Association of Mineworkers and Construction Union obo Matshikica and Others v Anglo Platinum Mines Limited (Union Section) Siyanda Bikgatla (JS 726/2018) [2021] ZALCJHB 71 (28 May 2021)

IN THE LABOUR COURT OF SOUTH AFRICA, JOHANNESBURG

Not Reportable

Case No: JS 726/2018

In the matter between:

THE ASSOCIATION OF MINEWORKERS AND

CONSTRUCTION UNION “AMCU” obo

MATSHIKICA AND 2 OTHERS

Applicant

and

ANGLO PLATINUM MINES LIMITED

(UNION SECTION) SIYANDA BIKGATLA

PLATINUM MINE

Respondent

Heard : 19 to 22 October 2020, and 11 December 2020

Delivered: This judgment was handed down electronically by circulation to the parties’ legal representatives by email. The date and time for hand-down is deemed to be 10h00 on 28 May 2021.

JUDGMENT

MABASO, AJ

Introduction

[1] AMCU (the Union), acting on behalf of three of its members (individual applicants), declared an unfair dismissal dispute to this court against Anglo Platinum Mines Limited(union section) Siyanda Bikgatla Platinum Mine (the Respondent), alleging that the dismissal of the individual applicants was both procedurally and substantively unfair, consequently seeks their reinstatement.

[2] A total of eight witnesses testified in these proceedings. Since dismissal was not in dispute, the onus of proof was, therefore, on the Respondent to show fairness thereof. The version of the Respondent relating to the reasons for dismissal was not disputed, as demostrated hereinafter.

Relevant Background

[3] It is common cause that approximately 1000 employees of the Respondent engaged in a strike that does not comply with the provisions of Chapter IV of the LRA (the unprotected strike). The employees had demanded that they be provided with an explanation about the dismissal of two AMCU shop stewards. The Respondent’s management then explained to the employees that such dispute was being handled at the Commission for Conciliation, Mediation and Arbitration (CCMA) level, and as a result, the employees proceeded to work.[1] No disciplinary action was instituted against any employee who had engaged in the unprotected strike.

[4] In the sequel, the Respondent charged and dismissed the individual applicants for:[2]

“… allegedly committed an act of intimidation on 28 November 2017 in that [they] stopped and prohibited employees from proceeding to work at the Richard Shaft in which the employees ultimately embarked upon an illegal work stoppage.”[3]

[5] Considering the charge, prima facie, this Court has no jurisdiction, as this is not a dispute that was referred to it in terms of section 191(6)[4] of the Labour Relations Act (LRA),[5] the Respondent's Statement of response also indicates that the dismissal was for intimidation and incitement resulting in a work

stoppage. Succeeding unsuccessful conciliation, the CCMA ruled that it had no jurisdiction and hence the matter was brought to this court for adjudication.[6] At the commencement of the trial, I inquired from the parties if this Court has jurisdiction to adjudicate on this matter; the Applicant’s Counsel advised this Court that it does and urged this Court to proceed with the trial. On the contrary, the Respondent’s Counsel argued that based on the opening statement by the former, this Court has no jurisdiction and supported this by submitting that the individual applicants were not dismissed for participating in the unprotected strike.

[6] Before this Court may adjudicate this matter, it must satisfy itself that it has jurisdiction, cf. F & J Electrical CC v MEWUSA obo E Mashatola and Other.[7] Considering that most of the Respondent's versions were undisputed, specifically where it submitted that the dismissal was for

intimidation. At the close of the Respondent’s case, this Court gave parties an opportunity, again, to address this issue.

[7] Suppose this Court is satisfied that it has jurisdiction. In that case, it has to proceed and decide whether the dismissal of the individual applicants was both procedurally and substantively unfair, as contended by them. Furthermore, if the dismissal relates to the unprotected strike, this Court, amongst other things, has to determine if dismissal complies with the provisions of items 6(1) and (2) of the Code of Good Practice on dismissal (“Code”).

[8] According to the referral, the Union contends that on 28 November 2017, approximately 1000 employees stationed at Richard shaft engaged upon a work stoppage for about an hour wherein they sought answers about the dismissal of the two shop stewards; on 29 November 2017, the management of the Respondent had indicated its intention to discipline those who allegedly incited the work stoppage.

