she intimidated workers into joining AMCU) because she (Ms Nkoane) took her job after she was dismissed.

[18] Mr Zamile Haekiso (“Haekiso”)

18.1 He too was involved with issuing AMCU forms to his fellow employees. He speculated that other employees could have made up lies about the individual applicants because they wanted to make space for their family members. He testified that he has no trust issues with management because the lies were made up by others.

[19] Mr Khanelani Gwantshu (“Gwantshu”)

19.1 Gwantshu testified that, when he was first hired, the human resources officer, Mr Kwake, made it clear to him that the respondent does not wish AMCU to operate on its premises. He was told the same thing by Mr Nkuna. Gwantshu played a role in recruiting for AMCU by directing employees who were interested to the tea room where he had earlier placed membership forms.

Legal principles

[20] Section 4(1)(b) of the LRA grants all employees the right to join a trade union, subject to the constitution of that union. Section 4(3)(a) grants to all union members the right to participate in the lawful activities of that union. Section 5(1) prohibits discrimination against any employee for his or her exercise of a right conferred by the LRA, such as the right to join a union. Section 5(2)(c) provides that no person may be prejudiced because of their membership of a union.

[21] Section 187(1) states that if an employer, in dismissing an employee, acts contrary to section 5, that dismissal is automatically unfair. Section 187(1)(d) provides that, if the reason for the dismissal is because an employee exercised a right conferred by the LRA, the dismissal is automatically unfair.

[22] In this matter, the applicants contend that their dismissal is automatically unfair because the reason for their dismissal is that they joined AMCU and participated in its lawful activities. Accordingly, by reference to the evidence, the Court must determine

the reason for the dismissal of the applicants. Thankfully our courts have provided ample guidance as to how to approach this task:

22.1 In South African Chemical Workers Union and others v Afrox Ltd[19] (“Afrox”) Froneman DJP held as follows:

“[32] The enquiry into the reason for the dismissal is an objective one, where the employer's motive for the dismissal will merely be one of a number of factors to be considered. This issue (the reason for the dismissal) is essentially one of causation and I can see no reason why the usual twofold approach to causation, applied in other fields of law, should not also be utilized here (compare S v Mokgethi & others 1990 (1) SA 32 (A) at 39D41A; Minister of Police v Skosana 1977 (1) SA 31 (A) at 34). The first step is to determine factual causation: was participation or support, or intended participation or support, of the protected strike a sine qua non (or prerequisite) for the dismissal? Put another way, would the dismissal have occurred if there was no participation or support of the strike? If the answer is yes, then the dismissal was not automatically unfair. If the answer is no, that does not immediately render the dismissal automatically unfair; the next issue is one of legal causation, namely whether such participation or conduct was the 'main' or 'dominant', or 'proximate', or 'most likely' cause of the dismissal. There are no hard and fast rules to determine the question of legal causation (compare S v Mokgethi at 40). I would respectfully venture to suggest that the most practical way of approaching the issue would be to determine what the most probable inference is

that may be drawn from the established facts as a cause of the dismissal, in much the same way as the most probable or plausible inference is drawn from circumstantial evidence in civil cases. It is important to remember that at this stage the fairness of the dismissal is not yet an issue (see para [33] below). Only if this test of legal causation also shows that the most probable cause for the dismissal was only participation or support of the protected strike, can it be said that the dismissal was automatically unfair in terms of s 187(1)(a) . If that probable inference cannot be drawn at this stage, the enquiry proceeds a step further.” (Own emphasis)

22.2 In Kroukam v SA Airlink (Pty) Ltd[20] Davis AJA held:

“In my view, s 187 imposes an evidential burden upon the employee to produce evidence which is sufficient to raise a credible possibility that an automatically unfair dismissal has taken place. It then behoves the employer to prove to the contrary, that is to produce evidence to show that the reason for the dismissal did not fall within the circumstance envisaged in s 187 for constituting an automatically unfair dismissal.” (Own emphasis)

[23] By reference to the evidence, I must therefore determine whether, firstly, the applicants have raised a credible possibility that the respondent dismissed the individual applicants for any of the reasons set out in sections 5 and section 187(1)(d). If they have, I must consider whether the evidence demonstrates that, on a balance of probabilities, whether there was factual and legal causation as contemplated in Afrox.

Evaluation of the evidence

[24] In Stellenbosch Farmers’ Winery Group Ltd and another v Martell et Cie and others[21] the SCA held as follows:

“To come to a conclusion on the disputed issues a court must make findings on (a) the credibility of the various factual

witnesses; (b) their reliability; and (c) the probabilities … The hard case, which will doubtless be the rare one, occurs when a court's credibility findings compel it in one direction and its evaluation of the general probabilities in another. The more convincing the former, the less convincing will be the latter. But when all factors are equipoised probabilities

prevail.”

