Reportable THE LABOUR COURT OF SOUTH AFRICA, IN JOHANNESBURG CASE NO: J 1995/13 In the matter between: ASSOCIATION OF MINEWORKERS AND CONSTRUCTION UNION First Applicant APPLICANTS APPEARING IN ANNEXURE “A” Second to Further Applicants and ANGLOGOLD ASHANTI LIMITED Respondent Heard: 3-5, 10,-12, 6 – 19 February 23 March and 15 May 2015 Delivered: 3 November 2015 Summary: (Unprotected Strike – Automatically unfair dismissal based on union membership – substantively and procedurally unfair dismissal – relief – Effect of s 54 Notice under MHSA on strike). JUDGMENT
113
Embed
THE LABOUR COURT OF SOUTH AFRICA, IN JOHANNESBURG … · THE LABOUR COURT OF SOUTH AFRICA, IN JOHANNESBURG . CASE ... Another important strand is that AGA did ... on mine property,
This document is posted to help you gain knowledge. Please leave a comment to let me know what you think about it! Share it to your friends and learn new things together.
Transcript
Reportable
THE LABOUR COURT OF SOUTH AFRICA,
IN JOHANNESBURG
CASE NO: J 1995/13
In the matter between:
ASSOCIATION OF MINEWORKERS AND CONSTRUCTION UNION
First Applicant
APPLICANTS APPEARING IN ANNEXURE “A”
Second to Further Applicants
and
ANGLOGOLD ASHANTI LIMITED Respondent
Heard: 3-5, 10,-12, 6 – 19 February 23 March and 15 May 2015 Delivered: 3 November 2015 Summary: (Unprotected Strike – Automatically unfair dismissal based on union membership – substantively and procedurally unfair dismissal – relief – Effect of s 54 Notice under MHSA on strike).
JUDGMENT
Page 2
LAGRANGE, J
Introduction
[1] This case concerns the fairness of the dismissal of 539 employees of the
respondent arising from their alleged participation in an unprotected strike
on Saturday, 20 April 2013. Whether or not there was a strike on that day
is in dispute, though the applicants accept that if it is proven that there was
a strike it was an unprotected one. One of the unusual complicating
factors in the case is that the normal operations of the mine were
suspended during the period when the alleged action took place for
reasons that are set out in more detail below.
[2] The dispute about the fairness of the dismissals is a multi-layered one of
alternative claims ranging from automatically unfair dismissal to
substantively and procedurally unfair dismissal. A thread in the claims of
automatically unfair dismissal and the alternative claim of ordinary unfair
dismissal is that the 539 workers dismissed in consequence of this event
were only AMCU members, whereas at least 500 others who did not report
for duty were not dismissed. Another important strand is that AGA did not
deal with the applicant’s or the union in the same way that it had dealt with
far more serious industrial action at Mponeng and Tautona mines, where
nobody had been dismissed for participating in unprotected strike action.
[3] At the time of the events in April 2013, AMCU’s membership at Moab
Khotsong was 799 and NUM’s 3 366 out of a total workforce of 4646, or
17 % and 71 % respectively. Although various figures were presented in
the course of the trial, from the most definite ones provided by Mr W van
Heerden who was the Senior HR Manager at Moab Khotsong (‘van
Heerden’) it appears that 1924 (63 %) of the 3043 miners rostered to
work did report for duty on their ‘Saturday shift’ of 19 or 20 April. During
evidence, this figure was broken down as follows: 142 out of 420 workers
rostered (34%) reported for duty on the night shift; 933 out of 2463
workers rostered (38%) reported for duty on the day shift, and 44 out of
160 workers rostered (34%) reported for duty on the afternoon shift.
According to van Heerden, a 10 % shortfall on full attendance would have
been normal.
Page 3
[4] Van Heerden and Madondo also testified, though none of this information
had been tested with the applicants’ witnesses who had reported for work,
that 112, 759 and 29 team leaders, miners and shift bosses clocked in
underground on the night shift, day shift and afternoon shifts starting on 19
and 20 April. Correspondingly, 31, 174 and 50 surface staff clocked in for
the same shifts, though some of the supervisory staff would have been
attending training on account of the suspension of normal mining
operations and the conditions governing the suspension.. Van Heerden
claimed that the training which took place at Gateway training centre was
scheduled in such a way that some supervisors would have gone on
Friday and others on Saturday, which is something confirmed by a shift
boss who testified.
[5] A total of 585 employees, all of whom were AMCU members, were
charged for participating in the alleged strike. Of these, 323 employees
attended hearings and appeals. Of AMCU’s 799 members 539, or two-
thirds of them, were dismissed. Of those members who were dismissed,
more than 200 did not attend a disciplinary hearing. No NUM members
were charged for participating in the alleged strike.
[6] Of AMCU’s members, 243 remained employed after the dismissals.
Nearly 168 of them did report for work either on 19 or 20 April and were
not dismissed. A further 16 who attended training at the gateway training
centre and another 13 who reported to the helipad on 20 April were also
not dismissed. In addition, 46 who were accused of participating in the
strike were found not guilty and consequently escaped dismissal.
According to statistics provided by the company, of the total number of
1512 employees living at the Itireleng hostel on the mine premises, only
195 were applicants, amounting to about one third of the AMCU members
charged for striking and just over 36 % of all those dismissed.. According
to the uncontested evidence of Mr I Jacobs, Vice President of Labour
Relations for Anglo gold Ashanti (‘AGA’) in South Africa (‘Jacobs’) the
remaining two thirds of the workforce live in AGA villages in the
neighbouring towns and travel to work using public transport or their own
private transport.
Page 4
[7] There are also unfair dismissal claims for misconduct pending in respect of
17 alleged instigators of the strike and the local AMCU leadership (‘the top
seven’) at Moab Khotsong, which did not form part of these proceedings.
[8] There are also a number of ancillary matters the court had to determine
including the appropriate relief that should be granted to a group of
identified employees whom the respondent concedes should not have
been dismissed for alleged participation in an unprotected strike, because
they had some or other acceptable justification for not being at work on the
day in question. This group comprised in all, approximately 37 of the
applicants. During the course of hearing evidence, AGA tendered to
reinstate some of those in this group, some with immediate and full
retrospective effect. In the case of others, the only dispute remaining is to
what extent their reinstatement should be retrospective.
[9] At the start of the proceedings the parties conducted an in loco inspection
encompassing the Vaal region operations of AGA in which the relevant
events took place. The locations observed in the course of that inspection
were confirmed by the evidence of a security superintendent for AGA, who
had been the guide during the inspection. The Vaal region mines consist
of Kopanong, Moab Khotsong and Great Noligwa.
[10] The main events at Moab Khotsong canvassed in the evidence took place
in the vicinity of the Itireleng hostel complex (sometimes referred to as no
1 shaft) on mine property, the Moab Khotsong mine itself (no 11 shaft); a
recreation facility, where the disciplinary process was conducted, known
as Eagles’ Roost, and the Gateway training centre. All of these locations
are at least a few kilometres apart on the West Vaal region property.
Chronology
[11] Although there are some important disputes of fact the overall chronology
of events pertinent to this matter not in dispute and appear in the outline of
events and evidence below.
Page 5
The 2012 unprotected strike in the gold industry and its aftermath
[12] Following the tumultuous and tragic events of August 2012 arising from
the unprotected strike supported by AMCU members employed at Lonmin
Platinum, parts of the gold mine industry also experienced a prolonged
unprotected wage strike which lasted from 22 September to 23 October
2012. The core demand was the demand for a wage of R 12500. The
strike heralded the rise of AMCU as a major role player in organised
labour at the respondent’s gold mining operations in the respondent’s
West Wits and Vaal River Regions respectively. The West Wits region
comprises Mponeng, Savuka and Tautona mines and the Vaal River
Region consists of Mophotsong, Kopanong and Great Noligwa mines.
[13] The unprotected strike ended when a 2% increase was concluded with
worker representatives in a labour forum, which - as one AGA witness
described it - “morphed into AMCU”. According to AGA it was understood
as part of the settlement that even though the strikers would return to work
and would not be dismissed for their participation in the unprotected strike,
disciplinary action would still be taken against them. In October it was
conveyed to AMCU that all the participants in the unprotected strike would
have a final written warning entered on their records. However, this
decision was not immediately relayed to individual employees and the final
written warning was only entered on their records at different dates at the
different mines. How it was dealt with at each mine is mentioned below.
[14] Jacobs testified that AGA did not dismiss workers because it was
recognised that AMCU was newcomer to the industry and it was
necessary to integrate it into the industrial relations’ infrastructure. In
addition, it was virtually impossible to dismiss the number of workers
involved in the strike.
The sit-ins at Mponeng and Tautona after the gold industry strike
[15] Before the end of 2012 there were also underground sit-ins at both
Mponeng and Tautona mines by workers who had participated in the
previous one month unprotected strike.
Page 6
[16] The sit-in by approximately 4000 workers at Mponeng arose because
workers believed that a so-called “starter bonus” of R 1500 and which had
been promised to them when they returned to work from the industrywide
strike had not been paid timeously. Secondly, they were demanding that a
certain Mr Mathlabane, an AMCU leader, who had been arrested in
connection with damage to property and other offences should be
released from custody. The sit-in was resolved when agreement was
reached on payment of the bonus and the release of the member in
question on bail. However, AGA deemed it necessary to close the mine for
six days because it was not sure it could guarantee a safe return to work.
A multi-stakeholder forum including worker representatives of AMCU
members was convened and a code of conduct entitle ‘guiding principles’
was concluded on 10 November 2012.
[17] The mine pleaded that it decided not to take disciplinary action against
employees because the incident was directly related to the 2012 strike and
it was attempting to normalise relations with AMCU and ensure that the
mine could operate again. Had it taken action as a result of the sit-in the
guiding principles agreement could not have been concluded. Jacobs
testified that a decision had been taken not to dismiss the employees
because it was not in the company’s interests nor in the interest of
establishing a relationship on a sound footing with AMCU. Moreover,
AMCU leadership had made representations to the mine not to take
disciplinary action. It could not have concluded the ‘guiding principles’
document if it had followed the disciplinary route.
[18] The sit-in at Mponeng on 5 November 2012, which lasted from 05H00 to
19h30, resulted in a loss of normal production during that time apart from
damage inflicted during the action. About 2150 workers had gone
underground but refused to go to their working areas. A few workers from
the previous night-shift also remained underground.