[9] The Respondent reiterates the main issue thus: after careful consideration and investigation of the matter, the decision was taken to suspended and take action against the individual Applicants for “intimidating the respondent's employees and inciting them to partake in the illegal work stoppage.”

[10] An employee has a burden to show that the Court has jurisdiction to adjudicate a dispute, as was held in Mashatola[8] thus:

“It is not necessary to go into details about the provisions of section 191(5). It is sufficient to say that, as a general proposition,

whether a dispute qualifies for adjudication or arbitration depends upon what the employee alleges is the reason for dismissal. If the employee alleges, for example, that he or she was dismissed for (alleged) misconduct or for incapacity or that he or she does not know the reason for his or her dismissal, the dismissal dispute must go to arbitration. If he or she alleges, for example, that the reason for his or her dismissal is the … participation in an unprotected strike, the dispute must be referred for adjudication by the Labour Court.”

[11] Despite the preceding dictum, the LAC, in Wardlaw v Supreme Moulding (Pty) Ltd,[9] held that where it is alleged that a dismissal dispute falls within the jurisdiction of this Court, it may only provisionally accept such allegations until such time that this Court makes a finding as to the true reason for dismissal; if is found that is a matter that does not belong to this Court but to a statutory forum then this Court should refuse to continue with the matter .

[12] Be that as it may, section 158(2) of the LRA succinctly gives this Court a two-fold discretional options, in order to resolve a dispute already before it once it is apparent that it has no jurisdiction. The relevant subsection reads thus,

(2) If at any stage after a dispute has been referred to the Labour Court, it becomes apparent that the dispute ought to have been referred to arbitration, the Court may—

(a) stay the proceedings and refer the dispute to arbitration; or

(b) if it is expedient to do so, continue with the proceedings, in which case the Court may only make any order that a commissioner or arbitrator would have been

entitled to make: Provided that in relation to the question of costs, the provisions of section 162 (2) (a) are applicable. [My emphasis]

[13] In addition, a third option(non-discretional option) attentively introduced by the LAC, in Member of the Executive Council of the Western Cape Provincial Government Health Department v Coetzee and others,[10] where it unpacked the elliptical phrase “If at any stage after a dispute has been referred to the Labour Court, it becomes apparent that the dispute ought to have been referred to arbitration” thus it is apparent that from the beginning, there was no need for the matter to be referred to this Court, then this Court should

declare that it has no jurisdiction consequently dismiss the matter on those bases, as the LAC succinctly held that:

“[75] In the circumstances, the Labour Court (Cheadle AJ) could not have properly exercised the discretion, which is clearly circumscribed in section 158(2) "to continue with the proceedings with the court sitting as arbitrator". The Court was requested at the outset to sit as an arbitrator. There was no "continuation" of the proceedings in the sense contemplated in that section, but a request at the outset that proceedings be conducted with the Court sitting as arbitrator.

[78] The respondents deliberately abandoned the referral to arbitration in the PH & WSBC and chose, of their own accord, for the Labour Court to sit as an arbitrator, instead. The LRA does not allow for that. This was clearly an instance of forum shopping, which is completely undesirable.”

[14] The same Court, in Wardlaw supra,[11] pre-echoed the preceding principles; thus this Court should not encourage approaches which elevates form over substance, but to avoid forum shopping, this Court has to refuse adjudication where there is no jurisdiction as it said provisions of section 158 would only be applicable "if the court later takes the view or it later becomes "apparent" to the Court that the reason for dismissal is one that falls under section 191(5)(a), it then declines jurisdiction and follows the section 158(2)(a) or (b) route."

