National Union of Metalworkers of South Africa (NUMSA) and Others v Kaefer Energy Projects (Pty) Ltd (JS234/16;JS857/15;JS88/16) [2023] ZALCJHB 98 (24 March 2023)

IN THE LABOUR COURT OF SOUTH AFRICA, JOHANNESBURG

Not Reportable

Case No: JS234/16

In the matter between:

NATIONAL UNION OF METALWORKERS OF

SOUTH AFRICA (NUMSA)

First Applicant

SERUMULA, PHOMOLO AND 9 OTHERS Second to further Applicants

and

KAEFER ENERGY PROJECTS (PTY) LTD Respondent

Case No: JS857/15

SOUTH AFRICA (NUMSA) o.b.o. MEMBERS

Applicant

And

AMT PLACEMENTS SERVICES (PTY) LTD

First Respondent

WESTBACK CONTRACTS (PTY) LTD

Second Respondent

CIVIL AND POWER GENERATION PROJECTS

(PTY) LTD

Third Respondent

AVENG GRINAKER – LTA (PTY) LTD

Fourth Respondent

TUBULAR TECHNICAL CONSTRUCTION

(PTY) LTD

Fifth Respondent

STEVAL ENGINEERING (PTY) LTD

Sixth Respondent

ACTOM (PTY) LTD t/a ACTOM CONTRACTING

ENGINEERING PRODUCTS AND CONTRACTS Seventh Respondent

PLATINUM LEAGUE TRADING 7 CC t/a PRO

FAB ENGINEERING Eighth

Respondent

GLOBAL ISIZWE PLACEMENTS CC

Ninth Respondent

KENTZ (PTY) LTD

Tenth Respondent

SVK HOLDINGS (PTY) LTD

Eleventh Respondent

QUALITY TIME AND SAFE PROJECTS (PTY) LTD Twelfth Respondent

UTHINGOMNDENI PROJECTS CC

Thirteenth Respondent

ESKOM HOLDINGS SOC

Fourteenth Respondent

Case No: JS88/16

SOUTH A FRICA (NUMSA)

o.b.o. MEMBERS

Applicant

MURRAY AND ROBERTS LTD

First Respondent

UTHINGOMNDENI PROJECTS CC

Second Respondent

KENTZ (PTY) LTD

Third Respondent

BASADI CONTRACTING SERVICES (PTY) LTD

Fourth Respondent

Heard: 30 January to 2 February 2023

Delivered: 24 March 2023(This judgment was handed down electronically by circulation to the parties’ legal representatives by email, publication on the Labour Court website and release to SAFLII. The date and time for handing-down is deemed to be 10h00 on 24 March 2023.)

JUDGMENT

PHEHANE, J

Introduction and background

[1] The above-mentioned cases were consolidated by order of this Court dated 6 December 2019 per Snyman AJ. The hearing of the consolidated cases served before me.

[2] The applicant is the National Union of Metalworkers of South Africa (NUMSA), a registered trade union on behalf of its members (individual applicants).

[3] The respondents comprise a total of 17 contractors including subcontractors who rendered construction services on various projects

at Eskom’s Medupi Power Station in Lephalale, in the Limpopo Province (Medupi or Medupi site) and who were the employers of the individual applicants. Included in the said number of contractors, are Temporary Employment Services (TES), which supplied labour to the various contractors. In those circumstances, they are the employers of the individual applicants, as the case may be. Eleven out of the 17 contractors are represented in this present matter and oppose the relief sought by the applicants. They are the following and are referred to collectively as “the respondents” or “the contractors”:[1]

3.1 Actom (Pty) Ltd (Actom);

3.2 AMT Placement Services (Pty) Ltd (AMT);

3.3 Aveng Grinaker-LTA (Pty) Ltd (Aveng);

3.3 Basadi Contracting Services (Pty) Ltd (Basadi);

3.5 Civil and Power Generation Projects (Pty) Ltd (Civil and Power);

3.6 Global Isizwe Placements CC (Global Isizwe);

3.7 Kaefer Energy Projects (Pty) Ltd (Kaefer);

3.8 Kentz (Pty) Ltd (Kentz);

3.9 Murray & Roberts Ltd (Murray and Roberts);

3.10 Uthingomndeni Projects CC (Utingo); and

3.11 Wetback Contracts (Pty) Ltd (Wetback).

[4] The individual applicants were all employed by the various contractors in construction work on the basis of fixed-term contracts (limited duration contracts) that would terminate on the completion of specified tasks aligned to the various projects at the Medupi site.

[5] Medupi was plagued with labour unrest. Historical accounts paint a picture of various negotiation processes entered into between Eskom, the contractors and the employees (represented by various trade unions) in order to regularise matters of mutual interests, including the resolution of disputes. Born from such processes were a number of collective agreements, namely, the Project Labour Agreement (PLA), the Partnership Agreement (PA) and Site Specific Agreements (SSA).[2] Notwithstanding the conclusion of these agreements, labour unrest, which is the subject matter of this dispute, ensued. This present

dispute concerns the dismissal of the individual applicants for their participation in an unprotected strike action at Medupi that

commenced on 25 March 2015.

Unprotected strike action

[6] The following facts are common cause:

6.1 On 25 March 2015, some members of NUMSA together with members of the Building Construction and Allied Workers Union (BICAWU) and the Metal and Engineering Workers Union of South Africa (MEWUSA) submitted a memorandum of demands to Eskom, in which their members demanded, inter alia, a unit 6 completion bonus, removal of expatriates, skills development and training, abolition of hostels and allowances. Eskom was given two days to respond to this memorandum.[3] It is common cause that an unprotected strike action commenced on 25 March 2015 at Medupi. An interdict was granted by this Court on 17 April 2015 on an urgent basis, interdicting the unprotected strike action and related unlawful acts.

6.2 On 24 and 26 April 2015, following the grant of the urgent interdict, the respondents, in an effort to act uniformly, under the guidance of the contractors’ representative body termed the Contractors’ Management Forum (CMF), issued ultimata to their respective employees, calling upon them to return to work by certain specified dates (the first ultimatum required employees to return to work by 24 April and the second, by 28 April 2015).[4] The return to work included attending induction sessions. It is common cause that due to the nature of operations at Medupi, where

employees are away from the construction site for a period of time, Eskom required that they be inducted regarding safety procedures

before they will be permitted access by Eskom to the construction site.

