TAWUSA obo Tau and Others v Barplats Mine Ltd (Crocodile River Mine) (JS105/07) [2009] ZALC 40; [2009] 8 BLLR 822 (LC); (2009) 30 ILJ 2791 (LC) (24 April 2009)

IN THE LABOUR COURT OF SOUTH AFRICA

HELD AT BRAAMFONTEIN

CASE NO: JS105/07

In the matter between:

TAWUSA obo TAU & 305 OTHERS Applicants

and

BARPLATS MINE LTD Respondent

(CROCODILE RIVER MINE)

__________________________________________________________________

JUDGMENT

JAMMY AJ

THE EVIDENCE

1.The Respondent in this matter, Barplats Mine Ltd, carrying on business at a locality known as the Crocodile River Mine, operates as a continuous process platinum mining operation in the Zandfontein District of the North West Province.

2.The Applicant union, the Togetherness Amalgamated Workers Union of South Africa (TAWUSA) is a trade union registered under the Labour Relations Act 1995, duly recognised and representing a body of its members who are the individual applicants.

3.Those individuals comprised the day shift on the mine on 18 December 2006, the shift hours of work being from 07h00 to 15h00 that day.

4.It is common cause that at 07h00 on 18 December 2006, the employees concerned did not go underground and report to their work stations at 07h00 as scheduled but congregated at a locality on the mine close to what is referred to as the bus stop. When designated members of management sought to ascertain the reason for what presented as an unauthorised and unlawful work stoppage, three issues were raised, variously referred to by the Respondents as “demands” and by the Applicants as “concerns”, requiring, they indicated, a response from management. These were the following:

4.1the payment of a Christmas bonus;

4.2 the payment of a new production bonus at the end of December 2006; and

4.3 the removal of a mine captain, certain Mr Christo Swanepoel, from the site in the light of a grievance for assault which had been filed against him.

5.The facts of what then occurred are in dispute. There was interaction between management representatives and more particularly the Mine Manager, Mr A W Hartmann and members of his senior management including the Human Resource Manager, and employees’ spokesmen,

which did not resolve the issues to the satisfaction of the employees, who persisted in their refusal at that stage to go underground and commence their duties.

6.It is further common cause that management, in the face of that refusal, prepared and issued an ultimatum which was distributed to, and ultimately left in the body of, the gathering in the following terms:

“18 December 2006

All employees

CRM – Day Shift

ULTIMATUM TO RESUME DUTIES AS NORMAL

This serves to inform you that this document is an ultimatum to remind you that you are engaged in an unprocedural and unlawful strike action despite receiving various verbal requests to resume your normal duties and responsibilities.

As a result of the above your actions are not protected by the Labour Relations Act. In addition the Labour Relations Act provides that workers who partake in an illegal and unprocedural strike action can be personally held liable for any damages suffered by the company caused by these actions and this includes loss of turnover.

Should you not return to work and resume your normal duties and responsibilities within the ultimatum period, the Company would have the right to do one or more of the following:

Enforce discipline in terms of the Company’s Disciplinary Code, which would result in probable dismissal.

To approach the Labour Court for an interdict declaring your strike illegal and prevent further participation in this unlawful form of industrial action

Please note that you are further warned that the Labour Relations Act makes provision for the possibility of your services to be terminated on operational requirements. As company, employment is subject to Barplats request. If the illegal and unlawful industrial action does not cease, the possibility exists that the client may cancel the current contract.

Management cannot and will not tolerate unprocedural and unruly behaviour and urge the employees to resume their duties and responsibilities as the illegal industrial action cause not only financial losses to the company but also the client.

Should you not resume duties and responsibilities by 11:00 on 18 December 2006, the company will have no alternative to proceed to take steps as set out in the ultimatum. It is again pointed out to you that this will result in loss of jobs.

Please be advised that the no-work-no-pay rule will apply.

Kindly note that management will not enter into any negotiations in regards to our demands until you resume your duties as per your contract of employment.

We hereby urge all employees embarking on unprocedural and unprotected industrial action to obtain advice pertaining to the implications of such actions.

