South African Custodial Management (Pty) Ltd and Another v Union For Police, Security and Corrections Organisation (UPSCO) obo Makatu and Others (JS383/18) [2020] ZALCJHB 273; [2024] 2 BLLR 200 (LC) (20 October 2020)

THE LABOUR COURT OF SOUTH AFRICA, JOHANNESBURG

Reportable

Case No: JS383/18

In the matter between:

SOUTH AFRICAN CUSTODIAL MANAGEMENT (PTY) LTD First Applicant KENSANI CORRECTIONS MANAGEMENT (PTY) LTD Second Applicant And UNION FOR POLICE, SECURITY AND CORRECTIONs ORGANISATION (UPSCO) obo Makatu and 15 others Respondent

Heard: 17-27 August 2020 (This matter was heard via videoconferencing and the parties agreed thereto). Oral submissions made on 15 October 2020 (open Court)

Delivered: 20 October 2020 (This judgment was handed down electronically by distributing copies thereof to the respective parties. The delivery date is deemed to be 20 October 2020).

Edited: 15 November 2023

Summary: Dismissal based on misconduct referred to the Labour Court for adjudication. Alleged automatically unfair dismissal – contravention of section 5 of the LRA read with section 187 (1) of the LRA – prejudicing the union members for participation in the lawful activities of a trade union. Duty of trade unions during a strike action. The trade union members are guilty of misconduct serious enough to warrant a sanction of dismissal. No evidence that the trade union members were dismissed for reasons of participating in the lawful activities of the trade union. The dismissal of the trade union members is substantively fair. The trade union and their legal team spurned an opportunity to be heard thus the dismissal was procedurally fair. Held: (1) The dismissal is not automatically

unfair. (2) The dismissal of the trade union members is both substantively and procedurally fair. (3) The respondent to pay the

costs.

JUDGMENT

MOSHOANA, J

Introduction

[1] This trial was successfully conducted virtually. The parties reached an agreement as to how evidence would be tendered in order to avoid the taint on the evidence. They agreed that each time a witness testifies in a dedicated room, each party would have a person observing the manner in which the evidence is tendered and to verify that the witness testifies without being aided in any manner or shape. Over the extended period of the trial none of the parties’ representatives reported any deficiencies and/or

irregularities in the manner in which witnesses delivered their evidence. Parties presented written submissions, which were orally

defended in an open Court. None of the parties raised a complaint with regard to the manner in which the evidence tendered virtually

was delivered and received. Generally, this Court is satisfied in the manner in which the trial was conducted. Ultimately, it was no different from a trial conducted in an open Court. Perhaps this is what the future holds for litigation in South Africa and the world over.

Background facts

[2] Ordinarily dismissed employees and/or their trade unions tend to be applicants in a matter and employers tend to be respondents. In this matter the opposite obtains for reasons that the employer applied to the Director of the Commission for Conciliation, Mediation and Arbitration (CCMA) for permission to have the dispute referred to this Court within the contemplation of section 191 (6) of the Labour Relations Act[1] (LRA). There are two applicants before me. They both are respective employers of the dismissed trade union members. In this judgment the applicants will be referred to jointly as “employers” and the respondents as “dismissed employees”.

[3] The onset of this dispute is an alleged agreement to pay to the employees of the employers a 16% contribution towards their pension funds in the same manner as government employees in the Department of Correctional Services are dealt with. Union for Police, Security and Corrections Organisation (the trade union) took a view that an agreement was reached that the aforesaid percentage was to be paid by the employers. Suffice to mention that the dispute around the alleged agreement is still pending in the Constitutional Court. Owing to the view of the trade union, a request was made to have a meeting with the employers to discuss the implementation of the alleged agreement. Three days before the meeting and the incidents that led to the dismissal of the dismissed employees, being 23 October 2017, a written request for that meeting was made. A controversy, which shall later be dealt with in this judgment, arose with regard to the purpose and intent of the said written request. The trade union and the dismissed employees contended that the request served as a trade union leave application. The employers did not treat the request as such.

[4] On the morning of 26 October 2017 a meeting between the employers and the dismissed employees took place. The employers understood the purpose of the meeting to being the giving of a feedback and to share an understanding of the 16% contribution issue. It turned out that the dismissed employees had a different understanding. After the employers categorically stated that the 16% shall not be paid, the dismissed employees decoyed, as it were, the representatives of the employers, to deliver the message of non-payment of the 16% to the general staff. The representatives agreed to do so and a notification for a staff meeting was issued.

[5] The meeting was intended to be short and no longer than an hour like the routine staff meetings held in the past. At the meeting the representatives were met by visibly irate staff members and when they explained the position of the employers, they were heckled by the group of staff members present. The staff members demanded to be addressed by the shareholders. An attempt was made to get a hold of the shareholders but ultimately it was agreed with the dismissed employees that such an address will be held on Monday 30 October 2017. There was an indication that due to one of the shareholders being in the United States of America and owing to the time zones differences, they might be available on the other end of the telephone line at about 19h00 South African time.

[6] When the staff was addressed for the second time, the heckling continued unabated by the dismissed employees. They vowed to wait until 19h00 and indicated that they shall not leave the area (Waste Management Area) until their demand of 16% contribution is met. The dismissed employees flatly refused to bring the situation under normality, stating that the meeting was summoned by the employers’ representatives and not them as trade union leaders. The dismissed employees had arrived at work on 26 October

2017 not clad in their work garments.

