Republic of south africa



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REPUBLIC OF SOUTH AFRICA

Of Interest to Other Judges



the labour court of South Africa,

in johannesburg

Case no: J 1081/11

In the matter between:



south african transport and allied workers union (“SATAWU”)




First Applicant

E SEIMELA & 26 others




Second to Twenty Eighth Applicants

and







RAM TRANSPORT SOUTH AFRICA (PTY) LTD




Respondent

Heard: 5, 6, 7 March and 19, 20 and 21 June 2013.

Delivered: 26 November 2014



Summary: (Unprotected strike- dismissal for picketing misconduct).

judgment

LAGRANGE, J

Introduction


  1. This matter concerns the alleged unfair dismissal of 27 employees of the respondent in February 2011, following their participation in an unprotected strike which took place from 25 to 29 January that year. The strike came to an end when this court issued an interdict on Saturday 29 January amongst other things declaring the strike unprotected. The 27 individual applicants are seeking reinstatement.

  2. They were part of a group of approximately 135 employees who participated in the strike. Of that number, approximately 123 were charged with a panoply of various acts of misconduct relating to the strike action and appeared in a collective disciplinary enquiry. The charges against them were as follows:

2. PARTICIPATION IN UNPROTECTED ACTION

You have for the period commencing Tuesday 25 January 2011 until Saturday 29 January 2011 ("Strike Period') despite several ultimatums having being issued, participated in an unprotected and unlawful strike ("Unprotected and Unlawful strike”) in contravention of-

2.1 the Labour Relations Act 66 of 1995 ("LRA”) and

2.2 your Service Agreement incorporating your terms and conditions of employment ("Service Agreement');

2.3 Ram's Code of Conduct

3. INTIMIDATION AND ABUSIVE LANGUAGE

In breach of the LRA, your service agreement, RAM's code of conduct and in contravention of a Court Order issued on the 26 January 2011 in the Labour Court of South Africa held at Johannesburg under case number J1065/2011 ("26 January 2011 Order”) you have-

3. 1. intimidated and threatened non-striking employees, alternatively incited other striking employees to intimidate and/or threaten non-striking employees;

3.2. used abusive or obscene language or gestures towards non-striking employees and/or third parties while representing the company, alternatively incited other striking employees to do so;

3.3. displayed placards outside the RAM Group's premises with words that were offensive to other employees, and/or class of employees, alternatively incited other employees to do so.

4. DAMAGE TO PROPERTY

In contravention of the LRA, your service agreement, RAM's Code of conduct and the 26th January 2011 Court order, you have caused damage to RAM property and the property of fellow employees, alternatively incited other striking employees to do so and/ or were present when other striking employees damaged such property.

5. INTERFERING WITH LAWFUL BUSINESS OPERATIONS OF RAM

5. 1 In contravention of your Service agreement, RAM's Code of conduct and the 26th January 2011 Order you have-

5.1.1. interfered with the lawful conduct of RAM's business operations; and/or

5.1.2 incited striking employees to interfere with the lawful conduct of RAM's business operations, in that you have-

5.1.2.1. prevented and/or delayed RAM vehicles from moving freely into and out of the various RAM premises in Wrench Road;

5.1.2.1. threatened and/ or intimidated third party and/or contract couriers from reporting to RAM premises in order to fulfil their operational duties.

6. FAILURE TO ACT

Despite written notice, you failed, alternatively neglected, alternatively refused to-

6.1. protect the safety of non-striking fellow employees;

6.2. report to RAM any incidents of misconduct you observed protected and Unlawful strike, including intimidation and damage to property that you observed during the Unprotected and Unlawful strike.

7. BRINGING THE COMPANY'S NAME INTO DISREPUTE

7.1. Despite receipt of the 26th January 2011 Order and despite written notice-

7. 1. 1. you have failed, alternatively neglected, alternatively refused to behave respectfully towards your fellow employees and/or your employer and/or members of the public in that, you blockaded the road making it impossible for innocent bystanders and RAM vehicles to pass;

7.2. In contravention of RAM's Uniform Policy you hung up RAM uniforms on fences in the public areas thereby bringing the name of RAM into disrepute.”