[19] The sit-in at Tautona mine on 12 December 2012 lasted 25 hours and was
linked to demands to uplift the suspension of three employees and to
remove the general manager of that mine. AMCU members had
expressed hostility towards him when he spoke during a mourning
Page 7
ceremony on 7 December for a driver who had died in an accident. There
was a perception that the rescue operations had not been handled with
the necessary urgency. The service later was marred by outright violence
when the NUM chairperson started to his address. A NUM Health and
Safety representative was severely injured. Disciplinary action was
instituted against a handful of those identified as being responsible.
[20] AGA claimed it decided that because it could not identify who had
prevented approximately 2150 workers coming to the surface, it was not
able to discipline anyone. However Mr W Naidoo (‘Naidoo’), who was the
Senior HR Manager for Tautona and Savuka mines, agreed that given the
events leading to the sit-in there was good reason to assume the demands
emanated from AMCU members and they were in a position to identify
who were AMCU members from the stop-orders received though those still
had to be verified. Had they wished to take disciplinary action against
them they could have, which Jacobs confirmed.
[21] Under re-examination he confirmed that there were two principle reasons
the mine did not take disciplinary action: they were unable to identify the
instigators, planners or co-ordinators of the sit-in and given the tension
and climate at the mine they did not want to add fuel to the fire and risk a
repeat incident.
[22] Jacobs also testified that management was anxious not to add more fuel
to the fire and cause a possible repeat incident. He was also emphatic
that, unlike the situation which unfolded at Moab Khotsong mine, AMCU
leadership did intervene. AGA had characterised the sit-in as a hostage
situation and not as a strike. However, Jacobs agreed that those who were
supporting the action withdrew their labour in support of their demands,
which emanated from AMCU. He also conceded that even though the
instigators were difficult to identify, those participating in the strike could
have been identified. However, under re-examination he expressed the
view that the AMCU members were the hostage takers.
[23] Mr J Mphahlele, AMCU’s general secretary (‘Mphahlele’) and Mr J Gama,
AMCU’s treasurer (‘Gama’) were called by the local leadership to assist
them, though Mphahlele remembers being called by Jacobs to say that
Page 8
there was a problem that workers were underground and he needed their
assistance, which Jacobs confirmed. After a meeting with management
both national officials went down the mine to address workers to try and
persuade them to return to the surface and end the sit-in, but were told
that the suspensions had to be lifted and the manager had to be dealt
with. Mphahlele testified that they were told in no uncertain terms of the
worker’s demands and that it was a concerted action by those
underground. He was also dismissive of the suggestion that the mine
construed the situation as different from a strike: ever since he had joined
a union the employer always had a case to argue that any partial
withdrawal of the labour amounted to a strike. When he went underground
with the Treasurer and others they did not see any hostages and workers
were singing and dancing. Naidoo said it was ‘difficult to confirm that there
was a hostage situation, but from the threats to throw some people down
the shaft and the assault on a female employee, the mine had to assume
that not everybody was a willing participant in the sit-in.
[24] Naidoo testified that workers underground escalated the pressure at
around 12h00 the next day by making anonymous calls from different
underground stations threatening to start throwing people down the shaft if
the demands were not met. It was only at this juncture that the mine
contacted the national office of AMCU and Mphahlele and Gama arrived
an hour and a half later. They were underground for two hours, but the
workers insisted not only that the suspension of the three members be
lifted, which the firm was willing to accede to, but that the general manager
be removed.
[25] It was only later at 03h00 the following morning when the mine called the
SAPS to assist and the union and management were briefed by a SAPS
senior officer from a specialist task team on how SAPS would approach
the matter that the top seven leadership at Tautona were able to persuade
workers to abandon the sit-in. Workers began to surface at 06h00. Jacobs
described the officer in question as a hostage negotiator, and was
adamant that the situation was not a strike but ‘had the making of a
hostage situation’ as evidenced by the SAPS involvement. The mine even
Page 9
paid workers for the day, though this was not something canvassed with
the applicant’s witnesses.
[26] It was also put to Mphahlele that the company could not have taken
disciplinary action because it could not distinguish between those who
were withholding the labour and those who were prevented from going to
the surface. He expressed some scepticism that there were no CCTV
cameras and could monitor events underground at that time. In any event
the mine certainly knew who was underground during the event.
[27] When asked why AGA would not have taken action at Mponeng if it was
antagonistic towards AMCU, which had achieved a majority support of that
mine, Mphahlele’s response was that it was precisely because the AMCU
was stronger at Mponeng that action was not taken against AMCU
members there, whereas by contrast AMCU was a minority at Moab
Khotsong and NUM was the majority union, which management wanted to
protect. Naidoo would not say that AMCU was a majority union as a
verification process was underway but a lot of workers reflected as NUM
members would have been ‘transitioning’ to AMCU. In his evidence,
Jacobs emphasised that for the purposes of union recognition, AGA was
treated as a single workplace despite comprising a number of mines.
[28] Mr L Nangu, AMCU branch secretary at Tautona mine (‘Nangu’), testified
that it was only when the three suspended employees had the
suspensions lifted and went down the shaft that workers agreed to return
to the surface. However, the sit-in only came to an end at Tautona when
the SAPS was called to intervene.
[29] As in the case of Mponeng, the final written warnings pertaining to the
2012 industrywide strike were only issued on 20 December 2012.
However, according to the evidence of Naidoo, an agreement was
reached with Tautona employees on the day that they returned to work
from the industrywide strike that a disciplinary sanction less than dismissal
would be imposed. Jacobs confirmed that it was conveyed that final
written warnings would be issued and that was understood even though it
was not issued to individuals at that stage. No unions were involved in
reaching this agreement. Nangu also testified under cross examination
Page 10
that by 5 December 2012, workers were aware that they had final written
warnings for the industrywide strike because it had been mentioned by
Naidoo the time of the sit-in, though he agreed that it was not in
accordance with the procedure. At Moab Khotsong mine, workers were
advised in a briefing on 19 November 2012 that they had been issued with
a final written warning for the industrywide strike. Mphahlele agreed that it
would have been unfair to take account of those final written warnings
when taking disciplinary action against workers involved in the sit-in.
[30] Of the applicants dismissed, it turned out that 39 of them did not have final
written warnings on their records. In the case of 14 of them, they were
erroneously recorded as not having returned from leave or sick leave
rather than being absent owing to being on strike, and as a result were not
issued with the written warning by mistake. However VH conceded that
the remainder were either new recruits or were on leave during the strike
and were correctly recorded as not having been issued with warnings.
[31] AGA’s version was that, what happened at Tautona was not a sit-in as
such but a hostage situation in which a couple of individuals had
prevented the shift from coming to the surface by taking the keys of the
cage from an on setter. Nangu, who went down the shaft himself disputed
this and said it was the majority of the workforce which was involved in the
sit-in. When asked how the company could reasonably have identified
those who were supporting the sit-in and those who were not, Nangu said
that the mine ought to have charged everyone who was underground at
that time and subjected them to a disciplinary enquiry. Jacobs conceded
that this could have been done as it was at Moab Khotsong.
Saturday Working Arrangements
[32] A central feature in the events which precipitated the dismissals was a
campaign to alter the terms of Saturday working arrangements. According
to various AMCU office bearers who testified this was a source of
discontent amongst workers going back at least a few years before AMCU
organised them, though Jacobs disputed this. According to Mr Motloi, a
demand for an increase in the allowance payable for Saturday work had
already been made in December 2012 at Mponeng mine. At the time,
Page 11
Motloi was deputy branch secretary of AMCU at Mponeng mine, but when
he testified he had become regional secretary of the Gauteng region. The
demand, which was the ‘most vital’ demand of several demands
submitted, was to increase the allowance to 15% of the weekly wage for
each Saturday worked. He explained that the requirements to work on
Saturdays, amongst other things, prevented miners, many of whom were
migrants from visiting their families on the weekends, which was a source
of grievance for them. Motloi also explained that since workers had joined
AMCU, they did not see why they should be bound by agreements
concluded when they were members of the NUM.
[33] Various long-standing agreements had been concluded between the AGA
and NUM, UASA, NETU, SAEWA and MWU for the each of the
Company’s business units, known collectively as the “Productivity
Agreements” and which all govern Saturday working arrangements. All of
these agreements were concluded between August 1999 and August
2008, before the advent of AMCU at AGA, and it never became a
signatory to any of them.
[34] In terms of the Productivity Agreements, it was agreed between the
Company and the above-mentioned unions that the workers would work
every second Saturday and receive additional pay therefor amounting to
10% of that day’s pay. A number of such agreements had been concluded
in respect of at Moab Khotsong, since 1998. For present purposes, the
most pertinent one was the one concluded on 4 August 2008 entitled
“Agreement on Safety, Retention and Productivity Initiative: including
Working Arrangements”. This agreement provides for a 10% premium for
Saturday work.
[35] According to Motloi, AMCU leadership was of the view that the collective
agreements were not binding on its members for various reasons. Firstly,
the collective agreements were concluded with NUM, but the employees
were now members of AMCU. Secondly, AMCU leadership disagreed
with the Company’s contention that the collective agreements were for an
indefinite period of time and could not be terminated. Lastly, in terms of
Page 12
the agreement signed in 2002 it was supposed to be reviewed by both
parties after some months, but this had never been done.
[36] During December 2012, and specifically in relation to the Mponeng Mine,
AMCU tabled a list of demands including a revision of all Productivity
Agreements, particularly those in respect of Saturday working
arrangements. An improvement to the Saturday shift allowance was
demanded in order to improve their financial conditions and to fairly
compensate them for sacrificing weekends away from their families.
[37] Discussions about the demands only ensued once a verification process
of AMCU’s membership was completed during January 2013. AMCU’s
demand was for the allowances set out in the Mponeng Agreement to be
amended from 10% to 15% for each of the two Saturday shifts worked
during any month
[38] On 15 March 2013, and arising from a threat by employees at the
Mponeng Mine that they would no longer work Saturdays, management at
the Mponeng Mine issued a brief to employees stating that the refusal to
work on Saturdays would constitute an unprotected .On the same day, the
Company’s attorneys addressed a letter to Mphahlele and Mr D
Nkalitshana, AMCU’s National Organiser (‘Nkalitshana’), advising that the
Company was aware that AMCU had planned an unprotected strike action
by its members on the Saturday shifts starting on 15 March 2013 and
continuing through 16 March at the Mponeng Mine. No mention was made
of the Moab Khotsong Mine. The letter concluded in the following terms:
“In the premises, if your members persist with the proposed strike
action, our client will issue ultimatums to AMCU members, which
shall lead to disciplinary action. We remind you that your
members already have valid final written warnings for having
participated in the industry-wide unprotected strike late last year,
and thus, further disciplinary action for the same offence will likely
result in their dismissals. Our client further reserves its rights to
launch an urgent application to the Labour Court to interdict the
strike.”