[7] Between 15h00 and 16h00, it is routinely the time to feed and medicate the prisoners. At that time some staff members were still at the Waste Management Area, whilst some of the dismissed employees had accessed the prohibited control room center. The likes of Mr Sadike, whilst at the control room center, commanded some staff members who were intent of feeding the prisoners not to do

so. It is common cause that in the past when the prisoners were not fed, they resorted to rioting. Lo and behold, when the feeding time went past, the prisoners started a riot. They burnt certain sections of the prison precinct and other dangerous criminals managed to escape given the mayhem that unfolded. Some of the dismissed employees indicated to the representatives of the employers that had they acceded to the 16% demand the riot would not have happened.

[8] One of the representatives of the employer was to catch a flight back to Johannesburg via the Polokwane airport. He was prevented from leaving and other staff members were prevented from leaving the prison precinct. These staff members were effectively held hostage until the following morning.

[9] Ultimately, the dismissed employees were hauled before a disciplinary hearing chaired by an independent practicing advocate of the Johannesburg bar. The dismissed employees faced a catalogue of allegations, which will be spelled out later in this judgment. The disciplinary hearing hit several snags until the independent chairperson recused himself. The employers came to the realization that the dismissed employees will do everything in their power to avoid the conclusion of the disciplinary hearing and as a result took a decision to dismiss the dismissed employees.

Evidence Led

[10] At various stages of this dispute evidence was tendered. Some witnesses tendered in full, their testimonies at the foiled disciplinary hearing and others at the CCMA proceedings. The parties agreed that the transcripts of both the disciplinary and the CCMA proceedings will serve as evidence before me. In addition, oral evidence was delivered before me. The employers tendered the evidence of about six witnesses. For the purposes of this judgment, it is unnecessary to punctiliously recount their respective testimony. The general tenor of their testimony is that the dismissed employees took a concerted and unified effort to prevent them from feeding the prisoners and also prevented them to leave the prison premises. A representative of the employers testified at length about the meetings and interactions with the dismissed employees. He also testified that he was prevented from leaving the prison premises.

[11] On the other hand, the dismissed employees tendered evidence of three witnesses. Largely, they testified that the dismissed employees had no control over the staff members and that the control room center was not a prohibited area. They also testified about the so-called trade union leave. The one witness listened to the testimony of one of the witnesses. The weight of his testimony was tainted thereby. This witness’s testimony was around the events during the meeting with the staff members and the role played by the dismissed employees as trade union leaders.

Argument

[12] As pointed out above, representatives were afforded an opportunity to submit written arguments. Very lengthy heads of argument were filed. In addition, parties were afforded an opportunity to make oral submissions. Such happened in an open Court on 15 October 2020. To a large degree, the employers’ submissions are that the dismissed employees were dismissed for misconduct and that they made themselves guilty of the alleged acts of misconduct. Their dismissal was substantively fair and the contention of inconsistent application of discipline is without merit. With regard to procedure, the dismissed employees and their chosen legal representative spurned the afforded opportunity to be heard. Therefore, their dismissal is procedurally fair. The submission is that the dismissal should be found to be fair in all respects.

[13] On the other hand, the dismissed employees argued that they are not guilty of an allegation of participation in and incitement of a strike action. They believe that they were prejudiced for participating in the lawful activities of the trade union, as such their dismissal is at odds with section 5 of the LRA and effectively automatically unfair. They contend that in not disciplining the plus minus 150 staff members the employers acted inconsistently and as such their dismissals is unfair. Their submission is that the dismissal is automatically unfair alternatively both substantively and procedurally unfair. They seek reinstatement and/or compensation with an order as to costs. In addition, an order awarding the trade union constitutional damages.

Evaluation

[14] This dispute fulcrum on two bases. Firstly, whether the dismissal of the dismissed employees is automatically unfair and secondly if not automatically unfair, whether the dismissal is both substantively and procedurally unfair or not. I shall in this judgment address each question separately.

Is the dismissal automatically unfair or not?

[15] The dismissed employees contend that the employers have breached the provisions of section 5 of the LRA. The relevant section reads as follows:

‘Protection of employees and persons seeking employment

(1) …

(2) without limiting the general protection conferred by subsection (1), no person may do or threaten to do, any of the following –

…

(c) prejudice an employee or a person seeking employment because of past or anticipated –

(iii) participation in the lawful activities of a trade union…’

[16] In other words, the employers have dismissed the dismissed employees in a prejudicial manner after participating in the lawful activities of the trade union. In terms of section 187(1) a dismissal is automatically unfair if the employer in dismissing the employee acts contrary to section 5.

[17] Where an employee relies on section 187 (1), such an employee is obligated to allege and prove contravention of section 5. Since dismissal is common cause in this instance, the employers bore the onus to show that the dismissal was for a fair reason. However, where, as it is the case herein, an employee claims that an employer in dismissing him or her acted contrary to a statutory provision, such an employee bears the onus to prove firstly the contravention of section 5 and secondly to produce evidence credible enough to show that an automatically unfair dismissal has occurred. In the absence of credible facts, an employer is not behooved to justify that the discrimination was fair[2].

Have the employers contravened section 5?

