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Ramotsepane and Others v Barmot Truck Hire (JA2/99) [2002] ZALAC 8 (1 April 2002)

.RTF of original document

IN THE LABOUR APPEAL COURT OF SOUTH AFRICA
Held in Johannesburg

Case No:         JA 2/99

In the matter between

SOLOMON RAMOTSEPANE & OTHERS     Appellants

And

BARMOT TRUCK HIRE                                   Respondent


JUDGEMENT: APPEAL
___________________________________________________________
ZONDO JP

Introduction

[1]      This is an appeal against a determination of the Industrial Court that was made in terms of s46(9) of the Labour Relations Act, 1956 (Act NO 28 of 1956) (“the old Act”). The determination related to a dispute between the appellants and the respondent about whether the appellants’ dismissal by the respondent from its employ constituted an unfair labour practice and, if it did, what relief should be granted to the appellants.

Application for the condonation of the late delivery of the      record
[2]      The determination of the Industrial Court was delivered on the 17th December 1998. The appellants delivered their notice of appeal against that determination on the 11th January 1999. The appellants delivered the part of the record of appeal that was available to the registrar of this Court on the 1st February 2000 and the remaining part of the record on the 15th March 2000.

[3]      In terms of rule 5(8) of the Rules of this Court the record of appeal must be filed with, or, delivered to, the registrar within 60 days from the date of the granting of leave to appeal. The right to appeal against judgements of the Industrial Court is automatic and no leave to appeal is provided for. It was for this reason that this Court decided in Xaba v Portnet (2000) 21 ILJ 1739 (LAC) that the period of 60 days stipulated in that rule never begins to run in respect of appeals from the Industrial Court and that, therefore, it could never be said that an appellant in such an appeal has failed to comply with the provisions of that rule. However, it was held that this did not mean that an appellant in such an appeal was free to delay with the delivery of the record for as long as he or she wished. It was stated in Xaba that the requirement would be that such appellant should deliver the record within a reasonable time.

[4]      In this matter a period of about 14 months lapsed from the date of the delivery of the notice of appeal before the appellants delivered the complete record. The appellants brought an application for the condonation of the delay in the delivery of the record. The respondent did not oppose the application for condonation.

[5]      The appellants have furnished a lengthy affidavit in which they have set out in great detail what caused the delay and what steps they took over the entire period to expedite the prosecution of the appeal. The explanation that emerges from that affidavit is that:-
(a)      the additional member of the Industrial Court who presided in the trial delayed for about six months before furnishing his comprehensive reasons for his determination;

(b)      there were parts of the record of the proceedings that were missing and, ultimately, had to be reconstructed after it had become clear that they could not be found and;

(c)      the company that was instructed to prepare the record took quite some time to do its job.

[6]      In the light of all of this I have no doubt that the appellants have shown good cause for the delay and that the delay should be condoned. It is hereby condoned.

What this appeal is about

[7]      The appellants in this matter are former employees of the respondent. The respondent is a division of Barlow Motor Industries (pty) Ltd. At all times material to this matter the respondent ran its operations from two premises, namely, at Heriotdale and in Sandton, Johannesburg. In the Heriotdale premises it employed twenty one employees whereas at the Sandton premises it employed five employees. The respondent’s business was the hiring out of trucks to clients with or without drivers and van assistants. The appellants were dismissed from the respondent’s employment on the 19th January 1996 following their participation in a strike.

