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IN THE LABOUR COURT OF SOUTH AFRICA
(HELD IN CAPE TOWN)
Case NO: C640-07
In the matter between
FAWU obo Kapesi and 31 others APPLICANTS
PREMIER FOODS LIMITED t/a BLUE
RIBBON SALT RIVER RESPONDENT
AC BASSON, J
Nature of the proceedings
Most of the workers employed at the Respondent’s Salt River Bakery which trades as “Blue Ribbon Salt River” embarked on a protected strike from 5 March 2007 to 9 May 2007. The individual Applicants, totaling 32 were dismissed pursuant to a procedure in terms of section 189 and 189A of the Labour Relations Act 66 of 1995 (hereinafter referred to as “the LRA”). This Court is called upon to decide on the fairness or otherwise of the dismissal of the individual Applicants.
The fact that a strike took place is not controversial as it is accepted by all parties to this dispute that workers have the right to embark on a protected strike and that they are entitled to engage in (lawful) activities such as picketing and peaceful protest. It was accepted by all parties that the right to strike is a right that is firmly entrenched in our law.
The dispute between the parties1
The union (“FAWU”) and its members (the individual Applicants) embarked on a protected national strike on 5 March 2007 in support of the union’s demand for centralised bargaining. The demand for centralised bargaining was aimed at bringing the wages of rural employees up to the levels of employees in the urban areas.
Certain of the workers at the Salt River plant chose not to participate in the strike, as was their right. Several of these (non-striking) workers as well as members of management were thereafter subjected to violent acts of a severe criminal nature. The Court heard harrowing evidence from some of these victims who recounted that their homes and that of workers who chose to continue working were firebombed and ransacked. In one incident a firebomb was thrown through a window which landed on the bed of the son of one of the non-striking employees. The court also heard evidence of cars and possessions of employees being set alight. These employees were visited at night by groups of individuals who threatened them with physical harm and death. One female employee was dragged from her home at night and assaulted with pangas and sjamboks. Even after the strike had ended, these acts of intimidation and threats of violence did not cease. Even as late as 30 November 2007 the house and vehicle of Mr. Mdleleni were set alight and shots fired at the house. A neighbour, Mr. T Mdlalo subsequently identified some of the attackers. Shortly thereafter Mdlalo was shot and killed near his home.
The court also heard evidence of a conspiracy that was put in place to have the Respondent’s regional director assassinated. Money was in fact collected for that very purpose from some of the striking employees. In summary, this strike was marred with the most atrocious acts of violence on non-striking employees. The individuals who perpetrated these acts clearly had no respect for human life, the property of others or the Rule of Law. What makes matter worse is the fact that it appears from the evidence that the police and the criminal justice system have dismally failed these defenseless non-strikers. Although criminal charges were laid against certain individuals, nothing happened to these charges. The non-strikers were completely at the mercy of vigilante elements who did as they pleased and who had no regard for the life and property of defenseless individuals. It must be pointed out that although a certain measure of rowdiness and boisterousness behaviour are expected or typical to most strike actions, the acts that marred this particular strike were particularly violent and senseless and stretched far beyond the kind of conduct that normally occurs during a strike. The witnesses who gave evidence in Court were visibly traumatized by the acts of these vigilantes.
Strikes that are marred by this type of violent and unruly conduct are extremely detrimental to the legal foundations upon which labour relations in this country rest. The aim of a strike is to persuade the employer through the peaceful withholding of work to agree to their demands. As already indicated, although a certain degree of disruptiveness is expected, it is certainly not acceptable to force an employer through violent and criminal conduct to accede to their demands. This type of vigilante conduct not only seriously undermines the fundamental values of our constitution, but only serve to seriously and irreparable undermine future relations between strikers and their employer. Such conduct further completely negates the rights of non-striking workers to continue working, to dignity, safety and security and privacy and peace of mind. In this regard Mr. Oosthuizen for the Respondent also argued that this type of conduct by striking employees will destroy the workplace relationship after the strike is over. In this regard Mr. Lavery (“Lavery” - the Respondent’s regional director for the Western and Eastern Cape) testified that it would constitute a threat to harmonious inter-personal relations between staff if the Applicants were allowed to return to work. I am in agreement that it is difficult to envisage how workplace relationships can be re-established after a particular violent strike marked by intimidation (and especially to the degree in this particular case) comes to an end and how one can expect to resume a workplace relationship with someone who is suspected of having set your car alight or having petrol-bombed the room in which, but for a fortunate coincidence, your child would have been sleeping. I will return to this aspect when I consider an appropriate remedy in the event of a finding that the dismissal was unfair.