Yours faithfully

Albert Hartmann Chris Mabolloane

Mine Manager” Human Resources

The ultimatum was contemporaneously telefaxed to the Union’s offices in Rustenburg and what then occurred was that the individual employees, in ostensible compliance with the ultimatum, went underground and, the Union contends, reported at their work stations and commenced their duties.

7.That however, according to the Respondent, was not what in fact occurred. In the course of the morning, and through two-way radio communication with the Mine Shift Bosses at the various underground work stations, management was informed that the normal duties of the employees concerned had not been resumed and that normal production was being deliberately impeded.

8.Management’s response to that purported state of affairs was to prepare a further notice in the following terms:

“18 December 2006

To:

Employees Participating in Unprotected Industrial Action

(See Names attached here)

Mr. Kekana

Tawusa

Rustenburg

NOTICE OF LOCK OUT

The ultimatum dated 18 December 2006, served on you at 9h33 on even dated, refers.

You failed to comply with the said ultimatum and are hereby given notice that you are locked out from the premises of the Employer.

The Lock Out will be lifted on 19 December at 14h00 to offer you the opportunity to attend a disciplinary hearing at the premises of the Employer. The notice to attend the hearing is attached hereto.

Take further notice that for the period of this lock out will be “no work no pay”.

ALBERT HARTMANN

MINE MANAGER”

9.This notice, was accompanied by a second document, a “Notice to Attend a Disciplinary Enquiry”, the relevant portion of which reads as follows;

“NOTICE TO ATTEND A DISCIPLINARY INQUIRY

1. Parties to the proceedings:

1.1 To

Employee: ALL EMPLOYEES (see list attached hereto)

From:

Name : ALBERT HARTMANN

Position : MINE MANAGER

You are hereby notified that you are to attend a disciplinary hearing and present the chairman with your version of events as to the alleged misconduct.

2. Charges:

2.1 PARTICIPATING IN AN UNPROTECTED INDUSTRIAL ACTION ON 18 DECEMBER 2006 AND OR;

2.2 ABSENT FROM WORK STATION WITHOUT PERMISSION ON 18 DECEMBER 2006 FROM 7H00 UNTILL 10H00 AND OR’;

2.3 FAILURE TO COMPLY WITH A LAWFULL INSTRUCTION AS YOU DID NOT COMPLY WITH A INSTRUCTION OF Mr HARTMANN ON EVEN DATE AT 7H15 TO RESUME WITH YOUR DUTIES AND OR;

2.4 OBSTRUCTING THE WORK AREA AND REFUSE OTHER EMPLOYEES/CONTRACTORS TO RESUME WITH THEIR DUTIES.

3. The hearing will take place:

Date : 19 December 2006

Place : Crocodile River Mine

Time : 14h00

Chairman : Advocate Hein Gerber

Initiator : Ardu Theron”

It is common cause that at a later stage the charge numbered 2.4 was withdrawn and not pursued.

10.The notice of lock-out and its accompanying disciplinary enquiry notice was handed to each of the Applicants as they knocked off on the afternoon of 18 December 2006 and the lock-out was thereafter comprehensively enforced.

11.There is a further radical dispute of fact regarding the communications then exchanged between the union representative, certain Mr. Kekana and management, the latter contending that a meeting was scheduled to be held on the mine’s premises at 14h00 on 18 December, contrary to the union’s averment that the meeting was scheduled for 14h00 the following day, the 19th December, as purportedly confirmed by them in a disputed letter to the mine of that date.

12.In any event, Mr Kekana duly arrived, somewhat later, on the 19th December with the intention, on the union’s version, of pursuing the proposed meeting in an endeavour to resolve the difficulties which had arisen, and certainly not for the purpose of representation at a formal disciplinary enquiry.

13.A postponement of the enquiry was sought and refused, the mine representative contending that the minimum notice period of twenty-four hours as prescribed in the company’s Disciplinary Code and Procedure, had been given to the Applicants.

14.At that stage Mr Kekana requested “a ten minute break”, to take instructions and it would appear that at the expiry of that period and still in the absence of Mr Kekana and the individual Applicants, the hearing proceeded with the testimony of the Mine Manager, Mr Hartmann, as to what, on the company’s version, had occurred in the course of the incidents in question.

