National Union of Metal Workers of South Africa (NUMSA) and Others v Transnet National Ports Authority (DA8/17) [2018] ZALAC 41 (29 November 2018)

Principle:

Where a strike by one part of the workforce impacts on the ability of other employees to perform their jobs, an employer will have to prove that the affected employees are also striking.

Facts:

The Marine Services Department of Transnet manages and administers the South African ports. Durban Harbour, with about 59 berths (parking bays), has between 15 and 45 ship movements in a 24 hour period. A ship entering or leaving the harbour is serviced by a tug (with its crew) and the land-based/quayside berthing staff. The employees in this case were part of the land-based/quayside berthing staff, employed as marine shore hands. They performed their duties at the berths where they would await the arrival of a vessel, brought in by the tugs, and would secure it once it is alongside the quay by tying it with ropes to stabilise it. When a vessel departs from the harbour they would untie the robes and a tug would help it move off the berth.

On the day of the unprotected strike Transnet had planned to have 17 ships moving between 06h00 and 18h00 during the day shift, but only 4 ships were moved. The unprotected strike endured for almost 10 hours and ended around 16h00 when it was already late for the employees to resume their duties that day. The shore hands said they did not participate in any form of industrial action and attributed the unprotected strike to the tug crews who had withdrawn their labour. It was therefore not possible for land-based berthing crews to execute their tasks if the tugs did not perform their duties.

Transnet issued a notice headed "notice of disciplinary action for collective misconduct" which informed the employees that they would receive a final written warning for the alleged misconduct and that those who were already on final written warning would be dismissed. The affected employees in this case fell into the latter category and were dismissed with immediate effect as a consequence of their alleged participation in the unprotected strike. According to Transnet the sanction of dismissal was motivated by the serious consequences of the unprotected strike, the employees' untrue denial that they were on strike, the fact that the strike was unprotected and had not been preceded by any dispute resolution process, and that it persisted for a period of approximately 10 hours.

The Labour Court rejected the employees' version and concluded that all of them participated in the unprotected strike. The LC determined that failure to issue an ultimatum did not amount to procedural unfairness, because it was not an invariable requirement. Transnet had expended considerable effort throughout the strike to negotiate with the employees and convince them to return to work, and the employees disregarded the informal 'ultimatum'. The LC also found that there was no obligation to subject the individual employees to a formal disciplinary hearing. They had chosen to deliberately and collectively deny that there had been an unprotected strike, and Transnet complied with the audi principle when it issued a notice and thereafter acted against them.

On appeal the Labour Appeal Court set aside the LC's order. It found that there was insufficient evidence that the berth-side employees were part of the tug crew strike. It also held that the employer could not have expected these employees to carry out their duties in an environment that was unsafe as a result of the illegal strike. The LAC did however uphold the LC's finding that there was no procedural unfairness in not issuing an official ultimatum, and in handling the disciplinary process through collective representations.

Extract from the judgment:

Phatshoane ADJP:

[17]   The individual appellant's main argument is that they did not participate in or associate themselves with the work stoppage of 24 April 2015 and therefore thecourt a quo erred in its finding to the contrary. The unprotected strike was fuelledby other employees of TNPA. It was further contended that the individualappellants did not refuse to carry out any instruction during the work stoppage andthat the Labour Court was incorrect in holding otherwise.

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[23]   The individual appellants' stance that they did not participate in the strike was largely corroborated by Mr Shange's statement, which was attached to their joint representations submitted pursuant TPNA's caII that they reply to its Notice of intention to apply collective discipline, Mr Shange was not called to testify and his statement is not a model of clarity. Nevertheless, its authenticity was not questioned by TNPA. As already alluded to, the statement confirms that crew fourand five of the berthing staff attended to their work at Berth 108. It further states that "after the first job was given, no job was refused by the Berthing Staff because they were at the meeting." The case of the appellants, who were instructed to execute their duties at 13h00 on that eventful day, is that they approached Shangeto enquire how safe it was for them to resume their duties in in light of the gatherings of the tug crews. He promised to revert to them but never did.This evidence is similarly supported by a statement made by Mr Shange to the effect that two crews were instructed to sail E-Shed [Berth E] but had responded that they were scared to execute their task because the strike participants were watching them. There is an obligation on the employer to provide a safe working environment for its employees particularly in the circumstances where there appears to have been tumultuous engagement between TNPA and its tug crews over the latter's demands. In my view, TNPA could not have expected the appellants to carry out their duties in an environment that was unsafe as a result of the illegal strike.

