National Union of Metalworkers of South Africa (NUMSA) and Others v Kaefer Energy Projects (Pty) Limited (JS567/2018) [2021] ZALCJHB 280; (2022) 43 ILJ 181 (LC) (7 September 2021)

THE LABOUR COURT OF SOUTH AFRICA, JOHANNESBURG

Not reportable

Case no: JS567/2018

In the matter between:

NATIONAL UNION OF METALWORKERS OF

SOUTH AFRICA (NUMSA) First

Applicant

DLODLO & 42 OTHERS Second

to Further Applicants

and

KAEFER ENERGY PROJECTS (PTY) LIMITED Respondent

Heard: 03 – 07 May 2021 (heads of argument filed on 21 May 2021)

Delivered: This judgment was handed down electronically by circulation to the parties' legal representatives by email, publication on the Labour Court’s website and released to SAFLII. The date and time for hand-down is deemed to be 10h00 on 07 September 2021.

Summary: Dismissal for misconduct – unprotected strike – a collective refusal to work in support or in pursuit of a demand to withdraw a new shift schedule.

Unauthorised absence from work by 43 of 44 supervisors – medical certificate constitutes inadmissible hearsay absent the exceptions in terms of section 3 of the Evidence Act – a medical certificate is an opinion evidence and can only be given by a medical doctor, a qualified and trained expert.

JUDGMENT

NKUTHA-NKONTWANA, J

Introduction

[1] The first applicant (NUMSA) instituted this action on behalf of its members, second to further applicants (applicant employees), challenging the substantive and procedural fairness of their dismissal. The applicants seek a relief of a retrospective

reinstatement; alternatively, a just and equitable compensation.

[2] The applicant employees were employed by the respondent (Kaefer), as scaffolding supervisors. Kaefer is one of the subcontractors engaged by Mitsubishi Hitachi Power Africa (Pty) Ltd (Mitsubishi) to provide scaffolding services at the Medupi Power Station (Medupi) in Lephalale, Limpopo Province. The applicant employees were charged as follows:

‘MISCONDUCT:

1. Participating in an illegal and unlawful industrial action

2. Failure to comply with SSA and employer procedures

3. Breach of employee’s duty of good faith

4. Absence from place of work without authorisation

DESCRIPTION

1. You embarked on an illegal work stoppage on 18/05/2017. You then embarked on an illegal work stoppage on 12/06/2017 after having being re-inducted in terms of the SSA grievance procedures on 09/06/2017.

2. You did not follow the dispute and grievance procedure, by your decision to embark on unprotected work stoppage on 18/05/2017 and 12/06/2017.

3. You did not come to work on 04/07/2017, thus bringing operations on site to a halt (sabotage).

4. Absence from place of work without authorisation on 04/07/2017.’[1]

[3] The chairperson of the disciplinary enquiry found the applicant employees guilty on all the charges; save for the alleged unlawful work stoppage on 18 May 2017. He recommended that they be summarily dismissed.

Background facts

[4] Mitsubishi is one of the contractors engaged by Eskom at the Medupi. All contractors and subcontractors are bound by various collective agreements which include the Site-Specific Agreement (SSA) which deals with the terms and conditions of employment of all employees at Medupi.

[5] In terms of SSA, all seconded employees were required to be accommodated in the Eskom provided accommodation. On 28 January 2016, Mitsubishi instructed Kaefer to relocate its scheduled employees. Kaefer consulted with the affected employees and their trade union representatives as part of facilitating the relocation of its scheduled employees, including the applicant employees. The consultation process culminated in the affected employees and their trade union representatives agreeing to relocate to Eskom provided accommodation.

[6] However, soon after the employees moved into the Eskom provided accommodation, there was complaints about the state of some of the rooms. It is not in dispute that those issues were amicable resolved.

[7] On 07 December 2017, the applicant employees requested a meeting with the management of Kaefer and they raised, inter alia, the following issues:

7.1. They were disgruntled by the pay discrepancy as the other subcontractors’ scaffolding supervisors were being paid more than them. As such, they requested a pay increase.

7.2. They were also disgruntled by the fact that they had been required to move into the Eskom provided accommodation while other subcontractors’ scaffolding supervisors were still in their respective companies’ provided accommodation.

[8] According to Mr Nicholus Mkansi, the applicants’ main witnesses, the applicant employees were promised feedback before the end of the year, 2016. On the other hand, Mr Martin Kruger (Mr Kruger), Kaefer’s Project Manager, testified that the issues that were raised by the applicant employees had to be escalated to Mitsubishi and discussed at the Contractors Industrial Relations Co-ordinator (CIRC), a forum that is constituted by the Contractors Management Forum.

[9] It is common cause that there was no feedback given to the applicant employees collectively between January to May 2017. Mr Pfanani Mulaudzi (Mr Mulaudzi), Kaefer’s IR Manager, testified that he did give feedback to individual applicant employees from time to time during that period; which was, in essence, that Kaefer was still awaiting outcome of the consultation with Mitsubishi on the issues they had raised.