6.3 On 30 April 2015, Eskom required the contractors to instruct their non-local employees to vacate Eskom’s accommodation premises at Lephalale, in order that the facility could be repaired as it was damaged during the unprotected strike action. This meant that non-local employees had to be transported to their respective homes, situated throughout the Republic of South Africa. The various contractors provided the affected employees with a transport allowance in order that they could travel to their various destinations.

Remobilization plan

6.4 A “re-mobilisation plan” was required by Eskom from the contractors (to be approved by Eskom), in order to begin the process of their respective employees returning to site to render their services. The CMF collated the various inputs from the contractors and submitted a mobilisation plan to Eskom during May 2015. The plan was approved by Eskom.

6.5 In a letter dated 14 May 2015, the CMF communicated to all contractors by way of a written letter, what this re-mobilisation plan entailed. It is important to set out the content of this letter as it is central to the narrow issue that is in dispute in the present matter. I set out below what this narrow issue is. The CMF’s letter of 14 May 2015 stated as follows:[5]

‘Medupi Principal Contractors

…

Dear Colleague

MOBILISATION TO THE MEDUPI PROJECT AND DISCIPLINARY ACTIONS/PROCESS

Further to the meeting of the Medupi CMF of 11th May 2015, we confirm that the conditions for the return to work of employees engaged in the unprotected strike at Medupi site has been agreed with Eskom and the CMF.

Please note all employees who do not attend work during the period of the unprotected strike should be disciplined according to the following categories

1. (Cat A) Those who have attended on all working days during the strike period will not be the subject of disciplinary action. They should re- inducted for work and should commence work after this re-induction.

2. (Cat B) Those who have attended induction and have some attendance, i.e. some form of clocked hours will be afforded the opportunity to sign PA and FWW and return to work. Those who do not sign the FWW and PA will be dealt with under category C below.

3. (Cat C) Those employees who can be identified for misconduct or those who made no attempt to communicate with the employer or attend induction, or employees who have valid FWW’s for similar offences, will be subject to formal disciplinary hearing.

For avoidance of doubt the principle of “no work no pay” will be strictly enforced for all workers who did not attend the site during the period of the unprotected strike. This applies to all categories A, B, or C above.

Please note that the CMF, as the Contractors representative body of site, has acted to ensure that all parties are aligned in dealing with this issue. The CMF is the body constituted under the PLA to deal with Contractor issues and therefore compliance with this memo is mandatory.

We trust that this is clear and concise but you do need any specific clarification, the CMF Legal team and the CIRC is available to engage with you at any time.

We confirm the poll the side returns to normal operation and the processes associated with the disciplinary procedure identified above are completed with normal return to work attained, then the “Force Majeure” is still in place. However we anticipate that normal return to work or proceed, with Contractors who contend that both scheduled labour force is available to work.

Yours sincerely

DM Crous

MEDUPI CONTRACTORS MANAGEMENT FORUM.’

6.6 Mr. Crous was the chairperson of the CMF. “PA” is a reference to a peace agreement that category B employees signed, in terms of which, in essence, they admitted to participating in the unprotected strike action and agreed to be meted out with a final written warning (FWW) for this conduct as well as losing financial benefits such as forfeiting the project bonus and no wages for the duration of the strike action.[6]

6.7 The peace agreements were drafted by the CMF and are similar in content. They read as follows:

‘DISCIPLINARY UNDERTAKING TO RESUME OPERATIONS

As a result of the unprotected, unprocedural and unlawful strike action that occurred at the Employer’s Medupi Power Project situated at Lephalale… which commenced on 25 March 2015 and the resultant Court Interdict obtained on 17 April 2015, the Employer has set up the following terms for allowing employees to return to work as below.

It is now agreed that:

1. The Employee will return to work as per the notification by the employer.

2. The Employee confirms that he undertakes and accepts, without

exception, the terms of his/her return to work as requested by the Employer as follows:

2.1 The Employee unconditionally agrees and undertakes to return to work when requested by the employer, and tenders his/her services in accordance with his/her contract of employment and the terms of applicable clauses of the Partnership Agreement (PA), the Site Specific Agreement (SSA) and the Project Labour Agreement (PLA).

2.2 The Employee agrees and accepts that the principle of NO WORK NO PAY will apply for the period from 27 March 2015 until the return of the Employee to site.

2.3 The Employee further agrees and accepts that all of the accrued Project Bonus from December 2014 to the date of return to site has been forfeited and lost due to his participation in unprotected, un-procedural, unlawful and violent strike action.

2.4 Subject to paragraph 4 below, as a result of the unprotected, un-procedural, unlawful and violent strike action which commenced on 25 March 2015, the Employer reserves the right to implement disciplinary action against those Employees who participated in such strike action and can be identified as having participated in misconduct which includes, but is not limited to, acts of intimidation, violence, and damage to property.

3. The Employee confirms that the applicable clauses of the PLA, PA and SSA applies to both the Employer and Employee and that all future grievances will be addressed in terms of the Grievance and/or Dispute Resolution Procedures and/or any amendments that may arise thereto.

4. The Employee acknowledges that any further unprocedural, unprotected

and unlawful strike action would constitute a breach of his contract of employment and the provisions of the PA, PLA and SSA. By signing this agreement the Employee accepts a Final Written Warning as a result of his/her participation in unprotected strike action and/or failure to adhere to the stipulation of the Court Interdict. The Employee further accepts his/her services being legally terminated (by following procedures as per the PA, PLA and SSA), should he/she participate in any form of work stoppage, sit down or unprotected strike action during the duration of the project.

5. The Employee further accepts and confirms that the employer will not tolerate circumstances where the employee does not follow procedures and engages in preachers of his/her conditions of employment, the PLA, PA, SSA and the Labour Relations Act.

6. This is the full and final agreement between parties and no

alterations, variations or additions will be of any force or effect unless reduced to writing and signed by both parties.’