[18] For an automatically unfair dismissal to present itself, an employer must have acted contrary to section 5 of the LRA. Thus, an employee must, through evidence, show that an employer has acted contrary to section 5. In this regard, the dismissed employees allege that the employers prejudiced them after they participated in the lawful activities of the trade union. This Court in NUMSA obo Members v Cullinan Diamond Mine A Division of Petra Diamond (Pty) Ltd[3] had the following to say:

‘[12] The lawful activities of the trade union do not, in my view, mean participating in a strike action. A strike action is not an activity of a trade union but a constitutional right of a worker…Therefore, in my mind, when an employee participates in a strike action he or she is not participating in the lawful activities of the trade union. It may well be so that a trade union may call its members to join a protected strike action, but if an employee does so, he is not carrying out the activities of the trade union but is exercising a right guaranteed in the Constitution.

[27] The grammatical meaning of the word prejudice means harm or injury to a person or thing that may result from a judgment or action especially one in which his or her rights are disregarded. It shall be observed from the meaning that the person to be prejudiced must have rights that are disregarded.’

[19] Regard being had to the facts of this case the contended prejudice is the dismissal because of their participation in the lawful activities of the trade union. In this regard the dismissed employees are behooved to establish, through evidence, the causal link between the prejudice – dismissal - and the participation in the lawful activities. During the testimony of the dismissed employees, this Court was at pains to extrapolate the alleged lawful activities. Ultimately, it appeared to be the dismissed employees’ case that since they were on the alleged trade union leave on the day in question they were not obliged to perform duties, thus they cannot be alleged to be on strike. The alleged trade union activities were the attendance of the meetings with management. During oral argument, Mr Ravele, appearing for the dismissed employees suggested that from 6:00 until 18:00, the dismissed employees were engaged in the lawful activities of the trade union. This is contrary to the evidence presented as to what the lawful activities were.

[20] It was suggested by this Court to Mr Ravele that the argument would make sense if the dismissed employees contended that the 10 allegations of misconduct are not acts of misconduct but lawful activities of the trade union. He submitted that in relation to one of the charges, the dismissed employee who suggested to Mr Starke that they were not there to be lectured, was saying so in performing the lawful activities of a trade union. To my understanding, trade union activities do not simply appear like the sun rising in the morning. They need to be planned.

[21] Section 8 (b) of the LRA makes the point that a trade union has as a right to plan its lawful activities. In my view, it is these planned lawful activities that a trade union member has a right to participate in – section 4 (2) (b) of the LRA. Logically unplanned activities cannot be seen as trade union activities. It is an absurd interpretation of the section to suggest that every activity, as long as it is performed by a trade union member, is the activity of a trade union. The emphasis is on the lawfulness of the activity. Lawful activities must be planned. It is for that reason that the participation in the activities is circumscribed by the constitution of a trade union. Hence section 95 (5)(d) of the LRA requires a constitution to provide for termination of membership. A trade union member who does not act according to the planned and lawful activities of a trade union is bound to be

terminated. Therefore, I conclude that there were no lawful activities of the trade union but sheer acts of misconduct by the dismissed employees. For that reason, the employers did not contravene section 5 of the LRA.

Were the dismissed employees on a trade union leave?

[22] A controversy arose around the question whether the dismissed employees were on trade union leave or not. A trade union leave is one where a trade union representative is granted leave of absence to attend to the activities of a trade union. Such leave is regulated in a collective agreement that seeks to recognize a trade union. The relevant clause of the collective agreement in this matter provides as follows:

‘6.11 Time off for KSCWO Representatives

6.11.1 Each elected Representative shall be granted up to 12 (twelve) pooled working days paid leave of absence every calendar year for the purposes of attending courses and seminars arranged or approved by the HR Manager and intended to improve their effectiveness as Workers Representatives.

6.11.2 The names and numbers of the Representatives to attend specific courses shall be agreed with the Company in writing at least 7 (seven) working days prior to any such course and seminar, upon motivation by the KSCWO regarding the purpose of the event.

6.11.3 Representative(s) attending workers’ events stipulated in clause 6.10.1[4] shall apply for leave on official Company leave forms. As a result of special training needs to provide additional training to Representatives may submit a request in that regard and it will be considered by management whose approval may not be unreasonably withheld.

6.11.4 In the event that such pooled days are exhausted the KSCWO might approach the HR Manager for additional days required to execute the impending matter. Such request will be considered in the light of the company operational needs.

6.11.5 Unused leave/time off as in clause 6.11.1 will not be accumulated and will expire at the end of each year.’

[23] The testimony suggests that after the letter of 23 October 2017, certain processes unknown to the dismissed employees unfolded in order to approve and/or legitimize the so-called trade union leave. This process is disputed by the employers and the dismissed employees failed to call those staff members who allegedly processed the forms. The letter of 23 October 2017 is nothing but a request for a meeting and for those dismissed employees to be released, provided they are on duty, to be part of the requested meeting. In its contents it makes no mention of trade union leave nor the clauses of the collective agreement dealing with trade union leave.

[24] The irresistible conclusion to reach is that the dismissed employees were not on a trade union leave. Later it shall be demonstrated that having attended to work ill-clad, the dismissed employees were intent to withdraw their labour in support of a demand of 16% contribution. There is no doubt that the withdrawal of labour was not preceded by the legal requirements[5] in the LRA. Therefore, the withdrawal, which amounts to a strike action as defined, was unprotected. Ultimately this Court concludes that section 5 was not contravened by the employers. Therefore, the dismissal of the dismissed employees is not automatically unfair.

