Kampte and Others v Pre-Plan International (Pty) Ltd (JS899/11) [2013] ZALCJHB 148 (24 July 2013)

REPUBLIC OF SOUTH

AFRICA

THE LABOUR COURT OF SOUTH AFRICA, JOHANNESBURG

JUDGMENT

Not reportable

Case no: JS 899/11

In the matter between:

KAMPTE M AND 4 OTHERS ...........................................................................Applicant

and

PRE-PLAN INTERNATIONAL

PTY LTD .....................................................Respondent

Heard: 31 May 2013

Delivered: 24 July 2013

Summary: Dismissal unprotected strike.

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MOLAHLEHI J

The issue for determination in this matter is whether the dismissal of the applicants by the respondent for allegedly participating in an unprotected strike were substantively and procedurally unfair. The versions of the parties are mutually destructive of each other. The respondent, on the one hand, contends that the applicants were dismissed for participating in an unprotected strike whilst the applicants, on the other hand, contend that they never participated in any strike action. It is on this basis that the applicants’ claim that their dismissals were unfair and they are accordingly seeking an order declaring their dismissals to be unfair and should for that reason be reinstated.

Background facts

The dispute, in this matter, has its origin in the letter of grievance which the applicants addressed to the respondent on 19 April 2010 wherein they listed several complaints about their working conditions and more importantly the short time which the respondent had introduced. They also complain about the attitude of their manager who they accused of racism including always telling them to go and see Mr Malema or Mr Zuma whenever they raised their grievances.

The case of the applicant is that soon after handing in of the grievances the applicants downed tools and refused to work. They demanded to see Mr De Magalhaes the owner, who at that time was out of the country. Mr De Magalhaes had to cut his business trip short and revert back to the factory.

On his return to the factory, Mr De Magalhaes held a meeting with the representative of the workforce to discuss possible solution to the conflict. The applicant proposed that the employees should return to work whilst their grievances were being attended to. The employees’ representatives disputed that they were on strike but that “it was a sit down.”

The version of the applicant is that the applicants participated in the unprotected strike on 19, 20 and 21 April 2011. The factory was closed for the three days during the Easter break and opened on 3 May 2011 but the employees did not report for work on that day. They only reported for work on 5 May 2011.

On arrival at work, on 5 May 2011, the applicants were issued with notices to attend a disciplinary hearing which they refused to accept. The disciplinary hearing was scheduled for 9 May 2011. The employees did not attend work on that day and thus their disciplinary hearing was conducted in their absence. They were charged and found guilty with the following offences:

‘Involved in an illegal strike/ work stoppage.

Refusing to obey reasonable and lawful instructions

Refusing to obey company rules and regulations

Refusing to attend formal disciplinary hearing

Failing to obey policies and procedures.’

In support of its contention that the dismissal was for a fair reason, the respondent presented its version through three witnesses. The first witness, Mr Delport, the production director, testified about what happened after the employees presented him with the letter of grievances. He testified that although the employees reported for work on 20 and 21 April, they refused to work despite the pleas to do so.

On the morning of 20 April, Mr Delport phoned the union representatives Mr Tshabalala who told him that he would not be able to assist because the employees had accused him of taking bribery from the respondent. He then referred him to a person at NUMSA known as Vusi. He telephonically contacted Vusi who after speaking to him over the phone requested to speak to one of the employees’ representatives. He promised to revert back to him but never did.

The second witness of the respondent was Mr De Magalhaes, the managing director who testified that on his return from the business trip, he convened a meeting with three of the employees’ representative and attempted to resolve the conflict. His proposal which was rejected by the employees was that they should return to work and that their grievances would receive attention. He also testified how the employees entered the premises and pushed an old truck that was parked at the back of the factory and blocked the factory gate with it. The other staff members were frightened by this conduct including the fact that the employees were carrying sticks and other dangerous objects.

The third witness of the respondent Mr Grover, the industrial relations manager, testified that he conducted the disciplinary hearing. On that day, he postponed the hearing because he was not satisfied that proper notice had been given to the employees. The disciplinary hearing was postponed to 9 April 2011.

Mr Grover testified further that on the 9 April 2011, the disciplinary hearing proceeded in the absence of the employees because despite proper notice they failed to attend the hearing. He found the employee guilty of the offences they were charged with and ordered that they be dismissed.

