Tarsistep Group (Pty) Ltd v AMCU obo Sonwabile and Others (JR 1950/20) [2023] ZALCJHB 260; [2024] 1 BLLR 87 (LC) (15 September 2023)

IN THE LABOUR COURT OF SOUTH AFRICA, JOHANNESBURG

Not Reportable

case No: JR 1950/20

In the matter between:

TARSISTEP GROUP (PTY) LTD

Applicant

and

AMCU obo S SONWABILE & 18 OTHERS

1st Respondent

CCMA

2nd Respondent

COMMISSIONER JOHN MASHIKA N.O.

3rd Respondent

Heard: 26 June 2023

Delivered: 15 September 2023

JUDGMENT

MAHOMED, AJ

Introduction

[1] This case like most others which come before this court involving the question of derivative misconduct has the shadow of cloak-and-dagger.

[2] The applicant approaches the court under section 145 of the Labour Relations Act[1] (LRA) for an order that the court review and set aside the CCMA arbitration award and substitute the award with an order that the dismissals were substantively fair.[2]

[3] The test on review is well known and need not be repeated. It is not an appeal. It is a stringent test of review.

[4] Whilst the representatives for both the applicant, Mr Wissing and the first respondent, Mr Cook addressed me on the question of procedural fairness, I do not deal with the question of procedure in this

judgment. It is simply not before the court. The Notice of Motion whilst seeking a wide order of review of the CCMA award in prayer 1, is constrained in prayer 2 to only seeking an order of substitution on the question of substantive fairness. No procedural fairness is mentioned in prayer 2 of the Notice of Motion and accordingly even if I were to find that the award is reviewable on the question of procedural unfairness, the Notice of Motion does not seek that I substitute such aspect of the award or remit such portion of matter back to the CCMA for determination. After the filing of the Supplementary Affidavit the applicant stood by its initial Notice of Motion and did not seek a substitution or remittal in an amended Notice of Motion on the question of the procedural unfairness of the dismissals.

[5] The individual respondents who are members of AMCU were dismissed in November 2019 for derivative misconduct. They rendered services at the Evander Gold Mining in Mpumalanga. The allegations levelled against them are serious.

[6] The applicant's entire case against the individual respondents is premised upon derivative misconduct. It relates to an incident which occurred on 16 October 2019, wherein it is alleged that the individual applicants:

‘i. Assist[ed] and participat[ed] in illegal mining activities. Derivative Misconduct.

ii. Transport food and supplies to illegal miners and knowledge of strategic positions and assistance.’

[7] Before proceeding further, it is important to record that this court would never condone illegal mining operations and material support being provided in the advancement of such activities. It was also not

suggested by Mr Cook that his client supported such activities.

[8] The applicant submits that the 3rd respondent was unreasonable in his conclusion that the dismissal of the individual respondents was substantively unfair. The applicant submits on review that the reasonable conclusion should have been that the individual respondent's dismissal was fair. I disagree for the reasons set out below.

Derivative misconduct

[9] The applicant at arbitration justifies its position of having moved against the individual respondents on the basis of derivate misconduct.

[10] I deliberately do not get into the question of whether there is any real difference between derivative misconduct and common purpose

further to the recent judgments of the Constitutional Court in National Union of Metalworkers of South Africa obo Nganezi and Others v Dunlop Mixing and Technical Services (Pty) Limited and Others[3] (Dunlop) and NUMSA obo Aubrey Dhludhlu and 147 Others v Marley Pipe Systems SA (Pty) Ltd[4] (Marley Pipe Systems SA) on the application of these principles in our industrial law.

[11] In this case, however, the applicant chose the route of derivate misconduct. It did so deliberately, and this was its case at arbitration as well. It is against this benchmark that the 3rd respondent conducted his arbitration and rendered his award.

[12] Whilst the applicant may well be aggrieved by some of the 3rd respondent’s comments in his award such as "I am convinced that some of the [dismissed employees], though not directly linked nor pointed out as being in the cage, were indeed inside it and know who brought in the food and supplies"[5], this is not a basis for review of the award under the LRA. More is required.

[13] The Commissioner understood the issue before him at arbitration. He deciphered for instance, early in the arbitration that the cage consists of two decks which was an important starting out position on the question of the fairness of the dismissals. In each deck, approximately 50 employees can be carried with both decks taking 100 employees. Of those 100 employees, some were contractors, leaving 41 employees of the employer. Of the 41 employees, only 16 were dismissed.

[14] At arbitration, no witness for the employer was able to identify the individual respondents as having been inside the cage in which the food was located on 16 October 2019. On a reading of the evidence the applicant did not at arbitration prove that that the individual respondents were in the cage that was brought back to surface. This evidence was lacking and was critical in a case of derivative misconduct.

[15] I have some level of sympathy for the applicant. The guilty employees who were in the cage and were providing material support to a criminal act of illegal mining, when the cage was brought back to the surface, dispersed from the cage and essentially hid in the crowd of other gathering miners. Their identification was not easy and required a rigorous level of investigation to identify the culprits. This investigation it appears from the evidence was not properly conducted.

