Pailprint (Pty) Ltd v Lyster N.O and Others (DA18/2017)  ZALAC 43 (13 June 2019)
An unduly technical approach to the framing and consideration of allegations of employee misconduct should be avoided, and appropriate regard must be had to the importance of the rule breached or the reason the employer imposed the sanction of dismissal.
Employees took part in a national strike called by NUMSA. The employer's disciplinary code made the "brandishing or wielding of dangerous weapons" a dismissible offence. In response to the impending strike, the employer posted its picketing policy on company notice boards. On 2 and 3 July 2014, the policy was displayed on the gates to the employer's premises and on 4 July 2014 it was signed by NUMSA. The picketing policy stated that picketers may not "engage in unlawful or violent actions"; that "no weapons of ANY kind are to be carried or wielded by the picketers"; and that the employer may take disciplinary action "where an employee's actions during a picket are in breach of the organisation's Disciplinary code".
On 2 and 3 July 2014, four employees each carried a stick while picketing with a group of strikers outside the employer's premises. Another employee carried a length of PVC pipe and another, in addition to a stick, carried a sjambok. A person in the crowd with the employees carried a golf club and another an axe. The employees were charged with "brandishing or wielding of dangerous weapons during the strike" and following disciplinary hearings they were dismissed.
Aggrieved with their dismissals, NUMSA referred an unfair dismissal dispute to the CCMA. At the arbitration, graphic photographs of severe injuries sustained by two individuals during the course of the strike were placed before the arbitrator.
The arbitrator found that the employees had not been shown to have "brandished or wielded" weapons but were "carrying" them, and there was no evidence that they intended to threaten or intimidate anyone. As a result the arbitrator found they were in partial breach of the valid and reasonable rule. Turning to the issue of sanction, the arbitrator relied on the evidence that the employees did not brandish or wield the weapons but carried them. The sanction of dismissal was found to be inappropriate and the dismissal was found substantively unfair. The employees were consequently reinstated from the date of the arbitration award subject to a final written warning valid for 12 months.
Dissatisfied with the arbitration award, the employer sought its review by the Labour Court. In its judgment, the Court found there to be no reason to interfere with the arbitration award since it was not unreasonable and the review application was accordingly dismissed with costs.
The Labour Appeal Court overturned the LC judgment. The LAC found that the CCMA arbitrator had committed a reviewable irregularity by arriving at a decision which a reasonable decision-maker could not reach on the evidence before him. The dismissals of the employees were found to be substantively fair.
The LAC confirmed that an unduly technical approach to the framing and consideration of allegations of employee misconduct should be avoided, which the arbitrator had showed in making a distinction between 'carrying' and 'brandishing' weapons. The arbitrator had failed to consider the purpose of the rule and the harm it sought to avoid. Carrying a sjambok, PVC pipe and sticks at a protest, at which others were in possession of a golf club and axe, was not only a clear breach but was aimed at sending a message which was threatening to others. Within the context of the strike violence committed, the LAC found the seriousness of this breach was overlooked by the arbitrator.
Extract from the judgment:
 In issue in this appeal is whether a reviewable error or irregularity was committed by the arbitrator of such a nature that it led to him arriving at a decision which a reasonable decision-maker could not reach on the material before him. The picketing rule of which the employees were found to have been aware of barred the carrying or wielding of any weapons during the strike picket. There was no dispute that the employees carried weapons in the form of sticks, a sjambok and a PVC pipe while picketing and that during the course of the picket others carried a golf club and an axe. This conduct was clearly in breach of the express terms of the picketing rule which barred weapons of any kind from being "carried or wielded" by picketers.
 There was no dispute that the rule was a valid and reasonable. The purpose of the rule was clear given the undisputed evidence of violent attacks carried out against other employees during the course of the strike. It is, therefore, difficult to understand how the arbitrator was able to conclude on the material before him that the rule had only been partially breached when the rule expressly prohibited the employees' conduct.
 As to the issue of sanction, the arbitrator was required to consider whether dismissal was fair upon a consideration of the relevant circumstances. In doing so the task of the arbitrator was to approach the dispute impartially in light of the totality of circumstances. This required consideration of factors which included the importance of the rule breached, the reason the employer imposed the sanction of dismissal, the basis of the employees' challenge to the dismissal, the harm caused by the employees' conduct and the effect of dismissal on the employees. As was made clear in Sidumo and Another v Rustenburg Platinum Mines Ltd and Others, this is not an exhaustive list.
