San Michele Home NPC v Mahlangu NO and Others (JR1692/19) [2021] ZALCJHB 9 (10 February 2021)

IN THE LABOUR COURT OF SOUTH AFRICA, JOHANNESBURG

Not reportable

Case No: JR1692/19

In the matter between:

SAN MICHELE HOME NPC

Applicant

and

MAHLANGU D N.O

First Respondent

COMMISSION FOR CONCILIATION, MEDIATION &

ARBITRATION

Second Respondent

NEHAWU obo S MOKOBODI AND ANOTHER Third

Respondent

Heard:

9 February 2021 (Via Zoom)

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 at 21:00 on 10 February 2021.

JUDGMENT

TLHOTLHALEMAJE, J

Introduction:

[1] With this application, the applicant seeks an order reviewing and setting aside the arbitration award issued by the first respondent (Commissioner) dated 26 June 2019. In the award, the Commissioner found that the dismissal of the members of NEHAWU, viz. Ms Shalia Mokobodi and Mr Benedict Soai (The Employees), on 20 and 26 February 2019 respectively, was substantively unfair. The Commissioner had following the finding of unfairness, ordered that the Employees be reinstated with retrospective effect.

[2] NEHAWU had through Maseya Attorneys, filed a Notice of intention to oppose. This however was as far as any opposition went, in that despite the filing of the transcribed record of proceedings and supplementary affidavit, no further steps were taken in opposing the review application. Being satisfied that NEHAWU was fully aware of the set-down date and the arrangements made in that regard, the matter was then heard in its absence.

Background:

[3] The applicant is a non-profit organisation and a non-denominational

home for intellectually disabled persons situated in Brakpan, Gauteng. At the workplace are two rival unions, viz. NEHAWU and NUPSAW with the latter being the majority union.

[4] It was common cause that during January 2019, an unprotected

strike action took place at the workplace. The applicant further alleged that on 9 January 2019, employees belonging to both unions, who were then singing and dancing, had confronted a Mr Marius Bosman, its Administrator in his office and handed him a letter of grievances, and demanded that he should leave the premises. He was subsequently escorted out of the premises. Other employees who were not party to the strike were equally subjected to intimidation by the striking employees.

[5] In the light of the employees conduct during the unprotected strike,

the applicant had approached this Court to obtain an urgent interdict on 17 January 2019. Mokobodi was particularly cited as one of the respondents in that urgent application. Notwithstanding the interdict obtained, the unprotected strike and unlawful conduct had persisted.

[6] The Employees were subsequently charged with and dismissed for intimidation, participating in an illegal removal of two employees (Administrator and Social Worker) from the premises, and insubordination. Thirty other employees who were members of NUPSAW were also dismissed for similar misconduct.

The arbitration proceedings:

[7] Having referred a dispute to the second respondent, the Commission

for Conciliation Mediation and Arbitration (CCMA), the matter came before the Commissioner when it could not be resolved at conciliation. At those proceedings, the video evidence sought to be produced by the applicant was not placed in dispute, and it was further conceded that the Employees had participated in the unprotected strike. NEHAWU had however denied that they had participated in acts of intimidation, with its principal contention being that the Employees were coerced into joining the strike.

[8] The applicant had led the evidence of Bosman, Ms Mathabo Harmse, and Ms Bernadine Vos. Bosman’s evidence was essentially that Mokobodi was identified from video material as part of the group that had participated in the unprotected strike action, and that together with Soai, they were part of the group that forced him out of his office and the premises. According to Bosman, the incident was the third at the employer, with other senior officials having been forced off the premises through intimidation during strikes that took place in the past.

[9] Mathabo Harmse’s testimony was that she was a Social Worker at the institution. On 9 January 2019 she was at work when she saw the striking employees, who were singing, marching to Bosman’s office and demanded that he should leave the premises. She confirmed having seen Bosman being escorted out of his office to his vehicle in the parking lot, whilst being verbally abused. She had identified Soai as part of the group, and had testified in regard to how the experience had left her terrified and shaken.

[10] Harmse further testified that after escorting Bosman out of the premises, the striking employees then came back to the office area where they found her sitting at the reception area. At some point she was given a copy of the ultimatum (grievances) to read out. The next minute the group, which was shouting and swearing at her, instructed her to also leave the premises, and she was also escorted out.

