Vision Integrated Workers Union and Others v Sandton Plant Hire (PTY) Ltd (JS 360/19) [2021] ZALCJHB 468 (29 April 2021)

IN THE LABOUR COURT OF SOUTH AFRICA, JOHANNESBURG

Not reportable

Case no: JS 360/19

In the matter between:

VISION

INTERGRATED WORKERS UNION

1st Applicant

WILLIAM

MODIBA

2nd Applicant

JOSEPH

MASINA

3rd Applicant

THE

DISMISSED EMPLOYEES OF SANDTON

PLANT HIRE (PTY)

LTD

4TH Applicant

and

SANDTON PLANT HIRE (PTY) LTD

Respondent

Heard: 09,10,11 November 2020, and 11 December 2021

Delivered: This judgment was handed down electronically by circulation to the parties’ legal representatives by email. The date and time for hand-down is deemed to be 10h00 on 29 April 2021.

Summary: Illegal Strike – Miscategorising of dispute does not deprive this Court its jurisdiction – burden to present evidence- right to be heard before decision to dismiss is taken- Reinstatement of employees who were not on strike.

JUDGMENT

MABASO, AJ

Introduction:

[1] Before this Court is a dispute wherein the Applicants contend that it relates to an automatically unfair dismissal.[1][2] The parties are: Third and Further Applicants,[3]and Sandton Plant Hire (Pty) Ltd (the Respondent). Vision Integrated Workers Union (the Union) is a party herein as all Applicants[4] are its members.[5]The Second Respondent is a union official, and the parties agreed that his name be withdrawn in these proceedings as it was erroneously included.

[2] Eight witnesses testified in these proceedings. Immediately after evidence tendered, this Court ordered that the Third Applicant, Mr Joseph Masina (Mr Masina), be reinstated. Both reasons for that Order, and whether or not reinstatement is with retrospective effect are contained in this judgment.

The issues:

[3] The issues to be determined in this judgment are:

3.1 Whether the dismissal was due to union membership or based on the allegations that the Applicants participated in an illegal industrial action (Nature of dismissal);

3.2 What were the reasons for the reinstatement of Mr Masina? Is reinstatement from the date of dismissal or not?[6] (Mr Masina);

4.3 Was Mr Thami Makhathini part of the said strike (Mr Makhathini)?

4.4 Was the dismissal procedurally and substantively fair? (Fairness)?

Relevant background

[5] The following evidence is common cause, as it was either undisputed or conceded during the trial.

[6] With the exception of Mr Masina, on 26 November 2018, all Applicants were issued with dismissal notices following the accusation of participating in the unprotected industrial action; which took place between 21 and 26 November 2018. Mr William Modiba (the Union official) stated that Mr Masina told him that the dismissal was because of their union membership. Hence the referral was in terms of section 187(1) of the Labour Relations Act

(LRA).[7]

[7] In November 2018, the Union and the Respondent signed a recognition agreement as the latter had obtained sufficiently representative status within the Respondent.[8] This means that the Union had organisational rights (access for officials, deduction of subscriptions, shop stewards). Moreover,

these rights are succinctly spelt out in the recognition agreement.[9] Furthermore, the agreement states that for the Union to be able to exercise the rights to negotiate wages and conditions of employment; and other substantial issues, it would have to enjoy a majority status (majority representativeness).[10]

[8] On foot of signing the recognition agreement, on 21 November 2018, the Union and the Respondent had a meeting wherein the union officials inter alia had tabled demands to the Respondent to consider the payment of a ‘production bonus’ and a year-end bonus. The Respondent rejected the demands. As a result of the impasse, the Union successfully sought permission to address its members, which took place within the Respondent's premises.

[9] While the meeting was in progress, Mr Pieter Fourie (Mr Fourie), of the Respondent, issued the first ultimatum calling upon those workers to go back to work, which the Union official received. This ultimatum inter alia reads thus:

"place on record that your failure to return to work following the Union Feedback meeting amounts to illegal industrial action which will not be tolerated…The Company is however still willing to engage with employees in a peaceful manner through ... [the union official] but will, however, not engage the Union unless normal production levels have been restored."

