7
The commissioner had a second string to his bow. He reasoned as follows: (a) Taking cognizance
of the actual text of the words used , as they were not directed at one particular person but at the management team members generally
and were of such general nature they were in the context an empty threat of no consequence of physical harm to anyone. The presiding
officer at the inquiry had used the dictionary definition of “intimidation” and had failed to appreciate the dynamics
of the negotiation process in the highly charged atmosphere of the collective bargaining situation and the context in which threats
and sanctions are applied to put pressure on the opponent. (b) Furthermore both parties were under stress and the fourth respondent
was afraid of his own personal safety fearing reprisal at the hands of temporary workers. (c) There was no evidence linking him personally
to the violence. (d) The trade union team through its leader apologized for the remark: which apology was accepted by management.
(e) One of the reasons why disciplinary action was taken was because he personally failed to apologize. (f) This was a factor taken
into account by the presiding officer of the inquiry when she dismissed him. (g) The fourth respondent had 18 years service with
the company. He had a clean record. The reference to an incident of insubordination at a Christmas party some 20 months earlier was
irrelevant.
8
In passing I point out that some of this reasoning is wrong. As the code is a document
it is perfectly correct to use the dictionary as a starting point to determine the meaning of words used therein. The “dynamics
of the negotiating process “ do not change the plain meaning of words. Apart from his own belated statement there was no evidence
that the fourth respondent had been threatened. The apology by the union was noted and the fourth respondent not absolved. Reasons
(e) and (f) are factually incorrect. The incident at the Christmas party was not taken into account. The fact that the reasoning
can be faulted is, however, in itself no ground for interference with an award.
9 The commissioner found that the dismissal of the fourth respondent amounted to an unfair
dismissal
on the basis that the appellant had failed to show that in the circumstances it had
good grounds for terminating the
fourth respondent’s services. He ordered reinstatement.
10
This award was taken on review to the Labour Court on the grounds that the commissioner
committed a gross irregularity in the arbitration proceedings and/or that his decision is not
rationally justifiable
in terms of the reasons given and that his findings are permeated with
bias in favour of the third and fourth respondents.
11
Waglay J dismissed the application for review, holding that the commissioner had properly applied
his mind to the matter and had not committed any irregularity which tainted his award.
12
This finding by the Labour Court is on appeal before us. The learned Judge held that the
statement did not amount to a threat. This should have disposed of the matter. The learned
Judge,
however, then dealt with a further issue, namely the commissioner’s finding that
even if the statement made by the fourth respondent was intimidatory, it was made in a
representative capacity and “
within the privileged environment at the negotiation table
(behind closed doors)”
and that it would therefore be grossly unfair to single out the
applicant for individual disciplinary action and to
dismiss him for it.”
13
The reasoning of Waglay J was as follows: When parties enter collective bargaining they
sit as equals. Trade union representatives who are employees of the employer do not sit
at the bargaining meeting as employees per se but as equals. They are there to bargain, to
extract
the best deal which they are able to secure and it is not uncommon for these
meetings to often degenerate. To
give the employer the right to discipline an employee,
sitting as an equal opposite
him, would undermine the whole process. This does not give
any of the parties an
entitlement to abuse or intimidate or licence criminal acts. If this
happens there are a number of
options open to each of the parties. One of them may simply
refuse to remain in the bargaining
process for lack of any constructive discussion or if any
criminal act has been committed the police may be called.
Thus far the reasoning of the
learned Judge.
14
Although these remarks were in my view obiter in the light of the prior finding pertaining to the absence of a threat, they echo the approach of the commissioner who based his
award mainly on this ground. This “anything goes” approach is not, in my view, a correct statement of the law.
15
One cannot divorce the bargaining situation from reality. The negotiation pertains to the workplace
and the employment situation. The employer negotiates as employer and the employee as employee and the fact that both negotiating
teams represent their principals does not alter this. The fact that meetings often degenerate does not mean that one should jettison
the principle that as in the workplace also at the negotiating table the employer and the employee should treat each other with the
respect they both deserve. Assaults and threats thereof are not conducive to harmony or to productive negotiation. Of course the
criminal law can be invoked should there be a criminal act, but that is the last thing one looks for in the bargaining process. Of
course the refusal to negotiate further in the face of abuse is an option, but why should the inhibitory effect of possible disciplinary
action in case of serious transgressions not be allowed to lubricate the process into civility? To me it is unacceptable to hold,
as the commissioner did, that when one acts in a representative capacity anything goes. I find support for this view in section 97(3)
of the Labour Relations Act 66 of 1995 which grants immunity from civil liability to the
representatives, but
only for bona fide acts.