I must, however, pertinently point out in all fairness to Mr. Kahnowitz (who acted on behalf of the Applicants), that he was at great pains to repeatedly emphasise the point that the Applicants were not in court to defend criminal actions by strikers on non-strikers. Mr. Kahnowitz also did not dispute the fact and employer (and this Respondent in particular) is entitled to take action against individuals who perpetrated these acts of violence. What was, however, in dispute was that these particular Applicants were involved in these acts of violence in light of the common cause fact that their participation in these acts of violence has never been proven.
As a result of the violent conduct which marred the strike, the Respondent on 7 March 2007 obtained an urgent interim order against the Applicants to interdict violent conduct during the strike. The order was granted on an unopposed basis and confirmed on 23 April 2007, also on an unopposed basis.
The strike was settled on 9 May 2007 and the striking employees returned to work. The individual Applicants were served with notices of suspension on 9 May 2007 which read as follows:
“Please be advised that due to allegations of serious misconduct committed by yourself during the current strike on centralised bargaining, you are hereby suspended on full pay pending disciplinary procedures. You will be notified shortly of the date and time of the disciplinary investigation”.
The suspended employees (and in some cases shop stewards) Mncedisi Bonongo, Ntsikelelo Bonongo, Persius Dunjana, Bethwell Nonjola and Sabelo Sijila were served with notices of disciplinary enquiries to be held in the period 12 June 2007 to 14 June 2007. The charges against them related to alleged participation in, inter alia, incidents of criminal misconduct.
By letter dated 14 June 2007 the Respondent informed the union that the hearings involving shop stewards and scheduled for that week had been postponed. All affected shop stewards would, however, remain on suspension. The Respondent also indicated that the hearings will be rescheduled.
Mrs. Elliott (“Elliot” - an employee of the Respondent) was tasked to transcribe the numerous statements from individuals who came forward with information pertaining to the various acts of violence perpetrated against them (the non-strikers). These statements were submitted into evidence before the Court. Some of the deponents cannot be identified from the statements as their names have been blacked out. Elliot gave detailed evidence on how she recorded the information given to her. She testified that certain of the employees specifically requested that their identities be kept secret. Her evidence in this regard was not seriously challenged. All of these statements formed part of the documents placed before the Court. In some of the statements the deponent would identify the culprits by name. In other statements the victims of violent acts were only able to recount the events but were not able to identify or name the culprit/s. It is significant that the greater majority of statements in which culprits are identified by name it is not possible to identify the deponent.
On behalf of the Respondent it was argued that in respect of these statements and in view of the fear of harm and victimization, there exists a clear and compelling reason why hearsay evidence by the person fearful to testify should be admitted. It was also argued that it is in the interests of justice to admit such statements. To do otherwise, so it was submitted by Mr. Oosthuizen, would mean that the threats and intimidation which was the reason why the informants were reluctant to testify would produce precisely the undesirable result sought by the perpetrators. I will return to this submission (and the admissibility of hearsay evidence in the context of disciplinary hearings) hereinbelow where I consider whether or not it was possible, despite the violence and intimidation, to have proceeded with a disciplinary hearing. I have to point out however, that although I accept that, in certain circumstances, it may be warranted (and even desirable) to receive hearsay evidence, it should be borne in mind that a Court is not a substitute for a disciplinary hearing. If the employer decided not to hold disciplinary hearings it cannot come to Court and then request the Court to admit the very same evidence which it (the employer) decided not to use in disciplinary hearing in order to prove the guilt of an employee. I must, however, in all fairness to Mr. Ootshuizen point out that it was not submitted on behalf of the Respondent that the hearsay evidence (the various witness statements) should be admitted in order to prove the guilt of the Applicants, he submitted that it should be admitted merely to establish the existence of an operational requirement and to demonstrate that the Respondent followed a meaningful process of consultation before dismissing the Applicants in terms of sections 189 and 189A.