[11] She testified that she was certain that the Employees were part of the group, as she had specifically identified Soai as part of the employees who had formed a ‘guard of honour’ as she was being escorted out of the premises. She confirmed also having seen Mokobodi as part of the group that had approached her when she was at the reception area, after Bosman was escorted off the premises.

[12] Vos’ testimony was essentially to confirm that the Employees were part of the singing and dancing group that had confronted Bosman and escorted him out of the building.

[13] Mokobodi’s testimony was that she was performing her duties when she and other employees other than those that were caring for children, were approached by a NUPSAW shop steward and told to join the strike. The shop steward had approached them in an aggressive manner, and they were forced into joining the strike. One of the employees who had refused to join the strike had the wheels of his bicycle damaged by the striking employees and as a result, they

all joined the strike as they were scared.

[14] Soai’s testimony was essentially that he was a member of NEHAWU. He was attending to other work when he came across the striking employees who were then escorting Bosman out of the administration building. He denied that he was part of the striking employees and had merely been in the building when the incident happened. He had not ‘intended’ to be part of the strike as it called by NUPSAW, and he only became part of it out of fear to

avoid being labelled and being subjected to victimisation.

Commissioner’s conclusions

[15] The Commissioner in finding that the dismissals were substantively unfair concluded that;

15.1There was no evidence to show any form of intimidation or any form of pressure exerted on the Employees leading them to participate in the demonstration on 9 January 2019.

15.2Since the Employees had however testified that they had acted in fear based on their previous experiences (i.e. the consequences of refusing to participate), they had opted to ‘play’ along with the strikers in order to save themselves from potential if not actual harm.

15.3The dispute before him was distinguishable from that of the other 30 employees whose dismissal was confirmed by the CCMA, on the basis that the Employees in this case had no intention to participate in the strike, unlike in the other case where members of NUPSAW had joined the strike called by their union.

15.4Since the Employees had long service and could have on a balance of probabilities acted out of fear, the applicant should have considered these mitigating factors before dismissing them, and thus the dismissals were substantively unfair.

The grounds of review and evaluation:

[16] It is not necessary to elaborate on the numerous grounds of review raised in view of my conclusions that they all have merit. The test on review need no repetition, other than to reiterate that the principal enquiry is whether the outcome arrived at by the

Commissioner in the light of the material placed before him falls within a band of reasonableness. Thus, a reviewing court as stated in Goldfields Mining South Africa (Pty) Ltd (Kloof Gold Mine) v CCMA and others,[1] must ascertain whether the arbitrator considered the principal issue before him/her, evaluated the facts presented at the hearing and came to a conclusion which was reasonable[2].

[17] In this case, the inescapable answer to the above enquiry is that based on the material that was placed before him, the Commissioner’s conclusions falls far short of the band of reasonableness based on the following;

17.1The Commissioner clearly vacillated between speculation and credibility findings. It could not have been logical nor reasonable for the Commissioner to on the one hand, find that there was no evidence that the Employees were intimidated into joining the strike and the misconduct in question, and yet at the same find that the Employees may have been induced by fear and intimidation into joining the strike and the misconduct they are accused of.

17.2Given the applicable standard of proof in such cases, the Commissioner was enjoined to determine whether or not on a balance of probabilities, the Employees were intimidated into joining the strike and being in unison with the conduct complained of, and not whether they may have been intimidated by other striking employees.

17.3Once it was established as common cause that the Employees were part of the unprotected strike, and once the Commissioner had accepted that there was no evidence that they were intimidated into joining the strike, and that they had taken part in acts of intimidation and participation in the illegal removal of Bosman and Harmse from the premises, in my view, that ought to have been the end of the enquiry. Inexplicably, the Commissioner however ignored all of the evidence of the applicant’s witnesses in regard to the inhumane treatment meted out to them, when they were literally evicted from the building.

17.4All the three witnesses on behalf of the applicant had identified the Employees as part of the group that was involved in acts of

misconduct complained of, and the Employees’ versions as correctly pointed out on behalf of the applicant as to how they

became involved were indeed far-fetched. This is even more so, in circumstances where they had either denied being part of the striking employees, and yet at the same time alleged that they had joined the strike out of fear of harm to themselves if they did not.