[8]      The appellants felt aggrieved by their dismissal. They contended that by dismissing them the respondent had committed an unfair labour practice as contemplated in sec 1 of the Labour Relations Act, 1956 (Act 28 of 1956) as amended, (“the old Act”). In due course they instituted unfair labour practice proceedings in the Industrial Court in terms of sec 46(9) of the old Act. The Industrial Court handed down a determination to the effect that the dismissal of those appellants who were based at the Heriotdale branch did not constitute an unfair labour practice and dismissed their claim. It held that the dismissal of those appellants who were based at the Sandton branch constituted an unfair labour practice. It refused to grant them reinstatement. The Industrial Court awarded the undermentioned Sandton appellants the amount of compensation appearing against their names:-
Mr Patrick Khula R7000,00
Mr Joseph Madiba R8000,00
Mr Goerge Masenya R8000,00
Mr Willie Ntshudisana R6500,00
The Industrial Court did not give an indication of how it had arrived at these figures. A perusal of the document in the record that appears to reflect the appellants’ monthly rates of pay at the time of dismissal suggests that they each earned more than R1000,00 per month.       

[9]      The appellants in this appeal include the employees whose dismissal the Industrial Court found constituted an unfair labour practice and to whom it awarded compensation. The appeal is against the “whole” judgement of the Industrial Court. The respondent has not cross - appealed against the order of the Industrial Court in respect of the appellants who were awarded compensation. In respect of an employee who died in the interim, an order is sought that compensation equivalent to his remuneration from the date of dismissal to the date of his death be paid to his estate.

[10]     On appeal the appellants seek an order setting aside the determination of the Industrial Court, and replacing it with an order of reinstatement plus full backpay. The respondent opposed the appeal and sought its dismissal with costs. Before the appellants’ appeal can be properly considered, it is necessary to deal with the factual background to the appellants’ dismissal. The appeal record in this matter runs to over 2000 pages. I shall attempt to summarise the important features of the factual background.

The factual background

[11]     In 1994 the respondent concluded a recognition and procedural agreement with the Transport and General Workers Union (“the union”). In terms of that agreement the respondent recognised the union as the collective bargaining agent of its employees who are members of the union. There used to be casual van assistants whom the respondent employed from time to time whenever a need arose. In November 1994 or soon thereafter a number of such casual van assistants were engaged by, or joined, a concern known as Pro-Personnel Placements (“PPP”), a firm of labour brokers, whereafter the respondent engaged them as sub-contractors. PPP also supplied certain truck drivers to the respondent. This was pursuant to a decision taken by the respondent in November 1994 to employ van assistants in a sub-contracting capacity rather than on the basis on which they had been employed before, namely, as casual employees of the respondent.

[12]     Thereafter the respondent relied increasingly on the van assistants provided by PPP than on those who had no connections with PPP. The ordinary employees of the respondent were not happy with the increased utilisation of employees provided to the respondent by PPP. Their perception was that the employees provided by PPP to the respondent were taking their jobs away. They felt that ultimately the respondent would dispense with their services. They also seem to have observed that the respondent was no longer filling positions of employees who were dismissed or who retired. Their observation was that, instead of filling positions which became vacant, the respondent simply relied on the PPP personnel to perform work that would otherwise have been performed by its own employees.

[13] This concern of the respondent’s employees was raised with the       respondent at a meeting held between the management and representatives of the employees at Heriotdale on the 2nd
November 1995. The issue was dealt with under an item described as:
(a)      Employment of Drivers
(b)      Pro-Personnel.”
The first three paragraphs of the minutes of that meeting are relevant. They read thus:-

“MINUTES OF MONTHLY MEETING HELD ON 2 NOVEMBER 1995 IN HERIOTDALE AT 14H30
Present:         S Cooper
C Cooper
S Ramotsepane
S Magudulea
1.       a)       Employment for Drivers
b)       Pro-Personnel

Sharon asked Solomon to explain what this meant . Solomon explained that last year we had 30 drivers in Heriotdale, but now we have only 24. We must employ another six to make up 30 again.

Sharon explained that at present we are not employing any new drivers but will continue to use Pro-Personnel. This is strictly a business decision. Pro-Personnel have an insurance which is of great benefit to our co. in light of all the thefts, hijackings and accidents. Propersonnel insure us for up to R 15 000 per incident for any loss/ theft/ hijacking or accident where a vehicle is driven by one of their drivers. Sharon explained that Barmot Truck Hire does not have insurance on our vehicles and it therefore saves money with Pro-Personnel insurance.