Breach of section 23 of the Constitution of the Republic of South Africa, 1996 (the Constitution)

[25] This is a somewhat strangely fashioned case. The suggestion is that the plea bargaining entered into between Mr Mulaudzi and the employers breached the rights of the trade union contemplated in section 23 of the Constitution of the Republic of South Africa, 1996 (Constitution). Section 23 (2) gives every worker the right to form and join a trade union, to participate in the activities and programmes of a trade union. The allegation is that because Mr Mulaudzi was not represented by the trade union when he entered into a plea bargain, then the rights of the trade union were breached thereby. This is egregiously preposterous. Workers form or

join trade unions and by so doing they are not to be owned by the trade unions they form or join. They have a choice to call into aid the assistance of a trade union when faced with any difficulty. If they chose not to call into aid the assistance of the trade union, a trade union cannot acquire some rights which entitles it to some sort of damages for breach of an alleged constitutional right.

[26] Section 18 of the Constitution provides that everyone has the right to freedom of association. Section 4 of the LRA expatiates on the employees’ rights to freedom of association. Section 4 (1) (b) of the LRA provides that an employee has a right to join a trade union subject to its constitution. Recently, the Constitutional Court clarified the freedom of association to include the right to disassociate.[6] Therefore, if Mulaudzi chose not to be represented by the trade union, he, as an individual, was exercising his right to disassociate. If for some opaque reasons, Mulaudzi acted contrary to some provisions of the trade union constitution, the remedy is to terminate his membership and not to gain some non-existing right to constitutional damages.

[27] Mr Ravele submitted that this Court retains jurisdiction to deal with the alleged breach under section 157 (2) of the LRA. Of course this argument ignores the fact that in this dispute this Court assumes jurisdiction under section 191 (6) of the LRA. Had it not been for this statutory provision, this Court would ordinarily not have jurisdiction[7]. In a situation where a director of the CCMA refers a dispute to the Labour Court, it is inappropriate for parties to tuck under the wing of that referral disputes not referred by the director.

[28] The Labour Court is a creature of statute. It cannot approbate to itself jurisdiction over a dispute simply because a party had in its pleadings pleaded a case. Additionally, the argument is oblivious of the fact that the alleged violation of the right entrenched in Chapter 2 must be arising from (a) employment and from labour relations, (b) must relate to the conduct by the state in its

capacity as an employer; and (c) the application of any law for the administration of which the Minister of Employment and Labour is responsible. The employers involved in this dispute are not the State[8].

[29] Accordingly, I take a view that a claim for constitutional damages is not properly before me and cannot be astutely tucked under the section 191 (6) referral by the director of the CCMA.

Is the dismissal substantively fair?

[30] In terms of section 188 of the LRA, a dismissal is for a fair reason if it is related to conduct of an employee. Contrary to the allegations of the dismissed employees, they were dismissed for reasons related to conduct. The employers allege that the dismissed employees made themselves guilty of about ten charges of misconduct. Any person determining the fairness of a dismissal, including this Court, must first determine whether an employee is guilty of the misconduct that led to a dismissal, and if so, secondly determine whether dismissal as a sanction is appropriate. It must be pointed out upfront that where an employee faces a catalogue of allegations if the evidence only proves one allegation, a dismissal would be for a fair reason. And if the allegation is serious enough to warrant the sanction of dismissal, then the dismissal will be substantively fair. Hereunder, this Court shall consider each of the ten allegations.

Charge 1

[31] The allegation is that the dismissed employees were responsible for and or orchestrated the unlawful and unprotected strike action which took place on 26 and 27 October 2017 at the Kutama Sinthumule Maximum Security Prison (the Prison). Overwhelmingly, the testimony demonstrated that the staff members refused to commence their duties until their demand of – 16% contribution - was met. They remained at the Waste Management Area since the start of the staff meeting. By definition what in actuality happened was a strike action. Of course the dismissed employees dispute the fact that they orchestrated or they were responsible for the strike action. The intentions of the dismissed employees were made clear from the time they demanded to meet management – being the letter of 23 October 2017. At this time, they had a clear demand – the staff to be paid 16% contribution. This Court is

not hesitant to conclude that the dismissed employees planted a seed in the minds of the staff members that there is an agreement in place to pay the 16% contribution. There is undisputed evidence that the tone of the 10h00 meeting was one that was aggressive and demanding.

[32] Upon realization that what they promised to the staff members is not achievable, they decoyed the two representatives of the employers to deliver the unexpected news. In the ordinary course, where trade union leaders negotiate on behalf of members, they take the responsibility to report back and also obtain, where necessary, a further mandate from the members. However, in this instance, the dismissed employees knew very well that they overpromised and were about to under deliver. They knew very well that the news that the demand was not to be met will ignite an ire, as it did, of the promised staff.

[33] There is clear evidence that prior to the staff meeting, the staff was addressed by one of the dismissed employees who was standing on the golf cart. The testimony of one of the staff member who was present when the staff was addressed remains unchallenged and uncontroverted. On the balance of probabilities, the dismissed employees indeed were responsible and orchestrated the unprotected strike action. Accordingly, they are guilty of charge one. They acted as a unit at all material times. They had one common purpose, to achieve the 16% contribution demand.