15.At that point, the transcription records, Mr Kekana and the employees returned to the hearing with Mr Kekana recording, (under protest, the union contends) that they were “willing to proceed”. Further evidence as to the events in question was adduced on behalf of the mine and Mr Kekana then called one witness, a shop steward, Mr Tau.

16.It is unnecessary, in my view, for me to traverse in any further detail the substance of the disciplinary proceedings. Suffice it to say that on 20 December 2006, the disciplinary hearing Chairman handed down his findings to the effect that each of the 305 employees charged was guilty of the allegations against them in the formal charges 1, 2 and 3 and ordered that they be dismissed without notice. An aggravating factor was that on 20 March 2006, a collective agreement had been concluded between the representatives of the employee body, at that time employed by an independent contracting company, MGT, but subsequently transferred into full employment by the Respondent, to the effect, inter alia, that –

“The parties commit themselves to ensuring that there are no further work stoppages as well as unprotected strikes.

That the parties commit themselves to peaceful means of resolving issues”.

- and that in a further collective agreement, in this instance between the mine and “ex-MGT employees’ representatives” dated 2nd March 2006, a provision was included that -

“disciplinary action will be taken against those who engage in an illegal strike”.

17.An appeal against that outcome in terms of the Disciplinary Code was in due course rejected.

18.In the course of the extended trial of this matter, three voluminous bundles of documents were, as I have indicated, tabled by the parties and the various witnesses called by each side were subjected to searching and exhaustive examination and cross-examination. Quite apart from the impracticality of any attempt on my part to traverse that testimony in detail, it is in my view and for the reasons which follow, unnecessary for me to do so. I have endeavoured to set out broadly the salient elements of the events which occurred on the 18th and 19th December 2006 and their consequences and for the sake of further clarity they may be summarised as follows:

18.1 The work stoppage which commenced at 07h00 on 18 December 2006 and which continued at least until the employees, in purported compliance with the ultimatum to which they were subjected, returned underground, was unprotected and unlawful.

18.2 It is the Applicants’ contention that with that return, normality was restored and the work stoppage terminated.

18.3 It is the Respondent’s submission that in their alleged failure and/or refusal to resume their normal duties once they returned underground, the illegal industrial action upon which the Applicants had embarked, continued after 11h00, the time of the expiry of the ultimatum.

18.4 This contention was found in the disciplinary proceedings which ensued, to have been established and the individual Applicants were dismissed.

19.The critical factor governing the fairness or otherwise of that outcome and sanction is the basis upon which the 305 Applicants against whom the disciplinary action was directed, were identified. The system in operation on the mine, and more particularly in that division known as Section 2, within which the individual Applicants were employed, involves the preparation each day by an administration clerk, of “gang registers” for each separate “working place” within the section, on which the company number, name and activity of each individual, comprising the team at the specific working place indicated thereon, are recorded. The gang register in each case, which provides for the number of employees present, absent, and “extra”, is signed by the team leader and by the miner in each team. There is an endorsement on each register to the effect that “This document will not be accepted as a legal document if not signed by the miner and the T/Leader of the team concerned.”

20.None of the gang registers before the Court is signed as ordinarily required and the Respondent’s explanation is simply that in the light of the unlawful industrial action on the morning of 18 December 2006, no such registers were issued. Those now before the Court are re-constructions of the registers which would have been applicable to each working place that day, gleaned from the company’s computerised records.

21.Those contentions are rejected in their entirety by the Applicants. Testifying on their behalf, Mr John “Elvis” Toli, the clerk tasked with the preparation of the registers and their distribution each morning to the team leaders of each gang, stated that on 18 December 2006 he had arrived as usual for work at 05h30 when he immediately prepared the registers for each team, the team leader of which, at approximately 06h30 collected that relating to his work place. Again, in accordance with established practice, those gang registers were in due course returned to him completed and signed.

22.Also included in the documentation is a list comprising the company number, name and job description of each of the individual employees alleged to have constituted the morning shift in Section 2 on 18 December 2006 and it is that list, it was stated, extracted and compiled once again from the company’s computerised records, that identified the individuals constituting the body of employees against whom the disciplinary proceedings on 19 December 2006 were initiated. There are certain anomalies in that regard, illustrated in the course of this trial, which are either not, or are unsatisfactorily, explained. The list for instance, includes the name of the administration clerk, Mr Toli and also of employees who worked on the surface and not underground. Once again however, and as will later be apparent, I do not propose to pursue that analysis.