[15] In casu, the parties in the pre-trial minutes opted to deal with questions relating to unprotected strike, but the Respondent before this Court reiterated that this Court has no jurisdiction; and agreed with the Applicant’s Counsel that the Court proceed with the matter; however, this Court still had to be circumspect of jurisdiction as it was stated in Coetzee’s case, where the LAC reiterated that the parties’ consent could not clothe this Court with jurisdiction it does not have.[12]

[16] The Respondent, through Mr Coenrad Bezuidenhout (Mr Bezuidenhout), presented the following uncontested evidence: Both Messrs Mnisi and Myama are underground mining team supervisors (the supervisors), whereas Ms Matshikica is a shift controller who must get employees safely underground where they are queueing to see that it is done orderly. Their duties involved surface and underground operations. They have authority over employees that are working under them. The supervisors were disciplined and charged for intimidating and influencing employees not to proceed underground. They ensured that those employees were not proceeding underground and had an illegal gathering. The dismissal was purely due to intimidation leading towards a strike, viz. they allegedly committed an act of intimidation in that they prohibited employees from proceeding to work, ultimately the employees embarking upon an illegal work stoppage.

[17] Mr Bezuidenhout further testified that he approached the supervisors standing outside the turnstiles, in front of the employees and talking to them demanding to see the production manager. He then summoned shaft committees, who successfully persueded the employees to proceed to their workplace. This witness stuck on the charge, cited in paragraph 3 above.

[18] The Respondent’s second witness, Mr Itumeleng Kgomotso (Mr Kgomotso), testified thus: he was the complainant in all three matters involving the individual applicants. He conducted an investigation and thereafter recommended that disciplinary actions be taken against the individual applicants. He repeated Mr Bezuidenhout’s evidence relating to reasons for charges against the individual applicants, viz. that they stopped employees from going underground. The proposition was put to this witness that the individual applicants deny the accusation.

[19] The Respondent’s third witness was Mr Letsebe Pule (Mr Pule), who stated what happened relating to alleged intimidation, and no version was put to him.

[20] The Respondent’s fourth witness was Mr Khanyile Vimba. The last witness was Mr Letadi Kgodi, whose evidence summarised thus: he was stopped from doing his duties and only managed to identify the person he allegedly prevented him from doing so. He confirmed that the person said, “no one is going to proceed to the workstation”. He stated that he was afraid, and even the people around him were afraid. He confirmed that Mr Mnisi was involved. During cross-examination, it was confirmed by the Applicant’s Counsel that Mr Mnisi was dismissed for intimidation.

[21] At the close of the Respondent’s case, this Court,again, raised the jurisdictional point, and parties had to submit written submissions on this point. Therein the Applicant’s Counsel remained adamant that the dismissal relates to an unprotected strike. As a result, the Applicants presented their respective versions which is summarised as set out below.

[22] Ms Matshikica confirmed that the outcome of the chairperson was the one " found guilty as per the charge." Furthermore confirmed that the chairperson stated in his report that after considering the closing statement, evidence and cross-examination, it is clear that she was “involved in illegal stoppage.” Moreover, the chairperson concluded that she was guilty of intimidation. This witness disputed that she intimidated employees from going underground despite Mr Pule’s uncontested version. During cross-examination, she indicated that the reason for the dismissal was “alleged that [she] stopped the employees from going underground.”

[23] Mr Mnisi’s testimony was as follows: denied committing any misconduct and said reason for his dismissal has two component namely that he stopped people and partaking in illegal stoppage. Towards the conclusion of the examination-in-chief, the following proposition was put to him "I am saying your understanding for the reason of your dismissal, I want to make it clear, everyone understands that you deny that you intimidated, I am asking if somebody says to you the only reason you were dismissed, the only reason was that you intimidated somebody, do you or do you not agree with that Statement? He answered thus: “That is the reason”.

[24] Mr Myana disputed committing the offence that he was dismissed for by the Respondent.

[25] In terms of the Statement of case, it is stated that the individual applicants were charged with the offence mentioned in paragraph 4. The chairperson of the disciplinary hearing recommended the dismissal. They subsequently appealed the sanction; however, the chairperson confirmed this sanction, then they referred the dispute to this Court. The Applicant was concerned about the sanction of dismissal in that some of those involved in the work stoppage was not disciplined, considering paragraphs 5.1 to 5.4. Now, this Court has to consider that in terms of the charge sheet, the individual applicants were not charged for being involved in the unprotected strike but for intimidation and incitement, which resulted in other employees being involved in an unprotected strike.