Page 13
[39] Mphahlele replied by letter the same day and repudiated any suggestion
that AMCU supported the strike action in the following terms:
“As AMCU, we have not called an illegal strike and we are not
aware of any proposed strike action, however, we are
investigating the matter and will revert back to yourselves.”
[40] Despite the letters which came to the attention of local leaders like Motloi
late on Friday afternoon, 40% of workers on Mponeng mine went on strike
over Saturday working arrangements, or put differently there was 50%
non-attendance on Friday and 30 % non-attendance on Saturday, as it
was characterised by Jacobs. Motloi candidly admitted that the workers
felt betrayed by the letter emanating from the union, though he agreed Mr
Mphahlele would not have known about the strike and that in fact the local
leadership had concealed the strike from national office bearers because
they believed they would not support it as it was unprotected.
[41] However, after local leadership had received the letters from the lawyers
and head office, the regional AMCU organiser, Mr Nthuli (‘Nthuli’) arrived
on the instruction of the national office bearers and reprimanded the local
leadership for embarking on unprotected action and warned that a number
of people could be dismissed. A meeting that took place with management
and the regional organiser together with local leadership and the union
went and addressed workers advising them to start working on the night
shift of that Friday evening. By the time the leadership went to address
workers many of them were intoxicated because they believed that they
would not be working their Saturday shifts and consequently were in no
condition to go to work. Management therefore agreed that no disciplinary
action would be taken against them for non-attendance, even though
Jacobs agreed that the ones who did not attend were striking for the same
reason as Moab Khotsong alleged AMCU members were striking on 19
and 20 April. At the meeting it was also agreed that a meeting would be
held at a higher level with Ashanti gold to discuss Saturday work within
seven days, and that an alternative Saturday would be worked in lieu of
the one where workers were absent.
Page 14
[42] The strike was called off, but the mine did suffer a loss of production. No
disciplinary action was taken against any of the employees who did report
for duty, because the union intervened in that dispute and an agreement
was reached to work an additional Saturday. Jacobs claimed that AMCU
also made representations not to take disciplinary action in this instance.
Again this was not something put to the applicant’s witnesses.
[43] The strike over Saturday work was also planned at Tautona mine, but
AGA obtained an interdict to prevent the strike on 12 April and the interdict
was complied with. In fact, the interdict also prohibited similar action at
Mponeng, but no attempt was made to extend the relief to apply to Moab
Khotsong, even though the local leadership at Moab Khotsong had
already expressly threatened not to work on Saturday 20 April and that
transport would be disrupted. In the case of both Tautona and Mponeng a
letter had been written by AGA’s attorneys similar to that written in the
case of Mponeng mine. As in the other instance, Mphahlele wrote back
denying any plans to embark on unprotected strike action and undertaking
to investigate the matter and revert back. Mphahlele agreed that given that
the strikes at Mponeng and Tautona were called off there was no reason
to take any disciplinary action against workers.
[44] By 26 March, discussions were underway in Potchefstroom with local
AMCU leadership at Mponeng mine. At that meeting management
proposed to increase the Saturday allowance by 20% to 12% of the day’s
wage.
3 to 15 April
[45] Around this time the Saturday work issue was also being raised by the
AMCU employee representatives, known as ‘the top seven’. They had
advised management as early as 3 April that members would not work on
Saturdays from 20 April and that buses would not run on that day. This
warning was recorded in an email to Mr W van Heerden from Leeuw, viz:
“Please note that AMCU reported to me this morning that they will
not be working the in-Saturdays starting from Saturday 20 April.
And this would affect the whole Vaal River region and the reason
behind this is that they have put a demand to Potch and are not
Page 15
getting response. AMCU mentioned that this is a notice to
management as they also mentioned that we need to make sure
that busses are stopped on the day of the 20th of April.
I have tried to hear from the AMCU leadership of what demand did
they put with Potch and they refused and informed that they will
share the information with us when we arrange a meeting.
We also need to follow up with the other shafts whether they have
received such a threat.
This is a threat that we need to monitored and I suppose we will
have to have a meeting with them by next week when Willie back”
The reference to ‘Willie’ is a reference to Mr V van Heerden (‘van
Heerden’). The email was addressed to Mr R Ryneke, an HR manager
reporting to van Heerden. Van Heerden saw the email and was surprised
as there never had been issues with Saturday work
[46] In a letter dated 5 April, Mr M Madondo, the general manager of Moab
Khotsong (‘Madondo’) addressed to the chairperson of AMCU at the mine
read:
“”RE AMCU THREATS
We are seriously concerned about the threats that are made by
your organisation to disrupt the shift of the 20th of April in that
members will not be coming to work.
Please note that working of Saturdays is part of an employee’s
conditions of employment and regulated in terms of a padded
agreements. Any collective unilateral withdrawal is tantamount to
strike action and we reserve our rights.
I fully rely on your co-operation and support to ensure that we
establish a good “platform” for future growth that will benefit us
all.”
(sic)
[47] Jacobs was aware of this letter at the time. Van Heerden said it was
received by representatives of the top seven without comment and they
Page 16
did not attempt to engage him on its contents.. However, there was no
attempt by the company to communicate this to the national office of the
union, even though Mphahlele testified that AGA knew that any strike
action by AMCU members needed the sanction of head office after
following proper consultations with members and the necessary
procedures for conducting a protected strike. The company also took no
steps to approach the court for an interdict prior to the anticipated
stoppage on 20 April nor were any additional security precautions taken
though Magakwe was of the view that police presence on 19 April would
have unnecessarily aggravated the situation at that stage.
[48] On Sunday, 7 April 2013, Nkalitshana specifically warned employees
against striking on the Saturday shift during the mass meeting held at the
Oppenheimer stadium, situated on the West Vaal premises a few
kilometres from the hostel. In his answering affidavit opposing a cost order
against the union in respect of the interdict, Gama specifically noted that
employees at the meeting had indicated they were not going to work on
Saturdays. He also advised them to await feedback from the meeting that
was scheduled with management on the following day. According to
Nangu, Nkalitshana also cautioned members against unprotected strike
action at the meeting on 8 April 2013. Van Heerden heard about the
meeting and that there was a call for members not to work on Saturdays
[49] On Monday, 8 April 2013, high-level meeting was held between AGA and
AMCU representatives from the West Wits region, as well as Nkalitshana
and Nthuli, at which the proposals for increasing the allowance for
Saturday work were discussed. Jacobs claimed that Moab Khotsong
leadership was supposed to attend the meeting but no transport was
arranged for them, a point never raised with the applicant’s witnesses. The
minute does refer to a general complaint that transport was not arranged
for ‘the AMCU delegates’ but makes no reference to Moab Khotsong
delegates as such.
[50] According to Motloi, emotions were running high at that meeting, a point
confirmed by Nangu. Jacobs was among the management representatives
present at the meeting. According to Nangu, the AMCU representatives
Page 17
advised that workers would not work on Saturday 20 April at Mponeng and
Tautona mines and Jacobs became angry and left the meeting at that
point. In his affidavit Nkalitshana denied that the threat was made to
withhold labour on Saturday shifts unless the demands were met. Rather,
he claimed that he had emphasised that the issue of Saturday work was a
burning issue and there had been no progress on the matter. He was
concerned that if the company continued dragging its feet in the
negotiations, employees might go out on an unprotected strike on their
own accord. However, the minute of the meeting reflected that:
“AMCU stated that the agreement in place is with NUM and is not
binding. AMCU has 70% membership in the West Wits. AMCU
also indicated that their members will not work Saturdays until the
matter has been attended to.
Management noted the threat to withdraw from Saturday work and
indicate that legal advice will be sought and that legal action would
be taken if AMCU continues with the threat”
Jacobs claimed he understood that the threat by AMCU referred to the
whole business despite it being prefaced by the reference to AMCU’s
majority status in the West Wits region.
[51] Following the meeting, in an email on 08 April to Naidoo, Nangu tabled
demands from the AMCU Tautona branch in respect of Saturday work
and requested another meeting to discuss it with management, viz:
“We as AMCU leadership, we have demanding a production shift
of 15% in Saturday. It is a resolution that has been taken by
AMCU leadership at the West Wits region. And also we would like
you to give us an agreement on hours of work and working
arrangements, because we believe that the agreement that you
had is being expired.”
Once again, Jacobs interpreted this to be a clear indication of a withdrawal
from Saturday work in the South African region of AGA.
[52] Nangu related that the mood of local leadership was hostile to the advice
of the National organiser, Nkalitshana, which was that the matter should
Page 18
be processed through the CCMA and they should not take action.
Mphahlele said that AMCU leadership had expected the members to heed
national leadership’s call not to embark on unprotected strike action.
[53] Jacobs claimed that he spoke to Mphahlele on 9 April to express
Management’s concern about the ‘general’ threat of strike action and
calling on him to intervene. Mphahlele undertook to investigate and revert
to him but indicated that Saturday work was a problem for AMCU because
it was not a party to the agreements governing Saturday work. Jacobs
claimed that Mphahlele did not revert to him.
[54] On 10 April, a letter from AGA’s attorneys very similar to the one issued in
March was sent to AMCU in relation to anticipated action at Tautona and
Mponeng. The letter also sought an undertaking in writing from the union
to be sent by 16H00 on 10 April 2013 confirming that labour would not be
withheld.
[55] As with the earlier incident at Mponeng mine, Mphahlele responded in kind
with a similar letter. He also agreed that Jacobs did phone him when there
were problems and but he could not recall exactly what was discussed
when he was phoned about the incidents at Tautona and Mponeng mines.
He confirmed that the company had his number, and that of the AMCU
President and Treasurer as well as their email addresses. He did not
dispute that Jacobs could have spoken to him on 9 and 10 April about
averting the strike over Saturday work at Tautona and Mponeng mines.
However, he could not recall if Jacobs had said anything on those
occasions about what was happening at Moab Khotsong mine. Mphahlele
said that the union expected that on important issues like the one giving
rise to this trial management ought not to simply have dealt with the local
leadership consisting of the top seven, but should have involved the
national leadership of the union as well. Whether this did happen was
canvassed further after Jacobs claimed in his evidence that he had
spoken to Mphahlele on 16 April about the unfolding situation at Moab
Khotsong. This is discussed elsewhere.
[56] Mphahlele stated that the union’s approach to strike interdicts, which it
adopted a long time ago, was that if members embarked on an
Page 19
unprotected strike the union would not defend it, but would try and find a
solution with the employer to end the impasse. In his initial evidence in
chief, Mphahlele said that AMCU did not receive a similar request or
notice of an interdict in respect of Moab Khotsong: “… It was just a dark
page, we did not receive anything.” He further said that if AGA had issued
ultimatums and contacted him about an alleged illegal strike at Moab
Khotsong, he would have called Jacobs and the relevant management
structures at the mine to see if they could discuss the issue and assist.