[10] It is not in dispute that Kaefer and Mitsubishi did indeed table the applicant employees’ complaints at the CIRC to be discussed with other scaffolding subcontractors. Two meetings were held on 17 and 30 January 2017 to discuss these issues. What emerged from those meetings was that all the subcontractors duly complied with the minimum rates for the scaffolding supervisors as prescribed by the Metal and Engineering Industrial Bargaining Council’s (MEIBC) Main Agreement. However, those scaffolding supervisors that were paid the higher rates than the minimum set by MEIBC were seemingly employed as both scaffolding and insulation supervisors. Thus, they were performing additional functions than Kaefer’s supervisors who were employed only as scaffolding supervisors.

[11] Nonetheless, Kaefer proposed, inter alia, that all scaffolding contractors’ scheduled employees be moved to Eskom provided accommodation and that it’s scaffolding supervisors’ rates to be increased from R69.67 per hour to R81.43 per hour in order to close the pay rates’ gap. The discussions to find a solution were on going and according to Mr Kruger, Kaefer could not implement the proposed pay increase without Mitsubishi’s go ahead, which was, by the way, not forthcoming at that stage.

[12] On 4 May 2017, Mr Sthembile Sakwe (Mr Sakwe), Kaefer’s Site Manager, sent an e-mail to Mr Mulaudzi informing him that the applicant employees were requesting a meeting with senior management in order to be given feedback regarding the issues that they had raised at the meeting on 7 December 2016. Mr Mulaudzi arranged a meeting for 5 May 2017 but was postponed to 9 May 2017 due Mr Kruger’s unavailability.

[13] Mr Maluadzu testified that on 9 May 2017, the meeting did take place at 6:00 am and Mr Kruger read the feedback from his e-mail of 4 May 2017[2] to the applicant employees. Pertinently, it was reported to the applicant employees that the supervisors’ rate of pay and accommodation was being attended to at the CIRC and that there had not been any outcome at that stage.

Works stoppage of 18 May 2017

[14] On 18 May 2017, Mr Mulaudzi arranged a feedback meeting with the applicant employees after he had been informed by Mr Horn, the Contract Manager, that he had received feedback from Mitsubishi. Mr Mulaudzi arranged with Mr Jan Molebatsi (Mr Molebatsi) to attend the meeting on behalf of Kaefer’s Industrial Relations Department as he was no available that morning. It would seem that there was nothing tangible to present to the applicant employees as Mitsubishi was still considering their issues.

[15] Mr Mulaudzi testified that he joined the meeting at about 13h20. The applicant employees were unhappy with the feedback and refused to return to work, stating that they would only return to work if Kaefer agreed to increase their wages. The work stoppage was reported to Mitsubishi at about 13:50 pm. The representatives from Mitsubishi joined the meeting and instructed the applicant employees to return to work, but once again they refused.

[16] They were then instructed to choose representatives who would meet with the representatives of Mitsubishi and Kaefer later that afternoon to discuss the employees’ complaints. Five representatives were chosen, including Mr Mkansi, and the rest of the applicant employees returned to work at 15h20.

[17] A meeting took place later that afternoon and the only issue that was discussed was the applicant employees’ demand for a wage increase. The applicant employees’ representatives were once more informed that their complaint was still under discussion and they would be provided with weekly feedback from then on.

[18] Mr Mkansi denied that the applicant employees embarked on a work stoppage on 18 May 2017. He was adamant that Mr Molebatsi only read an e-mail to the applicant employees but did not deal with pertinent issues or answer their questions. As a result, he called his superiors to attend the meeting in order to answer the employees’ questions. Mr Sakwe and Mr Horn attended the meeting but were also unable to answer the applicant employees’ questions hence the afternoon meeting with the applicant employees’ representatives was proposed.

[19] In my view, nothing much turns on the events of 18 May 2017 as the chairperson of the disciplinary enquiry exonerated the applicant employees of this charge. In essence they were not dismissed for the work stoppage that took place on 18 May 2017.

Work stoppage of 12 June 2017 and failure to follow SSA grievance procedure

[20] It is common cause that on 12 June 2017, at approximately 7:30 am, the applicant employees left the site and gathered in their office. Mr Mulaudzi testified that they demanded to be addressed by the site management since their complaint pertained to a production issue. He, Mr Mulaudzi, called Messrs Sakwe, Horn, Kruger and Phosa to attend the meeting. It turned out that the subject of the applicant employees’ compliant was the new night shift schedule that had been introduced by Kaefer consequent to the instruction from Shanahan Engineering (Pty) Ltd, which was dated 8 June 2017. The instruction was to move 164 scaffolders (out of the total of 202) to the night shift from 12 June 2017. Shanahan Engineering was appointed as Mitsubishi’s representative for scaffolding contractors and Kaefer was, therefore, obligated to implement the instruction.