[24]   There are other overriding considerations inimical to the question of identification of the appellants as the perpetrators.

24.1.   Firstly, and chief amongst them is Ms Bhekiswa's evidence to effect that one of the berthing staff employees, during the meeting of 24 April 2015,said that the berthing crew were not on strike but it was "the tugs people".
24.2.   Secondly, the evidence is overwhelming that it was the tug crews who hada grievance with TNPA and not the individual appellants.
24.3.   Thirdly, the work stoppage was precipitated by the same grievance which did not concern the individual appellants.
24.4.   Fourthly, there is no evidence that any of the appellants articulated ademand to TNPA.
24.5.   Fifthly, none of the appellants was positively identified as having participated in the strike.
24.6.   Sixthly, according to Mr Motlohi, the individuals who spoke at the meeting intimated that they were not unionised. At that stage, the appellants had already submitted their union membership forms to TNPA.

Although these issues were not articulated in the collective representation, that the appellants forwarded to TNPA, they were issues that should reside within its knowledge.

[25]   What is clear from the evidence is that the individual appellants were present at the mess hall on 24 April 2015. After all, this is where they had their meals and would receive instructions from TNPA. Whether they withdrew their labour, thus participating in the illegal strike is entirely a different question. In my view, the Court a quo wrongly concluded that the appellants did not give account of their whereabouts. They did. For example, Mr Mbatha's evidence was that after they were turned away from Berth 108 he went to the mess hall and waited outside for further instruction. Ms Mpungose says she was in the rest room awaiting further instructions which were given at 13h00 but could not be executed for fear of the safety of her crew.

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It bears repeating that the individuals appellants could not have executed their part of the work in the absence of the tug crews. On the basis of the aforegoing analysis, I am of the view that TNPA failed to demonstrate that the individual appellants refused to work (or obstructed work for approximately 10 hours on 24April 2015. The Court a quo erred in concluding that the dismissal was substantively fair. The opposite prevails, the dismissal was substantively unfair.

[28]   In light of my conclusion that the individual appellants did not participate in the strike, it is not necessary to traverse the aspect whether TNPA's numerous verbal ultimata were sufficient in persuading them to resume their duties. By parity of reasoning, this also applies to NUMSA's contention that TNPA ought to have sought its intervention during the April 2015 unprotected strike.

[29]   It is common cause that TNPA did not hold a disciplinary enquiry against the individual appellants in accordance with the procedure laid down in its own disciplinary code. It is trite that the purpose of a disciplinary inquiry is to determine guilt and the appropriate sanction to be meted out to an employee. I hasten to state that nothing bars an employer in case of alleged collective misconduct to deal with the employees involved as part of a collective as opposed to individuals. Relying on Avril Elizabeth Home for the mentally handicapped v CCMA and Others, Mr Todd, for TNPA, correctly contended that there is no obligation in law to conduct a formal tribunal-style hearing, as the appellants sought to suggest. There is no reason why the employer cannot comply with the audirule by calling for collective representations why the strikers should not be dismissed. I am satisfied that the Court a quo cannot be faulted in concluding that the procedure followed by TNPA,leading up to the dismissal of the 17 individual appellants, was fair.

[30]   Even though the individual appellants achieved substantial success, having had regard to the requirements of law and fairness, this is not a case where a costs order ought to be made. I make the following order.

Order

  1. The appeal is upheld in part.
  2. The Order of the Court a quo is set aside and substituted with the following:

    1. The dismissal of the individual applicants is found to be substantively unfair;
    2. Transnet National Ports Authority, the respondent, is ordered to reinstate the individual applicants retrospectively to the date of dismissal;
    3. The respondent is ordered to pay the individual applicants' back-pay retrospective to the date of dismissal; and

    No order is made as to costs.'