Evidence of the applicants

[25] In my evaluation of the evidence of the applicants I have taken into consideration that they are unsophisticated individuals and, in some instances, illiterate. This was placed on record by the applicants’ representative, and it was confirmed when some of the individual applicants advised the court that they could not read the documents before them. In this context, it was clear that the individual applicants did not have the benefit of being in a familiar environment. The court room can be scary place for legal practitioners, it stands to reason that it is much scarier for blue-collar workers. In addition, in many instances, including this matter, the applicants were compelled to choose between a language which is not their native tongue or the interpretation (sometimes of dubious quality) provided by the court interpreter. These considerations creates difficulties for employees, which are not frequently shared by witnesses for the employer.

[26] While it is true that the applicants, particularly Mr Maluleke, struggled with certain details in his evidence such as the dates he left to attend his brother’s funeral and the date he returned from leave. It must be remembered that these events occurred in 2016, 8 years ago. Many of us struggle to recall what happened a month ago. In my view, inconsistencies or contradictions in relation to minor details are all too frequently exaggerated, and used as a means to undermine a witness’ credibility. In addition, such inconsistencies, are often in relation to trivial issues. It is trite that an error does not, by itself, establish a lie and that not every error is relevant to credibility. [22]

[27] I believe that the individual applicants’, including Mr Maluleke were credible and reliable witnesses. Their evidence was consistent with the pleadings and the documents. They did not contradict themselves, or each other. The quality and integrity of their evidence was good. They were not evasive.

[28] Their evidence was that they were active in recruiting for AMCU, they were warned not to associate with AMCU, and that they were dismissed for joining (or participating in the activities of) AMCU rings true; particularly when one has regard to the concession from the respondent that management was “apprehensive” about the presence of AMCU in the workplace. Thus, in material respects, the applicants corroborated each other.

[29] It is highly improbable that the applicants intimidated other employees to join AMCU, particularly after the verification. After the verification, the applicants would have been, and were, aware that all membership forms would be closely scrutinized and checked by the employer or an independent agency. There would be no point to the intimidation. In addition, as they all testified, they believed that, after the verification, AMCU “was in”. Thus, intimidation would have been much more likely in 2015 and early 2016, not after verification. Furthermore, the verification exercise itself uncovered no intimidation.

[30] I need not speculate on why the three complainants would invent damaging allegations in respect of the individual applicants. It suffices that they may have had motives to do so; which was established.

Credible possibility of automatically unfair dismissal

[31] I accept that the applicants have established, by evidence, a credible possibility that an automatically unfair dismissal has

occurred. The evidence overwhelmingly indicated that:

31.1 The company and its managers were hostile to AMCU, and discouraged its employees from joining the union. This hostility reflected in the manner that management spoke to the individual applicants. It is also reflected in management’s approach to unions, and AMCU in particular. It cannot be a coincidence that membership forms were left at different places – as opposed to being actively distributed. It cannot be a coincidence that at least one of the applicants hid the forms in his locker.

31.2 The evidence of the applicants was that most or all of the workers supported AMCU. This version is supported by the fact that, several years later, AMCU has the vast majority of the employees as its members. If the vast majority of workers supported AMCU in 2016, there would have been no reason to resort to intimidation.

31.3 All the applicants were AMCU members, but each of them played a role in recruiting further members to AMCU.

31.4 Under cross examination, it was put to the respondent that the applicants’ dismissal had a chilling effect on the union’s membership. The respondent conceded that, following the dismissals, the union’s membership declined through resignations. However, unsurprisingly, the respondent did not concede that the dismissals were affected to coerce employees to give up their membership.

Evidence of the respondent

[32] The sole witness of the respondent was a non-executive director, with no first-hand knowledge of the material events. Given that a great deal of Mr Soldatos’ evidence was inadmissible, there was very little of value that remained. However, to his credit, Mr Soldatos acknowledged that management was “apprehensive” about the emergence of AMCU. This term connotes management was worried and fearful about the emergence of AMCU. In this context, it is perfectly understandable why management decided not to convene a proper disciplinary hearing. It also explains why the allegations by the complainants were accepted without interrogation. Finally, on the probabilities, it explains why management readily accepted that the individual complainants were genuinely fearful and honest.

[33] For the respondent, the allegations from the complainants were easy to accept because of management’s bias against AMCU.

Management’s conduct exhibited classic “confirmation bias” - the tendency to seek out and interpret information in a way that confirms existing beliefs. It is trite that cognitive bias can lead to inaccurate conclusions.

[34] While there are areas of concern with his evidence, I do not believe Mr Soldatos intended to deceive or mislead the court. It is true that he can be criticised for being argumentative, though this is more likely to be the result of his profession. Mr Soldatos can be criticised for not restricting his evidence to issues on which he had personal knowledge.