[21] It is not in dispute that the representatives of the applicant employees had been informed of the changes to the night shift schedule as early as 10 June 2017. They contacted Mr Sakwe and informed him that the applicant employees were unhappy with the new shift arrangement. Mr Sakwe insisted that the new shift arrangement had to be implemented because it was per the client’s instruction.

[22] Mr Mulaudzi testified that, on 12 June 2017, the applicant employees refused to return to work, demanding that the new night shift schedule be withdrawn and the previous one be re-implemented. The work stoppage was reported to Mitsubishi and members of its management, Messrs Mabutla and Langa, joined Kaefer’s management at the applicant employees’ office. The applicant still refused to retune to work. In order to diffuse the situation, Mitsubishi instructed Kaefer to withdraw the new night shift schedule and to implement the previous one. The decision to withdraw the new night shift schedule was communicated the to the applicant employees. They then agreed to go back to work at about 9h15.

[23] All the events of 12 June 2017 were captures in the strike diary that was compiled by Mr Mulaudzi. The applicants tried to poke holes into the evidence of a strike diary during Mr Mulaudzi’s cross-examination. However, Mr Mulaudzi’s evidence of what transpired that morning was confirmed by Mr Kruger.

[24] Mr Kruger also testified that in terms of Mitsubishi’s Health, Safety and Environment Policy, the scaffolders were not permitted to work without supervision. While, Ms Mahadeo, Kaefer’s Human Resources Manager, testified that the applicant employees’ work stoppage on 12 June 2017 brought Kaefer’s operations to a halt.

[25] On the other hand, the applicants deny that there was a work stoppage on 12 June 2017. Mr Mkansi testified that the applicant employees were informed by their subordinate team members that, if the new night shift schedule was not withdrawn and the previous one re-implemented, they would go on strike after lunch break. He went to report this to Mr Sakwe who in turn instructed the applicant employees to go to their office for a meeting. Before Mr Mkansi left the site, he handed over his radio (and thus, his supervisory functions) to one of his team members. Curiously, Mr Mkansi’s testimony is inconsistent with the applicant’s pleaded version of defence which is recorded in the pre-trial minute as follows:

‘The supervisors’ subordinates gave them a mandate at a safety meeting in the morning to cancel the new night shift because it was a deviation from the existing rotation schedule and because other workers wanted to work night shifts previously allocated to them. The individual applicants were then forced to have the meeting with the respondent’s management to get their subordinate back to work.’[3] (Emphasis added)

[26] The above averments are obviously consistent with Kaefer’s evidence that there was a work stoppage in the morning of 12 June 2017 and that the applicant employees were the ringleaders. Yet, the applicants unbendingly contented that there was no unprotected strike simply because there was no demand or ultimatum issued to get the applicant employees back to work. Cleary, they are oblivious to the following definition of a strike in terms of section 213 of the Labour Relations Act[4] (LRA):

‘The partial or complete concerted refusal to work, or the retardation or obstruction of work, by persons who are or have been employed by the same employer or by different employers, for the purpose of remedying a grievance or resolving a dispute in respect of any matter of mutual interest between employer or employee.’

[27] In Transport & Allied Workers Union of SA on behalf of Ngedle & others v Unitrans Fuel & Chemical Co (Pty) Ltd,[5] defining a strike, the constitutional Court said the following:

‘There are four elements or components that make up a strike under the LRA. In everyday parlance people call every collective stay-away from work or work stoppage a strike. Under the LRA a strike must have four elements. These are: (a) a partial or complete concerted refusal to work or retardation or obstruction of work, (b) by persons who are or have been employed by the same employers or by different employers, (c) for the purpose of remedying a grievance or resolving a dispute, (d) in respect of a matter of mutual interest between employer and employee. I also leave out for present purposes the reference to an overtime ban. In the present case the strike took the form of a concerted refusal to work. One should not talk about a strike in support of a certain demand because, in terms of the definition of the word “strike”, a strike already includes a demand. One should speak of a collective refusal to work in support of a certain demand or in pursuit of a certain demand.’ (Emphasis added)

[28] Turning to the present case, the applicant employees embarked on a concerted work stoppage in support of a demand that the new shift schedule be withdrawn; a dispute over a matter of mutual interest. It is not in dispute that it was a contractual and statutory duty that the scaffolding tasks be undertaken under supervision, a core of the applicant employees’ contractual duties. In National Union of Mineworkers obo Employees and Others v Commission for Conciliation Mediation and Arbitration and Others,[6] the LAC pertinently opined that it is a tangential issue that the strike may have been a response to an allegedly unlawful conduct by the employer because, where, as typified in the present instance, the work formed part of the employees’ contractual duties, retardation or refusal to perform would be well within the definition of a strike.[7] So, it is obviously of no consequence that the applicant employees received their full pay for the day and that there was no ultimatum

issued as contended by the applicants.