[57] On 11 April there was an AMCU meeting held at the Itireleng hostel at
16h00. According to van Heerden approximately 220 individuals attended
and one of the issues discussed was that workers should not work on
Saturdays.
[58] On 12 April, AGA obtained an interim interdict prohibiting the impending
strike action at Mponeng and Tautona mines pending the outcome of a
dispute over the interpretation and application of the Saturday work
agreements. Once Nangu became aware of the order, he obtained a
loudhailer and warned workers to report for duty on the Saturday shifts.
When asked to explain why he did that, he answered:
“Reason being: what I noticed that there was a labour court
interdict, labour court interdict. And the letter of Jeff Mphahlela I
did read it on the day. Then I realised that if ever I can just leave
the workers not to report on duty they can be on trouble. Let me
tell them to go and clock in.”
[59] A little further on in the cross-examination the following exchange occurs:
“So, in the face of the interjection and in the face of this threat
from Ms Hart you did the right thing by getting your members back
to work. --- I realised that it is the right thing to get the members
back to work as per court interdict.”
[60] AGA contended that precisely because the strike was averted, there was
no need to take any action against workers, which was completely
different from the situation at Moab Khotsong where the local AMCU
leadership did not call off the strike.
Page 20
[61] On the issue of the attorneys’ letters sent to AMCU head office in respect
of Tautona and Mponeng, Jacobs conceded that one of the considerations
in sending the letter was the perceived disjuncture between local and
national leadership on the Saturday work issue. Jacobs attempted to
explain that the reason this course of action was not followed when the
same dislocation presented itself at Moab Khotsong was because AGA
had got the position of the national union at the meeting on 8 April and he
had discussions with Mphahlele on the 10th and 12th of April, coupled with
the fact that the course of action they had taken at the other mines was
clear. When tested on the fact that those conversations related to
Mponeng and Tautona and that Moab Khotsong was not mentioned,
Jacobs trying to explain that they took place in the context of a concerted
effort to engage the union generally about the issues of Saturday work.
However, he did concede that the letters in the case of Tautona and
Mponeng had been instrumental in stopping those strikes.
[62] Jacobs was also challenged on AGA’s version that it was uncertain if
anything was likely to happen because there was conflicting information
about whether action could be expected on 19 and 20 April. The factors
indicating that it strike action could reasonably be expected were ,
amongst other things: the threat made on 3 April; the AMCU mass
meeting held at the hostel at 16H00 on 11 April at which one of the issues
discussed with members was that workers would not work on Saturdays;
the top seven’s refusal to discuss the Saturday work issue when
management raised it at the meeting on 18 April; the briefing issued by
Madondo, which was announced repeatedly over three days, and the fact
that AMCU had made another request for a meeting at the residence on
19 April.
On 15 April a meeting took place between Moab Khotsong management
and AMCU local leadership at the mine comprising the ‘top seven’. No
regional or AMCU representatives were present, unlike the meetings at
the West Wits region. Management representatives included Madondo
and van Heerden. According to Jacobs, the report he received of the
Page 21
meeting was that AMCU leadership was not willing to discuss the
Saturday work issue with management. 16 April 2013
[63] On 16, 17 and 18 April 2013, the company used the assistant
communications officer, Mr I Mokhoke, ironically nicknamed ‘the DJ’ to
make repeated announcements on all shifts about management’s
concerns about a possible boycott of Saturday work. Mokokhe explained
that the standard procedure was for management to issue a brief to him by
email and he would translate it if necessary. He would then type and print
it. He testified that the PA system was next to the lamp room alongside the
shaft and there were speakers in the walkway and the change room. He
would repeat the announcement every ten minutes and in the case of
important notices would do that over two days. In this instance, the script
he read from stated, amongst other things:
““It came to management’s attention that AMCU is not in favour of
working the Saturday shifts as from Saturday, 20 April 2013.”
He went on to announce that:
“This is a serious concern to all of us, as Saturdays are part of our
employees’ conditions of employment and regulated in terms of
current agreements.”
It went on to say:
“Any collective unilateral withdrawal is similar to strike action and
Management reserved its rights to take the necessary action when
people do not adhere to existing agreements.
I fully rely on your co-operation and support to ensure that we
work together on this and other matters in order to build a future
that is to the benefit of all employees and our organisation ”
Mokhoke added his own personal flourish to the briefing mentioned above
by using a colloquial Sesotho expression that workers who did not come to
work on Saturday would ‘smell like skunks’.
[64] Van Heerden said that the intention of the brief was to remind the workers
about the agreements on Saturday,that they were binding and should be
complied with. Although he was asked if the briefing was prompted by the
Page 22
threat made at the meeting of 3 April, he said it was the discussions with
AMCU local leadership the previous day which had prompted the issuing
of the brief. Mphahlele conceded that Management at Moab Khotsong had
been proactive in communicating with AMCU members at the mine, but he
nonetheless believed that those issues were not dealt with the national
office of the union, as had been the case at Mponeng and Tautona.
Jacobs was of the view that even though an ultimatum had not been
communicated to workers on 19 and 20 April, the briefing issued by the
mine earlier in the week pre-empted the need for doing so.
[65] In the case of Moab Khotsong, there was no legal action launched prior to
the anticipated strike, nor was there any communication from AGA’s
attorneys to AMCU similar to that in the case of the other mines on 15
March and 10 April.
[66] Jacobs testified that AGA had decided to follow a different approach in
dealing with the situation at Moab Khotsong. He distinguished the situation
from Mponeng on the basis that in that instance there had been interaction
between AGA’s attorneys and the national office on the day of the strike,
whereas at Moab Khotsong they had a number of days when they saw
that the matter was looming. They requested AMCU leadership, with
whom it was building a relationship, to intervene as it believed there was
time for them to do so. Later, he elaborated that the mine had chosen to
go “a briefing route” which they felt avoided the need to issue ultimatums.
The mine also believed that the union would have understood that an
interdict was an option, but in this case they had been given more time to
intervene.
[67] Under cross-examination, Jacobs was tested on why Moab Khotsong was
excluded from the interdict on 12 April given that at that stage an express
threat of a strike had been issued by local AMCU leadership at the mine.
Although he tried to partially explain that this was a reflection of the
different approach adopted at Moab Khotsong, he could not dispute that
his discussions with Mphahlele at that point had only specifically dealt with
Mponeng and Tautona. The other explanation he offered was that the
strike at those two mines was imminent at the time the interdict was
Page 23
brought. It still does not explain why a similar interdict was not brought at
Moab Khotsong when the strike was imminent there, rather than after the
fact.
[68] When Jacobs gave his evidence in chief he testified that he phoned
Mphahlele on Tuesday, 16 April 2013. When Mphahlele was cross-
examined, this potentially critical communication was not put to him, nor
had it been pleaded even after the company had amended its statement of
response. In his evidence in chief Mphahlele said that to the best of his
recollection the only time that he became aware that action was being
taken against AMCU members at Moab Khotsong was when members
were already dismissed.
[69] Jacobs claimed that when he had spoken to Mphahlele on 16 April he had
expressed AGA’s concern about the threats to boycott Saturday work and
that he had reminded him of the legal action taken at the other two mines
in respect of similar threats. He further claimed that he had appealed to
Mphahlele to intervene so that AGA did not have to follow the same route
and expressed AGA’s willingness to engage with AMCU on the issue. He
also said that he conveyed the ramifications of strike action for the union
and its members, though he expressed this in the vaguest terms.
Understandably, because this alleged conversation of 16 April had not
been put to Mphahlele, the applicants contended this was simply an
afterthought by Jacobs and a fabrication. Jacobs could not offer an
explanation why this conversation was not mentioned even when the
company sought leave to withdraw its admission there had been no
contact with any union official to discuss the course of action it intended
taking. He also had no explanation why the company did not seek an
admission from the union that this conversation took place at the same
time it requested other admissions from the union about what took place
on 16 April.
[70] Subsequently, AGA successfully applied to reopen its case to deal with
this issue by recalling Mphahlele.
[71] When AGA reopened its case, Jacobs introduced fresh evidence of an
alleged email sent to Ms M Hart, the respondent’s attorney (‘Hart’),on the
Page 24
same date as the conversation, advising her of the set down of the CCMA
dispute concerning the interpretation and application of the collective
agreements regulating Saturday work. Jacobs also recorded in that email
that he had a ‘telecon’ with the AMCU general secretary that morning “…
to indicate that I will formally invite them to an engagement process
regarding Saturday working arrangements.” Mphahlele could not recall the
content of the discussion but contended that if Jacobs had indeed asked
him to intervene, then he would have as he did in the other disputes and
the fact that he did not intervene meant that Jacobs could not have made
such a request. Mphahlele did recall that there had been a telephone
conversation with Jacobs concerning a formal engagement with AMCU
about the Saturday working arrangements but only in general terms. He
was more insistent that he could not recall one dealing with the specific
situation at Moab Khotsong. He agreed it would have been a good time for
Jacobs to raise the issue with him, but was confident that if he had done
so, the union might have done something about it. He could not
understand why the union would have reacted differently to the way it had
acted at Mponeng and Tautona if Jacobs had communicated as clearly
with him about Moab Khotsong. Though he could not recall the contents
of that conversation he was emphatic that he did not recall any discussion
of the situation at Moab Khotsong and would have remembered it if
Jacobs had told him that workers at Moab Khotsong were planning to go
on strike. If he had told him that on 16 April he would have gone to Moab
Khotsong the next day
[72] Unlike the pattern of interactions between Jacobs and the AMCU national
office that characterised the dealings in respect of the Saturday work issue
at Tautona and Mponeng, there was no letter sent by AGA’s attorneys
putting the union on terms and threatening legal action if an undertaking
was not given. When he was cross-examined after the company had re-
opened its case and after Mphahlele had already been questioned for the
second time, Jacobs added a new dimension to his previous testimony.
He now claimed not only that he had discussed the situation at Moab
Khotsong with Mphahlele and the latter said he would investigate and
revert to him. This was not canvassed with Mphahlele at any stage.
