Ndzimande and Others v Didben N.O and Others (JR 1404/14)  ZALCJHB 73 (2 April 2019)
- In the course of raising grievances in public, it is gross misconduct where employees make false and defamatory statements which may have serious repercussions for the employer. Employees' freedom of expression is not unfettered and they cannot make false statements against the employer without consequences.
- Long service on its own is not sufficient to save an employee's job especially in circumstances where the conduct complained of was gross.
The employer's code on communications provided that no employee was permitted to communicate with the public media without permission from the Chief Operations Officer (COO). The code further provided that the authority to communicate with the media was vested in the COO and that employees were to decline to comment on internal matters when approach by the public media.
Employees were interviewed by the media in the course of a protest march and the company later disciplined and dismissed them for comments that brought the company into disrepute - and that were not true. Three employees had said that Xstrata had undertaken to pay them for overtime, but had refused to do so. They also said thatif their demands were not met, a strike would take place. They were further heard saying Xstrata's head office in Australia gave employees 2.6 billion (currency unspecified) to share, which Xstrata was withholding and had instead offered to give them profit sharing.
The Commissioner in his arbitration award came to the conclusion that the dismissal of the individual applicants was fair.
At the Labour Court the judge said that ordinarily, there is nothing wrong when employees raise legitimate grievances and threaten to exercise their constitutional right to strike. There is however everything wrong when in the course of raising those grievances, employees make false and defamatory statements, which may have serious repercussions for the employer. This is particularly even more so, where those employees had been warned to desist from such conduct. The court found that in the light of documentary proof that all the employees' grievances had been attended to and resolved, nothing was presented before the Commissioner by the individual applicants that this was not the case. It followed that there was no cause for them to make the false allegations against Xstrata. The individual applicants had not presented anything before the Commissioner to demonstrate any semblance of truth in their statements made to the media. The court held that "the statements made by the individual applicants to the public media were patently false, malicious and damaging to Xstrata's reputation."
Another significant feature of the case was that the Freedom of Expression Institute (FXI) became involved because it contended that disciplining the employees infringed free speech. The court however said that employees' freedom of expression is not unfettered. They cannot embark on a march and make false statements against the employer without consequences.
Extract from the judgment:
 In this case, the Commissioner had upon the concessions made by the individual applicants, concluded that indeed the voices heard were theirs. These concessions came about belatedly, as the individual applicants had as far back as in the internal disciplinary enquiries, denied that the voices on the audio clip were theirs. They had continued with that denial in the pre-arbitration minutes.
 Once the concessions were made, it was then for the commissioner to consider whether the conduct in question constituted misconduct. It follows that any question of the Commissioner having relied upon hearsay in concluding that the individual applicants had indeed made the statement became moot. The evidence of the main complainant, Boy Skhosana, who had heard the statement over the radio and reported it to Xstrata, was unnecessary. The audio clips were made available and the individual applicants had conceded that it was their voices that were heard. Thus, no purpose would have been served by calling Skhosana to testify on issues conceded to.
 The Commissioner, and correctly so, found that Xstrata had a communication policy in place, and that it was improbable that the individual applicants could not have been aware of the policy in view of a variety of factors including that the policy was brought to their attention during their induction, and that they had signed to attest that indeed this was the case. A second consideration was that on 30 July 2012, Ndzimande was issued with a final written warning for making false and/or incorrect statements about Xstrata to the Department of Labour in regard to health and safety matters at the workplace. A third consideration was that prior to the march on 28 September 2012, Ndzimande was issued with a letter advising him to desist from making false and incorrect statements about Xstrata and to raise matter properly in accordance with company procedures. In the light of these facts, it is patently clear that the individual applicants ought to have known about the policy and the consequences of its breach.
 A further issue for determination before the Commissioner was whether the statements attributed to the individual applicants constituted misconduct in the sense that they were made in contravention of the standing policy on communication. Upon a concession having been made that the voices heard over the audio clips were those of the individual applicants, their case was that they were not aware that their statements were to be broadcast over the public media. The Commissioner however rejected that assertion, particularly since it appeared from the evidence that Ndzimande had deliberately invited the media to the march. The evidence of Sara Kekana that Ndzimande had personally informed her that the media would be present at the march was uncontroverted. Flowing from that, Kekana had informed Ndzimande in writing of his obligations in terms of the company media policy. In those circumstances, the probabilities that Ndzimande and others could not have been aware that they were making statements about the purpose of their march to the media are clearly remote.
 The statements attributed to the individual applicants made over the public media as the Commissioner correctly found, had a detrimental effect as they brought Xstrata's name into disrepute. The fact that the march was legal, or did not disrupt production, or was peaceful was irrelevant to the determination of the issues before the Commissioner.