6.8 Employees who were placed in category C were notified to attend disciplinary hearings. These charges were uniform across the respondents and were also drafted by the CMF. The charges read as follows:[7]

‘Count 1

Participation in an unprotected industrial action:

· it will be alleged that you participated in an unprotected industrial action and have failed to render your services in accordance with your contract of employment for the period 25 March 2015 [to] 17 April 2015.

Count 2

Participation in unprotected industrial action and failure to comply with the Labour Court order served on 17 April 2015:

· it will be alleged that you failed to comply with the Labour Court order served on you on 17 April 2015 and that you have continued to participate in unprotected industrial action and have failed to render your services in accordance with the conditions of employment from 17 April 2015 to date.

Count 3

Continued refusal to follow a direct unlawful instruction:

· It will be alleged that you have ignored the ultimatums issued to you on 24, 25 and 26 April 2015 in that you failed to present yourself or duty to render your services on 26, 27, and 28 April 2015

despite a final ultimatum being issued to you instructing you to report for duty.’

[7] The selection of the employees and their placement into categories B and C is the bone of contention between the parties and is at the heart of this dispute.

[8] The history of the various and related disputes that preceded this current dispute is summarised in paragraphs [7] to [11] of the judgment per Tlhotlhalemaje J, who determined the special plea of estoppel that was raised by the contractors to bind the applicants to the factual findings as determined by the appeal tribunal that heard the contractors’ appeal against the arbitration award by Adv. ESJ van Graan SC.[8] I do not intend to repeat the history of these various disputes.

Special plea

[9] The established facts before this Court pursuant to the judgment on the special plea are as follows:[9]

9.1 During the period between 25 March and August, the union initiated an unprotected strike;

9.2 The strike was called in support of the following demands:

9.2.1 to be paid a “completion bonus” of R10 000 and normal pay for 200 hours;

9.2.2 that expatriates be removed from the site and replaced with South Africans;

9.2.3 that local residents be given preference when employees were recruited;

9.2.4 that unskilled and semi-skilled workers be equipped with relevant skills;

9.2.5 that temporary accommodation be abolished;

9.2.6 a travelling allowance equivalent to 16 hours’ wages monthly;

9.2.7 a food allowance.

9.3 The mandate of the union’s members to the union was to make the demands and to threaten the withdrawal of their labour in pursuance of the demands;

9.4 The contention that the union’s members did not partake in the strike but were prevented from returning to work by intimidation by others, is “hardly credible”;

9.5 It is likely that the union’s members were amongst the intimidators who sought to enforce the strike;

9.6 The strike was accompanied by violence and severe damage to property;

9.7 The union’s members, alternatively, the majority of the union’s members took part in the strike.

9.8 Once the strike was underway, the union’s members’ message to the union was that they had no intention of returning to work;

9.9 Despite some efforts on the part of some of the union’s shop stewards to convince the union’s members to return to work, the union’s members could not be moved to end the strike;

9.10 The union did not tender its members’ services during the course of the strike;

9.11 The union did not have its members’ mandate to end the strike or to tender its members’ services during the course of the strike;

9.12 The union’s members did not tender their services during the course of the strike;

9.13 The respondents did not have the obligation in law to guarantee the safety of the union’s members; and

9.14 Other employees of the respondents were able to signal to their employers their willingness to return to work. Those who did so were not dismissed by the respondents.

[10] I refer to these factual findings as the “estoppel facts”.

Issues to be determined by this Court

[11] Mr. Orr for NUMSA informed this Court that it is not to concern itself with the employees that were placed in category A. It is common cause that the individual applicants before the Court were placed in category C. They were subjected to disciplinary hearings and were ultimately dismissed.

[12] The applicants contend that the dismissal of the individual applicants by the various respondents is substantively unfair. The basis for the contention is that the various respondents acted inconsistently by subjecting the individual applicants to disciplinary hearings which resulted in the dismissal, whilst other employees, of the same respondents, were offered the opportunity to accept final written warnings for precisely the same conduct. The conduct in question was their participation in the protracted unprotected strike action at Medupi.[10] The applicants approach this Court seeking reinstatement as a remedy.

[13] The evidence before this Court is that reinstatement is impracticable.[11] This evidence is unchallenged. The evidence of Ms. Zelia Soares of Murray and Roberts was that the applicants were employed on limited-duration contracts which have since expired. The company’s current projects involve non-mechanical work, which requires different skills than the skills possessed by the applicants. For these reasons, reinstatement is impracticable. This evidence is also unchallenged.

[14] Procedural unfairness appears to no longer be in dispute.[12] Although the applicants did not pursue procedural unfairness in the trial, I deal with the issue as two instances of procedural fairness are raised in the pleadings.

[15] The first is that some of the respondents sent text messages to their employees to the effect that they had been dismissed. These text messages were withdrawn. It is common cause that the applicants were, subsequent to the withdrawal of the text messages, subjected to disciplinary hearings. There is no suggestion in the pleadings or in evidence that the disciplinary hearings were procedurally unfair. The evidence led on behalf of the respondents was that where such text messages were sent, they were withdrawn. None of the witnesses that gave this evidence were challenged in cross-examination.[13]

[16] The second instance of procedural unfairness on the pleadings concerns Mr. Karabo Marope. It is alleged that he was dismissed without holding a disciplinary hearing.[14] The unchallenged evidence of Mr. De Pierres was that while Mr. Marope was an employee of Uthingo, at the request of NUMSA, he partook in the disciplinary hearing held at Global Isizwe. This evidence is unchallenged.

[17] The crisp and narrow issue before this Court concerns the inconsistent application of discipline. The Court is to determine whether the respondents treated the individual applicants differently by placing them in category C, subjecting them to disciplinary enquiries and ultimately dismissing them.

[18] Mr. van der Merwe submits, and correctly so, that the legal principle concerning the challenge of the inconsistent application of discipline is but one of the factors that the Court needs to take into consideration in determining whether or not dismissal is substantively fair; it is by no means the only determining factor.

The evidence

[19] The documentary evidence before this Court runs into thousands of pages (9 lever arch files). A handful of these pages were referred to during the oral testimony of the respondents’ witnesses. A total of 10 witnesses were called by the respondent.