The applicant in support of their contention that they did not participate in an unprotected strike presented the testimony of two witnesses. The first witness for the applicants testified that the employees submitted a letter of grievance to Mr Delport which highlighted the complaint about how he treated them and the fact that the applicant had introduced short time without obtaining proper approval from the bargaining council. In responding to their complaint, Mr Delport is alleged to have told the employees to go to Mr Malema and Mr Zuma.

He further testified that they reported for work on 26, 27 and 28 April 2011 even though the applicant had told them that the factory would be closed on those days. According to him, they reported for work because they did not receive any written notification from the applicant. During cross examination, he could not explain what Mr Zungu meant when he stated at one of the meeting with management that they were in a “sit down.” He denied that on 5 May 2011, the employee pushed a truck which was at the back of the factory and blocked the entrance with it.

The second witness for the applicants was Mr Zungu, who at the time was a shop steward and represented the employeeS at the meeting with management, testified and repeated essentially what the first witness had stated. He particularly repeated the allegation that Mr Delport told them to go to Mr Malema and Mr Zuma. He did not dispute that he stated in the meeting that they had with management that the employees were not striking but that they had “sit down.” He explained that by “sit down” he meant that management should sit with them and discuss their grievance.

The issues for determination

The first issue to determine in this matter is whether the employees participated in an unprotected strike and if so the next question concerns the fairness of the dismissal. The determination of the fairness includes also the appropriateness of the sanction. The appropriateness of the sanction includes amongst others whether the relationship between the parties had irretrievably broken down because of the conduct of the applicants.

Legal principles

It is trite that participating in an industrial action that does not comply with the provisions of the Labour Relations Act of 1995 (LRA) constitutes misconduct for which an employer may be entitled to dismiss those who participated in such an action. Section 68 (5) of the LRA provides as follows:

‘Participation in a strike that does not comply with the provisions of the Chapter, or conduct in contemplation or in furtherance of that strike, may constitute a fair reason for dismissal. In determining whether or not the dismissal is fair, the Code of Good Practice: Dismissal in Schedule 8 must be taken into account.’

In terms of section 213 of the LRA, a strike is defined very broadly to include:

‘the partial or complete refusal to work… for the purposes of remedying experience or resolving a dispute in respect of any matter of mutual interest between the employer and employee…’

Evaluation

In the present instance, it is common cause that the employees presented the grievance that concerned the treatment they received from Mr Delport and the short time which the respondent had introduced allegedly without consulting employees or the union.

As indicated earlier, there are two conflicting versions as to whether the employees embarked on a strike as from the 19 April, specifically commencing after the deadline which was imposed by the applicant.

In my view, the conflict in the versions can be resolved through the balancing of the probabilities. In this regard, the probabilities do not support the version is of the employees. It would appear that in implementing the deadline set out in the letter of grievance, the employees on the version of Mr Zungu, second witness of the for the applicants, embarked on "sit down." He, in his testimony, attempted to explain his concept of "sit down" away from the concept of strike with very little success. His attempts to associate his concept of "sit down" with sitting down at the table in negotiating or resolving the problem is far-fetched. On the probabilities, the conduct of the employee in the circumstances amounted to a strike action as an envisaged in section 213 of the LRA.

It follows from the above that the employees in embarking on the strike action did not comply with the requirements of the LRA. The question that then follows is whether the dismissal was substantively fair. In this respect, the Code of Good Practice: Dismissal for Misconduct, states that participation in an unprotected strike action does not automatically lead to a fair dismissal. The assessment of the fairness of the dismissal has to be weighed having regard to the serious contravention of the requirements of the LRA. The fairness of the dismissal has to be evaluated also within the facts and the circumstances of given case.

In as far as the conduct of the respondent is concerned, the version of the applicants that Mr Delport treated them with less dignity and respect was not disputed by the respondent. In fact, Mr Levin suggested to Mr Zungu during cross examination that the attitude and the conduct of Mr Delport was the same as when the employees like Mr Zungu joined the respondent.

The conduct of Mr Delport carries very little weight in relation to the conduct of the employees when account is taken of the fact that arrangements made were made for the managing director to return from his business trip to meet with the employees to discuss their grievance. And more importantly, it should be noted that on his return from his business trip the managing director met with the employees’ representatives and requested them to resume their duties whilst their grievances were being attended to.