[10] This ultimatum directed the employees to resume duty by 16:30. The Union official communicated the contents thereof to the employees. The Respondent issued a second ultimatum, consisting of similar contents but now directing that they resume duties no later than 16:45. When the latter ultimatum was issued, "the workers were still gathered" where the Union official addressed them.

[11] On 22 November 2018, employees returned to work and found that the gates were locked. A final ultimatum was issued directing workers to resume their duties. Furthermore, the Respondent indicated that those employees on strike were being issued with final written warnings and warned that failure to comply would result in dismissal. In an email sent at 11h00, on the same day, the Union responded by acknowledging that the employees stopped working and that:

"items were unresolved [on] 21/11/2018 …lead to employees stop working feeling that the employer not considering them 1. The issues of representatives. 2 the bonuses and end year break."[11]

[12] On 26 November 2018, the Respondent, again, directed a correspondence (the SMS) to the employees reiterating the issue as per the ultimata and that a pending disciplinary hearing of Mr David Lioumo (Mr Lioumo) was a separate issue and which did not justify the illegal strike, and requested the employees to provide it with a written undertaking of their intention to return to work by 07H00 on 27 November 2018. On the same date, the Respondent sent a letter to the Union stating inter alia that,

"as a final act of good faith, you are hereby requested to provide the Employer with the Union's undertaking, by no later than…17h00, to stop the illegal industrial action and to present themselves at work to resume their normal duties and responsibilities on 27 November 2018

at 07h00. A failure to submit this written undertaking, the Company will have no alternative option but to dismiss all employees that participated in the illegal Industrial action…"

[13] The Union response, before the deadline, was that

"…after engaging with our members for a mandate our members are stand solid and firm on the issues raised with the Employer as follow

1. the dismissal of David Liumo's charges

2. The [year] end bonus and approval of leave days

3. Payment of the days that [the Respondent] lock them out

If [the Respondent] can put that in document then employees will go back to work on the 27/11/2018…"

[14] According to the Union official, the Applicants did not work from 22 November 2018, but certain workers were working during this period.

[15] It was further common cause that certain union members were reinstated following the dismissal because they appealed the dismissal. The list of those union members was submitted as evidence and marked “E”.

[16] One of the dismissed employees, Mr Mkhathini, who testified, could not remember whether he was around the Respondent’s premises on 22 or 23 November 2018. However, he remembered that he arrived there around 9am. Mr Fourie testified that when he arrived at the Respondent’s premises on 22 November 2018 around 6am, workers were singing and carrying sticks, so the Respondent locked the gates, and security personnel was around the area.

[17] Both the Union official and Mr Lioumo confirmed that the Respondent did not make any demand.

[18] Mr Masina worked for the employer for more than 34 years and became the assistance of Mr Fourie in 1989. He has a clean disciplinary record. He had an accident whilst at work, and then he had to attend therapy on 21 November 2018. On 22 November 2018, he proceeded to work and found that the gates were locked. He called his supervisor, Mr David Anderson (Mr Anderson), who said he should go back home because the situation was not safe and remain home until advised otherwise. Mr Masina only went back to the Respondent in December 2018. On the 13th of even month, he spoke to Mr Fourie, who advised him that “there was a ruling from the CCMA to the effect that those who were affiliated with the union were no longer with [the Respondent]”. He related this to the Union official in January 2019. This was after the dismissal. He explained that he was still seeking reasons as to why was he dismissed “because it is not known to [him].”

Analysis and applicable legal principles

Nature of dismissal

[19] The Respondent contends that the dismissal relates to unprotected strike, not automatically unfair dismissal as suggested by the Applicants; it submits that if this Court agrees with it, then it should declare that it has no jurisdiction to hear this matter.