 The arbitrator gave four reasons for finding the dismissals unfair. The first was that although the employees had carried dangerous weapons, the picketing policy did not make reference to wielding or brandishing weapons. In fact, the policy expressly prohibited anyweapons from beingeither carried "or wielded by the picketers" and it follows that reliance on the absence of a reference to "wielding" was erroneous. The second reason was that the policy did not warn employees of the consequences of its breach or of its link to the disciplinary code. The policy expressly stated that the appellant may take disciplinary action "where an employee's actions during a picket are in breach of the organisation's Disciplinary code". It followed that the employees knew or could reasonably have been expected to have known that disciplinary action could result if the picketing rules were breached.
 The third reason advanced by the arbitrator was that the disciplinary code was intended to regulate the conduct of employees on-duty and not employees who were on strike but off-duty. This is patently not so. A disciplinary code remains applicable to striking workers who exercise their constitutional right to strike within the context of the employment relationship. For this reason, the appellant is entitled to take disciplinary action against employees arising from strike misconduct and to take such action in accordance with the terms of its disciplinary code. The picketing rules, which expressly referred to the disciplinary code, could, therefore, be similarly enforced by the appellant.
 Finally, the arbitrator took issue with the "inconsistent disjuncture" which existed in the disciplinary code when it made provision for a final written warning for assault but dismissal for the wielding or brandishing of weapons. The disciplinary code expressly recorded that it constituted a guideline and as such the imposition of a sanction set out in the code was not mandatory. Any sanction proposed amounted only to a guideline, with each matter to be resolved on its own facts. In such circumstances, any disjuncture which may have been reflected in the code remained to be determined having regard to the misconduct committed.
 From the reasons advanced by the arbitrator, it is apparent that appropriate regard was not had to the importance of the rule breached or the reason the employer imposed the sanction of dismissal. This was somewhat surprising given the arbitrator's rejection as disingenuous of the evidence given previously by the employees "that neither a stick nor a sjambok could inflict any harm" and the undisputed evidence of serious injuries sustained by individuals during the strike.
 It has repeatedly been stated by this Court that an unduly technical approach to the framing and consideration of allegations of employee misconduct should be avoided. In finding that the employees were not "brandishing or wielding of dangerous weapons" as they had been charged but "were clearly just carrying sticks in their hands", the arbitrator adopted precisely such an approach. Appropriate regard was not had to the purpose of the rule and the harm it sought to avoid. As much was evident from the reliance placed by the arbitrator in the determination of the matter on the definition of the word "wield". The decision to have a sjambok, PVC pipe and sticks at a protest, at which others were in possession of a golf club and axe, was not only a clear breach but, viewed objectively, was aimed at sending a message which, at the very least, was threatening to others. Within the context of the nature of the strike violence committed, the seriousness of this breach was overlooked by the arbitrator.
 The result was that the matter was approached by the arbitrator in an unduly narrow manner, with appropriate consideration not given to relevant material factors and undue emphasis placed on other less relevant factors. Nothing from the substance of the employees' challenge to their dismissal or the consequence of their dismissals for them could reasonably have led to a different conclusion. The appellant was entitled to prohibit weapons from the picket line in order to preserve the safety of its premises and employees and to avoid strike violence of the nature which, from the evidence, it is apparent was committed. The constitutionally protected right to strike does not encompass a right to carry dangerous weapons on a picket line which, by their nature, not only expose others to the very real risk of injury, but also serve to threaten and intimidate. It is noteworthy that the arbitrator recorded his discomfort with the outcome of the arbitration award when he described the employees as "extremely fortunate" and recognised the unacceptable dangers posed by armed crowds in this country. It follows for all of these reasons that in arriving at the decision that he did on the material before him, the arbitrator committed a reviewable irregularity and arrived at a decision arrived which a decision-maker acting reasonably could not have reached on the material before him. The Labour Court erred in finding that the decision of the arbitrator fell within the bounds of reasonableness required and the appeal must therefore succeed.
 Both parties sought costs of the appeal if successful. Having regard to considerations of law and fairness, there is no reason as to why costs should not follow the result. Although the appellant sought the costs of two counsel, such an order is not warranted having regard to the nature and complexity of the matter.
 For these reasons, the following order is made:
- The appeal succeeds with costs.
- The judgment of the Labour Court is set aside and substituted as follows:
- "The review application succeeds with costs.
- The award of the first respondent is reviewed, set aside and substituted as follows:
'The dismissals of the fourth to eighth respondents, Mr Thokozani Maduna, Mr TusokwakeNsele, Mr NsebenzoMvelase, Mr MbongeniWayise and Mr Mduduzi Rowls, are found to have been substantively fair.' "