Lavery testified that he accepted the credibility of the deponents because they came to the Respondent to give information about the violent and criminal incidents. When asked whether he was not fearful that some of the persons who supplied information were supplying false information, he said: “It wasn’t, under the circumstances for people to come forward and give evidence of that nature exposes them to risk…”. Lavery even believed what he was told by a certain Mr. Wiseman Xhongo (“Xhongo”), one of the key perpetrators of serious criminal acts during the strike but who subsequently decided to assist the Respondent. Xhongo made statements to the Respondent in which he described some of the violent acts in chilling detail. Lavery conceded that he was not sure whether Xhongo had told them everything and in fact later watered his evidence down by stating that “certainly aspects of his testimony was credible” and “certainly in my opinion he didn’t tell us everything involving his own involvement in some of these issues but there were key parts of this testimony which I believe are credible”. I will return to the involvement of Xhongo in the disciplinary hearings hereinbelow. Suffice to point out that Xhongo was identified as the key witness for the Respondent. He, however, disappeared on the morning of the commencement of the hearings and was therefore not available to give evidence at the disciplinary hearings. It was mainly as a result of Xhongo’s disappearance that the Respondent then decided to abandon the disciplinary hearings and to proceed with a section 189 process.
On 16 June 2007 labour advisor Sydney Badenhorst (“Badenhorst”) met with management to give his views on the prospects of success on a case by case basis.
By way of a letter dated 9 July 2007, the Respondent gave the union notice of possible dismissals for operational requirements in terms of section 189(3) of the LRA. The employees likely to be affected by the retrenchment were “all employees who committed serious criminal actions during the recent strike”. The reasons for the proposed dismissal were described as follows:
“During the recent strike at Blue Ribbon Bakeries, a number of employees were allegedly involved in serious criminal actions, including but not limited to, assault, arson, intimidation and shootings. Their conduct makes it impossible for the company to continue to employ these employees as there is a significant threat of further violence. We are unable to take disciplinary action against these employees as witnesses are too scared to give evidence.”
On 11 July 2007 the Respondent requested the CCMA to facilitate consultations in terms of section 189A of the LRA. Facilitation meetings followed on 1 August 2007, 23 August 2007, 29 August 2007, 7 September 2007, 25 September 2007 and 2 October 2007. I will return to these meetings in more detail hereinbelow.
On or about 1 October 2007 the dismissed employees were notified that their services would be terminated on 31 October 2007. Their services were consequently terminated on that date.
Essence of the dispute
This brings me to the heart of the dispute between the parties. It was common cause that the Respondent decided not to hold disciplinary hearings against any of the individual Applicants but rather to dismiss the Applicants on the basis of operational requirements. One of the main reasons for this decision was (as already pointed out) the disappearance of one of the key witnesses (“Xhongo”) on the morning when the disciplinary hearings were scheduled to commence. In the circumstances the Respondent then decided to initiate consultations in terms of section 189 and 189A of the LRA relating to the proposed termination of the Applicants on the grounds of operational requirements. It was strongly in dispute whether or not the conduct of the strikers in question did indeed constitute an operational requirement (I will return to this point in some detail hereinbelow). Although some of the individual Applicants were identified as culprits in statements made by various individuals and submitted to the Respondent (to Elliott), the acts of violent misconduct allegedly committed by the individual Applicants have never been proven. In other words, allegations of involvement of the individual Applicants remained mere allegations.