17.5On the whole therefore, the glaring evidence before the Commissioner was that indeed the Employees had not only participated in the unprotected strike action, but were also positively identified as part of the employees who had also committed acts of misconduct.

17.6To the extent that the Commissioner was required to determine the appropriateness of the sanction of dismissal, an enquiry in that

regard ought not to have been confined to the Employees’ personal circumstances. In any event, it is trite that an employee’s

long period of service is not on its own a saving grace. There is therefore an obligation on Commissioners to weigh those personal

circumstances as against the nature of the misconduct in question, the impact of that misconduct on the employment relationship, and the employer’s operations, and the general demeanour of the Employees in regard to the conduct in question.

17.7In this case, inasmuch as the Employees had prolonged periods of service, at the same time, it should however be taken into account

that the nature of the applicant’s operations is such that it was responsible for the care of extremely vulnerable members of our society, who needed utmost care and sensitivity in the light of their special needs. Those patients that needed care, did not deserve the extra burden of having to fend for themselves, whilst the striking employees ran amok and chased care givers off the premises.

17.8Further to these factors is that the Employees were part of a mob that had unlawfully and in an intimidating and unconscionable manner, removed officials of the applicant who were going about their primary duties. Ms Harmse had described the humiliation and the fear that she had endured as she was being insulted and sworn at by the mob, as she was also removed her from the premises. Vos had expressed similar fears at seeing Bosman being removed from the premises. Clearly the manner with which Bosman was removed from his office and the premises, which was accompanied by racist songs, taunting and general harassment, speaks volumes about the Employees’ conduct. It is no wonder that Vos had testified that the Employees could not be reinstated after that experience.

17.9In the light of the above considerations and the impact of the misconduct on the applicant’s operations and on its other employees who were going about their normal duties, it is apparent that the Employees’ personal circumstances could not have

trumped over everything else.

17.10 A further consideration is that notwithstanding the Employees’ representative show of sympathy for Harmse at what she had endured,

there is no evidence that the Employees had on their own, shown any form of contrition for their actions, or took stock of the

consequences thereof. Instead, their defences as already indicated, were far-fetched and clearly fabricated. This was despite the clear evidence of the applicant’s witnesses that they had fully participated in the strike and unlawful conduct. That evidence was further supported by video material, which was conceded to at the arbitration proceedings, which had demonstrated their participation

in the conduct complained of. In these circumstances, I fail to appreciate how the Commissioner could possibly have concluded that a reinstatement with no consequences was appropriate.

Conclusions:

[18] Having had regard to the above and the overall approach of the Commissioner, it apparent that he clearly made contradictory findings, and other than that, he had relied on speculation rather than the discernible facts that were before him. It therefore ought to be concluded that the Commissioner had misconceived the nature of the enquiry he was called upon to undertake, had completely ignored relevant evidence, had failed to properly apply his mind to material issues at hand, and had committed various other irregularities in the conduct of proceedings. It follows that his award cannot stand, as the findings and conclusions reached therein are not those that a reasonable Commissioner faced with the same material could not have arrived at.

[19] Further having had regard to the conclusions reached herein and the pleadings and all the relevant material before the Court, no purpose would be served by remitting the mater back to the CCMA, and the Court is in a position to substitute the award of the Commissioner.

[20] To the extent that the review application remained effectively unopposed, there is no basis for a costs order to be made.

[21] Accordingly, the following order is made;

Order:

1. The arbitration award dated 26 June 2019 issued by the First Respondent under case number GATEK3375-19 is reviewed, set aside and substituted with an order that;

‘The dismissal of Ms Shalia Mokobedi and Mr Benedict Soai by the Applicant was substantively fair’

2. There is no order as to costs

___________________

Edwin Tlhotlhalemaje

Judge of the Labour Court of South Africa

APPEARANCES:

For the Applicant:

F Venter, instructed by AJ Stone Attorneys

For the Third Respondent:

No Appearance

[1] [2014] 1 BLLR 20 (LAC)

[2] Ibid at para 16