[35] That said, I cannot and do not accept Mr Soldatos’ assurances of management’s bona fides, given that: (1) he is not part of management and not involved in the day to day running of the business; and (2) he did not testify as to his role in determining the sanction of dismissal.

Adverse inference

[36] In Brand v Minister of Justice and another[23] Ogilvie Thompson JA stated:

“Now where a witness, who is available and able to elucidate the facts, is not called by a party such failure 'leads naturally to the inference that he fears that such evidence will expose facts unfavourable to him”. (Own emphasis)

[37] In this matter, it was indeed surprising that the respondent did not call witnesses it had available in an attempt to displace the suspicions cast upon it - that it dismissed the individual applicants because of their union affiliation and activities. For instance, it could have called Mr Visagie, Mr Mohale, and Mr Kwake. Or, it could have called one of the managers directly involved in the dismissal of the applicants – such as Mr Neels Gerhardt whose name appeared on the respondent’s record of the “disciplinary hearing”. Mr Soldatos freely informed the Court that he is in contact with Mr Visagie who now resides in Spain. Mr Visagie could easily have testified via an electronic or virtual platform.

[38] In the circumstances, it is appropriate for the Court to draw adverse inference that these witnesses would have confirmed management’s

hostility to AMCU, and that the individual applicants were dismissed because of their membership of, and recruitment for, AMCU.

Analysis of the main or proximate cause of the dismissals

[39] The respondent could not show that the individual applicants were guilty of intimidating workers. In the absence of any evidence, apart from hearsay evidence, it is hard to understand how the respondent expected to do so.

[40] In the absence of evidence that the individual applicants were dismissed for misconduct, the court must look for the most probable

reason for the dismissal. The only other reason is that the applicants were dismissed for joining AMCU and recruiting others to

join as well. The following factors are significant:

40.1 All the individual applicants were active union members.

40.2 Several of the applicants earlier played a leadership role on the workers committee.

40.3 The individual applicants were repeatedly warned not to associate with the union.

40.4 At least one of the individual applicants was told by a senior member of management (Mr Visagie) that the reason for his dismissal was his union membership and activities. This was not disputed.

40.5 The dismissal of the individual applicants did indeed have a chilling effect on union membership.

[41] In Afrox at para 32, the court stated that the employer’s motive for the dismissal is one of the factors to be considered when determining the true reason for the dismissal. The evidence here clearly demonstrates that the employer’s motive was to dismiss the individual applicants for joining and recruiting for AMCU. Its object was to deter the workforce from joining AMCU.

[42] Having considered all the evidence, both documentary and oral, the dismissal of the individual applicants was automatically unfair, in accordance with section 187, read with section 5, and section 187(1)(d) of the LRA. The main reason for the individual applicants dismissal was the fact that they joined AMCU and actively recruited members for it.

Relief

[43] The applicants seek reinstatement. The respondent argues that this is not appropriate.

[44] The applicable legal principles are trite and are summarized below:

44.1 The statutory default for a substantively unfair dismissal is reinstatement retrospective to the date of dismissal,[24]

44.2 Reinstatement is the primary remedy for substantively unfair dismissals,[25]

44.3 The object of reinstatement is to place the dismissed employee in the same position he would have been in but for the dismissal.[26]

44.4 A substantial delay in the final determination of the dispute is no reason not to order reinstatement particularly if the employee is not responsible for the delay,[27]

44.5 There is no legal duty on a dismissed employee to mitigate his losses,[28]

44.6 Reinstatement ought not to impoverish the employee or enrich him or her beyond the extent to which this has occurred because of the unfair dismissal,[29]

44.7 When a discretion[30] is exercised in determining whether to reinstate retrospectively, such discretion to be exercised judicially, and to consider:

44.7.1 The nature of the unfair dismissal and hence the scope of the wrongful act on the part of the employer.[31]

44.7.2 Whether the dismissed employees have been without income and the extent of that period;[32] and

44.7.3 Whether retrospective reinstatement would unjustly financially burden the employer.[33]

[45] It is important to note that “not reasonably practicable” means more than a mere inconvenience and requires the employer to present evidence of a compelling operational burden.[34] An employer must lead evidence as to why reinstatement is not “reasonably practicable” and it bears the onus to demonstrate that.[35]

[46] The authorities hold that retrospective reinstatement may be denied where this would “unjustly” financially burden the employer (this may include, for example, a case where an employee refused a reasonable settlement offer or refused an offer of re-employment) would unjustly enrich the employees, or as a mark of displeasure for the conduct of the employees. None of these

circumstances are applicable here.

[47] The applicants all seek retrospective reinstatement. The respondent argues that the reinstatement of the applicants would result in retrenchments, and the court should not reinstate because it was not reasonably practicable, as contemplated in section 193(2) of the LRA. I do not accept that this satisfies the test – a compelling operational burden.