[20] At the close of the respondents’ case, the applicants elected not to call any witnesses and closed their case. No explanation was provided for the applicants’ election. No witness testified on behalf of the applicants regarding their allegation of the inconsistent application of discipline. The onus remained on the respondents to prove that the dismissals were fair and that there was no inconsistent application of discipline. The evidence of the respondents’ witnesses is summarised below.

[21] The consistent evidence by the respondents’ witnesses (Mr. Swart of Actom and Basadi; Mr. van Wyk of Murray and Roberts, Mr. Mlaudzi of Kaefer, Mr. Braaff of Aveng, M. Brink of Basadi, Mr. Weidemann of Civil and Power and Mr. De Pierres of Kent, Utingo and Global Isizwe) was that in order to deal with the labour unrest in a uniform approach, the CMF gave guidelines to the contractors on how to categorise the employees in order to mobilise them to return to work. These guidelines are set out in the letter dated 14 May 2015. On receipt of this letter, the contractors proceeded to categorise all the employees.

[22] In summary, the employees who either heeded the call of the ultimata and attended induction, or those who contacted their supervisor or foreman or management to explain that they were willing to tender

their services but were unable to do so due to acts of intimidation or due to ill-health or due to family commitments and who were able to substantiate such allegations by means of affidavit or adequate proof such as doctors notes, were placed into category B.[15] Those employees who made no attempt whatsoever to heed the ultimata, to attend induction or did not contact their supervisors or foremen or line managers, were placed into category C.

[23] The employees placed in category C were notified to attend a disciplinary enquiry. The consistent evidence of the respondents’ witnesses was that the employees in category C were afforded an opportunity at the disciplinary hearing to present evidence explaining why they did not attend work during the period of the strike. Employees who were unable to present evidence during the hearing of why they did not heed the call to return to work and who could not prove that they made any attempt to contact their supervisors, or had no proof to substantiate allegations of intimidation, were found guilty of misconduct and were ultimately dismissed. The respondent’s witnesses were all consistent in stating that as employers, they followed their own disciplinary procedures and afforded the category C employees an opportunity to state their case and that the dismissals were ultimately fair.

[24] In some instances, where evidence was presented explaining the conduct of an employee, an agreement was reached with the relevant employer in terms of which such employees were converted to category B employees and signed peace agreements. The afore-going was the evidence of Mr. van Wyk – he stated that 399 employees were converted to category B. The evidence of Mr. van der Merwe of Actom, was that Mr. Phineas Molefe, who was a driver, was converted to a category B employee and signed a peace agreement because he must have produced proof of why he was unable to tender his services during the

strike action. Although Mr. van der Merwe could not remember what proof was submitted by Mr. Molefe, his evidence was consistent that proof must have been produced. This evidence is unchallenged. The evidence of Mr. Braaff was that the charges of 5 employees were withdrawn because they were able to prove that they did not attend induction due to illness.

[25] The nature of the cross-examination centred around statements being put to the various witnesses that the failure by the contractors to explain or to inform the category C employees why they had to be subjected to disciplinary enquiry and were not offered peace agreements constitutes unfair treatment, as they were treated differently from the category B employees, although they committed the same misconduct. In reply, the respondents’ witnesses were consistent in stating that the category C employees were given an opportunity to state their case in the disciplinary enquiry, albeit no explanation was given to them as to why there were category C employees and why category B employees were offered peace agreements. The respondent’s witnesses all confirmed that the letter dated 14 May 2015 from the CMF was a guideline, which they have followed, however, they followed their respective disciplinary codes in dealing with the misconduct.

[26] Evaluation

Substantive fairness

[27] In National Union of Mineworkers of SA on behalf of Maseko and others v AMT Africa Recruitment (Pty) Ltd[16] (Maseko), this Court stated that the legal principles that are applicable in determining a dispute concerning dismissal for participation in an unprotected strike action are well-established, and the Court made reference to Items 6 and 7 of Schedule 8 of the Labour Relations Act[17] (LRA) (the Code of Good Practice: Dismissal – “the Code”).

[28] To briefly restate the principles as codified: participation in an unprotected strike action constitutes misconduct that does not always deserve dismissal. Substantive fairness is to be determined by taking into consideration the facts of the case, including the seriousness of the contravention of the provisions of the LRA, attempts to comply with the LRA and whether the strike was in response to unjustified conduct by the employer. Prior to dismissal, the employer should at the earliest opportunity, contact a trade union official to discuss the course of action it intends to take, issue an ultimatum in clear

terms stating the sanction that will be imposed for non-compliance and allow the employees sufficient time to reflect on the ultimatum.

The employer may dispense with these steps where it cannot reasonably take them. Any person determining whether dismissal for misconduct is unfair is to consider whether the employee contravened a rule or standard of the workplace, whether the rule or standard was valid or reasonable, whether the employee was aware or could reasonably be expected to have been aware of the rule or standard, whether the rule or standard has been consistently applied and whether dismissal was the appropriate sanction for the contravention of the rule or standard.

Inconsistency

[29] The Court in Maseko distilled various authorities that pronounced on inconsistency. I do not propose to repeat these authorities, save to lift out a few there are instructive.[18]

[30] In SA Commercial Catering and Allied Workers Union and others v Irvin and Johnson Ltd[19] (SACCAWU), the Labour Appeal Court (LAC) stated as follows:

‘In my view too great an emphasis is quite frequently sought to be placed on the “principle” of disciplinary consistency, also called “parity principle” (as to which see e.g. Grogan Workplace Law (4 ed) at 145 and Le Roux & Van Niekerk The SA Law of Unfair Dismissal at 110). There is really no separate “principle” involved. Consistency is simply an element of disciplinary fairness… Every employee must be measured by the same standards (Reckitt & Colman (SA) (Pty) v Chemical Workers Industrial Union and others I1991) 12 ILJ 806 (LAC) at 813H –I). Discipline must not be capricious.’(Emphasis added)

[31] From the afore-going, it is clear that inconsistency is but one of the factors that are to be considered in determining the substantive fairness of the dismissal. It is by no means the determining factor.[20]

[32] In Sasol Mine Limited v Nhlapo and others,[21] the LAC differentiated between two types of inconsistency. The first being historical inconsistency that requires the employer to apply the penalty of dismissal consistently in the manner in which the penalty has been applied to other employees in the past. The second is contemporaneous inconsistency which requires that the penalty be applied consistently as between two or more employees who commit the same misconduct.