Charge 2

[34] It is alleged that they participated in the unprotected strike action. Participation in a strike action take different forms. Some employees may physically be seen toyi-toying as a form of participation. However, the first sign of participation is the withdrawal of labour. On 26 October 2017, the dismissed

employees came to the prison ill-clad. It is common cause that employees at the prison perform their official duties clad in their

work garments. Ineluctably, the dismissed employees’ sartorial splendor was a giveaway. They were not there to attend to their official duties. Their quintessence on this day was to achieve the demand of 16% contribution and nothing more. The dismissed employees on the day withheld their labour to force compliance with their demand. Their solitary objective was to achieve success in their demands[9]. A submission that the employers needed to prove that they were rostered for duty is a red herring, regard being had to their own contention that they were on trade union leave. If they were not rostered for duty they were not expected to be at the prison facilities. On the balance of probabilities, the dismissed employees participated in a strike action. Participation in an unprotected strike action is a form of misconduct. Accordingly, the dismissed employees are guilty of charge 2.

Charge 3

[35] It is alleged that the dismissed employees prevented and/or hampered employees from lawfully rendering their services during the unprotected strike action. Three of the employers’ witnesses unequivocally testified that they attempted to feed the prisoners and were prevented. It is undisputed that the dismissed employees acting in concert of each other took control of the nerve center of the prison. Doors could only be opened from the nerve center. The reasons proffered by the dismissed employees for preventing other employees are feeble and unconvincing. It is clear that on the day, concertedly the dismissed employees employed Stalingrad tactics. On the probabilities of the overwhelming evidence before Court, the dismissed employees concertedly prevented employees from performing their much needed duties – to feed and medicate the prisoners. They are perspicuously guilty of charge 3.

Charge 4

[36] It is alleged that the dismissed employees held senior managerial employees and executives of the employers in the prison against their will and prevented them from leaving the prison at the conclusion of the meeting. The evidence is overwhelming on this charge. The undisputed testimony demonstrated that Mr Starke was supposed to catch a flight to Johannesburg and could not do so. Video footages were shown in Court of employees attempting to leave the prison but failing to do so. The Stalingrad tactics adopted would

not allow easy exiting of the prison precinct. The dismissed employees as a formidable unit took total control of the nerve center

of the prison. On the evidence of Chabalala regarding the concerted and unitary actions, Mr Ravele, submitted in Court that the evidence was wrongfully extracted by the Court when it allegedly cross-examined Ms Chabalala. The Court enquired from Mr Ravele as to what he did when he observed that this Court was cross-examining a witness. In retort, he submitted that he sought an adjournment to seek instruction to ask for the recusal of the judge and he was not so instructed. This submission is at odds with the transcript. It is concerning that Mr Ravele made a submission that was not backed by the trial record. Chabalala was led by Ms Khosa. The following

stubborn facts are revealed by the transcript.

JUDGE: Okay. Alright. Mr Ravele is there anything…I am sorry Ms Khosa, you were leading this witness. Is there anything that arises Ms Khosa?

MS KHOSA: There is nothing arising M’ Lord.

MR ITZKIN[10]: Yes. On the day on the 2th October, the day’s events, the union leadership all acted as a unit and in concert with each other. They took a collective decision how to approach the matter. That is what I am putting to you and you can answer.

MS CHABALALA: Yes.

[37] On the preponderance of probabilities this Court is not hesitant to conclude that the dismissed employees are guilty of charge 4.

Charge 5

[38] It is alleged that the dismissed employees engaged in a grossly insubordinate behaviour using abusive language and intimidatory conduct while communicating their demands to the senior management. The evidence on this charge is quivering and tremulous. The evidence of Mr Starke was that at the 10h30 meeting he was told by the dismissed employees that they were not there to be lectured. In that meeting the employers’ representatives and the dismissed employees were equals. They were sitting around a negotiating table. They served as equals at the opposite end of the table. Therefore, there is no basis for an alleged insubordinate behaviour. A party on the other end of the negotiating table may employ any robust approach in order to win the favour of the other party sitting on the opposite end. Being told that no lecturing is required is far from being abusive and intimidatory. Other examples

provided in Court by Mr Itzkin, appearing for the employers are statements attributable to the group at the Waste Management Area and not necessarily the dismissed employees. Therefore, I am not satisfied that the dismissed employees are guilty of charge 5.

Charge 6

[39] It is alleged that the dismissed employees took control of the prison Central Control Room (CCR) and were present in there without any authority and hampered the normal operation of the prison during the strike. The evidence on this charge is on terra firma. The evidence of Mulaudzi is without any shadow of doubt. The evidence of the dismissed employees that the CCR is a place to be entered freely is without any base and unconvincing. The CCR is the nerve center of the prison as such it cannot be expected that any unauthorized person may freely enter it. As Mr Starke aptly put it, it is more like a cockpit of an aero plane, where only pilots are expected to be. I have no doubt in my mind that only CCR operators are authorized to be in the CCR of the prison.

[40] The video footages depicted most if not all of the dismissed employees being in the CCR. The contention that they entered it to help and observe what was happening inside the prison is patently false and unconvincing. The dismissed employees entered the CCR with one solitary aim, which was to render the prison dysfunctional with the objective to achieve the demand. This was nothing but one of the Stalingrad tactics employed concertedly by the dismissed employees. Accordingly, the dismissed employees are guilty

of this charge.