[20] If dismissal is disputed in a strike-related dispute, an employee has to show that he was dismissed, then an employer will have to prove that the dismissal is fair. A dismissal dispute that relates to automatically unfair, same as the former, is adjudicated in this Court. What is needed is that once evidence has been tendered, the Court will assess whether it has jurisdiction or not. If it has, it will have to pronounce the outcome since it has jurisdiction to hear both strike-related and automatically unfair dismissal dispute; cf. section 191(5)(b)(i) & (iii) and 192 of the LRA.

[21] Usually, a Court has to determine the reason for the dismissal by considering the reason given at the time of the dismissal. However, if an employee is alleging that the dismissal relates to automatically unfair, he or she has to show causation, as Labour Appeal Court (LAC) in DBT Technologies (Pty) Ltd v Garnevska [2020] 9 BLLR 881 (LAC) lucidly clarified the position thus:

“To reiterate: …The Court must determine factual causation by asking whether the dismissal would have occurred if the employee had not taken action against the employer. If the answer is yes, then the dismissal is not automatically unfair…”

[22] Considering the facts of this matter, this Court could not find any evidence that supports the Applicants contention. Instead, their case is gainsaid by Mr Masina‘s evidence, which did not confirm what the Union official said. Instead, Mr Masina clarified that when he approached Mr Fourie, past dismissal, he was advised what the Commission for Conciliation Mediation and Arbitration (CCMA) ruling/process concluded. Therefore, based on the factual matrix herein, the dismissal would have occurred due to misconduct. Therefore, I conclude that the dismissal relates to unprotected industrial action.

[23] It is trite law that this Court has jurisdiction to adjudicate both dismissals relating to strike and union membership. This Court cannot dismiss the matter based on the fact that employee(s) incorrectly categorised it.

Mr Masina

[24] In Ngedle’s matter,[12] the Constitutional Court reiterated that there was no strike if there no obligation to work, even if an employee formed part of the strike. One of the components of the definition of the strike, as per section 213 of the LRA, is that:

"[a] the partial or complete concerted refusal to work, or the retardation or obstruction of work, by persons who are or have been employed by the same employer or by different employers.”

[25] It is common cause, as highlighted above, that the alleged “concerted refusal to work” took place after 14h00 on 21 November 2018, and the Counsel for the Respondent put it to Mr Masina that he was working half day on 21 November 2018. The latter said that he was not at work during the meeting because he had attended therapy sessions. The following day (22 November 2018), the supervisor advised him to stay home until the environment was safe. Moreover, this version was wisely unchallenged.

[26] As Counsel for the Respondent correctly conceded that Mr Masina should not have been dismissed, the evidence before this Court exonerates Mr Masina from the happenings of 21 to 26 November 2018, as his supervisor directed him to remain home until directed otherwise.

[27] This Court, therefore, concludes that since the dismissal was substantively and procedurally unfair in respect of Masina, as he did not receive the SMS on 26 November 2018 nor summoned before a disciplinary hearing; and was not aware of the appeal hearings. He only learnt about the dismissal when he approached Mr Fourie for “wanting his job back”. This Court, therefore, concludes that the reinstatement order should be from the date of dismissal, 27 November 2018, without loss of all benefits and remuneration.

Mr Makhathini

[28] Mr Makhathini, at the time that the statement of claim was filed, formed part of the list of the individual applicants. Unwisely, parties agreed in the pre-trial minutes that the Applicants were to supply the list detailing amount of salaries for each Applicant herein. On the trial date, the Respondent presented this list, but consisting of 45 employees. In preparation for this judgment, I noticed that 5 Applicants (including Mr Makhathini) are not included in this list. I then issued directive to all parties seeking clarity regarding Makhathini’s, but the Applicants attorneys of records provided something that did not assist this Court. Since there is no indication that those individual applicants are withdrawing from these proceedings (as it happened with the Union official), I conclude that they are still involved in this matter.

[29] Mr Makhathini testified that on 21 November 2018 could not attend the meeting when it started as he was working. After knocking off, he claims that his manager, Mr Bredon Muller (Mr Muller), warned him against reporting for duty the following day as “it was not safe” and was to tell him when to return to work. Furthermore, there was a chat group whereby he and one Linda Patricks belonged, which updated each other about what was happening.