[48] No evidence was presented to the effect that the applicants have found alternative employment and been able to mitigate their loss. Given that the applicants have committed no misconduct, I cannot see how the employment relationship would be intolerable. The respondent did not point to any evidence at the CCMA indicating that the applicants behaved dishonestly.

[49] I see no reason to deny the individual applicants the primary remedy of reinstatement. However, given that the applicants erroneously

referred the dispute to arbitration, when it ought to have come directly to this Court, reinstatement is only made retrospective to 3 March 2021, the date when the dispute was referred to this Court.

Conclusion

[50] The respondent is directed to reinstate the individual applicants and to pay them the backpay due to them (from 3 March 2021 until the date of this judgment) within 10 days of receipt of this judgment.

[51] The respondent is ordered to pay 50% of the applicants taxed or agreed costs for 14 May 2024.[36] Apart from this, there is no order as to costs.

RN Daniels

Judge of the Labour Court of South Africa

Appearances:

For the Applicant

Adv A Cook

Instructed by: Larry Dave Attorneys

For the Respondent:

Adv D Wittington

Soldatos Cooper Inc

[1] The evidence of the individual applicants was identical in certain key respects. They denied the charges brought against them. They testified that the reason for their dismissal was joining AMCU and/or participating in its lawful activities – recruitment.

They sought reinstatement. They testified that the trust relationship with the respondent has not been destroyed. It is unnecessary to deal with these aspects of their evidence in further detail.

[2] This had the effect of preventing the union’s members from engaging in protected strike action for organisational rights (as long as AMCU was below the agreed threshold).

[3] The term “Marikana” refers to a tragic incident, on 16 August 2012, when the South African Police Service opened fire on a crowd of striking mineworkers (who were all members or supporters of AMCU) at Marikana, North West Province. The police killed 34 mineworkers, and left 78 seriously injured.

[4] Transcript p19 : 16 May 2024

[5] Transcript p28 : 16 May 2024

[6] Transcript p15 : 16 May 2024

[7] Transcript p16 : 16 May 2024

[8] Transcript p 30 lines 1 – 10

[9] Transcript p 66 line 11 – p 67 line 8

[10] Transcript p 70 lines 1 – 14

[11] Transcript p 100 lines 1 – 5

[12] Transcript p 89 lines 1 – 5

[13] Transcript at p78 : The applicants alleged they were warned by Messrs. V Nkuna, TG Mohale and I Visagie

[14] It was suggested to Mr Soldatos that Mr Nkuna “sold jobs” and when individuals paid, but were not appointed, Mr Nkuna made enemies. Mr Soldatos had never heard this allegation before, and could not respond.

[15] Transcript p 35 lines 19 – 25

[16] Transcript p 23 : 14 May; the respondent did not explain why Mr Visagie was not called to testify, in person, or virtually.

[17] Mr. Mohale was not called to testify, and no excuse was given for his failure to do so.

[18] The respondent attacked his evidence on the basis that he could not have taken 8 work days leave because he participated in the

verification exercise on 25 August. The applicants contended that there were 9 work days between 12 August and 25 August - if one includes 12 August and excludes 25 August.

[19] (1999) 20 ILJ 1718 (LAC)

[20] (2005) 26 ILJ 2153 (LAC)

[21] 2003 (1) SA 11 (SCA)

[22] H C Nicholas Credibility of Witnesses (1985) 102 SALJ 32

[23] 1959 (4) SA 712 (A) at 715

[24] Billiton Aluminium SA Ltd t/a Hillside Aluminium v Khanyile & others (2010) 31 ILJ 273 (CC) at para 29

[25]

SACCAWU & others v Woolworths (Pty) Ltd (2019) 40 ILJ 87 (CC) at para 43

[26] Equity Aviation Services (Pty) Ltd v CCMA & others (2008) 29 ILJ 2507 (CC) at para 36

[27] Equity Aviation at para 51; SACCAWU v Woolworths at para 47

[28] Billiton at para 39

[29] Toyota SA Motors (Pty) Ltd v CCMA & others (2016) 37 ILJ 313 (CC) at paras 155 and 157; see Maroveke v Talane NO & others (2021) 42 ILJ 1871 (CC) at para 25

[30] Equity Aviation at para 51

[31] Le Monde Luggage CC t/a Pakwells Petje v Dunn NO & others (2007) 28 ILJ 2238 (LAC) at para 30. There the LAC was considering the extent of “compensation” to be awarded.

[32] Equity Aviation at para 36

[33] Equity Aviation at para 36

[34]

SACCAWU v Woolworths at paras 49 and 50

[35]

SACCAWU v Woolworths at para 50

[36] Additional documents were produced by the respondents which required the court to stand down.