[29] To add fuel to the fire, the applicant employees conceded that they did attend the re-induction session on 9 June 2017. According to Mr Mulaudzi, as a matter of course, the respondent’s grievance procedures are discussed, amongst other topics, during the re-induction sessions in terms of the SSA. Mr Mkansi denied that grievance procedure was discussed and was adamant that only safety issues and sick leave were discussed. I find it strange that the dispute resolution procedures were not have been discussed during the re-induction of 9 June 2017 following the incident of the 18 May 2017. Moreover, clause 2 of the SSA deals with induction programs and specifically state the contractor specific induction program shall cover the following topics: Industrial relations; occupational health and safety; environmental and Site rules and regulations applicable to the area where the Employee will be working; an in-depth section on the objectives, key principles and contents of the SSA.[8]

[30] It is also instructive that the applicant employees were not shop-stewards but supervisors. Hence, it is difficult to understand the logic behind their decision to leave the site en masse to attend to their subordinates grievance at the expense of production and safety. Thus, I accept Mr Mulaudzi’s evidence that the applicant employees were personally disgruntled by the new shift schedule hence they downed tools and refused to heed the call to return to work up until their demand was acceded to.

[31] Even so, it is undisputed evidence of the applicants that Mr Polisa Ramaphike (Mr Ramaphike), one of the applicant employees, was not at work on 12 June 2017 as he was instructed to report for the night shift duty on the day in question.

[32] In the circumstances, I am persuaded that the work stoppage by the applicant employees on 12 June 2017, save for Mr Ramaphike, constituted a strike as defined in section 213 of the LRA. Since the procedures prescribed in terms of section 64 of the LRA were not followed, the strike was flagrantly unprotected and as such a serious misconduct. In addition, applicant employees’ conduct to embark on a strike was in breach of the grievance procedure in terms of the SSA, which was binding on them and despite having been duly inducted on its provisions.

Unauthorised absence from duty on 4 July 2017 and breach of good faith

[33] It is common cause that the applicant employees failed to report for duty on 4 July 2017, the first working day after the Pay Leave Weekend (PLW) during which the majority of the employees normally go home to different parts of South Africa. Mr Mulaudzi testified that all the applicant employee failed to report to Kaefer they had taken ill or were unable to report for duty for whatever reason per the SSA.

[34] Subsequently, all the applicant employees submitted the medical certificates; save for Messrs Thulani Cakasa (Mr Cakasa) and Thulani Sibusiso Shezi (Mr Shezi). Mr Cakasa was booked off sick on 30 June 2017 and had to resume duties on 11 July 2017. In fact, it was Mr Mkasi’s evidence that Mr Cakasa took ill while he was in duty on 23 June 2016 and was taken to hospital. His medical certificate was issued on 30 June 217 by a medical officer at Ellisras hospital in Lephalale.

[35] On the other hand, Mr Thulani Sibusiso Shezi (Mr Shezi) submitted a Burial Order issued from the Department of Home Affairs in Bulwer, KwaZulu Natal Province as proof that he was attending to funeral arrangements of his relative and accordingly took a family responsibility leave. Mr Mulaudzi was adamant, when teased on this issue, that Mr Shezi still had an obligation to report his absence on 4 July 2017 and seek permission to take a family responsibility. Given the fact that the plan by the applicant employees seem to have been devised before the PLW, Mr Shezi had to explain his absence. Ms Mahadeo testified that she could not recall these applicant employees’ peculiar circumstances being addressed during the disciplinary enquiry.

[36] It is apparent from the rest of the applicants’ employees’ medical certificates that the majority of them were booked off sick from 04 July 2017 and to return work on 07 July 2017, 4 days in total. The rest were booked off sick from 04 July 2017 to 06, 09 or 10 July 2017, respectively.[9]

[37] Kaefer has at all material times placed the applicant employees’ medical certificates or documents used to justify their absence on 04 July 2017 in dispute. Hence they were charged and dismissed for unauthorised absence from work and sabotage. Mr Mulaudzi testified that Kaefer took a decision to discipline the applicant employees because of the events that preceded their absence from work en masse; their complaints about wages and work stoppage. Despite the interventions to deal with those issues, the applicant employees were obviously not contented.

[38] Mr Mulaudzi was adamant that it had never happened before that, out of the 44 supervisors, 43 would absent themselves simultaneously and without warning to Kaefer. The conduct of the applicant employees was viewed by Kaefer as a stay away in order to put pressure on Kaefer to address their complaint in respect of wage increase. As a result, the validity of their sick notes was put to question.