[29] During cross-examination, he confirmed that on 21 November 2018, he attended the meeting around 16:50. Mr Fourie issued the first ultimatum read to them by the shop stewards. Consequently, he returned to his workstation. He testified that on 22 November 2018, around 9am went into the Respondent's premises.

[30] He confirmed that on 26 November 2018, he received an SMS inviting them to make an undertaking to return to work by 09 am on 27 November 2018. When confronted about this SMS message and his statement that Mr Muller had advised him to remain at home and return only when advised to do, he said he does not recall if indeed he made such an undertaking. When it was put to him that Mr Muller would testify that he never phoned him to say he should not report for duty. He accentuated his assertion by stating that Mr Muller should produce his cellphone records for such a month.

[31] Since there are two mutual destructive versions before this Court regarding whether or not he was told not to report for duty. This Court reiterates that since Mr Makhathini did not tender services, the burden ultimately lies with him. I weigh up the evidence and apply the probability test; and check the credibility of both of them ,if need be.

[32] Mr Makhathini‘s evidence was about the alleged call, but he stated that he returned to work when he received the ultimatum on 21 November 2018. He referred to Group Chat updating each other about the happenings of the strike. Considering the totality of circumstances, this Court concludes that both the versions of Messrs Makhathini and Muller are possible. However, in addition, in favour of Mr Makhathini is the uncontested version about the group chat. And I observed his demeanour when testifying, for example, where he could not remember something, he easily said so. Mr Muller’s evidence

lasted for less than 2 minutes and he simply said “ I did not call him”.Therefore, this Court rule in favour of Makhathini

that indeed it is possible that he was told by Mr Muller not to report for duty, and that it is possible that Mr Muller has forgotten.

[33] The explanation that he provided in regards to the SMS received on 26 November 2018 inviting him to return to work, he could not remember whether he made such an undertaking or not. Since the Respondent invited parties to make undertakings, and he stated that did not report for duty because he was still waiting for Mr Muller to advise him otherwise. This statement by Mr Makhathini is not convincing because he should have called Mr Muller and or communicate to the chat group about the SMS received.

[34] Based on the totality of the evidence, this Court concludes that Mr Makhathini was not willing to resume duties after being advised to stay away due to safety reasons, but this Court cannot conclude that Mr Makhathini was on strike considering his explanation for the 21st of November 2018 and that at some stage he entered the premises of the Respondent (although he could not remember whether it was on 22nd or 23rd) . And there is no evidence that he “concerted refus[ed] to work” and had a demand as others. This Court therefore

concludes that he was not on strike, as a result his dismissal is both substantively and procedurally[13]unfair.

Fiarness

[34] Before this Court, the Applicants confirm that on 21 November 2018, they were allowed to have discussion with the Union, but later, the Respondent advised them to return to work which they did not do. On the same date, ultimata were issued but still did not returned to work. The following day, they did not present their services but alleged that the Respondent prevented them from doing so. During cross-examination, the Union official confirmed that there were still demands as highlighted above, indicating that such should be met. Even on 26 November 2018, the Applicants were adamant about

their demands, so they were not prepared to return to work until their demands are met. Based on the common cause background, it is clear that the Applicants were involved in an unprotected strike.

[35] Even on 26 November 2018, they were still adamant that their demands should be met, which were unreasonable demands because their Union should have obtained the majority status, as per the collective agreement. Furthermore, the demand for Mr Liomo’s charges to be withdrawn was also unjustifiable, as the Respondent had a right to discipline Mr Liomo. If the latter wanted to challenge the process, he should have approached the relevant Bargaining Council or the CCMA.