Page 25
18 April 2013
[73] On 18 April 2013 at 08h30 a meeting was held between Moab Khotsong
management and the top seven, which only ended at 14H30. On this
occasion, Madondo was not present. A lengthy discussion on a whole host
of issues ensued, but it was only right at the end of the meeting that the
following brief entry relating to Saturday work appears:
““Willie [van Heerden] requested frankness about the stance on
Saturday work. He states that if it makes the committee uneasy to
discuss the issue, he apologises. However, he needs to
understand the issue. AMCU replies that the Saturday work is not
on the agenda and that there is unfortunately no time. Willie states
that he takes it that they are not prepared to talk about it”
Van Heerden said he was trying to approach the leadership in a non-
confrontational way and he was trying to set the scene to get their
response. He was prepared to discuss the issue till late if necessary and
was disappointed by their response. Nonetheless he claimed he did not
get the impression the action previously threatened on 3 April would occur,
but characterised it as a ’50-50’ situation. Had he thought they would
proceed he would have raised it with his superiors and asked them to take
it up with the union at at national level. He did report to Jacobs in any
event that there was a likelihood of a strike. Jacobs claimed that based on
this report, which he received, , “it was anyone’s guess at the time”
whether that was an indication that the workers would embark on action.
He also claimed that given his discussions with Mphahlele, the action they
had taken at Tautona and Mponeng the previous week, and the security
reports they had received did not lend themselves to suggest any action
was imminent, but on the other hand he said it was “conflictual” whether
there would be action or not. It was only the following day at around
18H00 that he received a call that buses were being prevented from
transporting workers and there would be no night shift. Van Heerden felt
that meeting was the first he had had with the AMCU leadership where he
felt he could start building a relationship with the group, but was unsure if
they would “really go ahead with their intention and threat not to work” on
Page 26
Saturday and he reported that for the second occasion they would not
discuss the issue to Jacobs.
[74] On the same day a Mining notice (no 003171) was issued by the Inspector
of Mines terms of Section 54(1)(a) and (b) of the Mine Health and Safety
Act, 1996 (‘the section 54 notice’) because certain dangerous
occurrences, practices and/or conditions had been observed by him at the
Moab Khotsong Mine. Madondo testified that in 2012 there were nine
stoppages on account of such notices being issued by Mine Inspectors
and 13 in 2013. What had given rise to the notice was a fall of ground on
17 April at 92 level of the mine which had resulted in a reportable injury
being sustained. En route to the scene of the accident a caboose on
which a train guard sits was derailed by a stone on a track switch and the
Inspector ended his underground visit at that point and conducted an audit
of various safety practices followed underground.
[75] Notable features of the section 54 notice stated that:
75.1 The section 54 notice applied to “ALL” sections of the Moab
Khotsong Mine;
75.2 The Inspector of Mines scored the “Overall Outcome of Risk
Analysis” as an “8” under section B of the section 54 notice under the
heading “Summary of Risk Analysis”. In terms of the section 54
notice, an overall score between 7 and 16 is “applicable to all
workings on a mine”;
75.3 The instructions issued by the Inspector of Mines to the Moab
Khotsong Mine under section C of the section 54 notice, were that:
“1. Competent “A” persons to be retrained and re-
assessed in the correct procedures of declaring work
places safe. (NB:- Crews to be removed from the
working places to a safe place.
2. Miners, Shiftbosses and Mineoverseer to be re-
trained and re-assessed in the over inspection of the
safe declaration book.
Page 27
3. Rail Bound Equipment to be halted until
investigations, remedial actions and presentations
made to the Principal Inspector.
The employer is further instructed to jointly with
member(s) of health and safety committee or unions; fix
the deviation(s); conduct comprehensive audit for similar
deviation(s); investigate reasons for system failures and
institute an action plan to prevent further recurrences of
system failures.
This instruction shall remain in force until such time that
the employer has complied with the instructions and
presentations made to the offices of the principal inspector
of mines by the said employer and the members of health
and safety committee or unions”;
[76] The mine, supported by both AMCU, NUM and UASA safety
representatives, had sought to limit the Inspector’s instruction to a more
limited investigative scope in terms of s 55 of the Mine Safety Act relating
to the derailment incident but was initially unsuccessful. On 18 April 2013
at 17h00, Madondo issued what is known as a “Red Note” to all
employees, in terms of which inter alia “all crews [were] to be removed
from working places to a safe place” and “for this reason all employees
must proceed to their respective waiting places, conduct safety meeting
and wait for further instructions from their supervisors. No person will be
allowed to enter his working place except for essential services;”
Supervisory staff were directed to report for training. During the course of
2012, apparently 12 such notices were issued and the instructions in the
Red Note of 18 April 2013 were fairly typical. It was also not disputed that
provided workers reported to their waiting places or for training they would
be paid. Jacobs testified that the night shift on that Thursday and morning
shift the following day reported for duty as usual.
[77] According to Madondo, the Red Note did not apply to employees involved
in equipment maintenance, construction and other activities but the vast
majority of the applicants were involved in the physical mining activities.
Page 28
However he testified that the crews were still required to attend to
remedial operations to deal with the rail conditions identified in the note,
which would involve cleaning and loading mud in the haulages and
particularly in the cross-cuts into specially arranged bags to make the
tracks safe. If the teams did not report for work, the start-up would be
delayed by the need to take the remedial actions. He contended that this
type of work was contemplated by the terms of the s 54 notice which
mentions remedial action being taken, fixing deviations, and employees
waiting for further instructions. The other purpose served by having all the
teams at the waiting places is that they could immediately be engaged in
other work if the s 54 notice was lifted because they could be contacted by
phone.
[78] The mine and the unions also made further representations that day to the
Principal Inspector of Mines; in respect of the mine.
[79] Neither the existence of this notice nor the effect it had on normal
operations of the mine was disclosed in the founding affidavit supporting
AGA’s interdict application, so the court considering the interim application
on 23 April 2015 had no inkling of this obviously complicating factor
affecting the very issue of whether a strike had occurred on 20 April 2015,
which ought to have been disclosed by AGA.
[80] AGA contended that this did not mean the mine was shut down
completely. Mphahlele’s response to this suggestion was that once the
individuals identified for retraining in the notice were not at the workplace,
the mine could not function. Although this was not put to Mphahlele,
Jacobs claimed that there would be supervisory personnel available
because training was done on a staggered basis. Further, the requirement
that all teams working a shift had to be removed to a safe place meant that
“everybody was off.” When this issue was canvassed with Mphahlele
under cross-examination I asked AGA’s counsel, Mr Lennox if it was the
mine’s position that people were supposed to be doing their normal duties
underground on 20 April, and he clarified that it was not suggested that
they would be performing normal duties underground. When pressed for
an answer whether the mine was closed or shut down by the notice,
Page 29
Mphahlele responded somewhat exasperatedly by making an analogy with
the court:
“How can you operate in this room, I am not asking a question, I
am trying to illustrate my answer. If all of us here including the
honourable judge had to evacuate this rule, can this room be
functional? Can the matter that is said to be conducted in this
room still continue? No, there is nobody in here.”
[81] Counsel was advised to put to Mphahlele the specific facts, which formed
the basis of AGA’s proposition that the mine was not shut down.
Mphahlele was then cross-examined on the significance of the instruction
in the general manager’s Red Note to employees to go to their waiting
places, conduct safety meetings and wait for further instructions from their
supervisors. Mphahlele accepted that it was a lawful instruction to tell
them to wait somewhere while safety talks were conducted, but this did
not detract from the fact that the mine would be shut down. He denied that
if workers did not go to the working places they were withholding their
labour.
[82] Mphahlele was also questioned about certain correspondence issued by
Madondo in the week after the shutdown in which he plainly believed that
workers had been unfairly dismissed for not going to work on a Saturday
when they were not ordinarily supposed to work, in which he made no
mention of the section 54 notice. What is apparent from a media release
issued by AMCU on 9 May 2013 is that the union was aware at that stage
that a section 54 notice had been issued. In the narration of events leading
to the dismissal of the applicants, the press statement contained the
following passage:
“Based on the above the mine was supposed to be non-
operational. This alleged unprotected industrial action could have
been converted should the mine have communicated with the
workers at the mine’s under section 54 hence there should have
been no Saturday working in.”
Page 30
Mphahlele confirmed that these communications reflected what AMCU
perceived to be the situation at the time. In trying to explain why the union
did not oppose the confirmation of the temporary interdict on 7 June,
Mphahlele said that the union had no objection to the prohibition of
violence and it would have been foolish to oppose that.
19 April 2013
[83] On the morning of 19 April, when employees, like Mr K Ndlovu, a team
leader (‘Ndlovu’), arrived for the day shift they learnt that the previous day
the Department of Minerals and Resources (‘DMR’) had issued a notice in
terms of section 54 of the Act. In his case he was advised to go to the HR
manager who then told him to report for training at the gateway training
centre. Team leaders and other supervisory Mine personnel, known as
‘Competent A’ staff, were required to undergo refresher training on 19 and
20 April 2013 whilst the red notice was in operation.
[84] From Ndlovu’s evidence it appears that the gang registers of all miners
who would have been on duty on Friday, were marked with the letter ’B’.
[85] On Friday, 19 April 2013, AMCU called an unauthorised meeting at
approximately 16:00 at the Itterileng residence. A request for a meeting
that day had been turned down by management because there was no
venue available according to van Heerden. Mr G Tiyo (‘Tiyo’), a winch
operator, claimed he was at work when he was told by NUM shop
stewards to stop working and go to the Oppenheimer Stadium to attend a
meeting because Marikana ‘people’ had got an increase so they should
demand more money too. Somewhat confusingly he also claimed he went
to the training centre but had to obtain a visitor’s permit from HR to gain
access to the training.
[86] At around 16H30, Mr A Leeuw (‘Leeuw’), a senior human resources officer
said he received a call from the branch secretary of the NUM, Mr H
Sosikela saying that AMCU had held a mass meeting at the hostel and
AMCU members had gathered at the bus terminus and were intimidating
employees who wish to go to work. During the course of the trial video
footage of the bus terminal outside the hostel was viewed. What the video
showed apparently was a bus waiting from about 16h09 at the terminal.
Page 31
Around 16h53 people start streaming from the hostel and a group of
approximately 50 or more head for the terminus and gather together next
to the passenger entrance of the bus. Rohr identified certain of them as
AMCU members, but could not say that none of them were NUM
members. However, in his experience, given the rivalry between the two
unions it was unlikely members of one union would associate themselves
with a strike called by the other unless it was a protected strike.
[87] Mr D Magakwe, District Security Manager for Vaal River Anglo Gold
Ashanti (‘Magakwe’) went to the residence after hearing about the
gathering at the bus terminal at about 17h00. He saw the group toyi-toying
near the bus and addressed them using the loudhailer of the security
vehicle. He told them what they were doing was unlawful and he would
arrange for them to speak to a manager if they wanted to. The response of
the group was that they would not desist because they wanted more
money for working on Saturdays. He confirmed that members of the top
seven were amongst the group at the scene. He claimed that he had
spoken to the driver of the bus at the bus depot after he had returned from
the terminal and was told he was scared sitting in the bus because people
were threatening him. Oddly, he was unaware that anything might have
been brewing in relation to the Saturday work issue until he saw the
briefing issued by Madondo a day or two before. He conceded that the
driver did not leave because there was a security and police presence.