[39] Kaefer’s evidence that the conduct of the applicant employees put in jeopardy its contract with Mitsubishi was not challenged. So is the evidence that Kaefer’s reputation and business was affected as some of its tasks were taken back by Mitsubishi and given to the other subcontractors because there was no manpower to attend to their supervision. Kaefer ended up incurring costs for training new supervisors. As result, the continued employment relationship was seriously dented as the applicant employees could not be trusted anymore.

[40] It would seem also that the project scaled down subsequently. As things stand, even the supervisors that were appointed to replacement the applicant employees had been affected by the demobilisation in terms of SSA. As of March 2021, Kaefer had two remaining supervisors due to down scaling. While there was also another contract that was due to finish in June 2021. In essence, it was Kaefer’s evidence that reinstatement of the 43 applicant employees would not possible.

[41] The applicants, on the other hand, contend in their written submissions that they had no duty to prove the truth and accuracy of the contents of the medical certificates as the applicant employees complied with Absenteeism Procedure in terms of the SSA which pertinently provides that:

‘3. ABSENCE WITHOUT AUTHORISATION

3.1 When an employee is absent from work for any reason whatsoever, the responsibility lies with the absent employee to make contact with his/her Supervisor or Manager on the first day of the absence to advise the Supervisor or Manager that he/she is absent and the likely return-to-work date.

3.2 When the employee is absent without authorisation or notification and she/he returns without a valid reason (e.g. Doctor’s certificate), the Site Manager must investigate the matter and if necessary take disciplinary action as set out in the Disciplinary Procedure.’[10]

[42] As such, a mere production of the medical certificate constitutes a valid reason for being absent from work, so it was further contended. Hence the applicants saw no need to call or file the explanatory affidavits by the applicant employees’ respective doctors.

[43] The main issue in this instance concerns the admissibility of a medical certificates as a valid reason for being absent per SSA absent the supporting evidence of the doctors who authored them.

[44] It is well accepted that hearsay evidence may be admissible in the interests of justice as contemplated in section 3 of the Law of Evidence Amendment Act[11] (Evidence Act). Section 3 provides:

‘3 Hearsay evidence

(1) Subject to the provisions of any other law, hearsay evidence shall not be admitted as evidence at criminal or civil proceedings, unless –

(a) each party against whom the evidence is to be adduced agrees to the admission thereof as evidence at such proceedings;

(b) the person upon whose credibility the probative value of such evidence depends, himself testifies at such proceedings; or

(c) the court, having regard to –

(i) the nature of the proceedings;

(ii) the nature of the evidence;

(iii) the purpose for which the evidence is tendered;

(iv) the probative value of the evidence;

(v) the reason why the evidence is not given by the person upon whose credibility the probative value of such evidence depends;

(vi) any prejudice to a party which the admission of such evidence might entail; and

(vii) any other factor which should in the opinion of the court be taken into account, is of the opinion that such evidence should be admitted in the interests of justice.

(2) the provisions of subsection (1) shall not render admissible any evidence which is inadmissible on any ground other than that such evidence is hearsay evidence.

(3) Hearsay evidence may be provisionally admitted in terms of subsection (1) (b) if the court is informed that the person upon whose credibility the probative value of such evidence depends, will himself testify in such proceedings: Provided that if such person does not later testify in such proceedings, the hearsay evidence shall be left out of account unless the hearsay evidence is admitted in terms of paragraph (a) of subsection (1) or is admitted by the court in terms of paragraph (c) of that subsection.

(4) For the purposes to this section –

"hearsay evidence" means evidence, whether oral or in writing, the probative value of which depends upon the credibility of any person other than the person giving such evidence;

"party" means the accused or party against whom hearsay evidence is to be adduced, including the prosecution.’

[45] The admissibility of a medical certificate was considered by the LAC in Mgobhozi v Naidoo NO & Others[12] and the following was said:

[23] In order to determine whether the evidence of the doctors' certificates and the opinions they provide therein should be admissible in evidence in the application for review the Labour Court had to take into account the provisions of s 3(1)(c) of the Evidence Act and the factors enumerated therein.

[24] The first factor in the said subsection requires the court to consider the nature of the proceedings - in this instance an application for condonation for the late fling of review proceedings. In considering the nature of the evidence the court should bear in mind that it relates to the expert evidence of two doctors relating to the condition of the appellant. Generally speaking opinion evidence cannot be given by laymen and is the preserve of persons specifically qualified and trained in a particular field - often described as experts.

[25] In fields as esoteric as the workings of the mind and the effects on daily life - more especially the ability to instruct attorneys or bring proceedings on one's own - the courts are reliant upon the views of the medical profession. In this context psychologists and psychiatrists usually provide the evidential material necessary for the court to decide the issue. For the appellant to convince the Labour Court that he was mentally and/or physically incapable to bringing proceedings in that forum he had to have the evidence of such professionals.

[26] The Evidence Act requires the court to consider the reason why the medical evidence was not provided in the form of affidavits. No reasons are given why no affidavits have been provided. It is not suggested that the doctors have passed away, have emigrated or are unavailable for some other cogent reason.