[33] The type of inconsistency the applicants allege in casu is contemporaneous inconsistency. In other words, “like cases are to be treated alike”. To take the point further, the same discipline should be meted out to employees who committed the same misconduct.

[34] The Court in Maseko went on to state, referring to a number of authorities, that where employer demonstrates a legitimate justification for differentiation (where the differentiation in treatment is free from bias and is not capricious), then there cannot be said to be unfairness in the application of discipline.[22]

[35] On the estoppel facts, the onus on the respondents to prove substantive fairness is discharged. The contravention of the LRA by the applicants is grave. There was no attempt to comply with the provisions of the LRA. The unprotected strike action was not in response to any unjustified conduct by the employer. Clear and unambiguous ultimata were issued. The individual applicants were afforded sufficient time to reflect on the ultimata. On the facts, the individual applicants had no intention of returning to work and did not tender their services.

[36] The respondents’ witnesses led evidence that demonstrated that the differentiation in treatment between category B and category C employees was justified and non-capricious. In short, the category C employees comprised of the employees who refused to tender their services and did not heed the ultimata, juxtaposed to the category B employees who made contact with their supervisors or foremen to explain that they could not tender their services due to acts of intimidation which they were able to substantiate by producing affidavits to that effect, and employees who could not tender their services because they were ill, and employees who heeded to ultimate and attended induction. In addition, all employees who signed peace agreements admitted to participating in unprotected industrial action, undertook not to repeat such conduct in future and accepted as a sanction for their conduct, a final written warning and forfeiture of the project bonus and wages for the period of the strike action.

[37] The peace agreements themselves are a form of discipline, in that the category B employees acknowledged their misconduct and accepted a final warning and the loss of other financial benefits as a consequence of participating in unprotected strike action. In the arbitration proceedings that culminated in the estoppel facts, NUMSA contended that the peace agreements should be set aside on account of being unfair. Before this Court, NUMSA contends that it was unfair not to offer the same peace agreements to the individual applicants. If there was ever a case to be made for inconsistency, it is the applicants’ own inconsistent manner of arguing their case in different fora on the same issues.

[38] Impeccable consistency is not required. Reasonable consistency is what is required where a number of employees are disciplined. The LAC stated this aptly in SACCAWU as follows:

‘Where, however, one is faced with a large number of offending employees, the best that one can hope for is reasonable consistency. Some inconsistency is the price to be paid for flexibility, which requires the exercise of a discretion in each individual case.’[23]

[39] In my view, the criteria by the CMF was not capricious and neither was the application of those criteria by the various respondents capricious. The criteria applied by the respondents related to the conduct of the employees that showed either dissociation with the strike or association with the strike.

[40] The peace agreements bear an important feature. By signing the peace agreements, the employee concerned acknowledged participation in the strike. In the disciplinary enquiries, the applicants, without fail, denied the charges levelled against them, in other words, they denied participation in the strike. By doing so, they disqualified themselves as candidates for the peace agreements. The peace agreements were meant for those who were willing to admit wrongdoing. For the applicants to lay claim to sympathy at all, they at least should have acknowledged participation in the strike in their disciplinary enquiries.

[41] In the case of Murray & Roberts, the criteria were attendance at inductions following the ultimata and/or evidence of communication with a supervisor or foreperson during the strike. The application of the second criterion was applied in two rounds – one round before the commencement of disciplinary enquiries and the second in the course of the disciplinary enquiries. There can be no objection as to how Murray & Roberts identified employees who made contact with supervisors or forepersons, as this was done with NUMSA’s agreement (represented by Mr. Meschack Robertsons)[24] over a number of days during the disciplinary enquiry.

[42] The other contractors also applied a positive response to the ultimata or compliance with an instruction to attend inductions in May 2015 as qualifying criteria for peace agreements. (The evidence of Mr. Swart (Actom); Mr. Mlaudzi (Kaefer); Mr. Braaff (Aveng); Mr. Brink (Basadi); and Mr. De Pierres (Kentz, Global Iziswe and Uthingo).

[43] For Kaefer, employees also qualified for a peace agreement if they deposed to affidavits to the effect that they were the victims of intimidation or had some attendance at work during the strike (This is the evidence of Mr. Mlaudzi). In the case of Kentz, Global Iziswe and Uthingo, employees were also offered peace agreements if they could produce evidence of having laid a charge of intimidation with the police. (This was the evidence of Mr. De Pierres).

[44] In the case of Civil and Power, an employee qualified for a peace agreement if they had some attendance at work during the strike, and an acceptable explanation for non-attendance for the days not at work (The evidence of Mr. Weidemann).

[45] All the criteria applied by the contractors are rationally connected to either an abandonment of or disassociation with the strike. Such criteria have been approved by this Court and the LAC.[25]

[46] The suggestion put to the witnesses for the companies that it was unfair to not involve the union in the formulation or application of the criteria takes matters nowhere. The decision to discipline an employee and the selection of employees earmarked for discipline

falls within an employer’s prerogative.[26]

[47] It was put to the respondents’ witnesses during cross-examination that, in failing to provide information to NUMSA and to the individual applicants of the criteria applied to determine which employees would be placed into which categories, the conduct of the respondents is unfair, as the applicants were not afforded the opportunity to opt for peace agreements. The problem that arises with this proposition is two-fold.

[48] Firstly, no witness on behalf of the individual applicants came to testify that had this information been provided, what election they would have made and having made that election, how they were treated differently. There is no evidence before this Court that when NUMSA learned about the categorisation in the earlier hearings, they objected to the categorisation on the basis that it was unfair. The uncontested evidence of Mr. Braaff is that when the category C employees attended the induction arranged for category B employees and were turned away and informed that they are to attend disciplinary hearings, neither they nor NUMSA objected or raised a formal dissatisfaction with the categorization.