The main contention on behalf of the Applicants was that the Respondent was not entitled to substitute the misconduct proceedings (which involve charging the employees with misconduct and requiring them to appear before a disciplinary hearing and proving their guilt) with a section 189 (operational requirement) procedure. I will point out hereinbelow that it was also the Respondent’s case that it was not possible to proceed with disciplinary hearings against the individual Applicants because witnesses disappeared and others were too afraid to testify. In the circumstances the Respondent therefore decided to abandon efforts to proceed with disciplinary hearing and rather to initiate consultations in terms of sections 189 and 189A of the LRA relating to the proposed termination of certain of Respondent’s employees on the grounds of operational requirements. The Respondent therefore submitted that the incidents of criminal violence posed a threat to the running of the Respondent’s business and that it therefore had no option but to resort to the retrenchment route to dismiss the Applicants.
The dispute according to the pleadings
The Applicants pleaded as follows:
that the dismissals were automatically unfair in terms of section 187(1) of the LRA in that the Respondent desired to rid itself of union members whom it perceived as militant was the true reason for the dismissals.
alternatively , that the dismissals were unfair in terms of section 188(1) of the LRA in that the reason for the dismissals was misconduct and the Respondent was not entitled to rely on section 189A to dismiss employees for reasons of misconduct. In essence it was argued that the use of a operational requirements procedure - where the dominant reason for the dismissals is in fact misconduct - is not permissible under the LRA and is per se unfair.
further alternatively , and in any event, that the dismissals constituted substantively unfair retrenchments in that:
(a) they were not for a fair reason as contemplated by section 189A(19)(a);
(b) they were not operationally justifiable in terms of section 189A(19)(b);
(c) the selection criteria used were not fair and objective.
The Respondent denied that it retrenched employees in order to rid itself of union members who were militant and supportive of strike action. The Respondent further pleaded that the dismissals were for a fair reason based on its operational requirements, the reasons being that: “It had reason to believe that they had committed acts of serious criminal conduct”; “It was unable to take disciplinary action against them due to the fact that the witnesses to the acts of criminal conduct had been too afraid to testify”; “It feared that the individual Applicants would commit further acts of violence”; “It did not wish to continue to spend money on additional security”; “It wished to be able to focus its efforts on managing its business without the fear for further violence’; “The victims of the criminal conduct no longer wished to work with the individual Applicants”; and “Section 189 is a legitimate vehicle for terminating the employment of employees under circumstances where incidents of serious criminal conduct, which had a profound impact on the business of an employer, occurred and where it was impossible to take disciplinary action against such employees”.
Rationale for the dismissals: The Respondent’s version
I have already pointed out that it was the case of the Respondent that because the strike was marred by death threats; assaults; arson and intimidation against the persons and property of employees who did not participate in the strike, these incidents of criminal violence posed a threat to the running of the Respondent’s business. It was further submitted that as a result of these criminal acts (especially acts of death treats and intimidation of potential witnesses) the Respondent was unable to take disciplinary action against those suspected of complicity in these acts. The disappearance of their star witness also played an important role in deciding not to go the disciplinary hearing route. It was therefore submitted that the Respondent had no other option but to use the retrenchment procedure to dismiss them. Lavery gave detailed evidence about information received by the Respondent regarding the incidents of criminal violence. He referred to the information received about “attacks on people’s homes, ransacking of the homes, burning of cars, threatening to burn (the Respondent’s) vehicles”. He also testified that after the strike had started he also “got indications” that an assassination had been planned on him. Not surprisingly he was also extremely concerned for his safety. Although Lavery testified that he had “little doubt” that the incidents of criminal violence were related to the strike, he conceded in cross-examination that some were unrelated. He explained that these acts of criminal violence posed a serious threat to the Respondent’s business. He also gave evidence to the effect that the criminal acts would have an impact on future collective bargaining and future labour relations. The gist of his evidence was as follows:
“Absolutely, one of the key issues, and again we got information a little later on in the situation, was that there was further allegations of strike action being planned which would be more powerful than this one and that management were to be taught a lesson, to be frightened so that they wouldn’t try to keep the plant going should there be another strike. It was very clear to me that if there were no consequences to the actions taken during that strike we would have a very, very problematic industrial relations environment at the plant”.