[27] The absence of any such explanation is viewed in a most serious light. The cynic might observe that medical certificates are available for anyone paying the appropriate fee. If perceptions of the abuse of medical certificates are widespread - as I believe they are-it strengthens the need for courts to be especially vigilant against their misuse. One inference to be drawn in this application is that the medical practitioners were not prepared to go on oath to defend their certificates. Another is that they were not prepared to spare the time to explain their very truncated and laconic comments.

[28] The absence of affidavits from the doctors means that the court is deprived of any elaboration of the widely and vaguely stated symptoms attributed to the appellant. The nature of the medication and the efficacy thereof are also not explained.

[29] The Evidence Act speaks of prejudice to the third respondent. The latter has had no opportunity of having the appellant examined by its own practitioners and has had to rely on the vague allegations in the certificates. I cite but one example, namely that the appellant is alleged to have suffered from sane automatism for seven months. Even the most cursory research into the law reports on the topic of sane automatism and its use as a defence in criminal proceedings would reveal that it is a complex condition, requiring the assistance to the court of specialist psychiatrists, with a special interest in the field. For it to continue for seven months seems most incongruous. But that was for the appellant to explain to the Labour Court in acceptable fashion via affidavits from psychiatrists, not for the Labour Court or this court to speculate.

[30] Although the Labour Court did not decide the issue of admissibility and merely determined the application on an acceptance of the certificates at face value, I believe it ought to have done so. I do not believe that it ought to have exercised its discretion to consider the certificates at all, in the absence of affidavits by the medical practitioners in question. For that reason alone the appeal must fail.

[31] The court is also enjoined by the Evidence Act to consider the probative value of the hearsay evidence. At some levels the second enquiry posited above: namely whether the appellant showed that he was so incapacitated by his ailments that he could not bring the review proceedings timeously, falls to be considered under this factor.

[32] In order for the appellant to succeed the certificates of the doctors had to show that each such practitioner had such an opinion and the grounds for stating that conclusion.

[33] Not only do the medical practitioners not say anything remotely approaching that view at any stage, they say very little to enable a court to infer that from the facts they provide. I have set out the full extent of their very brief and vague comments in the certificates. A fair reading of those does not provide the sort of material to warrant the drawing of any inferences let alone the inference that the appellant's incapacity to bring proceedings, through a legal practitioner or on his own, was the most plausible one.’ (Emphasis added)

[46] As mentioned above, the applicants were well aware of the fact that the respondent takes issue with the admissibility of the medical

certificates on the basis of the dictum in Mgobhozi[13]. In fact, this point was mentioned during the respondent’s opening address and reiterated during the course of the trial. Ms Mahadeo testified that even though the medical certificates would normally be accepted as a prima facie proof of illness, the circumstances in this case were exceptional. Kaefer was faced with peculiar and unprecedented state of affairs as 43 out of 44 supervisors failed to report for duty after a PLW, hence the impugn on the medical certificates.

[47] Since the medical certificates were challenged, it was incumbent upon the applicant employees to tender an explanation for their coinciding absence from duty on 4 July 2017. The evidence from the doctors who issued the medical certificates was thus pertinent.

[48] It is interesting to note that six of the medical certificates were issued by the same doctor who is based in Lephalale.[14] While 29 of the 43 medical certificates vaguely describe the diagnoses as, for example, ‘medical condition’ or ‘medical problem’, ‘dermatological and medical condition’, ‘illness’ or ‘siekte’ or ‘ocular condition’.[15] There rest of the medical certificates that purport to provide specific medical conditions are illegible or incomprehensible.[16]

[49] The LAC made it clear in Mgobhozi[17] that when considering the nature of the proceedings per section 3(1)(c) of the Evidence Act, which in this instance is an unfair dismissal action, this Court should be alive to the fact that the medical certificates pertains to the expert evidence of the doctors who expressed a medical opinion on the applicant employees’

illnesses. Since they constitutes opinion evidence, it cannot be given by laymen, but by the respective doctors who issued the medical certificates.

[50] When it comes to the consideration of the probative value of the hearsay evidence, it is clear that in the absence of the affidavits from the respective doctors who issued the medical certificates, this Court is asked to speculate on whether the 42 of applicant employees were in fact indisposed and the extent of their incapacity due to their ailments that necessitated that all of them be booked off sick for about a week or more.[18] Also, the interest of justice dictates that an explanation from the doctors be proffered because the conduct of the applicant employees

was not only suspect, but resulted in an operational crisis, reputational damage and costs to Kaefer.

[51] In sum, the applicant employees’ failure to provide explanation for their ailments by their respective doctors under oath, is fatal to their claim and this includes Mr Cakasa. Put otherwise, the medical certificates constitutes an in admissible hearsay evidence. Likewise, Mr Shezi’s burial note must suffer the same fate in the absence of any explanation as to the circumstances that led to it being issued and supporting affidavit that indeed he was attending a funeral of his relative.