Charge 7

[41] It is alleged that the dismissed employees utilized the system in the CCR for unlawful and illicit purposes. The evidence demonstrated that the dismissed employees operated the system to keep staff in the facility against their will and issued instructions to prevent employees from performing their duties. In my view this charge is linked to charge 6 and as a stand-alone charge it constitutes an unfair splitting of charges. Since the dismissed employees are guilty of charge 6, it shall be unfair to still find them separately guilty of this charge as if it qualifies to be a stand-alone charge.

Charge 8

[42] It is alleged that the actions and/or non-actions compromised the safety and security of the prison, including the prisoners and employees of the Company and the nearby community and general public. This charge is related more to the ripple effects of their actions. The dismissed employees are trade union leaders. They have certain duties towards the employers. The evidence pointed out that upon being requested to prevail over the staff members to return to work, the dismissed employees refused to do so. Later in this judgment, I shall separately consider the duties of trade union leaders in a context similar to the one that prevailed on 26 October 2016. There can be no doubt that on the day in question the safety and security of persons and property was compromised.

Applying the “but for test”, had the dismissed employees not acted in the manner alleged and/or carried out their duties as leaders, the safety and security of all would have not been compromised. Accordingly, the dismissed employees are guilty of this charge regard being had to their concerted actions and inactions.

Charge 10

[43] The allegations in this charge simply implies negligence. On this day the riot presented an untold mayhem. However, even if the actions of the dismissed employees led to the rioting, they did not solemnly carry the duty to respond to the emergency situation. It cannot be said that because they and others watched the looting they were in a sense negligent and/or they sabotaged their employers in a malicious manner. This Court is not satisfied that the dismissed employees are guilty of this charge.

Conclusions

[44] Ineluctably the conclusion to reach is that the dismissal of the dismissed employees was for a fair reason. With regard to the appropriateness of the sanction of dismissal, the guiding principle is that of fairness. The allegations that the dismissed employees were found guilty of are serious enough to render continuation of employment intolerable. The dismissed employees did not show an iota of remorse on their part. The conduct displayed by them and their chosen legal team during the internal disciplinary hearing speaks

volumes. Thus I am satisfied that the sanction of dismissal was appropriate in the circumstances. It is not fair to interfere with

the sanction of the employers. Therefore, the conclusion I reach is that the dismissal of the dismissed employees is substantively fair.

The duty of trade union leaders during “abnormal situations” at the workplace

[45] It is common cause that the dismissed employees were trade union representatives at the relevant time. It is also common cause that the employers requested them to prevail over the staff members who were congregated at the Waste Management Area and who were refusing to carry out their official duties. The LRA does not directly create duties for trade union leaders in a situation of a strike action. In order to establish that duty, certain provisions of the LRA will require purposive interpretation. The best place to start is section 1 of the LRA.

[46] One of the stated purposes of the LRA is to promote orderly collective bargaining and effective resolution of labour disputes. The word “promote” as a verb means amongst others to ‘encourage; advance; advocate and to help prevent; oppose; discourage; hold back; hinder; obstruct and impede’. The word “orderly” has as its meaning as an adjective ‘free from disorder; neat or well-arranged’. The word “effective” as an adjective means ‘productive of or capable of producing results’. Using those three words together, it must mean that the purpose of the LRA is to discourage disorder and to produce productive results.

[47] Unprotected strike action reeks of disorder and does not produce productive results. This fact all trade union representatives must know. In terms of section 8 (b) every trade union has a right to plan and organise its lawful activities. Such implies that the activities must be lawful. An unprotected strike is not something lawful. Thus, in as much as I held in Cullinan Diamond, that participating in a strike is not an activity of a trade union, a responsible trade union may not be seen to be encouraging its members to act unlawfully. In terms of item 6 (2) of Schedule 8 of the LRA, it is a procedural requirement in an industrial action situation for an employer, prior to dismissal, to at the earliest opportunity contact a trade union official to discuss the course of action it intends to adopt.

[48] This procedural requirement simply implies that a trade union official carries certain responsibilities in the workplace to avoid disorder and ineffectiveness. Most importantly an employer must not simply contact a trade union official but must seek to discuss with that official. This in my view places a trade union official and or representative on the highest pedestal with regard to discipline in the workplace. A trade union official cannot, in my view, adopt a supine attitude when faced with unlawfulness on the part of its members. In Jay Engineering Works Ltd v Staff[11], the High Court in Calcutta made the following observation while interpreting section 17 of the Trade Unions Act of 1926:

‘[N]o protection is available to the members of a trade union for any agreement to commit an offence… When a group of workers, large or small, combined to do an act for the purposes of one common aim or object it must be held that there is an agreement among the workers to do an act and if the act committed is an offence, it must similarly be held that there is an agreement to commit an offence.’

[49] Similar observations are capable of being made in this matter. The dismissed employees observed the staff at the Waste Management Area refusing to recommence official duties yet they did nothing as trade union leaders to quell the situation down and ensure that it returns to normality. Their inaction simply demonstrates one common aim with the staff and an agreement to continue with the unprotected strike action. The conclusion I arrive at is that the LRA, when purposefully interpreted, it places an obligation on the shoulders of trade union leaders to promote order and to ensure effective resolution of disputes within the workplace. The attitude adopted by the dismissed employees that it was the management meeting and they have to deal with the situation was cavalier and unacceptable in the workplace. The attitude can only be interpreted to mean that they were in agreement with the conduct of

the staff. This commands to logic if regard is had to the fact that they ignited the conduct as they were religiously following the narrative that the demand of 16% contribution must be met.