Lavery also explained under cross-examination that these acts would have had an impact on the day-to-day running of the business:
“there was a strong likelihood in my opinion that had those people come back onto site that we would have had further violence, not only in terms of their presence back on site but also in terms of the relationship with the people that had suffered the violence and therefore based on that we could not continue to run the operation effectively and it was an operational requirement that we couldn’t continue the employment relationship with those people”.
These acts would also, according to Lavery, have had a negative impact on the future harmonious and inter-personnel relations between the staff. He explained this with reference to the fact that the victim of a petrol bombing would have to work together with co-workers who were implicated in the incident.
The Respondent led evidence to the fact that it had intended taking disciplinary steps against the perpetrators of the incidents of criminal violence. Arrangements were made for a chairperson from an employer’s organisation to chair the disciplinary hearings. For the more sensitive cases it was arranged that an independent labour advisor (Badenhorst) would act as initiator. The first disciplinary hearings would have involved five employees. They were, according to Lavery lumped together because they were the more senior people. In respect of the other people Badenhorst had been asked to manage the process and in doing so he would have regard to the various statements that had been given to the employer. Once Badenhorst had investigated the various statements he would draft and press charges against those which he believed were the perpetrators. During this process, Badenhorst interviewed the deponents of the statements to verify that what they had said was correct and to explain to them the procedures that would be followed. The deponents were also asked if they would be willing to testify at disciplinary hearings. The criteria used in determining provisionally whether a charge should be preferred against someone was that “there must be some evidence to the effect that the person did perpetrate whatever the event might have been”.
Badenhorst interviewed a total of twenty people who had given statements. Except for four individuals, all of them were employees of Blue Ribbon or its labour broker Staffgro. Three people who had given statements were not prepared to come and talk to him and a further three spoke to him but told him that they were not going to testify at a disciplinary hearing because “they were afraid for their lives, or being assaulted or whatever the case may be”. On Monday 11 June 2007, Badenhorst also interviewed Xhongo. This interview took place a few days before the first hearing at which Xhongo was scheduled to testify. In respect of Xhongo’s evidence Badenhorst testified that at that stage “having worked through all the witnesses that were prepared to testify, as well as two people who made statements but were not prepared to testify in any event, (he) came to the conclusion that there was only one star witness which I could use in the disciplinary hearing that gave me the (facts) around the total incident”. The following appears from the statements obtained from Xhonga: He confirmed that striking workers destroyed the home of Nothula Makaleni; attacks were planned on Blue Ribbon Trucks; striking employees were responsible for the burning of Zoar Mdlaleni’s car; striking employees wrecked Sage Jooste’s house; striking employees made petrol bombs which were then used in the attacks on the homes of Charmaine Smuts and Vivienne Tywala and that money was collected from employees in order to hire someone to assassinate Lavery. The statement of Xongo is, as already pointed out, a chilling account of what had transpired and what was planned during the strike (assuming that the statements were true). Given therefore the importance of his evidence, arrangements were then made by the Respondent to have Xhongo held incommunicado, and to have him transferred to a non-unionised workplace in the Eastern Cape after he had given evidence. At 05h00 on the morning of the first disciplinary enquiry at which Xhongo was scheduled to testify, Mr. Lambert of the Respondent (“Lambert”) called around at the caravan park where Xhongo was staying only to find that he had disappeared. Staff at the caravan park confirmed that Xhongo had a lengthy telephone conversation on the public payphone the previous day and that he had been visibly upset and shaken thereafter. To this day the Respondent does not know whether Xhongo is alive or what had became of him. The Respondent submitted that it is overwhelmingly probable that someone had threatened the safety of Xhongo and his family in a sufficiently serious manner to cause him to disappear.
Badenhorst was asked about the witness statements of the witnesses that he regarded as key witnesses and what the distinguishing factors were in respect of their evidence:
“All (the) evidence, or the statements that were given, most of them, if not all of them, were hearsay evidence. And second-hand information that was passed on. It wasn’t people actually there to observe somebody doing specifically that. There were other people outside of them, like the family members or friends, or whatever, that could physically identify people. And they related that to them, and they used that in their statements”.