 A clip of the audio recording as transcribed reveals that during the interview, Ndzimande, Lubusi and Makama alleged inter alia that if their demands were not met, a strike would take placeafter a dispute was referred to the CCMA. They were further heard saying that that Xstrata was forcing employees to work long hours without pay despite the company's promises; that Xstrata's head office in Australia gave employees 2.6 billion (currency unspecified) to share, which Xstrata was withholding and had instead offered to give them profit sharing.
 Ordinarily, there is nothing wrong when employees raise legitimate grievances and threaten to exercise their constitutional right to strike. There is however everything wrong when in the course of raising those grievances, employees make false and defamatory statements, which may have serious repercussions for the employer. This is particularly even moreso, where those employees had been warned to desist from such conduct.
 It can further be accepted that the nature of our labour relations is such that it is adversarial. One of the primary objectives of the LRA is to create rules of engagement by promoting and facilitating collective bargaining at the workplace, and to provide a framework within which employees and their trade unions can collectively bargain with their employers on a variety of issues, with the aim of promoting effective resolution of labour dispute.
 It follows from the above that ordinarily, where there are recognised union structures at a workplace, it would be the union leadership that speaks on behalf of the employees and articulates whatever grievances they may have. Where however employees disassociates themselves from their own union which had been engaged with the employer on their grievances, and thereafter act on a frolic of their own outside of the rules of engagement, and further make public statements against the employer or anyone for that matter that are false and defamatory, they must be visited with the consequences thereof.
 To the extent that the individual applicants had accused Xstrata of a variety of wrong-doing including that their grievances had not been resolved and monies due to them were not paid in respect of shift or overtime allowances, the evidence before the Commissioner was that all the grievances and issues raised by the employees including non-payments of whatever was due to the employees, health and safety, shift systems, medical aid deductions, allowances, and/or alleged exploitation of employees, were investigated by both the Department of Labour and the Department of Minerals and Energy. Ordinarily, if the Departments had investigated the complaints and found any wrongdoing on the part of Xstrata, further steps would have been taken including the issuing of compliance orders.
 Significant with the evidence and the Commissioner's findings in this regard was that all the issues raised by Ndzimande and other employees had been attended to and dealt with in consultation with their union, NUM, which they had disassociated themselves from. The issue of funds coming from Australia was equally explained on behalf of Xstrata, as it was the latter's contention that it was resolved by affording all employees an opportunity to buy into a share scheme, and if they were unsure of the details in that regard, it was up to them to seek clarity.
 In the light of documentary proof adduced on behalf of Xstrata that all the employees' grievances had been attended to and resolved, nothing was presented before the Commissioner by the individual applicants that this was not the case. It followed that there was no cause for them to make the false allegations against Xstrata. The individual applicants had not presented anything before the Commissioner to demonstrate any semblance of truth in their statements made to the media.
 The statements made by the individual applicants to the public media were patently false, malicious and damaging to Xstrata's reputation. It is indeed startling for the individual applicants to argue that the charges against them or the conduct complained of had nothing to do with Xstrata, its policies or rules, since the statements were made in their own personal capacities but on behalf of 600 other employees. The fact remains that they acted on a frolic of their own and outside the rules of engagement. They had embarked on their march as employees of Xstrata, and had made false statements against it contrary to established policies. Their further contention that they were merely exercising their freedom of speech and did not need Xstrata's permission is clearly without merit. The employees' freedom of expression is not unfettered. Thus, they cannot embark on a march and make false statements against the employer without consequences.
 It follows from the above that the individual applicants had broken the rules in relation to Xstrata's communication policy despite being warned, the effect of which was to place Xstrata's name into disrepute. Their evidence or defence that they were merely exercising their freedom of expression amounts to red herring. Significantly, other than continuously having denied that they had made the statements until their belated concessions at the arbitration proceedings, they had not at any stage appreciated or acknowledged their wrongdoing nor shown any contrition in that regard.
 It was argued on behalf of the individual applicants that the Commissioner in confirming their dismissal had not taken account of their long service to the company. It has long been stated that long service on its own is not sufficient to save an employee's job especially in circumstances where the conduct complained of was gross. I have already indicated in this judgment that the misconduct in question had serious repercussions for Xstrata. In any event, an employee with a long service is expected to be even more familiar with company policies and rules. Furthermore, the fact that Ndzimande was already on a final warning for similar conduct does not appear to have dissuaded the individual applicants from their self-destructing path. To this end, a sanction of dismissal as correctly found by the Commissioner was indeed appropriate in the circumstances.
 In conclusion, and in line with the enquiry enunciated in Goldfields, I am satisfied that the Commissioner gave the parties a full opportunity to have their say in respect of the dispute; had correctly identified the dispute he was required to arbitrate; understood the nature of the dispute he was required to arbitrate; dealt with the substantial merits of the dispute; and arrived at a decision that falls within a band of reasonableness.
 The applicants were represented by Freedom of Expression Institute, and having had regard to the circumstances of the case and the costs order already imposed on them by the Commissioner, I am of the view that the requirements of law and fairness militates against a further costs order.