  1. They all received final written warnings after pleading guilty to charge 2 (participating in an unprotected strike) and ‘guilty by association’ with the group in respect of charges 3 (Intimidation and use of abusive language), 4 (damage to property), 5 (interference with the business), 6 (failing to act) and 7 (bringing the company into disrepute), during the course of the enquiry. These employees received final written warnings but some were dismissed depending on their disciplinary records.

  2. However, the employer was not prepared to accept pleas of guilt by association in respect of the individual applicants relating to charges 3 to 7 and proceeded with the enquiry in order to prove they were personally involved in such acts of misconduct.

  3. An additional charge of insubordination was laid against The first applicant's two shop-stewards, Themba Tshabalala1 (‘Tshabalala’) and Anderson Timakwe (Timakwe) in the following terms:


"8. INSUBORDINATION

8.1. despite being on paid suspension and despite a lawful and …?reasonable instruction from your manager, Lulu Pretorius on 1 February 2011 to present yourself at your work place, you refused to report to RAM-

8.2. and arrive on the date and time as stipulated on 1 February

2011 (namely 16:00 on 1 February 2011;

8.3. at O8hOO on 2 February 2011 and, only after 2 short message service (SMS) notifications did you report at about 10:30."

  1. Following the conclusion of the enquiry, the chairperson arrived at the following findings in respect of the individual applicants:

    1. their pleas of guilty in respect of charge 2 (participation in unprotected strike action) were accepted;

    2. all except Komanisi were found guilty of intimidation and abusive language (charge 3);

    3. all were found guilty by association with the group as per their plea on charge 4 (concerning damage to property);

    4. all of the group except Komanisi and Dumisani Twala were found guilty on charge 5 (unlawful interference with the business)

    5. On charges 6 (failing to act) and 7 (bringing disrepute) all of their pleas of guilt by association with the group were accepted.

  2. Tshabalala was also found guilty of insubordination and an agreement was reached with Timakwe in terms of which he pleaded to being guilty by association to charges 2 to 7 inclusive, but was found not guilty of insubordination.



  1. All of the group were dismissed except for Komanisi, who was given a final written warning.

  2. The individual applicants are:

    1. Applicant 2 Ernest Seimela

    2. Applicant 3 Titus Maabane

    3. Applicant 4 Tebogo Tholo

    4. Applicant 5 Frans Monene

    5. Applicant 6 Welcome Kunene

    6. Applicant 7 Isaac Mashiloane

    7. Applicant 8 Agrippa Ndlela

    8. Applicant 9 Africa Mogane

    9. Applicant 10 Robert Ndou

    10. Applicant 11 Given Vuma

    11. Applicant 12 Samuel Mkhonza

    12. Applicant 13 Samuel Tshabalala

    13. Applicant 14 Dumisani Twala

    14. Applicant 15 Jackson Ditire

    15. Applicant16 Ben Vuma

    16. Applicant17 Templeton Bontshi

    17. Applicant 18 Luckford Zide

    18. Applicant 19 Brian Thabethe

    19. Applicant 20 Isaac Sefoka

    20. Applicant 21 Lesiba Moloto

    21. Applicant 22 Regwell Ramuhala

    22. Applicant 23 Abel Moloi

    23. Applicant 24 Ryan Kobapshiri

    24. Applicant 25 Abel Gabohewe

    25. Applicant 26 John Mphahlele

    26. Applicant 27 Abel Nhlapo

    27. Applicant 28 Themba Tshabalala

By the time the trial commenced, Mogane had regrettably passed away.

  1. At the commencement of the trial the employer disavowed any reliance on the applicants participation in the unprotected strike and emphasised three aspects of their alleged misconduct for which they were dismissed, namely:

    1. blockading the road running in front of the employer’s premises;

    2. preventing non-strikers and replacement employees from coming to work, and

    3. harassing and intimidating non-strikers and replacement workers.