[52] It the light of the above finding, it follows that the applicants defence stands to be rejected. I also accept Kaefer’s evidence that the conduct of the applicant employees on 4 July 2017 was a concerted effort aimed at sabotaging its operations in order to exert pressure on Kaefer to meet their demand for wage increase.

Appropriateness of the sanction

[53] It is accepted that participation in an unprotected strike is dismissible misconduct in terms of section 68(5) of the LRA[19]; though not to viewed as ‘a magic wand which when raised renders the dismissal of strikers fair’[20]. In SACCAWU obo Bonolo Mokebe and 71 Others v Pick ń Pay Retailers,[21] the LAC expounded the principle established in Hendor Steel Supplies v National Union of Metalworkers of SA and Others,[22] where the sanction of dismissal of employees who embarked on an unprotected strike for seven weeks was found to be disproportionate

to the misconduct and accordingly unfair. The LAC stated:

[35] The principle that was established in Hendor is not that the dismissal of employees because they were on a short duration strike will inevitably be found to be disproportionate and thus substantively unfair. Rather, the principle established there is that when determining whether the dismissal of striking employees is proportional to the misconduct, a court must examine the conduct of both the employer and employees ‘as to the matter and conduct of the strike.

[36] This Court has, in the past, confirmed the sanction of dismissal in relation to employees who had participated in a short duration strike. National Union of Metalworkers of South Africa (NUMSA) v CBI Electric African Cables, (CBI)[23] is one such case where it was found that the dismissal of employees, who had engaged in a two-hour strike (while on a final written warning) in response to the employer short paying them their wages, was substantively fair because the employee’s decision to strike was:[24]

‘[D]eliberate and calculated. It undermined the process of collective bargaining as a tool to resolve industrial disputes. When [the employees] reported for their shift they were appraised of the nature of the problem regarding short payment of their wages and were told that it was being attended to by the respondent’s management. They were told to report for their shift and warned that if they failed to do so they faced the risk of dismissal. They were given an ultimatum which they ignored. They decided to walk off at 22h00 to show solidarity with the day shift. Their collective decision to walk off at 22h00 was taken before they filed any grievance. There was no attempt at all on their part to comply with the provisions of the Act regarding the handling of grievances. The employee’s contention that they were justified in leaving their shift early because of the [employer’s] failure to pay them correctly, is accordingly rejected.’ (Emphasis added)

[54] It follows that in determining the appropriateness of the sanction of dismissal in the present case, one cannot turn a blind eye to the events that preceded the applicant employees’ unauthorised absence on 4 July 2017. Firstly, their grievance pertaining to wage increase and Kaefer efforts to address that complaint. Secondly, the unlawful strike on 12 June 2017 and the applicant employees’ their failure to avail themselves to the grievance procedure in terms of SSA. Granted, the applicant employees were not suspended and continued working until the PLW preceding 4 July 2017. Still, their conduct must be viewed by this Court in a very serious light given their conduct subsequently and taken as a whole.

[55] It was Kaefer undisputed evidence that the applicant employees’ stay away on 4 July 2017 shown it in a bad light as it affected its capacity to service its contractual obligation with Mitsubishi because loss of manpower and, as a result, some of the work was reallocated to other subcontractors. Also, it had to expend money training new supervisors.

[56] In my view, the conduct of the applicant employees warranted a summary dismissal, given the circumstances, for the reasons set out above and in respect of all the charges, respectively. I have also had regard to the Disciplinary Code in terms of the SSA which favours progressive discipline. Yet, the circumstances of this case dictate otherwise. Kaefer’s evidence that the conduct of the applicant employees irreparably damaged the trust relationship was not challenged. In Autozone v Dispute Resolution Centre of Motor Industry & others,[25] the LAC stated that:

[12] … An employer relying on irreparable damage to the employment relationship to justify a dismissal would be prudent normally to lead evidence in that regard, unless the conclusion that the relationship has broken down is apparent from the nature of the offence and/or the circumstances of the dismissal. Where the offence in question reveals a stratagem of dishonesty or deceit, it can be accepted that the employer probably will lose trust in the employee, who by reason of the misconduct alone will have demonstrated a degree of untrustworthiness rendering him unreliable and the continuation of the relationship intolerable or unfeasible.

[13] Dishonest conduct, deceitfully and consciously engaged in against the interests of the employer, inevitably poses an operational difficulty. The employer thereafter will be hard pressed to place trust in such an employee. It will be difficult going forward for any task involving a measure of discretion or reliance to be entrusted to the deceitful employee. The operational requirements of the employer alone, therefore, may very well justify the dismissal.’ (Emphasis added)

[57] Likewise, in the present case, the applicant employees’ wilful conduct against the interests of Kaefer seriously jeopardised its operations and reputation. Thus, to Kaefer to entrust the applicant employees with any of its supervisory tasks would be a tall order.