23.The Respondent’s contention that the deliberate intention on the part of its Section 2 employees to impede or hinder normal production following their return to their workstations in compliance with the ultimatum on the morning of 18 December 2006, is evidenced by the computation and measurement of production output during the scheduled period of the morning shift. That, it is submitted, is illustrated by a production schedule, compiled from measurements and volumes taken at the time and which, in broad summary, reflects blasting and production volumes on the day in question of approximately one quarter of the average daily production in that context at the Zandfontein Mine.

THE LAW AND CONCLUSION

24.The fairness of the dismissal of the individual Applicants was challenged by them on both procedural and substantive grounds and I deal first and briefly with the procedural aspect.

25.It is not disputed that the notices of lock-out and to attend the disciplinary enquiry on 19th December 2006 were drafted and prepared

during the course of the morning of the 18th December and whilst the shift was ostensibly working, and were, as has been stated, distributed to each individual as he knocked off and left the mine premises.

26.Section 17.1 of the Company’s Disciplinary Procedure is in explicit terms. It reads as follows;

“17.1 The employee shall be given no less than Twenty-Four (24) hours prior written notice of the date, time and place of the enquiry in the form of a Notice to attend a Disciplinary Enquiry.

17.2 Where possible, copies of relevant documents that the Complainant intends to use in support of his case at the enquiry will be given to the employee together with the Notice of the Enquiry”.

27.There is no suggestion that, save for the lock out notice, any documentation accompanied the notice of enquiry distributed as

indicated. The notice period afforded the employees was theoretically observed, the hearing being scheduled to convene twenty-four hours following the end of the shift. The commencement time was reflected as 14h00 on 19 December which, with the shift scheduled to end on the 18 December at 15h00, was however one hour short of the stipulated period. No issue was made of that specific fact however, but what was challenged, with what I consider to be unarguable justification, was the implementation by the Respondent of the absolute minimum period of notice prescribed in its Code. The union, sited in Rustenburg, was given the same notice and in my view the period and time allowed to it and its 305 members involved to consult and prepare meaningfully for an enquiry upon the outcome of which their future security of employment hinged, was grossly inadequate. I am mindful in that regard of the recorded statement by Mr Kekane at the outset of the hearing that the Applicants were “willing to proceed” but I am unable to discount the submission that that concession was one made under the pressure and in the uncertainty of what was occurring at the time.

28.A responsible assessment of the substantive factors of relevance in this determination however, is significantly more compelling than the procedural dereliction to which I have referred. The 305 individual Applicants were dismissed en masse, without any attempt by the Respondent to define workplace misconduct on the part of any single one of them. The principle of “collective guilt” was examined as long ago as 1987 by the then Industrial Court in -

NUM v Durban Roodepoort Deep Ltd (1987) 8ILJ 156 (IC) at 162H-I

In which, in the judgment of the Court, the following was stated”

“The concept of ‘collective’ guilt is wholly repugnant to our law and any policy in terms of which all members of any group … must bear collective punishment for the wrongdoings of some of the members is unacceptable to this Court because it runs counter to the tenets of natural justice and is a violation of the well-known principle that a person is presumed to be innocent until proved guilty. There is a failure of justice even if a single person is presumed to be guilty and made to suffer with the rest”.

29.That principle was endorsed in –

NSCAWU and Others v Coin Security Group (Pty) Ltd t/a Coin Security (1997) 1BLLR 85(IC)

The following is an extract from the head note:

“In casu the Respondent was relying not on the doctrine of common purpose but on collective guilt, which rested on the assumption that where some wrong was perpetrated by an individual member of the group, the entire group could be punished. This notion was wholly foreign to our legal system and repugnant to the requirements of natural justice. In casu, the whole workforce was dismissed for the acts of misconduct of a few of them. It was possible that some of them did not associate themselves with the acts of the perpetrators.”