[26] Section 191(5) of the LRA reads thus, in so far as it is applicable herein:

“If a council or a commissioner has certified that the dispute remains unresolved, or if 30 days have expired since the council or the Commission received the referral and the dispute remains unresolved –

(a) the council or the Commission must arbitrate the dispute at the request of the employee if –

(i) the employee has alleged that the reason for dismissal is related to the employee’s conduct or capacity, unless paragraph (b)(iii) applies;

(ii) the employee has alleged that the reason for dismissal is that the employer made continued employment intolerable; or

(iii) the employee does not know the reason for dismissal; or

(b) the employee may refer the dispute to the Labour Court for adjudication if the employee has alleged that the reason for dismissal is –

(i) automatically unfair;

(ii) based on the employer’s operational requirements;

(iii) the employees participating in a strike that does not comply with the provisions of Chapter IV; or

(iv) because the employee refused to join, was refused membership of or was expelled from a trade union party to a closed shop agreement.”

[27] The reasons advanced by the Respondent’s witnesses, as a party that has the onus of proof, is that the dismissal was due to intimidation and incitement. As much as the individual applicants have a right to refer a dispute before this Court alleging that dismissal relates to participation in an unprotected strike, as indicated in Wardaw above, this Court may decline to issue a judgement if it is of the view that the reason for the dismissal is the one which ordinary referred to the CCMA , section 191(5)(a) misconduct. As highlighted above, the reason for dismissal was not disputed by the individual applicants.

[28] Both statement of case and statement of response deal with intimidation and incitement, as this Court raised the issue of the jurisdiction from the beginning. Clearly it was apparent before the referral to this Court that this is a matter which cannot be said it only became apparent after the referral and/or during the trial that the dismissal falls under the provisions of s191(5)(a) of the LRA, since is an ordinary misconduct. Applying Coetzee’s option above, it is my considered view that I cannot apply section 158(2) discretion.

[29] In the circumstances, the following order is made:

Order:

1. The application is dismissed, due to a lack of jurisdiction.

2. No costs order.

____________________

S. Mabaso

Acting Judge of the Labour Court of South Africa

Appearances:

For the Applicant: Adv A Cook

Instructed by: LDA Inc.

For the Respondent: Mr M Khoza

Instructed by: Edward Nathan Sonnenbergs Inc.

[1] Pre-trial minutes, para 4.5 to 4.6.

[2] According to the para of the Statement of case.

[3] Statement of case, para 4.7 and 4.8.

[4] A dispute that should have been arbitrated the CCMA but its tranfers it to this Court following an application by either of the parties therein.

[5] Act 66 of 1995, as amended

[6] Statement of response, para 8 to 13.

[7] 2015 (4) BCLR 377 (CC) (“Mashatola”), at para [33] where it was held: The Labour Court should have required oral evidence to satisfy itself whether the employees did not know the reason for their dismissal or whether they knew the reason and it was their membership of a trade union or of MEWUSA. The employees would then have had to explain the inconsistency between that version and the contents of the letters suggesting that the dismissal was for operational requirements. The Labour Court erred in not requiring oral evidence to clarify this.

[7] 2015 (4) BCLR 377 (CC) (“Mashatola”), at para [33] where it was held:

The Labour Court should have required oral evidence to satisfy itself whether the employees did not know the reason for their dismissal or whether they knew the reason and it was their membership of a trade union or of MEWUSA. The employees would then have had to explain the inconsistency between that version and the contents of the letters suggesting that the dismissal was for operational requirements. The Labour Court erred in not requiring oral evidence to clarify this.

[8] Ibid para 15.

[9] [2007] 6 BLLR 487 (LAC) at para [13]

[10] [2015] 11 BLLR 1108 (LAC), where it was held: “[74] This was clearly not a case where it only became apparent after the referral to the Labour Court that the matter had to be referred to arbitration. This was a known fact before the referral to the Labour Court. The respondents had started off by referring the matter for conciliation failing which arbitration." Cf. its paras 65,66,72 to 80.

[10] [2015] 11 BLLR 1108 (LAC), where it was held:

“[74] This was clearly not a case where it only became apparent after the referral to the Labour Court that the matter had to be referred to arbitration. This was a known fact before the referral to the Labour Court. The respondents had started off by referring the matter for conciliation failing which arbitration." Cf. its paras 65,66,72 to 80.

[11] supra

[12] Ibid para 73.