[88] Other footage from another camera shows a few people raising sticks as
they dance. No one boarded the bus and after about 10 more minutes it
left. Later some of the group moved to dance in the street entrance to the
transport terminal. Still later at about 18H20 AMCU can still be seen
dancing in the loading platform area of the terminal. Intermittently, people
can be seen boarding taxis, but no bus appears. Rohr confirmed that no
buses entered the terminal after that he said that drivers were scared as
they believed they were in danger due to the group that did not want
anyone to board a bus. Mphahlele disputed that there was anything
threatening about the situation portrayed on the video which meant he
showed people dancing around under the cover of umbrellas on what was
Page 32
a rainy day. The bus eventually drove off peacefully and there was no
suggestion of any disturbance or disruption.
[89] Various photos showing individuals on 19 April some wearing balaclavas
and some with sticks or carrying stones in the vicinity of the entrance to
the transport hub near the hostel were also introduced in evidence. Under
further cross-examination Mphahlele did concede after viewing
photographs of the episode that some members of the crowd were
carrying sticks, but argued that, that was not necessarily indicative of them
being in a fighting mood. He also queried why, if indeed the situation was
threatening, the company did not station security personnel at the bus
terminal.
[90] Evidence was also given by a former bus driver, Mr J Pule (‘Pule’) of what
he witnessed that afternoon from the transport depot situated near to the
transport terminus at the hostel. He was waiting at the depot after
completing the transport of afternoon shift workers from the hostel to the
shaft around midday. It transpired that his last trip at around 17h00 had
been to collect workers coming back from the shaft that afternoon. Before
he knocked off work at around 18H30 he saw people carrying
knobkerrie’s, sticks and irons singing at the bus terminus. He claimed that
they were singing in Xhosa that “tomorrow is Saturday we are not going to
work” and adding that they were going to “kill all the drivers”. He claimed
that he had reported this to his supervisor but could not explain why this
report was not mentioned in the company’s synopsis of events, nor why it
was not mentioned in an affidavit in support of the interim interdict dealing
with events at the transport terminus. He also did not address himself to
the question put to him why the driver of the bus waiting at the terminus
would have waited so long if such threats were being made to him. He
claimed not to have heard Mr Magakwe addressing the crowd over the
loudhailer either. He had experience of the events during the gold industry
strike of 2012 in which stones had been thrown at buses and one of his
colleagues had to be taken to hospital after being injured by a stone.
[91] In any event, Jacobs testified that the company had decided to stop the
buses after seeing the events which unfolded late that afternoon at the bus
Page 33
terminal. The decision was also influenced by what had happened during
the strike in 2012 when buses had been stoned and there was an attempt
to set a bus alight. He was dismissive of the suggestion that the decision
was influenced by the effect of the section 54 notice on operations.
[92] Jacobs claimed that he made two calls to Mphahlele in the evening of 19
April, when he learnt of the strike. Mphahlele did not take either of the
calls, but Jacobs said that he left a detailed voice message in which he
reiterated AGA’s concerns, referred to their previous discussions and
again requested Mphahlele to call him back and intervene in the matter.
[93] According to Leeuw the NUM general secretary, Mr F Baleni, had sent an
SMS to Jacobs advising him that NUM members would not lose their
Saturday earnings on account of an unprotected strike by AMCU
members.
[94] Jacobs claimed that once he learnt of the events that evening he made
“about two calls” to Mphahlele in the space of an hour which he did not
take. In one he left a detailed message about their concerns and the
previous discussions and again requested him to call him back and
intervene in the matter. Mphahlele did not revert to him.
20 April 2013
[95] Leeuw said he was called again at just after 04H00 by Sosikela who
complained that NUM members were being assaulted on their way to
work. An ambulance had to be arranged to hospitalise one NUM member
who had been badly assaulted.
[96] Video footage was shown of the entrance to the helipad area taken from
around 06H00 that morning. Small groups of people can be seen entering
from time to time. Rohr testified that these were workers who had
responded to the announcements made from security vehicles advising
people that they could report to the helipad. Ms M Bezuidenhout, a
Security Superintendent at the Services Department at Anglo Gold
Ashanti Vaal River (‘Bezuidenhout’) was posted at the helipad that
morning to monitor those workers who reported there, who numbered
207 in all by the time she left at 14h00. The cut-off time for reporting
Page 34
there was 07h30 and no-one reported to the helipad after that.
Bezuidenhout also confirmed that the facility of reporting to the
helipad was not available for the night shift workers on the previous
evening. She did not have an explanation why two AMCU members
who had reported to the helipad and whose details were captured on
the list had nonetheless been dismissed. It is common cause however
that they were reinstated at an early stage and withdrew their unfair
dismissal claims.
[97] Further footage of the loading platform at around 07H43 shows a sizeable
group of workers gathered at the platform of which about twenty break
away and head towards the security complex and later shows them
directed back to the hostel by security personnel. A few of them appeared
to be carrying sticks. In further footage around 08h00 the group can be
seen returning to join others still gathered at the loading platform. An hour
later, the group is still gathered there, which Rohr testified was not normal.
[98] Madondo testified about a meeting held mid-morning on 20 April at the
mine with local NUM leadership. Leeuw also attended the meeting but did
not give evidence on it. The minutes of the meeting reflect NUM
complaining about management’s failure to act on NUM’s previous
warnings that AMCU was rumoured to be planning to stop busses in
support of their campaign against the Saturday working arrangements.
The minute also reflects that Madondo told the NUM representatives that
he had met with one of his security personnel earlier in the week “…in
relation to security of our employees who will be reporting to work.”
Madondo confirmed that he had spoken to his senior security officer about
the rumour and because they had previously experienced incidents of
intimidation focussed on the busses in 2012, the mine was very
concerned. The representatives said that NUM members could not
proceed to work and it was no fault of theirs.
[99] A few of the applicant’s witnesses testified that they had reported for work
on Saturday, 20 April 2013. Makwekwe, a rock driller, (‘Makwekwe’)
testified that, on the Saturday, he clocked in at 04h29 and out at 12h03;
that he was told by his supervisor that they were not going underground;
Page 35
and that he spent the shift working on the surface, loading goods and
cleaning. Mr Mzileni (‘Mzileni’), who did not live on the mine premises and
either travelled directly to the mine or travelled to the hostel and took the mine
bus to the shaft testified that , he went to the mine on Saturday, but did not find
many people there because the mine was temporarily closed by the DMR; and
that he clocked in and then went home. He did not find any transport at the hostel
and arranged for someone to give him a lift to the shaft. His clocking records
showed that he clocked in at 05H56 and out at 06h42. He went to the shaft but
did not go underground to work. At the end of his testimony, the company
tendered to reinstate him with retrospective effect because he had gone to work
and had attended a disciplinary enquiry and advanced his defence. The tender
was accepted. Another witness ‘WA1’ who testified in camera, said that on the
Saturday, it did not appear to him that the mine was operating as there were a lot
of people outside at the dressing stations; that his shift was not working because
his clothes had not been washed and the wheels of the headgear were not
moving; and that he had clocked in at 03h30 and out at 04h30. Madondo said
that the fact the headgear on the shaft might be motionless did not mean the
mine was not working and speculated that W1 had arrived late for his shift, but
W1 was never challenged on this aspect of his evidence. Machonga could not
comment on WA1’s version as he was underground.W1 did agree that in terms of
the Red Note he was obliged to report for duty, as he in fact did. Although the
company did not accept that he tendered this explanation at his disciplinary
enquiry or on appeal, it did accept that he had reported for work on nineteen and
twenty April and had attended the disciplinary proceedings. He also accepted a
tender of retrospective reinstatement to the date of dismissal, which was made at
the end of his testimony.
[100] Lebodi travelled by car with four other NUM members from the town of
Khuma some 20kms away to the Itireleng residence to catch a bus. They
arrived early that morning at 04H00. There were no buses but there were
persons singing. He claimed that the driver of the car he had travelled in
advised that they would travel to the shaft via the hostel because there
had been a meeting the previous day and they should attend a meeting at
the hostel before going to work. They would then board buses for the
shaft. When no buses had arrived by 06H00 he took his bag from the car
and went home with one of the other occupants. The driver supposedly
showed no interest in taking them in his vehicle to the mine. He claimed
Page 36
ignorance of the meeting of the previous day and denied that AMCU
members were at the forefront of a campaign against Saturday work. He
denied hearing anyone announcing on loudhailers at the Itireleng
residence that people who could not get to work could report to the
helipad, or seeing anyone gathered there when he walked past. When
asked under cross-examination what efforts he made to establish when a
bus would be coming he claimed that he had phoned a certain Samuel,
who was an assistant HR manager at the shaft to find out what was
happening with the buses. Samuel told him he did not know what was
going on and would phone him back but he never did. Lebodi further
testified that he went home by getting a lift in a taxi that was on its way to
Klerksdorp and there were no other vehicles going to the shaft he could
have approached for a lift. As far as he was concerned the only transport
from the hostel to the shaft was by bus and there was no transport by taxi
to the shaft. There was evidence on video footage taken on 19 April that
taxis also came to the rank and Rohr testified that they travelled to the
business units and to the local communities. Van Heerden also claimed
that a number of hostel residents got to work and that miners got taxis or
lifts with friends. Although Lebodi was challenged on the discrepancies
between his original account of what he told the chairperson at the appeal
hearing and his later version in which he added the details of travelling
with other people to the hostel, essentially his version was that he had
gone to the hostel to get transport but none was available, which was
broadly consistent with the summary of the explanation he gave at his
disciplinary enquiry that appears on the record of his enquiry. .