Badenhorst testified that neither Charmaine Smuts, Zoar Mdlaleni, Vanecia Bowers or Nokutula Mdlaleni were considered to be key witnesses and that of the three witnesses only Xhongo was prepared to talk to him and to testify at the hearing. The witnesses Makeleni, Mdleleni and Smuts, who testified in this Court about the acts of violence against them, indicated that they would have been prepared to testify at the disciplinary enquiry, but that they could not give evidence of any value as none of them were able to identify the persons who had attacked their homes or cars. The Respondent’s case was therefore that absent the evidence of Xhongo, there was virtually no admissible evidence upon which a case could be made out against any of the transgressors save for one or two. According to the Respondent the fact that Xhongo had disappeared had a material impact on the possible success of the disciplinary hearings.
Lavery and Badenhorst subsequently had a discussion during which Badenhorst said to Lavery “that his predicament was that although he had a lot of hearsay evidence he did not have people that could actually testify specific issues and specific incidences that had taken place and it was his advice that at the time he didn’t think if those disciplinary hearings were challenged that we would have much chance of succeeding in court.” Lavery also testified that as a result of the disappearance of Xhongo, the Respondent had concerns about the safety of the other witnesses. If the evidence of Badenhorst is perused it would appear that he was more concerned with the success of the disciplinary hearings than with the safety of the witnesses. Badenhorst was asked where the disappearance of Xhongo left him in respect of the enquiries against other employees. He answered as follows: “I had no case, except circumstantial” and “All their evidence, or the statements that were given, most of them, if not all of them, were hearsay evidence. And second-hand information that was passed on. It wasn’t people actually there to observe somebody doing specifically that. There were other people outside of them, like the family members or friends, or whatever, that could physically identify people. And they related that to them, and they used that in their statements”.
Badenhorst subsequently explained to the management staff at a meeting that “the role that Wiseman would play in the total hearing and the successful prosecution of the case, and that without him we didn’t have a case in any of the other complaints that were laid”.
It was put to both Lavery and Badenhorst that disciplinary hearings could have been held in respect of those individuals who were suspected of complicity in the various incidents of criminal violence. Lavery specifically testified that it was their inability to hold these hearings which resulted in them considering the operational requirements route. He reiterated that the Respondent was faced with a situation in which their witnesses had disappeared as well as with a situation where witnesses were not prepared to give evidence and that the Respondent was concerned about their safety. Badenhorst was specifically asked in cross-examination why he had not proceeded with disciplinary proceedings and why he did not merely rely on the statements which he had. Badehorst replied that in the disciplinary hearing that he had chaired in the past, the principle was that the other side had to be heard. He was also asked what had stopped him from trying to convince the chairperson of the hearing that he should take into account the evidence of Xhongo in the form of a sworn affidavit. Badenhorst responded as follows:
“As I indicated to you, I do not believe that in disciplinary hearings you can use documentary evidence only and no supportive evidence”.