Sharon assured Solomon that the drivers’          position with the Company is very secure. Although we will not, at present, be employing new drivers, their jobs with Barmot are safe”.
Despite the respondent’s assurance to the representatives of the employees at Heriotdale that the employees’ jobs were secure, it appears that later on, the employees continued to have the perception that PPP personnel were going to take their jobs.


The events of the 16th and 17th January 1996 at the Heriotdale branch
[14]     The employees’ discontent at Heriotdale came to a head in January 1996. Apparently, one Jerry, a PPP supervisor, had been instructed by PPP to check trucks used by PPP personnel for dents, scratches or any other damages as they left the gate on the 16th January. He carried this instruction out on that day. In the course of doing so, he inspected not only the trucks used by PPP personnel but also those used by the ordinary employees of the respondent. Jerry was observed by some of the respondent’s employees. The inspection of trucks used by the respondent’s employees was work allocated to them and was not part of Jerry’s job.

[15]     Those employees of the respondent who saw Jerry inspecting trucks allocated to the respondent’s employees on the 16th January were unhappy about his conduct. The following day, namely, the 17th January, they brought this to the attention of Mr Solomon Ramotsepane, a shopsteward, who is also the first appellant in this matter. Ramotsepane approached Jerry and asked him why he had performed the respondent’s employees’ work. Jerry answered that he had been instructed to do the work by Mr Peter Bubb. Mr. Bubb was PPP”s manager. Ramotsepane then asked Jerry to go to Bubb and ask him to come to the workers and explain why he had instructed him to do their work. Jerry went to Bubb and conveyed the message. Bubb was not prepared to comply. Jerry reported back to Ramotsepane. Jerry was then asked to make a second approach to Bubb and appeal to him to come to the workers and give an explanation for his instruction. Jerry obliged. Once again Bubb refused to comply.

[16]     Ramotsepane then went to Bubb himself and asked him to come to the workers and explain. Again Bubb refused. Ramotsepane reported back to the workers that Bubb was continuing to refuse to come to them and to give the required explanation. Thereafter sixteen of the workers went to Bubb as a group and demanded an explanation. They found him in an office within the respondent’s premises. They demanded an explanation for his instruction to Jerry on the previous day. According to the appellant’s version, Bubb still refused to give an explanation. According to Bubb, he told them that that was an issue that they should raise with the respondent’s management. They then demanded that he leave the premisses and only return when the respondent’s management would be present at which stage Bubb would once again be asked to explain his instruction. Bubb then left. According to the appellants’ version this occurred before 07h00 which was the time for the commencement of work.

[17]     At about 10h00 one Mr Andre De Wit, who was from the human resources department of Barlow Motor Investment, arrived at the Heriotdale premises to investigate what had happened. Mr De Wit’s investigation led him to decide that three of the workers be served with notices to appear at disciplinary inquiries. The employees were Messrs Solomon Ramotsepane, Robert Nkuna and Thabiso Gaula. The charges against them arose out of the morning incident. The three were immediately suspended on full pay. The charges preferred against the three employees were:-


“(a)      assault;
(b)      intimidation and insulting a contractor;        

(c)      using abusive language towards a company contractor;

(d)      participating in an unlawful work stoppage.”     

[18]     At about 11h45 the three employees were served with the disciplinary notices. The disciplinary inquiries were scheduled for the following day, namely, the 18th January. Mr Nkuna’s one was to commence at 09h30, Mr Ramotsepane’s one at 10h30 and Mr Gaula’s one at 11h30. After it had come to the attention of the rest of the workers that the three employees were being charged with misconduct arising out of the morning‘s incident with Bubb, they all proceeded at about 13h00 to the office where De Wit was. There they demanded that they all be charged with misconduct as well. To justify this they said that they had all acted in concert or had all done the same thing as a group. They objected to only the three being charged with misconduct. They also demanded an explanation why Jerry had been performing their work. Mr De Witt informed them that, if in the disciplinary inquiries of the three, evidence implicating other employees emerged, such employees would also be charged with misconduct. They were not satisfied with this and thereafter refused to return to work and commenced a strike.