In my view, the dismissals of the applicants were unfair when regard is had the testimony of the chairperson of the disciplinary which in essence forms the reason for the dismissal. In considering the dismissals of the applicants, the chairperson did not take into account all the relevant factors to ensure that the dismissal was fair. The chairperson did not in particular assess whether dismissal was an appropriate sanction including whether the trust relationship with management had broken down as a result of the conduct of the applicants to an extend that dismissal was the only sanction to impose. The other factors which the respondent failed to take into account in considering the dismissal relates to the length of service and the disciplinary record of all the employees including whether in the circumstances of this case there was a possibility of a repeat of misconduct.

The dismissals are also made unfair by the narrow and the piecemeal approach to the application of the disciplinary code adopted by the chairperson of the disciplinary hearing. In this respect, the chairperson focused on the categories of offence in the disciplinary codes which classifies participation in a strike action as summery dismissal. In other words, he treated participation in a strike action as automatically dismissal. He ignored clause 3 of the code which provides as follows:

‘The companies (sic) policy on disciplinary action is to apply a progressively correctional approach to all matters of disciplinary

nature, this means depending on the merits of each case the company will attempt through disciplinary procedure to correct the standards and attitude of employees rather than terminate the employee’s service. Termination will always be the last resort and company has (sic) implemented alternatives to dismissal which will be considered depending on the merits of each case before an employee is dismissed.’

The disciplinary code further provides under clause 14 for a range of decisions which the chairperson of the disciplinary hearing may make. Clause 14(ii) provides that the chairperson of a disciplinary hearing may impose a penalty if he or she believes to be fair. In addition to requiring the chairperson of the disciplinary hearing to consider alternatives to dismissal, the code also at clause 14(e) provides that the chairperson has to take into account in considering a sanction the employee’s disciplinary record and “consider all mitigating and aggravating factors before the decision is made.”

The papers before this court indicate that all of the applicants had about four years of service with the respondent. During cross examination, it was suggested that one of the elderly employees actually started the business with the managing director and also that the managing director is so heartbroken by what happened that he cried after giving his testimony in court. There is also evidence of some intimidation on the part of the applicants. However, except for the allegation that they were carrying sticks and other objects and that they pushed a truck to block the entrance to the factory, there is no evidence of any person that they intimidated or threatened with violence.

As indicated earlier, it is apparent from the testimony of the chairperson of the disciplinary hearing that he did not take into account any of the factors relevant to the assessment of whether the dismissal was an appropriate sanction in the circumstances of the case. He testified that as soon as he was satisfied that the employees were properly notified of the hearing he proceeded to consider the charges. It is also clear that his consideration of the matter was limited to whether the charges were in line with the policy of the respondent.

The other reason for the unfairness arises from the ultimatum which was given to the applicants. It is common cause that the employees were never given a written ultimatum. They were, however, given verbal ultimatum by Mr Delport on 20 April 2011. He indicated that he gave the ultimatum at 7h30, instructing them to be at work at 8h00. This means that employees had 30 min to consider the ultimatum, to seek advice from the union and take a decision as to whether to comply. In his written statement, Mr Delport indicates that he contacted the union at 9h00 which was after the ultimate had already been issued and it's time had expired.

In my view, that the ultimatum was unfair in that the applicants were not given sufficient time to consider the consequences of the failure to comply with it and neither were they given the opportunity to seek advice from the union. And in the circumstances of this case where it is apparent that the trust between the union and the employees had broken down, the employees may have needed time to consult even with family members. Account should also be taken that at this stage the respondent was operating on the basis of short-time.

Conclusion

In conclusion, I find that the applicants did participate in an unprotected strike action which constituted misconduct. However, I find the dismissals of the applicants to have been substantively unfair when regard is had to the totality of the facts and the circumstances of this case in particular the verbal ultimatum issued by the respondent. The dismissal is unfair in that the respondent failed to take into account mitigating factors when considering the dismissals of the applicants. I also find the dismissal of the applicant to have been too harsh when regard is had to the facts and the circumstances of this case.

Order

In the premises, the following order is made:

The dismissals of the applicants were unfair.

The respondent is ordered to reinstate all the applicants retrospective to the date of dismissal without loss of benefit.

Each of the applicants should be given a final written warning.

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Molahlehi, J

Judge of the Labour Court of South Africa

Appearances:

For the Applicants: In person

For the Respondent: Mr C Levin of Clifford Levin Attorneys.