[101] At 06H45, the local NUM secretary had reported to Leeuw that the mine
had failed to provide security or transport for NUM members. When they
arrived there were no buses. Mr Mere (‘Mere’), who stayed at the hostel,
claimed that he went to wait with other workers for a bus at the bus rank
from 11h00 that morning but waited ‘long after’ 12h00 for bus and
eventually returned to the hostel when none came. His afternoon shift was
due to start at 12h00. He claimed to know nothing of any strike and was
out of touch with what transpired at union meetings because of his shift
pattern which meant that fellow hostel dwellers were asleep when he
Page 37
returned from work and had gone to work when he woke up. He claimed to
be completely ignorant of the warnings issued by the top seven to
management about what would happen that day, nor did he hear Mokokhe
reading the briefing on 16, 17 and 18 April. He also claimed to have heard
nothing about the AMCU mass meeting on 19 April when he returned to
the hostel at around 22h00 that night. He did concede that the night shift
had not gone to work and when his bus arrived at the hostel, they did not
alight at the rank where there was a group of people gathered, but denied
seeing them being armed with sticks or knobkerries’, or wearing
balaclavas. He simply went about his private business, without making any
enquiries and went to sleep. He was also oblivious to a raid by security
personnel looking for weapons at the hostel which took place in the small
hours of the following morning. He also did not hear any announcements
being made by security personnel using loudhailers to say that anyone
unable to get to the shaft on Saturday should report at the helipad. The
most he would concede is that there were more people than usual at the
hostel that Saturday. He claimed to have waited for the bus for the night
shift on Saturday, which never came and he did not get a taxi because
there were no taxi’s running from the residence to the shaft. At a certain
stage during his testimony Mere was confronted with a defence he
apparently gave to the chairperson of the appeal hearing in which he had
said that apart from there being no transport he was afraid to go to work.
At this juncture the witness had difficulty remembering what he said and
asked for a brief adjournment to recollect his thoughts. After the
adjournment, the allegation was made that during the adjournment he had
gone to the toilet and a number of other AMCU members were heard
coaching him on what to say. He denied this. When the court adjourned I
specifically asked that only Mere should leave the court, but noticed that a
number of other persons in the public gallery also left. Later in the
proceedings, the Senior Security Official Mr Molokela who had witnessed
the interference with Mere confirmed what had happened and his account
was not effectively disputed.
[102] Jacobs claimed that he phoned Mphahlele again early on Saturday
morning at about 07H00 and told him that unprotected strike action was
Page 38
under way, that there had been violence, and requested him to intervene
because the situation could spiral out of control. According to Jacobs he
specifically asked Mphahlele for a meeting that day to find a way to
resolve the issues, but Mphahlele was non-committal and merely said that
he was involved in a church function, that it would be difficult to meet with
him, but he would revert to him on a possible meeting. Mphahlele could
not recall if he was at church that morning, but if he had called him on a
Sunday he would have been at church. He did not recall the particular
conversation referred to by Jacobs. After failing to get hold of Mphahlele
during the course of the morning, Jacobs sent Mphahlele the following
SMS at 10h55:
“Hi Jeff, our earlier telcon. I will still want to meet with you
today/this morning and was stated in Jhb until you available. The
situation now need urgent intervention by you and the AMCU
national leadership. As indicated to you earlier one employee was
hacked by AMCU members (investigations continuing), and
AMCU members in our hospitals/residences of drumming up
support to block roads and bridge s, and threatening that
employees at shafts will be dealt with today. This situation has the
potential to lead to widespread violence and unprotected strike
action at mines in the Vaalriver, which in the current economic
conditions threatens the viability of our mines.
Regards Ian K Jacobs.”
[103] An hour later, Mphahlele got back to Jacobs and told him he was available
for a meeting, but no arrangement was made and the matter was left on
the basis that Jacobs would revert to him. However, it was decided that
since the shift had been lost already, Mphahlele’s involvement would not
resolve anything. It was at that stage Jacobs was then instructed to
contact AGA’s attorneys and consider legal avenues going forward. From
Mphahlele’s own evidence, there is no suggestion that he took any other
steps to intervene in the situation but his understanding was that the
meeting held at the country club was the result of the exchange he had
with Mphahlele. The original pleadings, it was common cause that AGA
Page 39
made no contact with any AMCU trade union official to discuss the course
of action that it intended adopting in relation to the individual applicant’s
conduct. During the course of Mphahlele’s initial examination in chief, the
respondent alerted the court to its intention to plead a different version in
an application to amend its response to withdraw its original admission
that “…the company made no contact with any AMCU trade union official
to discuss the course of action that it intended adopting in relation to the
individual applicant’s conduct.” However, when Jacobs was re-examined it
was suggested that the original admission, which the amendment sought
to withdraw, had been confined to an admission that there were only no
communications during 18 and 19 April and did not imply that there had
been no communication prior to those dates.
[104] Pule said that when he arrived for his shift at 14H30 on Saturday that
people were still singing like they had on the previous day and no buses
transported anyone by the time he knocked-off at 20h30.
21 April
[105] On 21 April 2013, a so-called “Green Note” was issued by Madondo to the
effect that the section 54 notice had been uplifted. This was a result of
further representations made by the mine and unions to the Principal
Inspector of Mines. The company also finalised its plans for the
forthcoming disciplinary enquiries in an HR meeting which started the
previous morning and continued throughout Sunday. Van Heerden said
that the violence which ensued following the dismissal of the top seven
had no effect on the planning of the enquiries.
23 April 2013
[106] On Tuesday 23 April 2013, it was claimed that AGA sent a letter to
Mphahlele advising him of the company’s intention to take disciplinary
steps against AMCU interim leaders at Moab Khotsong relating to alleged
participation in an unprotected strike on 20 April, incitement of workers not
to attend work on that day and, incitement to violence. The letter invited
Mphahlele to discuss the planned action with Jacobs. It made no mention
Page 40
of disciplinary action against ordinary members arising from the events of
20 April. Mphahlele said that at the time the union was in the process of
occupying new national offices and it might have been received but he had
no recollection of seeing it then. Van Heerden claimed he had given it to
Madondo’s secretary to fax to AMCU and had seen it being faxed.
[107] Madondo issued a general brief to all employees about the events on
Saturday in which, amongst other things, he mentioned that:
107.1 employees had embarked on an unprotected strike, which was
in violation of established working arrangements at the mine and a
breach of the conditions of employment;
107.2 there had been incidents of intimidation;
107.3 the company did not condone the violence and was
investigating the matter with the authorities;
107.4 thanking those employees who continue to report for work, and
107.5 cautioning employees that “final warnings issued following the
previous unprotected strike in 2012 are still in force.”
[108] The same day a letter was also sent by AMCU to Jacobs complaining of
the dismissal of members, presumably a reference to the top seven, and
apart from urging management to reinstate the members, called for an
urgent meeting between the parties ‘to deal with all matters of concern’.
The response from AGA’s attorneys sent on 24 April did not respond to
the proposal for a meeting. Jacobs said he found it strange that the union
was asking for a meeting at that stage and made reference to a passage
in the letter which referred to the union acting in breach of the court order
granted on 15 April in that members had embarked on unprotected strike
action as threatened on Saturday 20 April.
[109] The mine proceeded to dismiss the top seven on the same day and Rohr
confirmed the contents of certain video footage apparently showing the
departure of the leadership from the logistics area of the Moab Khotsong
shaft, which they had previously refused to leave until the mine sought the
assistance of the SAPS. Later the same afternoon, footage was shown of
Page 41
confrontation between people gathered at the loading platform and the
SAPS, which included the firing of a stun grenade and stone throwing.
[110] On Tuesday 23 April 2013, AGA also brought an application for interim
relief under case number J 821/2013, seeking amongst other things the
following relief against AMCU members at Moab Khotsong mine:
“That the withholding of labour on Saturday, 20 April 2013 at the
applicant’s Mponeng and Moab Khotsong Mines by the further
respondents, be declared to be an unprotected strike.
That the first to further respondents are interdicted from withholding
labour or embarking upon an unprotected strike”
[111] A rule nisi in these terms was issued and on 7 June 2013, the rule was
confirmed by consent. A legal controversy exists around the status of
the order. AGA contends that the applicants cannot dispute the finality
of the order as a declaration of the unprotected nature or, alternatively,
are estopped from disputing the existence of an unprotected strike on
20 April.
[112] On the return day of the interdict on 7 June 2013, AMCU only opposed
an adverse order of costs and did not take issue with the substance of
the order. According to Mphahlele the union’s main concern was
avoiding a waste of money and there was no time to take advice on the
issue, though he conceded under cross-examination that the person
who had been dealing with members at Moab Khotsong was
Nkalitshana. Moreover, it was only in December 2014 that the union
consulted with members and, by implication, obtained a fuller picture of
events. In retrospect, in the light of the fact that operations at Moab
Khotsong had ceased owing to the section 54 notice, he took issue with
the allegations in the founding affidavit in support of a claim of
irreparable harm that the two mines would have each lost 25 kg of gold
production for each shift lost.
Page 42
24 and 25 April 2013
[113] On Monday and Tuesday, following the operational shut down while the
red notice was in force, workers reported for work and were allowed
access to the mine as normal.
[114] Having dismissed the top seven on 23 April, the company obtained an
interim interdict the following day prohibiting them from entering the mine
premises except to remove their belongings and from continuing with acts
of intimidation or inciting workers to strike.
[115] On Wednesday 24 April 2013, after obtaining the interim declarator the
day before, that AGA proceeded to convene disciplinary enquiries, without
prior notice to AMCU. AGA maintained it was under no obligation to do so
because clause 4(2) of AGA’s disciplinary code only provides that it is
necessary to advise the union of growth disciplinary action when that
action involves union representatives, office bearers and officials.
Mphahlele testified that the union never had time to represent the
members and played no role at all in the enquiries. Despite defending the
policy of not advising the union of its intention to hold disciplinary enquiries
involving the rest of the membership, Mphahlele was challenged on why
AMCU national structures did not send anyone to represent them. His
response was that the national organiser was barred from doing so.
[116] It only emerged late in the proceedings that workers who had reported for
work on the night shift of 23 April were also blocked from working and
were told that they should report to the mine the next morning. Neither van
Heerden nor Madondo could say that they would have known that the
purpose of reporting would have been to attend disciplinary enquiries,
though van Heerden believed they would have learnt that when they
reported at the mine the next day.
[117] The decision to proceed with the mass disciplinary process was taken
at the so-called control room of AGA in Potchefstroom with the input of
all the senior HR management. The expedited process adopted was
influenced by concerns that if workers were initially suspended and then
summonsed to disciplinary enquiries a day or two later, it might have
provoked a recurrence of the underground sit-ins that had taken place
Page 43
at other mines. There had also been incidents requiring the intervention
of the SAPS and threats had been made, amongst others, against van
Heerden when he had summonsed the top seven to their disciplinary
enquiries. The situation was viewed as a crisis situation. Jacobs
conceded that as a result of the way the proceedings were conducted
workers had no opportunity of obtaining advice from, or representation
by, AMCU. Van Heerden testified that given events on 19 April, stone
throwing which took place after the dismissal of the top seven and the
threats made to him, AGA felt the hearings should be held sooner
rather than later, before it spilled over into other business units. For the
same reason the right to representation at the hearings was denied to
prevent the process being prolonged. However, if there had been a
request by any member for representation by a friend or representative
they would have made provision for that.
[118] The enquiries were held at a recreation venue on the mine property known
as Eagle’s Roost, situated on the river running through the property and a
distance of a few kilometres from the hostel. Employees were bussed to
the venue when they reported for duty on that Wednesday.