[19]     According to the respondent’s strike diary, at about 15h00 the employees again walked into the office where De Wit was and sat down. Messrs De Wit and Roger Bath spoke to the workers. The employees repeated their demand that they all be charged with misconduct arising out of the incident for which the three employees had been charged. They also demanded that their grievances relating to PPP be resolved immediately. They were informed that the respondent did not have evidence to charge anyone else other than the three. They were also informed that the disciplinary inquiries scheduled for the following day in respect of the three employees would proceed and that, after those inquiries had been completed, the grievances of the employees would be discussed.

[20]     At about 15h15 Mr De Wit issued a notice to the striking employees. The notice was meant to serve as a record of what had happened up to that stage between the respondent and the striking employees as well as to call upon the employees to return to work the following morning. The notice read thus:
“         NOTICE TO STRIKING EMPLOYEES: 13H00

We have been advised by the shop stewards and striking workers that they will refuse to continue work until certain conditions have been met by the      Company. These conditions are:

1.       That the suspension of employees be withdrawn with immediate effect.    
2.       That the disciplinary action instituted against certain employees be withdrawn with immediate effect.
3.       That discussions should commence immediately with management with the involvement of Andre De Wit to discuss employee grievances.
4.       That Peter Bubb the branch manager of Pro Personnel Placements (Pty) Ltd be disallowed access to the Company premises.
5.       That a meeting be scheduled between employees and Jim Parker of BMI.

Discussions have been held with the shop stewards and the striking workers and the company has advised as follows:
1.       The Company intends to use casual staff from Pro Personnel Placements on a need to have basis. The matter has been discussed in length with Shop stewards employees and casual employees. All casual employees have been allowed the opportunity to register with Pro Personnel Placements.

2.       Shop stewards and drivers have indicated that they would not be willing to work with certain employees of Pro Personnel Placements and that they wish to work with employees of their own choosing.

3.       A court interdict has been obtained when certain employees attempted to intimidate Pro Personnel Placement employees brought onto the premises and also to comply with other conditions stipulated in the court interdict.

4.       Certain members of staff in breach of the court interdict have continued to harras and intimidate Pro Personnel Placement employees.

5.       The Company has followed the agreed procedure in the recognition agreement and has initiated disciplinary action against these employees it believes have participated in the act of intimidation. As a consequence thereof the remainder of the striking employees have refused to return to or to resume work until the conditions hereto above have been complied with by the company.

6.       Such refusal to continue or resume work is a breach of employees’ contracts of employment and furthermore a breach of conditions of the recognition agreement which exists between the company and the trade union and the provisions of the Labour Relations Act.

Should employees remain in breach of their contracts of employment and the       recognition agreement, the Company will have no option but to take serious disciplinary action against them which could result in their dismissal.

Employees are requested to resume their normal duties on 18 January 1995 at 07h00 and also to allow the Company to proceed with its disciplinary investigations without them attempting to obstruct the process by continued illegal industrial action.”

        It is clear from the last paragraph of the notice that the employees were called upon to resume their duties at 07h00 the following morning, namely, the 18th January.

[21]     According to the strike diary of the respondent Ms Sharon Cooper and Mr De Wit spoke to Mr Nelson Lamityi of the union about what was happening and Mr Lamityi gave them an undertaking that at 07h00 on the 18th January all the employees would “resume their normal duties and not participate in any further illegal industrial action.” This evidence was not disputed. The union and the respondent also agreed that they would meet not later than 08h30 on the 18th