Compliance with item 6 of the Code of Good Practice

[50] The dismissed employees contend that if they participated in a strike action as alleged, the employers failed to comply with item 6 of the Code of Good Practice. Section 68 (5) of the LRA provides that in determining whether or not the dismissal is fair the Code of Good Practice must be taken into account. Item 6 (1) provides that the substantive fairness must be determined in the light of the facts of the case including (a) the seriousness of the contravention of the LRA; (b) attempts made to comply with the LRA;

(c) whether or not the strike was in response to unjustified conduct by the employer.

[51] The dismissed employees seriously contravened the LRA. No attempt was made to comply with the LRA. In fact, they persistently disputed the allegation that they participated in an unprotected strike action. The strike action was not in response to an unjustified action on the part of the employers. The issue whether the DCS report created any rights to the dismissed employees is the subject of litigation. It is pending at the Constitutional Court after the Labour Court and the Labour Appeal Court refused to come to their aid. In fact, the dismissed employees and the employers had agreed that the issue would still be discussed on the following Monday. Therefore, there is no unjustified action on the part of the employers which warranted a strike action as a response.

[52] With regard to procedural requirements, an employer in terms of item 6 (2) may at the earliest opportunity contact a trade union official to discuss the course of action it intends to adopt. Ironically the dismissed employees were trade union leaders. There is undisputed evidence that employees including the dismissed employees were requested to return to work but they refused. An employer should issue an ultimatum and state what is required of the employees and what sanction, if any, would be imposed. The employees should be allowed sufficient time to reflect and respond by either complying or rejecting the ultimatum.

[53] In this matter, it is common cause that a complaint ultimatum was not issued. However, in an instance where it cannot be reasonably expected to extend the steps, the employer may dispense with them. The evidence demonstrated that the day in question was chaotic, which chaos in my judgment is attributable to the conduct of the dismissed employees. Reasonably, it could not have been expected of the employers to take the steps. Management was held hostage; the dismissed employees had taken total control of the institution. Of importance, the dismissed employees were not dismissed on that day. To my mind the steps are to be extended where employees would be dismissed following the strike action without a hearing. However, where the dismissal is preceded by an opportunity to be heard these steps are not of critical importance. These steps do not command to substantive fairness but procedural fairness. Since participation in the unprotected strike action is misconduct, item 6 (2) must be read in conjunction with item 4 (1) of the Code. Accordingly, the conclusion I reach is that failure to follow the steps was reasonably dispensed with.

Was the dismissal procedurally unfair or not?

[54] There is not a scintilla of doubt embedded in my mind that the dismissed employees were afforded more than adequate opportunity to be heard. They actively and systematically spurned the opportunity. They lynched endless impugn on that opportunity. They and their legal team launched spurious applications aimed at foiling the process and they valorously launched attacks on the independent chairperson. Advocate Van As reached a point where it was clear that his person was being attacked professionally. It was not necessary for the employers to appoint a new chairperson when Advocate Van As recused himself and to recommence the proceedings de novo. The authority relied upon of SACCAWU obo Mokebe and others v Pick ‘n Pay Retailers[12] is unhelpful to the dismissed employees. The facts of that case are distinguishable. In that matter the company undertook to afford the employees an opportunity to submit written representations but failed to afford them that opportunity. In Semenya and others v CCMA and others[13], Zondo JP (as he then was), writing for the majority stated the law as follows:

‘[21] …Where the opportunity to be heard is given…and the person concerned spurns that offer or does not make use of it, it cannot lie in such person’s mouth to say that he was not given an opportunity to be heard. In such a case an opportunity to be heard was given and rejected. The audi alteram partem rule has been complied with in such a case.’

[55] Item 4 of the Code of Good Practice requires an employee to be given an opportunity and if the employee spurns such an opportunity through vitriolic denunciation such an employee cannot be heard to complain about failure to be afforded an opportunity to be heard. The conduct of the dismissed employees and their legal team, when viewed as a whole, its sole intention was to frustrate the process. An employee party who systematically, as the dismissed employees did in the present instance, frustrates the process cannot be heard complaining about procedural unfairness.[14] For a period of over three months, the dismissed employees employed every trick in the book to render the disciplinary hearing

dysfunctional. When Advocate Van As recused himself they had wearied down all the earnest efforts by the employers to give them a hearing. The dismissed employees complain about not being provided with witness statements. This is a hollow complaint in the circumstances of this case.

[56] Accordingly, the conclusion I arrive at is that the dismissal was procedurally fair.

Allegations of inconsistency

[57] The case punted for in this regard is that plus minus 150 employees participated in a strike action but only the dismissed employees were charged and dismissed. The parity rule applies in a situation of similarly placed employees. The dismissed employees in the first instance influenced the staff to act in the manner in which they did at the Waste Management Area. They overpromised and under delivered. Secondly, they had a duty to normalize the situation but failed to do so. Comparatively speaking, the dismissed employees were not in a similar situation and carried different responsibilities as opposed to those of the employees they misled. For these reasons, the defence of inconsistency cannot be upheld. The plea bargain of Mulaudzi does not advance the dismissed employees ‘case by an inch.