  2. Essentially, the employer sought to prove that the individual applicants had been involved in acts of harassment or intimidation of non-strikers and replacement workers and that, they had unlawfully interfered with its business by preventing them from coming to work and in blockading the road.

  3. At a pre-trial conference on 17 August 2011, the legal representatives of the parties agreed that this Honourable Court was required to determine the following issues:

    1. Whether the individual applicants changed their plea to guilty and guilty by association with the group;

    2. Whether the representatives of the employees in the collective disciplinary enquiry had agreed with RAM that the employees who had so changed their plea be issued with final written warnings depending on their prior disciplinary record;

    3. Whether RAM was justified in dismissing the individual applicants;

    4. Whether RAM was justified in dismissing the twenty-eighth applicant based on the outcome of his individual disciplinary enquiry;

    5. Whether RAM was inconsistent in its dealings with striking employees;

    6. Whether the individual applicants were selectively dismissed on the basis that they had allegedly made themselves guilty of misconduct other than participating in unprotected strike action;

    7. Whether the individual applicants had indeed committed acts of misconduct other than engaging in unprotected strike action;

    8. Whether the penalty of dismissal was too harsh in all the circumstances;

    9. Whether the twenty-eighth applicant was singled out and whether he was victimised for conducting himself as a shop steward of SATAWU

    10. Whether the disciplinary enquiries of the individual applicants were procedurally fair or whether they were conducted on an ad hoc basis;

    11. Whether charges were being withdrawn and reinstated during the disciplinary enquiries without there being proper notice thereof and without any consideration for fair procedure

As the proceedings unfolded it became apparent that the real issues in dispute were primarily those set out in paragraphs 12.3 to 12.8 (inclusive) and paragraphs 12.10 and 12.11

  1. The trial took place over six days and was split into two sessions a couple of months apart. After the third day of proceedings, the matter was postponed to allow the parties to examine further evidence and try and explore a settlement, but the trial resumed on 18 June. When the hearing resumed, additional video footage relating to the activities of strikers in front of the main gate, the pushing and shoving of a pedestrian (apparently a suspected strike-breaker) and the discarding of ultimatums were viewed as part of the evidence. Schutte

  2. The respondent called seven witnesses to testify on its behalf: Alan da Costa (Da Costa) the respondent's director; D du Toit, who is employed by the respondent in its investigative department and anti-hijacking; Schutte, the respondent's Security and Risk Manager; Sean Wayne Ahmed (Ahmed) the respondent's National Security officer, who was Head of Operations at the time of the strike; Moeketsi Silus Chiloane (Chiloane), the respondent's Operations Supervisor; Frans Madumeja Sebetha (Sebetha), the respondent's Human Resources Operator and Linda Erasmus (Erasmus), one of the Chairpersons of the individual applicants' disciplinary enquiry.

  3. The applicants called ten witnesses to testify: Tebogo Tholo (Tholo, Applicant 4); Frans Monene (Monene, Applicant 5); Isaac Mashiloane (Mashiloane, Applicant 7); Agrippa Ndlela (Ndlele, Applicant 8); Samuel Tshabalala (Tshabalala, Applicant 13); Brian Thabethe (Thabethe, Applicant 19); Regwell Ramuhala (Ramuhala, Applicant 22), Abel Moloi (Moloi, Applicant 23); Abel Gabohewe (Gaohewe, Applicant 25) and Themba Tshabalala (Tshabalala, Applicant 28). It appears that the applicants intended to call Given Mvuma (G Mvuma, Applicant 11) but regrettably he was apparently arrested near the court before he could testify, for reasons unknown to the court.

  4. A numberexcerpts of video footage from security cameras at the respondent’s premises were also viewed during the course of the hearing, accompanied by testimony of various witnesses. The titles of the excerpts shown were ‘Stopping 1’, ‘Frans 1’, ‘Frans 2’, ‘Road Closer’ ‘Firearm 1’, ‘Given 1’, ‘Jackson1’, ‘Jackson 2’, ‘Jackson 3’, ‘Jackson 4’,’Robert 1’ and ‘Tebogo 1’.

  5. The court is grateful to the parties for making a transcript of the proceedings available.


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