Henred Fruehauf (Pty) Ltd v Hlongwane NO and Others (JR1982/2009) [2014] ZALCJHB 330 (27 August 2014)

REPUBLIC OF SOUTH AFRICA

THE LABOUR COURT OF SOUTH AFRICA, JOHANNESBURG

Not reportable

Case no: JR1982/2009

In the matter between:

HENRED FRUEHUAF (PTY) LIMITED Applicant

and

HLONGWANE, R N.O.

(cited in his capacity as the first respondent of

The Motor Industry Bargaining Council) (MIBC) First Respondent

MOTOR INDUSTRY BARGAINING COUNCIL

DISPUTE RESOLUTION CENTRE Second Respondent

NUMSA obo MSIMANG, N AND 2 OTHERS Third and Further Respondents

Delivered: 27 August 2014

JUDGMENT

Dodson AJ

[1] This is an application for leave to appeal brought by the third and further respondents. Although they are the applicants in this application, the parties have continued to refer to them as the third and further respondents. I will do the same, but will refer to them as “the respondents”.

[2] Labour disputes are meant to be resolved expeditiously. Unfortunately, this matter has defied that principle.

[3] The matter was argued before me on 12 July 2012 during a week in which I acted on a pro bono basis as a judge of the Court. It was a review of the award of an arbitrator from the Dispute Resolution Centre of the Motor Industry Bargaining Council (the first respondent) in respect of an unfair dismissal dispute arising out of a strike in the motor industry during September 2007. After I had prepared the judgment, it was handed down on my behalf by a permanent judge of the Court on 8 August 2012.

[4] On 1 July 2014 I received an email from an official of the court pointing out that an application for leave to appeal was filed on 30 August 2012 against the judgment in the above matter. A directive had been sent to the parties on 29 November 2012 by the Registrar to file written submissions in respect of the application for leave to appeal. I was then asked whether the matter

had ever been sent to me for determination. I replied that it had not.

[5] Subsequently the file was made available to me. It appears that the application for leave to appeal was served and filed within the period prescribed by the rules of this Court. The parties filed written submissions pursuant to the directive from the Registrar.

[6] During September 2007 there was a lawful strike in the motor industry. This matter pertains to the conduct of three shop stewards in relation to picketing which turned violent outside the applicant’s premises. The respondents, along with a number of other shop stewards and other employees, were subject to disciplinary action by their employer on account of their alleged conduct during the picket. This culminated in the three respondents being dismissed and in the issuing of a final written warning to the remainder of the employees and shop stewards disciplined. The reason for the differential sanction imposed upon the three respondents was that they had a prior final written warning arising out of a separate incident involving unlawful industrial action.

[7] Whilst the application for leave to appeal is wide-ranging, it focuses on four aspects of my judgment in the court below.

[8] The first focus is on the court’s analysis of the evidence. In particular it was suggested that the court was wrong in finding that, on the basis of the available evidence and bearing in mind that part of the record was lost, a prima facie case had been established against the respondents, which required them to adduce evidence of sufficient weight in rebuttal. It was submitted that the court overlooked extensive evidence of the respondents’ attempts to persuade striking employees to desist from committing acts of violence and other unlawful conduct.

[9] Reference was made to the following parts of the record in respect of the respondent, Msimang:

“RESPONDENT’S REPRESENTATIVE : … I put it to you that … you knew exactly as a shop steward what was expected of you during the course of this event.

…

APPLICANT: … The job of the shop steward is to take the information of the workers take it to the employer take information from the employer to the workers that is the role of the shop steward.

RESPONDENTS REPRESENTATIVE: But you it was your own evidence that as a veteran shop steward you knew what to do during the course of a strike.

APPLICANT: …It is something that is normal meaning that when there is a strike there should aways not succumb to obstruct the traffic or maybe go into the road and disturb the motorist that is what I know. … I just wanted to tell you the scenario about this uhm is that the marshals are chosen by the workers so I the thing that I was doing on the particular time it was because as I am experienced person I know that we should not obstruct the traffic.”