16 Waglay J did not refer to any authority for his view. The commissioner’s two references
do
not support him. The “threats”discussed there are threats of sanctions, i.e. lawful
remedies and actions
imposed to assert a position forcefully -- like strike action.
17
It may be accepted that an employee enjoys greater leeway than normal when he acts as a negotiator.
This flows from his dual capacity (as an employee and as negotiating representative). But it would be wrong to lay down that he has
free rein to do or say whatever he wants. He remains an employee, and that relationship has to be taken into account as well. It
is in this appeal neither necessary nor advisable to draw the line of unacceptable conduct finely. It is clear that the conduct with
which we are concerned goes beyond such leeway as is permissible to a shop steward within the negotiation context.
18
I turn now to the real issue - Did the words uttered amount to a threat in these circumstances?
In favour of such a finding would be the use of the word “threat” by the fourth respondent himself as well as the tense
circumstances prevailing at the time. There was no explanation that anything else was meant. It was never contended at any tribunal
that the fourth respondent did not know perfectly well what the meaning of the word was. On a previous occasion this threat uttered
by the general secretary of CWIU, the other union involved in the strike, at a meeting had been followed by murder. The threat was
uttered in a climate of total mayhem. To the knowledge of the fourth respondent his remarks were taken as a serious threat by management
who walked out, yet he did nothing to still their fears. The words following upon the reference to threat mean: There will be bloodshed.
You (management) will be responsible for it. This cannot mean that management will spill blood or order it to be spilled. Neither
does it mean that employees loyal to management (the non strikers) will spill blood. In the context it can only mean that strikers
(union members and their cohorts) will cause bloodshed, as they did in the past. That is clear from the word “more” in
the phrase. That blood will include that of non-striking employees, as in the past. This means that management are told, angrily
as it was shouted, that if they don’t concede on the issue of the extension of contracts of temporary workers the union’s
members will cause serious injury to the employer and/or its loyal workforce. This is a threat of violence.
19
The view that in order to amount to “intimidation” the threat must be directed
at one particular person and not generally at management (which was the view of the commissioner) is incorrect. One can intimidate
a group as much as one can intimidate a single person and violence against the person of the party who is being intimidated is not
a prerequisite. One can intimidate another by threatening to harm his beloved ones or his business by injuring his workers. In the
Shorter Oxford English Dictionary “intimidate” is defined as “ Terrify, overawe, cow. Now esp. force to or deter
from some action by threats or violence ”.
20
The view of Waglay J was that in the prevailing circumstances there was no threat and that
“had management simply reflected on the statement ... the only reasonable inference they
would have arrived at is that what the fourth respondent meant was that the temporary staff
would attack
the permanent staff for their lack of support of them” for which management
will be blamed. This approach is incorrect. It ignores the fact that management was
unaware of threats by
temporary workers against permanent workers and shop stewards --
if there were in fact such threats. It ignores the import
of the word “threat” in the context
of the history of violence. It ignores the absence of any
explanation to the meeting by the
fourth respondent, who on this interpretation of the statement should
have been taken
aback by the reaction of management to his alleged innocuous remark. And if it was
merely an explanation of the situation in the workplace, why was it shouted as an opening
remark?
21
Both the commissioner and the Labour Court therefore misdirected themselves in two
respects: In the interpretation of the facts and on the law pertaining to the immunity of
union
representatives at the negotiating table who are shop stewards from internal
disciplinary measures
of the employer.
22
Are we at liberty to interfere? The test to be applied was set out by this Court in Carephone
(Pty) Ltd v Marcus NO & Others (1998) 19 ILJ 1425 (LAC) 1435B-E. The mere fact that the reviewing court differs in its conclusion
of law or fact from that of the tribunal of first instance may not be reason for interference as that would blur or obliterate the
distinction between appeal and review. But when the difference is so great that it impinges upon the basic norm viz the necessity
of a fair trial, interference is warranted. Whether that point is reached has to be decided on the facts of each individual case.
In this case the divide is in my view so great that it warrants interference. The finding of the disciplinary inquiry was clearly
correct. The reasons given were lucid and
sound. If the fourth respondent was guilty dismissal was
obviously an appropriate sanction. Yet the commissioner on a totally incorrect view of law and fact set it aside His reasoning
was in my view not rationally justifiable.
23
The appeal is upheld with costs. The order of the Labour Court is set aside and the
following order is substituted therefor: “ The application for review is upheld. The award
of the commissioner is set aside, with costs.”
Van Dijkhorst AJA
I agree I agree
Zondo JP Comrie AJA
For appellant: Adv NA Cassim SC
instructed by Perrott, van Niekerk & Woodhouse Inc
Johannesburg
For Third and Fourth Respondents: Mr JN Lebea
of Lebea & Associates
Johannesburg
Date of argument: 17 May 2001
Date of judgment: 29 June 2001
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