The prolific and respected writer on Labour Law, Dr John Grogan, in his work, ‘Dismissal and Discrimination and Unfair Labour Practices” (2005) examines further the concept of ‘Team Misconduct’ - a situation in which the employer dismisses a group

of workers because responsibility for the collective conduct of the group is indivisible. It is accordingly unnecessary in cases of “Team Misconduct” to prove individual culpability, derivative misconduct or common purpose – the three grounds upon which

dismissal for collective misconduct can otherwise be justified.

30.Examining the Arbitration Award in –

FEDCRAW v Snip Trading (Pty) Ltd (2001) 7BALR669(P)

Dr Grogan refers to what the Arbitrator defined as the essence of “Team Misconduct” which occurs when employees are dismissed because, as individual components of the group, each has culpably failed to ensure that the group complies with the rule or attains a performance standard set by the employer. That definition however is refined by the Arbitrator, as quoted by Grogan, as follows –

“In situations of ‘Team Misconduct’ it is … permissible to act against the entire team if each member has a role to play in attaining the performance standard set for the team. If that standard is not attained each member must be given an opportunity to explain the team’s failure; the person to whom the explanations are given must be objectively satisfied that the team’s failure cannot be blamed on any particular member of that team’”. (My emphasis)

31.That qualification of a general principle was manifestly not applicable in the instant case. There was no attempt by the Respondent to investigate the causes and circumstances of the ostensible loss of production by way of any individual enquiry. The disciplinary

proceedings were arbitrarily and precipitously launched against the whole of the Section 2 workforce without discrimination. That, on any definition, is an unqualified application of what has been described as the “repugnant” doctrine of collective guilt and the mass dismissal which ensued on that basis, was, in my view indisputably unfair.

32.Considerable time and evidence during the course of this trial was allocated to the position of employees on the surface in Section 1 of the mine, the union alleging that they were similarly involved in the work stoppage but who had not been charged. On the basis of that contention, a disciplinary enquiry was instituted against those employees, numbering some eighty, on 22 December 2006 but was not pursued for lack of evidence against them. That event is irrelevant to the issues in this matter and requires no further comment.

SANCTION

33.The dismissal of the individual Applicants in this matter was, as I have determined, unfair and unwarranted in the circumstances in which it occurred. What is not open to dispute however are the facts that an unlawful, unprotected work stoppage for a period of some three to four hours occurred on the morning of 18 December 2006 and that that unlawful conduct on the part of the body of employees who perpetrated it, was in direct breach of the prohibitive provisions incorporated in the collective agreements to which I have referred.

34.The loss of production statistics produced by the Respondent, whilst examined in lengthy detail in the course of cross-examination of the Respondent’s witnesses in that regard, have not been materially challenged and are presumably, in that context, authentic. The likelihood that this is the result of the inactivity underground during the course of the illegal work stoppage however, rather than the consequence of a deliberate impediment thereafter to normal production, which the Respondent contends occurred once the workers returned to their work stations, cannot in my view be discounted. Whilst I have found it unnecessary, for the reasons that I have stated, to make any finding of probable fact on this latter issue, I am satisfied that the acknowledged unlawful industrial action embarked upon would have been at least a significant contributory cause of the loss of production suffered by the company that day.

35.The individual Applicants must, for the reasons which I have stated, be reinstated, but cannot, once again in the context of those reasons, be accorded that remedy with complete absolution. I have in the circumstances given careful consideration to what I consider to be an equitable determination in all the circumstances which govern it. I was informed in the closing stages of this trial that approximately six identified individuals are no longer members of the body of Applicants and I accordingly make the following order in respect of those remaining at this time.

35.1 Apart from those no longer involved, the individual employees listed in the annexure to the Applicants’ statement of claim are reinstated in their former employment with the Respondent in the positions formerly held by them and with the full benefits of that employment.

35.2 That reinstatement however is not retrospective and is with effective from the date of this judgment.

35.3 Each of the individual employee Applicants is to be paid by the Respondent compensation for his unfair dismissal in an amount equivalent to six months remuneration calculated at the wage rate applicable to the grade at which he was employed at the date of

his dismissal.

35.4 Each party having been partially successful in this litigation, there is no order as to costs.

__________________________________________________

B M JAMMY

ACTING JUDGE OF THE LABOUR COURT

24 April 2009

For the Applicants: Mr Morwane – Union official

For the Respondent: Adv H Gerber – Glarinda Kugel Attorneys

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