[10] That evidence was, at best, of a generic nature and is in my view unlikely to persuade another court that the applicant concerned satisfied his duty in terms of the “Picketing Agreement” and the obligations generally cast upon a shop steward to take meaningful steps to prevent violent action in the course of picketing. All the more so because he later goes on to concede –

“Ok I don’t remember talking to the employees not to disturb or to maybe block the gate I don’t remember talking to them about that, but what I know is that as a, as a veteran I know what to do on a daily strike.”

[11] The other reference relied on as evidence of action by the respondents to prevent violence was the following evidence of Pule:

“APPLICANT’S REPRESENTATIVE: During the disciplinary enquiry it became, you testified to the effect that indeed at one stage you as shop steward you did warn and advise the employees not to misbehave is I correct to say that? (sic)

JOSEPH PULE : … Yes I tried to, to do my level best to warn the, the workers.”

[12] In my view the applicants are unlikely to be able to persuade another court that that was not an inadequately vague response to what was a leading question.

[13] Moreover, Pule went on to testify as follows, as the transcript records on the same page:

“APPLICANT’S REPRESENTATIVE: My learned colleague will put it to you even if you were not … given the copy of the picketing agreement, uh, but as a shop steward you had that responsibility of ensuring that there is harmony, there is peace, there is order, and that was your responsibility. How do you respond to that?

JOSEPH PULE: … It was a strike and a lawful strike and I was just outside just like all the other employees so, whatever was done by the employees and one of them, they were doing all those things together picketing outside.

APPLICANT’S REPRESENTATIVE: Is, is it that he are saying he had no obligation or role to play was he in the same position as workers?

JOSEPH PULE: I was just like one of a, all the employees, I was one of the employees picketing outside.”

[14] Again, I am of the view that it is unlikely that another court will come to a different conclusion on evidence of this nature. The distinct impression is that the applicant Pule considered himself to bear no responsibilities additional to those of other employees who were not shop stewards.

[15] Other aspects of the weighing of the evidence are criticised, but in my view they do not make out a case that another court might come to a different conclusion.

[16] The second area of focus was the contention that “the shop steward may exhibit conduct that would not be tolerated in a normal work situation as long as it is bona fide and intended only to further the interests of the employees in their collective bargaining.” Reliance was placed on the judgment of this Court in NUMSA v Black Mountain Mining (Pty) Limited [1] where the court said the following:

“[t]he theme emerging from all of the cases referred to here is clear. Although shop stewards who are performing their functions as shop stewards cannot be victimised for performing their functions (as union representatives) they nonetheless still have an obligation to their employers to conduct themselves in a responsible manner. Should they engage in disorderly or disrespectful conduct (although it is acknowledged that it is not always clear to what extent such behaviour should be tolerated by an employer) they can be disciplined.”

[17] As appears from the extract from the Black Mountain judgment, the court emphasises the fact that shop stewards are subject to discipline where they engage in disorderly or disrespectful conduct.

[18] In my view, the above quotation is supportive of the outcome reflected in the judgment. It is, in my respectful view, unlikely that another court would come to a different conclusion on this aspect.

[19] The third area of focus was on the statement of Msimang at the meeting on 13 September 2007 to the effect that nothing could be done by negotiations but results would only be achieved through “iron and blood actions”. He also conveyed the demand of the strikers at that meeting that the casual labour be removed from the premises because the strikers knew where they lived in the location and they were therefore at risk.

[20] Strong criticism was directed at the court’s treatment of this evidence including the court’s failure to appreciate, so it was contended, that this was merely a “metaphor of the power struggle that would be waged during the strike and not a threat of violence”.

[21] On a conspectus of all the facts, I am of the respectful view that it is unlikely that another court would come to a conclusion along the lines that this was merely a metaphor and that Msimang was acting appropriately and within the proper scope of his duties as a shop steward when he made these statements.

[22] The fourth area of focus was on the court’s allegedly having applied a form of collective punishment where the respondents were held liable for the misconduct of other employees. I do not believe that the judgment evidences such an approach or that

another court might come to the conclusion that it did.

[23] I have carefully considered all of the grounds upon which leave to appeal is sought and in my view the applicants do not enjoy a reasonable prospect of success on appeal.

[24] I accordingly make the following order:

1. The application for leave to appeal is dismissed.

2. No order is made as to costs.

________________

Acting Judge of the Labour Court of South Africa

[1] (2010) 31 ILJ 387 (LC) at 400.