[49] Secondly, it was not their election to make. The categorisation formed part of a disciplinary process. That is evident from the reading of the CMF’s email of 14 May 2015. Opting for a peace agreement was not the employees’ election to make. It was the employer’s prerogative, as part of discipline, to offer the peace agreement (with all its consequences), where an employee disassociated himself from the strike action. An employee who associated himself with the strike action and refused to tender his services would not be a candidate for a peace agreement even if information about the categorisation had been provided to him. The applicants would be hard-pressed, given the estoppel facts, to tell this Court that they were treated differently when the facts are they did not tender their services and had no intention of returning to work.

[50] The individual applicants approach this Court seeking reinstatement as a primary remedy. The facts before this Court are that they disregarded not only the ultimata, but also, an order by this Court, interdicting the unprotected strike action. Not one of the individual applicants presented any evidence to explain their conduct, that would convince this Court that they were unfairly dismissed.

[51] Two issues arise: The first is that our Courts are not sympathetic to employees who disregard its orders to interdict unprotected strike action.[27]

[52] The second issue that arises is that generally, participation in an unprotected strike action requires of employees to explain their conduct. The following dictum in Mzeku and others v Volkswagen SA (Pty) Ltd and others[28] is instructive:

‘Once there is no acceptable explanation for the appellants’ conduct, then it has to be accepted that the appellants were guilty of unacceptable conduct which was a serious breach of their contract of employment with the first respondent. In such a case the only way in which the appellants’ dismissal can justifiably be said to be substantively unfair is if it can be said that dismissal was not an appropriate sanction. In this case it must be borne in mind that the appellants refused to work or failed to perform work for over two weeks and, in the process, caused the first respondent huge financial losses. In our view there can be no doubt that dismissal would be an appropriate sanction if it is properly established that there were guilty of such misconduct.’

[53] In Transport and Allied Workers Union of SA on behalf of Ngedle and others v Unitrans Fuel & Chemical (Pty) Ltd,[29] the Constitutional Court stated thus:

‘Therefore, where striking workers engage in unprotected strike action, the onus rests on the workers to tender an explanation for their unlawful conduct, failing which their dismissal will be regarded as substantially fair, provided dismissal was an appropriate sanction.’

[54] In casu, not one of the applicants was called to give evidence to explain their conduct. This inevitably leads to the conclusion that the dismissal of the individual applicants was substantively fair. In my view, the individual applicants could not have been candidates for the peace agreement, thus opening the door for them to accept a final written warning as a sanction short of dismissal, as there is no evidence before this Court that any of the individual applicants were prepared to accept a peace agreement and were denied this opportunity. In the premises, dismissal was the appropriate sanction and circumstances where the rule of not participating in an unprotected strike action had been breached, ultimata were ignored and a Court order was ignored, and this, over an extended period of time.

[55] In view of the afore-going, I find that the applicants have not made out a case for the inconsistent application of discipline. The undisputed facts are that individual applicants refused to return to work, did not tender the services, were called upon to do so and maintained that they would not return to work until their demands were met. Therefore, they were placed in category C, and correctly so, in terms of the categorisation from the CMF. I, therefore, find that the differentiation was justified.

[56] The applicants ask this Court to find that the dismissals of the individual applicants by the respondents who have not opposed this referral are unfair. No evidence was led by the individual applicants in substantiation of their allegation of unfair dismissal in respect of the respondents that have not opposed this matter. In view of the factual findings of the appeal tribunal which findings also refer to the respondents that have not opposed this application, the dismissals of the individual applicants employed by those respondents are substantively fair. No allegation is made and no evidence is led

by the applicants that those dismissals were procedurally unfair.

Costs

[57] As stated above, this matter was allocated for hearing on an expedited basis over 10 days. The applicants chose not to lead evidence and withdrew their action against two respondents without tendering any costs.

[58] The applicants failed to call any witnesses to challenge the evidence of the respondents.

[59] The applicants’ case is unmeritorious and was not deserving of 10 days, bearing in mind voluminous documents, the bulk of which was not referred to during the trial which lasted four days. The time allocated to this matter could have been utilized to adjudicate disputes that are waiting for hearing dates on an already clogged roll. To simply elect not to call any witnesses without explanation and to proceed with a case that ought not to have seen the light of day, in my view, warrants an order for the payment of costs. It is so that a relationship exists between the parties, however, when faced

with an indisputable case and to proceed roughshod with the matter and not call witnesses, leads to an inescapable conclusion that the applicants have wasted the time and resources of this Court and the many respondents before this Court should not be out of pocket owing to the manner in which the applicants have conducted themselves in these proceedings.

[60] In light of the afore-going, the following order is made:

Order

1. The applicants’ claim is dismissed.

2. The dismissal of the individual applicants is substantively and procedurally fair.

3. NUMSA is to pay the costs of the following respondents that have opposed this application, being:

3.1 Actom (Pty) Ltd;

3.2 AMT Placement Services (Pty) Ltd;

3.3 Aveng Grinaker-LTA (Pty) Ltd;

3.4 Basadi Contracting Services (Pty) Ltd;

3.5 Civil and Power Generation Projects (Pty) Ltd;

3.6 Global Isizwe Placements CC;

3.7 Kaefer Energy Projects (Pty) Ltd;

3.8 Kentz (Pty) Ltd;

3.9 Murray & Roberts Ltd;

3.10 Uthingomndeni Projects CC; and

3.11 Wetback Contracts (Pty) Ltd.

M. T. M. Phehane

Judge of the Labour Court of South Africa

Appearances:

For the Applicants: Adv Orr SC Instructed by: Haffegee Roskam Savage Attorneys For the Respondents: Adv. van der Merwe Instructed by: Fluxmans Incorporated

[1] A list of the respondents that are represented by Fluxmans Inc. was handed up by Mr. van der Merwe on the first day of the proceedings.

See also: respondents’ heads of argument at para 1. After the evidence in chief of Mr. van Biljon for AMT Placements Services

(Pty) Ltd and Wetback Contracts (Pty) Ltd, NUMSA withdrew its action against these two entities. See: para 5 of the respondents’

heads of argument.

[2] The evidence of Mr. van Wyk (Murray and Roberts) was that the individual applicants were employed on limited duration contracts

which were linked to these collective agreements. The agreements all state their purpose is, inter alia, to regulate sound labour relations at the Medupi site and to ensure compliance with provisions of the Labour Relations Act, 1995 in relation to mutual interest disputes, and particular, to discourage participation in unprotected strike action. Mr. van Wyk referred the Court to the SSA, which commences at File 3A. p 558, and to the PLA commences at File 3, p 19.