Mr. Kahanovitz challenged Badenhorst on this statement and put it to him that Badenhorst did have sufficient evidence which could have corroborated what was in Xhongo’s sworn affidavit. Badenhorst conceded that he had witnesses who could have come and testify about the fact that a house was attacked on a particular day and what happened at the house. This was confirmed by witnesses Charmaine Smuts, Zoar Mdlaleni, Nokuthula Makaleni and Nosamdile Sindelo. All of them were able to testify as to incidents of criminal violence although they could not identify the perpetrators. It was further put to Badenhorst that the sworn affidavit of Xongo gave him “a basis to put up a case that needs to be answered”. Badenhorst respondent by saying: “With very little success, I suppose you’re right, yes”. He also conceded that once the alleged perpetrators were before such an enquiry they would have had to answer to the allegations against them and would have had to give a version. The initiator would then have had an opportunity to cross-examine them. Badenhorst was also specifically asked that “if one says that what Mr Xhongo had to say constitutes evidence which is good enough to retrench people, why should that evidence not be good enough for a disciplinary hearing?” Badenhorst responded as follows: “Because the principle still remains that you’ve got to prove what you’re saying, and if you don’t have the evidence to prove it other than hearsay evidence, or circumstantial evidence, you don’t have much of – success”. Badenhorst was then asked the following question: “But if it’s not fair to dismiss people in disciplinary hearings with evidence of that quality, why is it fair to dismiss them in retrenchment with evidence of that quality? He answered: “I cannot comment on that”. It was also put to Lavery in cross-examination that disciplinary proceedings “...do not have to be particularly sophisticated. All that you have to do is tell the employee what the allegations are against them and give them an opportunity to give a version as to what they have to say about the allegations”. Lavery stated that he understood this but went on to say that the Respondent could not disclose the identity of witnesses to the alleged perpetrators and also could not disclose details of the incident itself or the victims. He said: “I think any divulging of any sort of information relating to (the charge) would then identify the victim”. It was put to him that such details would inevitably have been revealed in the course of polygraph testing but he responded that it would suffice to ask a person “Did you on the 29th burn somebody’s house”. Lavery then stated the following: “the key thing is that you would not have a scenario where the (victim) who didn’t want to give evidence would have to face…the perpetrators of that violence face to face in a hearing”. Lavery also stated that his major concern at that stage wasn’t only disappearance of witnesses or the refusal of witnesses to give evidence but that the 189 process (because of the facilitation process) was less antagonistic. He also believed that they would have had fewer problems if they had followed the 189 process as opposed to following a disciplinary process. It was also put to Lavery that “the trigger for the decision to go the section 189 route” was the conversation where he had formed the view that the risk attached to going the misconduct hearing route was that “if those people were dismissed there was a strong chance that the CCMA might overturn those findings”. Lavery conceded “[t]hat [this] was one of the factors, yes” but stated that although the situation of having the disciplinary processes overturned was an issue, the safety issues were of more importance. Lavery, however conceded that “[o]ur case was basically built around three key bits of evidence or three key witnesses. Two of them had disappeared and one of them had said he’s refusing to give evidence”. On behalf of the Applicants it was argued that this amounted to a concession that the key factor was the loss of key witnesses rather than the concerns for the safety of the body of witnesses.
One witness, even on the Respondent’s own evidence, was willing to testify in respect of some incidents of criminal violence. Mr. Willem Kruger (“Kruger”), a trained security officer hired to provide security services deposed to an affidavit in which he stated that he was able to identify the perpetrators of a particular incident. Lavery was asked why the Respondent did not run a disciplinary hearing with his evidence. He answered: “The circumstances that we faced at that stage was not a single perpetrator of violence. It was a group of people, and usually problematic acts of misconduct that had occurred”. It was put to Lavery that there could not have been any reason why a security officer who witnessed threats to set a company truck alight, could not have been called to a disciplinary hearing. He answered: “Should that have been an individual case on its own, yes, I would have agreed with you”. Badenhorst was asked the same question; He replied that “[t]here was sufficient evidence in this specific case, which is an isolated case, of a person that was a stand-alone witness to certain events”. He couldn’t explain why management did not proceed with this case. He said that he had indicated to management at the meeting of 16 July that there were “one or two” cases where he believed that there were good prospects of success.
Lavery was also challenged by Mr. Kahnovitz in respect of the evidence that the Respondent could not proceed with the hearings because of safety concerns. “Mr Kahanovitz: But if that version was true then you would never have announced that there were going to be disciplinary hearings in the first place…The key factor for me which resulted in us changing that approach was the disappearance of the two key witnesses”.
Reference was made to the fact that the Respondent brought an urgent application to interdict the strikers. Mr. Kahnowitz took issue with Lavery because he had been prepared to give a mandate to the Respondent’s attorneys to prepare an application to the Labour Court based upon the evidence of a number of witnesses who implicated employees in serious crimes (but who were not prepared to give evidence in a hearing). Lavery confirmed that this was the case. It was also put to Lavery in cross-examination that nothing had been done to test the credibility of the informants on which the Respondent had relied. Lavery simply stated that, in their view, their witnesses were credible. He also stated that once they have decided to follow “a no-fault operational requirements process” they did not deem it appropriate.