[36] The demand for the payment of money during the strike, as they alleged that it was a lockout. The Respondent states that it locked the its gates. However, this was not a lockout because there was no demand from the Respondent relating to mutual interests; therefore, the Applicants demand was unjustified, as were not entitled to demand the payment. In Transport and Allied Workers Union of South Africa v PUTCO Limited, [14] the CC said the following about lockout:

“[32] The purpose of a lockout in terms of section 213 is to compel employees whose trade union is party to certain negotiations to accede to an employer’s demand. Its object is to end a stalemate reached as a result of an impasse in negotiations between employer and employee in respect of matters of “mutual interest”. A resolution of a dispute can be reached only between adversaries. As a matter of logic, then, there must be a dispute between an employer and employees or their trade union before a lockout is instituted. Accordingly, any exclusion of employees from an employer’s workplace that is not preceded by a demand in respect of a disputed matter of mutual interest does not qualify as a lock­out in terms of section 213 of the LRA.

[37] Both the Union official and shop steward confirmed that there was no demand from the Respondent. Therefore, there was no lockout. Consequently, the Applicants withdrew their services and were not entitled to the payment demanded. On this score, their demand was unjustifiable.

[38] No doubt that the withdrawal of services by Applicants was a contravention of their contracts of employment. The Respondent did notify the Union and requested it to encourage them to return to work. Following the first three ultimata, the Respondent again sent them SMSes, but still there was no compliance. All the remaining Applicants at the time of dismissal were on a final written warning issued on 22 November 2018 incorporated in the final ultimatum.

[39] The LAC, recently, in AMCU obo Rantho and Others v SAMANCOR Western Chrome Mines[15], held the following about altimatum:

“It is well-established in our law that where illegally striking employees obey an ultimatum and return to work within the stipulated time, the employer will not be entitled to dismiss them…For those reasons, our law regards an ultimatum by the employer as a waiver of the right to dismiss for the period of its duration. A party who has once approbated (waived a right arising under the contract, including the right to terminate it) cannot thereafter reprobate (seek to enforce that right).”

And

“If the employees refuse to return to work, the waiver implicit in the ultimatum will lapse.”

[40] The issue of breakdown of trust is not novel in this Court. The Applicants were on a final written warning, and they had been on strike for four days. Despite ultimata being issued against them, there was still an unwillingness to go back to work. No mitigating factors were presented before this Court. Considering the seriousness of the breach and the non-attempt to comply with the provisions of theLRA, it is my view that the dismissal of these Applicants was substatively fair.

[41] Concerning the procedural aspect of the dismissal, the Applicants submitted that the dismissal was unfair because they were issued with termination notices without been called before a disciplinary hearing, and the Union official had also reiterated that there were shop stewards also subjected to discipline.

[42] The Respondent warned the Applicants on 26 November 2018 that there would be dismissal if they were not returning to work and communicate same to the Union, and the union responded dismissively.

[43] The Union official testified that the union members were not allowed to be represented by the Union. Instead, “members” were told that they were to be represented by management during the appeal. It is common cause that there was no physical appeal hearing that was held; on 27 November 2018, the Respondent informed the employees that the manner and form of the appeal would be communicated to the shop stewards and the Union. The Respondent vaguely said some of the employees indicated that they did not want union representative to represent them.

[44] It was confirmed that one of the employees that was dismissed was a union official.

[45] Schedule 8 of the LRA provides that:

“4. Fair procedure. — (1) Normally, the employer should conduct an investigation to determine whether there are grounds for dismissal. This does not need to be a formal enquiry. The employer should notify the employee of the allegations using a form and language that the employee can reasonably understand. The employee should be allowed the opportunity to state a case in response to the allegations. The employee should be entitled to a reasonable time to prepare the response and to the assistance of a trade union representative or fellow employee. After the enquiry, the employer should communicate the decision taken, and preferably furnish the employee with written notification of that decision.

(2) Discipline against a trade union representative or an employee who is an office-bearer or official of a trade union should not be instituted without first informing and consulting the trade union.

(3) If the employee is dismissed, the employee should be given the reason for dismissal and reminded of any rights to refer the matter to a council with jurisdiction or to the Commission or to any dispute resolution procedures established in terms of a collective agreement.