[16] But unlike Molly Kate Kestner and Night Panda’s 2021 single "Hiding in a Crowd" the mischievous employees were not chorusing –

‘I'm done hidin' in the crowd

All my colors comin' out

Livin' out, livin' out, livin' out my life

Found hope in the darkest nigh

Livin' out, livin' out, livin' out no life

Found me, now I'm done hidin' in the crowd.’

[17] Instead, they stood hidden in the crowd or perhaps some in the cage. They would make the producers of the Netflix crime, drama series Money Heist proud.

[18] The evidence was that those in the cage were taken to a separate room and searched. The evidence of the individual respondents who did testify at the arbitration was that they were not even in the cage. This was not properly disputed. This indicates that the cohort identified to be disciplined for derivative misconduct was not a properly identified band. At the arbitration, clocking records were relied upon to prove that the individual respondents were in the cage. At the hearing, Mr Wissing submitted that what placed the individual respondents in the cage was the dropping time and that there was such evidence at the arbitration. Mr Wissing is indeed correct in that Mr Veraart testified about this and he said that "their dropping time is exactly for the time the cage went down. They were the people that was taken out of the cage and the food was left on the floor"[6] The Commissioner himself on page 112 of the record enquires in summary "So the long and short of it is that everyone who was identified as having been in the cage, that person was suspended, charged and dismissed". The witness for the applicant confirmed that this was indeed the case and the Commissioner responded: "Okay. Beautiful…"

[19] The difficulty with all this evidence was that it was general and there was no evidence linking any of the individual respondents to being in the cage at the time it was brought to the surface. Them having been in the general area of the cage is not a basis for their dismissal – it was essential that it had been established that they were actually in the cage when it came to the surface. This the Commissioner clearly understood.

[20] The finding of the Commissioner on inconsistency is also not unreasonable on a conspectus of all the evidence led including the point set out in the paragraph above. The applicant did not deal with the challenge mounted on inconsistency properly at arbitration. It was required to do so.

[21] Two of the factors set out by the Constitutional Court in the Dunlop[7] case relating to derivative misconduct is that the applicant must show that the probable inference is that each employee:

21.1 Was present when the misconduct was committed. The evidence in this case on this factor is lacking against the individual respondents for the reasons set out above.

21.2. Would have been able to identify those who committed the misconduct. The applicant did not lead any clear evidence in this regard.

[22] It is therefore not necessary to even consider the further factors related to the employer needing information, the failure to disclose such information and the rest which are set out in Dunlop[8].

[23] The Commissioner’s finding that the dismissals were unfair cannot be faulted on review, on the basis that his outcome is unreasonable for the reasons set out in the papers in support of the review. His finding on the critical questions was reasonable and the award accordingly does not fall to be reviewed and set aside on the question of substantive unfairness. It falls well within the bounds of reasonableness.

[24] I am not persuaded that there is any reason to grant an award for costs and will not do so.

[25] I conclude with two comments to the applicant and the union, AMCU.

The employer

[26] The evidence was that the mine was porous in the sense that employees and presumably also contractors could bypass security or even worse bribe security personnel by bringing stocks onto the mining area to on-sell to illegal miners. It is hoped that these gaps in security have been closed now with the passage of time.

The union

[27] Whilst the employees have succeeded in defending the award of the CCMA neither the award nor this judgment is to be understood by the employees as a victory in the advancement of illegal mining using the cover of lawful employment to do so. It is not. This point is to be made clear by AMCU to its members on the announcement of this judgment. Its attorneys are required to impress upon AMCU to communicate this position of the court clearly to its members.

[28] I would encourage the applicant and senior AMCU officials in the Mpumalanga area to meet to discuss where illegal mining continues to be a problem at the mine, how the parties can work together to eradicate the problem in the interests of all concerned. Of course, should a member(s) of AMCU be implicated in such criminality the law must take its course and I am sure that AMCU will support such a process in the interest of its other law-abiding members and society at large. AMCU should work with its members and the applicant to determine where illegal mining continues at the mine and which employees are complicit therein. The applicant will provide the necessary guarantees to these employees as envisaged by the court in Dunlop where appropriate.

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

Order

[30] The review application is dismissed.

[31] There is no order for costs.

I I Mahomed

Acting Judge of the Labour Court of South Africa

Appearances

For the Applicant: Henk Wissing Inc – Mr H Wissing For the Third Respondent: LDA Inc – Adv A Cook

[1] Act 66 of 1995, as amended.

[2] Notice of Motion, prayer 1 and 2.

[3] [2019] ZACC 25; (2019) 40 ILJ 1957 (CC).

[4] [2022] ZACC 30; (2022) 43 ILJ 2269 (CC).

[5] Award at para 45.

[6] Record at page 54.

[7] National Union of Metalworkers of South Africa obo Nganezi and Others v Dunlop Mixing and Technical Services (Pty) Limited and Others [2019] ZACC 25; (2019) 40 ILJ 1957 (CC) at para 79.

[8] Ibid at para 79.