[3] Pleadings, consolidated statement of claim at para 1, p 2.

[4] The ultimata issued by Murray and Roberts appear at File 3, pp 315 to 318. The contractors all issued similar ultimata in content. The ultimate which were drafted by the CMF for uniformity.

[5] File 3, p 548.

[6] One such peace agreement appears in File S, pp 61 to 62.

[7] File 5, p 113.

[8] A copy of the judgment by Tlhotlhalemaje J dated 8 May 2020 under the same consolidated case numbers is contained in the authorities

bundle handed up by the respondents on the first day of the proceedings, at pp 42 to 63. The parties are the same parties, and

represented by the same Counsel before this Court.

[9] See: Authorities bundle, respondents’ heads of argument on the special plea, at para IV, pp up 77 to 80.

[10] See para 1 of the applicants’ heads of argument.

[11] Affidavits have been filed by the respondents to this effect. See: File 5, pp 225 to 284.

[12] Ibid.

[13] Mr. Weidemann (Civil and Power); Mr. Yazeed Braaff (Aveng); Mr. Antoine De Pierres (Kentz; Uthingo and Global Isizwe).

[14] Pleadings, consolidated statement of claim at para 43, p 9.

[15] The evidence of Mr. Ferdinand Swart (Actom and Basadi), was that, as their employees were all placed in category B and were invited to attend induction, at which stage, they were offered peace agreements to sign. Those who refused to sign peace agreements or to attend induction were placed in category C and were subjected to a disciplinary hearing. The evidence of Mr. Van Wyk (Murray and Roberts) was that 399 out of 519 employees who were placed in category C were able, at the disciplinary hearing, to produce

evidence that they made contact with their supervisors or foremen to explain why they could not tender their services during the strike. An agreement was reached with the NUMSA representative (Mr. Robertson) at the disciplinary hearing, to convert these employees into category B and they all signed peace agreements, returned to site and were not dismissed. The list of the aforesaid 339 employees appears at File 5, p 91A to 91I. Mr. van Wyk referred to Court to the transcript of the arbitration proceedings in Transcript File 3, p 1097.

[16] (2022) 43 ILJ 2792 (LC) at paras [17] to [20].

[17] Act 66 of 1995, as amended.

[18] See: paras [55], [57], [58], [69], [73] and [78] of Maseko.

[19] (1999) 20 ILJ 2302 (LAC) at para [29].

[20] See also: Bidserv v Industrial Products (Pty) Ltd v Commission for Conciliation, Mediation and Arbitration and others (2017) 38 ILJ 860 (LAC) at para [31] where the LAC stated: ‘This court sounded a warning on approaching the question of inconsistency in the application of discipline willy-nilly without any measure of caution. Inconsistency is a factor to be taken into account in the determination of the fairness of the dismissal but by no means decisive of the outcome on the determination of reasonableness and fairness of the decision to dismiss. A generalised allegation of inconsistency is not sufficient. A concrete allegation identifying who the persons are who were treated differently and the basis upon which they ought not to have been treated differently or that no distinction should have been made must be set out clearly.’ (Emphasis added).

[20] See also: Bidserv v Industrial Products (Pty) Ltd v Commission for Conciliation, Mediation and Arbitration and others (2017) 38 ILJ 860 (LAC) at para [31] where the LAC stated:

‘This court sounded a warning on approaching the question of inconsistency in the application of discipline willy-nilly without any measure of caution. Inconsistency is a factor to be taken into account in the determination of the fairness of the dismissal but by no means decisive of the outcome on the determination of reasonableness and fairness of the decision to dismiss. A generalised allegation of inconsistency is not sufficient. A concrete allegation identifying who the persons are who were treated differently and the basis upon which they ought not to have been treated differently or that no distinction should have been made must be set out clearly.’ (Emphasis added).

[21] (2021) 42 ILJ 2589 (LAC).

[22] See: National Union of Mineworkers of SA and others v CBI Electric African Cables (2014) 35 ILJ 642 (LAC) (CBI Electric); County Fair Food (Epping), a division of Astral Operations Ltd v Food and Allied Workers Union and others (2018) 39 ILJ 1953 (LAC) (Country Fair); National Union of Metalworkers of South Africa and others v Mandlakazi Electrical Technologies Holdings, [2019] jol 46018 (LC).

[23] SACCAWU, at para [29].

[24] Transcript bundle 4 p 1073 (lines 15-25) and 1097 (lines 17-23).

[25] CBI Electric African Cables supra; County Fair Foods supra at paras [25] – [26] (compliance with an ultimatum); Masego supra at paras [69], [74] & [78] (partial participation in a strike and non-attendance at work for reasons unrelated to the strike).

[26] See: Masego at paras [85] – [86]: ‘[85] However, where employees comply with the ultimatum, the purpose is achieved and there is no obligation on the employer to discipline the employees who participated in the unprotected strike, but who subsequently heeded the ultimatum. It is within the prerogative of the employer to decide whether disciplinary action is to be instituted and whether any sanction (short of dismissal) is to be imposed. Where an employer decides not to take any disciplinary action against employees who heeded the ultimatum, it is within its prerogative to do so and a failure to institute disciplinary action does not automatically render the dismissal of employees who did not heed the ultimatum unfair or inconsistent. [86] It is not for this court to prescribe or dictate to the respondent as to how it should discipline its employees and where the respondent decided not to discipline employees who heeded the ultimatum, this court cannot find that decision unfair, even where the ones who persisted with the unprotected go-slow in defiance of a final ultimatum, were dismissed.’ (Emphasis added). See also: Atlantis Diesel Engines (Pty) Ltd v Roux NO and another (1988) 9 ILJ 45 (C) at 50H, Tshenolo Waste (Pty) Ltd v Sekgoro and others (2021) 42 ILJ 2693 (LC) at para [32].