(4) In exceptional circumstances, if the employer cannot reasonably be expected to comply with these guidelines, the employer may dispense with pre-dismissal procedures. (Own emphasis)

[46] The LAC, in National Union of Metalworkers of South Africa (NUMSA) v CBI Electric African Cables,[16] held thus, regarding disciplinary hearings,

“[36] …I am not satisfied that the respondent complied with its obligation to provide the employees with an opportunity to be heard before effecting the dismissals after the expiry of the ultimatum. Prior to the pre-dismissal meeting held on 26 June 2007, it is apparent that the respondent had already taken a decision that the employees who took part in “illegal industrial action” would be dismissed … There was a duty on the respondent to afford the affected employees an opportunity to be heard before a decision to dismiss them was taken. The respondent’s failure to do so rendered its decision to dismiss the affected employees procedurally unfair. (Mamabolo v Rustenburg Regional Local Council supra at 144 B – C). For these reasons I hold that the employees’ dismissals were procedurally unfair.”

[47] The evidence presented before this Court, is such that: when the employees were dismissed, there was no disciplinary hearing held as required; furthermore, a shop steward was dismissed without the Union appropriately been notified as required by the items mentioned above. As a result, this Court concludes that the dismissal was procedurally unfair, as there are no exceptional circumstances presented herein, which gave the Respondent not to comply with the items mentioned above.

[48] in the premises, I make the following order:

Order

1. The dismissal of Mr Joseph Masina by the Respondent is both procedurally and substantively unfair. The Respondent is ordered to reinstate Mr Joseph Masina from the date of dismissal.

2. The dismissal of Mr Makhathini by the Respondent is both procedurally and substantively unfair. The Respondent is ordered to reinstate Mr Makhathini from the date of dismissal.

3. The dismissal of the remaining Applicants herein is substantively fair, but procedurally unfair.

4. The Respondent is ordered to pay each of the remaining Applicants a compensation equivalent to one month of their respective salaries, within 30 days of this order.

5. No order as to costs.

S. Mabaso

Acting Judge of the Labour Court of South Africa

Appearances:

For the Applicant:

Instructed by:

For the First Respondent:

For the Second Respondent:

[1] S 191( 5)(b)(i) of the of the Labour Relations Act 66 of 1995: If a council or a commissioner has certified that the dispute remains unresolved, or if 30 days or any further period as agreed between the parties have expired since the council or the Commission received the referral and the dispute remains unresolved—(b) the employee may refer the dispute to the Labour Court for adjudication if the employee has alleged that the reason for dismissal is—(i) automatically unfair…”

[1] S 191( 5)(b)(i) of the of the Labour Relations Act 66 of 1995: If a council or a commissioner has certified that the dispute remains unresolved, or if 30 days or any further period as agreed between the parties have expired since the council or the Commission received the referral and the dispute remains unresolved—(b)

the employee may refer the dispute to the Labour Court for adjudication if the employee has alleged that the reason for dismissal is—(i) automatically unfair…”

[2] Act 66 of 1995 as amended.

[3] Further Applicants are referred hereinafter as the Applicants, with the exclusion of Mr Makhathini

[4] With the exception of the Second Respondent.

[5] Section 200(2) of the LRA

[6] Section 193(1)(a) of the LRA.

[7] Act 66 of 1995, as amended

[8] Recognition agreement: [at para 5.2] obtain[ed] a minimum of 25% as members of the total number of employees employed by the Employer…,

[9] Trial bundle, p 270-296

[10] P 34.

[11] P 302, trial bundle.

[12] Transport and Allied Workers Union of South Africa obo Ngedle and Others v Unitrans Fuel and Chemical (Pty) Ltd Limited 2016 (11) BCLR 1440 (CC), para 165 -168.

[13] I deal with procedural aspect below, under Issue D.

[14] 2016 (7) BCLR 858 (CC) (8) March 2016)

[15] [2021] 3 BLLR 236 (LAC)

[16] [2014] 1 BLLR 31 (LAC)