Procedural Fairness

[58] Despite the fact the applicants were also challenging the procedural fairness of the dismissal, there was no evidence led in this regard. In the event that the procedural impugn is based on the fact that there were no ultimatums issued during the strike, that submission is untenable. The unprotected strike on 12 June 2017 lasted for about two hours and as such the issuing ultimatums or involvement of NUMSA was obviated by Kaefer’s intervention which diffused the situation. As such, the main issue for determination turns on the enquiry in terms of item 7of the Code[26].

[59] It is common cause that the dismissal of the applicant employees was preceded by a disciplinary enquiry which was chaired by a chairperson who was recommended by NUMSA. The applicants do not seem to have qualms with the fairness of that process.

Conclusion

[60] In all the circumstances, I find that the dismissal of the applicant employees is procedurally and substantively fair. The applicants’ unfair dismissal claim falls to be dismissed accordingly.

Costs

[61] Tritely, costs do not follow the result in this Court in accordance in line with the requirements of the law and fairness. Moreover, where the parties have a persisting collective bargaining relationship, which is apparently the case in the present instance, the losing party is normally not saddled with costs.

[62] In the circumstances, I make the following order:

Order

1. The dismissal of the applicant employees is both procedurally and substantively fair.

2. The applicants’ claim is dismissed.

3. There is no order as to costs.

P Nkutha-Nkontwana

Judge of the Labour Court of South Africa

Appearances:

Applicant: Mr Ngako of Ngako Attorneys

Third Respondent: Advocate Nicole Lewis

Instructed by: Brian Bleazard Attorneys

[1] See: Respective applicant employees’ notices to attend a disciplinary enquiry, pages 12 -98 of bundle ‘B’.

[2] See: Mr Kruger’s email, pages 139-141 of bundle A.

[3] See: Pre-trial minute page 56, para 78.1.

[4] Act 66 of 1995, as amended.

[5] (2016) 37 ILJ 2485 (CC); 2016 (11) BCLR 1440 (CC) at para 106; see also National Union of Mineworkers obo Employees and Others v Commission for Conciliation Mediation and Arbitration and Others [2011] ZALAC 7; [2012] 1 BLLR 22 (LAC); (2011) 32 ILJ 2104 (LAC) at para 15.

[6] Id National Union of Mineworkers at para 18.

[7] See: City of Johannesburg v Democratic Municipal & Allied Workers Union of SA & Others (2020) 41 ILJ 1959 (LC) at para 11.

[8] See: Clause 2.4 of the SSA, page 73.1 of bundle 1.

[9] See: Bundle 1, index to medical certificates, pages 1-73.

[10] See: Annexure “E” Absenteeism Procedure, page 161 of bundle A.

[11] Act 45 of 1988.

[12] (2006) 27 ILJ 786 (LAC).

[13] Id.

[14] See: Supra n 8.

[15] Id.

[16] Id.

[17] See: Mgobhozi supra n 11 at para 24.

[18] Id at para 31.

[19] Section 68(5) provide: ‘Participation in a strike that does not comply with the provisions of this 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.’

[19] Section 68(5) provide:

‘Participation in a strike that does not comply with the provisions of this 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.’

[20] See: National Union of Metalworkers of South Africa (NUMSA) v CBI Electric African Cables [2014] 1 BLLR 31 (LAC) at para 29; and National Union of Mineworkers of SA v Tek Corporation Ltd and Others (1991) 12 ILJ 577 (LAC).

[21] (2018) 39 ILJ 201 (LAC) at paras 34 and 35.

[22] (2009) 30 ILJ 2376 (LAC).

[23] [2014] 1 BLLR 31 (LAC).

[24] Id at para 39.

[25] (2019) 40 ILJ 1501 (LAC).

[26] Item 7 provides: Any person who is determining whether dismissal for misconduct is unfair should consider - (a) Whether or not the employee contravened a rule or standard regulating conduct in, or of relevance to, the workplace; and (b) If a rule or standard was contravened, whether or not - (i) the rule was a valid or reasonable rule or standard; (ii) the employee was aware, or could reasonably be expected to have been aware, of the rule or standard; the rule or standard has been consistently applied by the employer; and (iii) dismissal was an appropriate sanction for the contravention of the rule or standard.’

[26] Item 7 provides:

Any person who is determining whether dismissal for misconduct is unfair should consider -

(a) Whether or not the employee contravened a rule or standard regulating conduct in, or of relevance to, the workplace; and

(b) If a rule or standard was contravened, whether or not -

(i) the rule was a valid or reasonable rule or standard;

(ii) the employee was aware, or could reasonably be expected to have been aware, of the rule or standard; the rule or standard has been consistently applied by the employer; and

(iii) dismissal was an appropriate sanction for the contravention of the rule or standard.’