[26] See: Masego at paras [85] – [86]:

‘[85] However, where employees comply with the ultimatum, the purpose is achieved and there is no obligation on the employer to discipline the employees who participated in the unprotected strike, but who subsequently heeded the ultimatum. It is within the prerogative of the employer to decide whether disciplinary action is to be instituted and whether any sanction (short of dismissal) is to be imposed. Where an employer decides not to take any disciplinary action against employees who heeded the ultimatum, it is within its prerogative to do so and a failure to institute disciplinary action does not automatically render the dismissal of employees who did not heed the ultimatum unfair or inconsistent.

[86] It is not for this court to prescribe or dictate to the respondent as to how it should discipline its employees and where the respondent decided not to discipline employees who heeded the ultimatum, this court cannot find that decision unfair, even where the ones who persisted with the unprotected go-slow in defiance of a final ultimatum, were dismissed.’ (Emphasis added).

See also: Atlantis Diesel Engines (Pty) Ltd v Roux NO and another (1988) 9 ILJ 45 (C) at 50H, Tshenolo Waste (Pty) Ltd v Sekgoro and others (2021) 42 ILJ 2693 (LC) at para [32].

[27] See: Modise and Others v Steve's Spar, Blackheath 2001 (2) SA 406 (LAC) at paras [118] to [119]: ‘[118] The strikers' conduct is mitigated by the fact that, according to Savvides, they abided by the terms of the interdict prohibiting picketing within a defined distance of the trading premises, but they did not, despite the interdict, stop striking. Even if the strikers felt disinclined to comply with the ultimatum, they should have obeyed the court order and immediately resumed their work. [119] It is becoming distressingly obvious that court orders are, by employers and employees alike, not invariably treated with the respect they ought to command. It is a worrying tendency, one which can only be effectively combated by the courts' displaying a marked reluctance to condone non-compliance. Obedience to a court order is foundational to a State based on the rule of law. The courts should by a strict approach ensure that it remains that way.’ See also: Robertson Winery (Pty) Ltd v Commercial Stevedoring Agricultural & Allied Workers Union (2017) 38 ILJ 1171 (LC) at paras [55] – [56]: ‘[55] Nevertheless, the breach of a court order is always serious. It undermines the rule of law. And in the context of collective

bargaining, it undermines the very nature of the constitutional rights to strike and to picket peacefully and unarmed. [56] The implications of the failure to obey interdicts and how that undermines the rule of law were discussed in a fairly recent article by Anton Myburgh SC. He cited Van Niekerk J’s comments at the 2012 SASLAW national conference: “The first and fundamental concern is one that acknowledges that what may be at issue is a breakdown of the rule of law, especially where orders are issued and then blatantly disregarded. It is not uncommon on return dates to be told that when the order granted by the court was served, the recipients of the order refused to accept them, or threw them to the ground and trampled on them. At its most basic level, this is demonstrative of a rejection of the rule of law, and contempt for its institutions”.’ (footnotes omitted) See also: SA Commercial Catering and Allied Workers Union and others v Sun City (2018) 39 ILJ 436 (LC) at paras [125] – [126]: ‘[125] This should serve as a stern warning to employees who act in contravention of court orders: An order or decision issued by this court binds all persons to whom it applies and if employees consciously, deliberately and knowingly act in contempt of such order, they should not expect sympathy or mercy from this court. They should not expect this court to reward their contemptuous

conduct and it is a factor to be considered when the issue of relief is decided. Effectively the employees are seeking relief from the same court they disrespected and whose orders they breached. [126] Where an employer obtained a court order that interdicts certain conduct and such court order is deliberately breached by employees, it does not only constitute contemptuous conduct, but it undermines the rule of law which cannot be tolerated or condoned.’

[27] See: Modise and Others v Steve's Spar, Blackheath 2001 (2) SA 406 (LAC) at paras [118] to [119]:

‘[118] The strikers' conduct is mitigated by the fact that, according to Savvides, they abided by the terms of the interdict prohibiting picketing within a defined distance of the trading premises, but they did not, despite the interdict, stop striking. Even if the strikers felt disinclined to comply with the ultimatum, they should have obeyed the court order and immediately resumed their work.

[119] It is becoming distressingly obvious that court orders are, by employers and employees alike, not invariably treated with the respect they ought to command. It is a worrying tendency, one which can only be effectively combated by the courts' displaying a marked reluctance to condone non-compliance. Obedience to a court order is foundational to a State based on the rule of law. The courts should by a strict approach ensure that it remains that way.’

See also: Robertson Winery (Pty) Ltd v Commercial Stevedoring Agricultural & Allied Workers Union (2017) 38 ILJ 1171 (LC) at paras [55] – [56]:

‘[55] Nevertheless, the breach of a court order is always serious. It undermines the rule of law. And in the context of collective

bargaining, it undermines the very nature of the constitutional rights to strike and to picket peacefully and unarmed.

[56] The implications of the failure to obey interdicts and how that undermines the rule of law were discussed in a fairly recent article by Anton Myburgh SC. He cited Van Niekerk J’s comments at the 2012 SASLAW national conference:

“The first and fundamental concern is one that acknowledges that what may be at issue is a breakdown of the rule of law, especially where orders are issued and then blatantly disregarded. It is not uncommon on return dates to be told that when the order granted by the court was served, the recipients of the order refused to accept them, or threw them to the ground and trampled on them. At its most basic level, this is demonstrative of a rejection of the rule of law, and contempt for its institutions”.’ (footnotes omitted)

See also: SA Commercial Catering and Allied Workers Union and others v Sun City (2018) 39 ILJ 436 (LC) at paras [125] – [126]:

‘[125] This should serve as a stern warning to employees who act in contravention of court orders: An order or decision issued by this court binds all persons to whom it applies and if employees consciously, deliberately and knowingly act in contempt of such order, they should not expect sympathy or mercy from this court. They should not expect this court to reward their contemptuous

conduct and it is a factor to be considered when the issue of relief is decided. Effectively the employees are seeking relief from the same court they disrespected and whose orders they breached.

[126] Where an employer obtained a court order that interdicts certain conduct and such court order is deliberately breached by employees, it does not only constitute contemptuous conduct, but it undermines the rule of law which cannot be tolerated or condoned.’

[28] (2001) 22 ILJ 1575 (LAC) at para [17].

[29] (2016) 37 ILJ 2485 (CC) at para [46].