The defence of failure to employ skeleton staff.

[58] Consistently and persistently without fail, it was put to almost all the witnesses of the employers that the failure to put in place the skeletal staff led to the rioting by the prisoners. This is a self-serving defence lacking in candour. There is uncontested evidence that some staff members attempted but were stopped by the dismissed employees to serve prisoners food. One employee was left stranded in the pods with the prisoners. He persistently pressed the alarm to open the door and was persistently ignored. It is not so that when the meeting took place the prison facility was left hollow. Undisputed evidence was tendered that staff meetings do not last more than an hour. The expectation being that by the time feeding time arrives the meeting would have been over and the situation would be normal. Therefore, in my view, this defence was and remained concaved from the onset. For the above reasons the defence cannot be upheld.

Breach of constitutional duty by the employers as organs of state.

[59] Akin to the failure to provide skeletal staff arose an argument that the employers as organs of state have certain constitutional obligations. It was submitted that the employers had an obligation to ensure that there is a contingency plan for the intended strike action. Having not done so they failed to ensure that the Bill of Rights are realised in the manner expressed in Mashongwa v PRASA[15]. This Court fails to comprehend this submission. As a point of departure, the employers are not state organs. They are private companies and service providers to the organ of state – Department of Correctional Services. Section 239 defines an organ of state as (a) any department of state or administration in the national, provincial or local sphere of government; or (b) any other functionary or institution – (i) exercising a power or performing a function in terms of the Constitution or a provincial constitution; or (ii) exercising a public power or performing a public function in terms of any legislation. I have scoured through the Correctional Services Act[16] and could not find any power attributed to the employers before me. There is no provision of the Bill of Rights that is implicated in this regard. Section 12 (2) of the Constitution finds no application at all. That notwithstanding, I take a view that the issue is tangential. In dismissing the dismissed employees, no exercise of public power is involved.

The issue of costs

[60] The employers persisted with a submission that a costs order is warranted in this matter. I agree. The conduct of the dismissed employees since the disciplinary hearing is one that demonstrates frivolity and vexatiousness. In Public Protector v SARB[17], the learned Chief Justice Mogoeng stated the general law as to costs as follows:

[35] Where a relationship of trust, like an employment relationship, would still continue after the disposition of the case, each party would ordinarily be ordered to pay their own costs, regardless of the outcome.

[61] There is no longer an employer and employee relationship between the parties[18] nor is there a collective bargaining relationship between the trade union and the employers. Therefore, the principle of costs following the results must apply in this matter. In the exercise of my discretion arising from section 162 of the LRA, law and fairness drives me to a costs order.

[62] In the premise the following order is made:

Order

1. The dismissal of the dismissed employees is not automatically unfair.

2. The dismissal of the dismissed employees is both substantively and procedurally fair.

3. The claim of the dismissed employees is hereby dismissed.

4. The respondent trade union to pay the applicants’ costs, which includes the costs consequent upon employment of two counsel.

G. N. Moshoana

Judge of the Labour Court of South Africa

Appearances:

For the Applicants: Advocate F Boda SC with Advocate R Itzkin

Instructed by: Norton Rose Fulbright, Sandton.

For the Respondents:

Mr S O Ravele with Ms I M Khosa of S O Ravele Attorneys, Louis Trichardt.

[1] No. 66 of 1995, as amended.

[2] See: Kroukam v SA Airlink (Pty) Ltd (2005) 26 ILJ 2153 (LAC) and Tshivhase-Phendla v University of Venda [2017] ZALCJHB 491 (12 October 2017)

[3] (2019) 40 ILJ 1826 (LC).

[4] The clause provides that the Company recognizes the right of an Employee to be represented by KSCWO representative, who is a

permanent employee of the company, for the purposes of grievances, disciplinary matters and disputes other than disputes of interest.

[5] Section 64 (1) (a) of the LRA – if the issue in dispute has been referred to a council or commission as required by the Act – and a certificate of non-resolution has been issued or the expiry of the 30 days’ period.

[6] See: New Nation Movement NPC and others v President of the Republic of South Africa and others [2020] ZACC 11 2020 (8) BCLR 90 (CC) at para 22 where it was stated that “the negative element is about the freedom not to associate at all, if that’s the individual’s choice.”

[7] See: Section 157 (5) of the LRA

[8] See: SABC (SOC) Ltd v Keevy and Others [2020] BLLR 07 (LC).

[9] See: Moqhaka Local Municipality v IMATU obo Thebe and Others (JA65/18) [2020] ZALAC 29 (22 May 2020)

[10] As far as I recall, this was done by Mr Boda and the transcript may be wrongly referring to Mr Itzkin.

[11] AIR 1968 Cal 407.

[12] (2018) 39 ILJ 201 (LAC).

[13] [2006] 6 BLLR 521 (LAC).

[14] See: Stoop and another v Rand Water (2014) 35 ILJ 1391 (LC).

[15] [2015] ZACC 36 at para 25.

[16] Act 111 of 1998.

[17] 2019 (6) SA 253 (CC)

[18] See: AMCU and others v Ngululu Bulk Carriers (Pty) Ltd (In Liquidation) and others 2020 (7) BCLR 779 (CC).