[119] Although AGA had evidently made extensive arrangements for the
conduct of the enquiries, which can be gathered from the organisation of
the enquiry venue at Eagle’s roost, employees only learnt of the enquiries
on their arrival at work that morning. Those who were scheduled to appear
before an enquiry could not gain access to the mine when they attempted
to clock in and the word ’transfer’ appeared on the monitor when they did
so. The blocked individuals were told by the DJ, who addressed them
through a megaphone, that all workers who received the ‘transfer’ or
‘blocking’ code should board the buses parked at the shaft bus rank.
Jacobs testified that employees were blocked on the basis that they were
AMCU members who were rostered to work a particular shift but did not
attend. Those individuals with valid explanations for not being at work and
would have an opportunity to deal with that at the disciplinary hearing. He
conceded that in retrospect it would have been more convenient to go
through the records to identify those on authorised leave of one kind or
another or on training, but they were trying to bring a situation under
Page 44
control and get those who should have been at work back to work. Van
Heerden said that it would have been a mammoth and time consuming
task to audit all the different systems to acquire records of an individual’s
clocking history before the enquiries took place. He accepted that errors
would result from such a process.
[120] Van Heerden testified that he believed the original list that was used as a
basis for identifying persons absent from work was drawn up on Saturday
20 April and it was this list that was used to identify those workers who
should be blocked from entering the mine on Wednesday 24 April. The list
only became available around 10 February 2015 for the purposes of trial.
The record of some of the persons who had presented medical
certificates, sick notes or other documents explaining their absence on
Monday or Tuesday might not have been captured on the system so they
still would have been recorded on the list as absent without leave. The
chairpersons of the enquiries did not have copies of the list and would not
have realised that certain individuals would already be recorded as having
been off work on account of illness on the final list that was used as the
attendance register. Hence, they would have been through the disciplinary
process on the basis that the company record simply showed they were
absent from work, even though the reason for their absence would have
been apparent from the final list. Van Heerden admitted there had been
mistakes, but where management became aware of the mistakes, they
were rectified.
[121] Ndlovu claimed that he asked the DJ why they had to get on the busses,
but he only knew he had to tell them to do so. According to Ndlovu, the DJ
did not read the script which he had been given to use for his
announcement, in which a brief explanation was given that the buses were
there to transport workers who allegedly participated in a strike on
Saturday to explain why they did not come to work. Mokokhe said that he
was asked to make the announcement about the disciplinary enquiries
and did so every ten minutes at 07H00 the morning. Although he corrected
himself and said that he would have made the announcement more often
than every ten minutes if a large number of people arriving, he could not
say if it was possible that someone would still have heard the
Page 45
announcement if they had been ushered to the bus by security officers
during the interval between announcements.
[122] Ndlovu said he waited with other workers who had also been bussed to
the venue from about 04h00 to 05h00, which is when the enquiry process
commenced. Both Ms M Gwadiso (‘Gwadiso’), and Makwekwe’s evidence
in this respect was similar. Tiyo claimed to have caught a bus at around
09h00. According to Ndlovu prior to arriving at Eagle’s Roost nobody knew
why they were there. Makwekwe’s evidence of the process by which he
found himself transported to the hearing venue on arriving at work was
essentially similar, except that he claimed he was ushered onto the bus by
a security officer and had no recollection whatsoever of the DJ making any
announcement. Gwadiso, who was on slick sick leave, also testified that
she was escorted by security officials to the bus.
[123] The company’s original version was that buses only arrived at Eagle’s
roost at 10H00 because people had refused to get on the buses. However,
video footage introduced during Rohr’s evidence showed enquiries in
progress by 08H30 that morning. Photographs of the exterior of the venue
also appear to have been taken in early morning light. When van Heerden
testified he was puzzled where the company version originated and his
recollection was that the busses must have left for Eagle’s Roost early at
around 05H00. If he had told AGA’s lawyers that the enquires started at
10h00 whereas it was about two hours earlier, that was an error. Workers
entered a hall at the venue in batches. The hall had been partitioned by
curtains with a number of tables at each of which three persons were
seated. Joint enquiries of three or four employees at a time were
conducted by these panels. According to the company there were
approximately 15 persons chairing the hearings.
[124] Essentially, workers were asked to explain where they were on the
previous Saturday. If they were unable to explain why there had not
reported for duty they were advised that they were dismissed but that they
could appeal. It seems that in cases such as that of Ndlovu, who did not
give an explanation but who had no means of proving why he did not
report for duty, they were advised to bring proof of the legitimate reason
Page 46
for being absent and presented the following day at an appeal hearing. In
his case it seemed that there was a superficial anomaly in his clocking
record on the Saturday because he had clocked in at the gateway centre
but appears to have clocked out at the Moab Khotsong mine sometime
later than he said he had left the training centre. This was somehow
misinterpreted resulting in him being singled out as being absent from
work. Makwekwe claimed that he was accused of not being at work and
when he said he had been, he was accused of lying. It was contended by
the company it was improbable that if Ndlovu and Makwekwe had
attended the hearing their defences would not have been verified because
a computer link had been established between Eagle’s roost and the
company to verify claims like that of Ndlovu. It further claimed that
chairpersons of the enquiry were specifically instructed to make use of that
facility by approaching van Heerden, who was in charge of the process or
a certain Mr Carrigan. Van Heerden said that another HR manager, Mr N
Deetlefs, was also present to deal with time and attendance queries. Rohr
conceded that it was not necessary for an employee to produce proof of
his attendance at work if these records were available.
[125] All those witnesses who were summonsed to enquiries said the enquiries
were very brief and over in a matter of a few minutes. Steyn said enquiries
involving five or six people would last about 20 minutes. They were
advised that they were dismissed. In every case, even those who claimed
that they were told they were dismissed on account of their AMCU
membership, were asked why they were absent on their Saturday shift. As
van Heerden characterised it, it was not necessary for the company to
prove that the worker was on strike, it was on the basis of the employee’s
version that a decision was supposed to be made. Some, like Ndlovu,
claimed that they had complained about the lack of opportunity to prepare
or to be represented. Some like Makwekwe, Gwadiso, Tiyo alleged they
were told expressly that they were being dismissed because of their
AMCU membership. Others, like Ndlovu supposed that was the reason
because they could not see any other. In Lebodi’s case he believed that
was the reason because NUM members who were not at work were not
dismissed. Ndlovu was advised to bring proof of attending the training, as
Page 47
was Tiyo. Tiyo claimed that he obtained confirmation that he tried to attend
the training on 20 April (he claimed the venue was closed when he got
there and later said he was not due to attend training on that day anyway),
but it was torn up by a Mr M Steyn (‘Steyn’) when he presented it to him
even before he was admitted to attend an enquiry, where the same
questions about his whereabouts were asked. Steyn was a human
resources manager from Great Noligwa, who denied that he would have
had such a conversation with Tiyo in the course of his duties that day,
which were to ensure the orderly movement of people at the venue, and
that it was ridiculous to suggest he would have dealt with one individual in
this way. Inexplicably, the reason recorded on the pro forma enquiry form
for his non-attendance was that he was on night shift and wanted to go to
work but there was no transport.
[126] Ndlovu, Makwekwe and Gwadiso were challenged as to whether they had
attended the enquiry at all, amongst other reasons because their names
had appeared on a list of 217 members whom AMCU originally claimed
had not attended disciplinary enquiries, but were later taken off when a
revised list was submitted. Ndlovu’s details also did not appear on a
register kept by the company of those who had reported at Eagle’s roost,
nor did the company have the pro forma record of the hearing which he
claimed he had attended. Makwekwe and Gwadiso were also challenged
about whether they had attended a disciplinary enquiry on that day. In
their cases too, the company had no record of their names appearing on
the register or any record of their hearings.
[127] According to the pro forma disciplinary enquiry document1 it advised
dismissed workers that:
“You have a right to appeal the decision of dismissal and are
advised that you need to report to this venue tomorrow at 07:00
(transport will leave at 06:00 from the Itterileng residence)
should you wish to appeal.”
1 263A
Page 48
Workers who wished to appeal were expected to indicate this in a tick box
provided for this purpose on the form. At some stage on the 25 April a
brief was issued by Madondo advising that the workers who did not attend
a hearing on 23 April or who were dismissed on 24 April had an
opportunity until 12h00 on Friday, 26 April to lodge an appeal or attend a
hearing. This brief was followed by another one the following day
reminding workers of the cut-off, failing which they would be dismissed
effective from 12h00 that day. How these briefs were conveyed to
dismissed employees was not an issue canvassed with the applicant’s
witnesses.
26 April 2013
[128] Ndlovu claims that the following day he reported at the hostel bus rank
with his clocking history and was about to board the second bus heading
for the venue where the appeals were apparently going to be conducted
but before the second bus could leave the driver of the first bus had
communicated with the driver to say that he should not come to the venue.
As a result, he did not have an opportunity to appeal on 25 April.
Makwekwe also claimed that he was told that the appeals venue was
closed after he had boarded a bus to attend an appeal hearing. Gwadiso
claimed that she also queued for a bus to attend the appeal hearing but
the bus did not arrive and eventually they were advised to go to the
security office where they were given R 400 and told they should leave
and go back to the Eastern Cape. Tiyo also mentioned this in his
evidence. In Gwadiso’s case, she went home. Under cross examination,
Gwadiso modified her explanation of why she did not attend the appeal
hearing by saying that there was a very long queue and only one bus was
transporting people. She also gave a somewhat confused explanation that
the appeals did not proceed because the national organiser, Nkalatshana
was present. Bezuidenhout also verified that 474 dismissed workers
who reported to the security complex with letters of dismissal were
given R 400-00 to travel home, even if they did not wish to sign for
receipt of the cash.
Page 49
[129] Subsequently, on advice of an Assistant HR officer, Ms L Mole (‘Mole’),
Ndlovu also went to the HR office, where he was berated for coming late
to lodge his appeal. However nothing materialised and he was never
called for an appeal hearing. He could not recall the date when this
happened, but it would seem even on his own version that it probably took
place after the expiry of the final cut-off for lodging appeals. This is even
more likely given the version of Mole. She confirmed that Ndlovu had
sought her assistance in April or May and he had complained that there
were no busses to take people to the appeal hearing, but said he had
come too late with problem and he was told he could not be helped. She
denied he had been shouted or sworn at by various other HR personnel
who became involved in the issue. She did concede that he had been
wrongly dismissed, but she was not in a position to reverse the decision as
it was not in her hands.
1.
[130] One of the allegations made by Ndlovu was that one of the more senior
HR officers said that if they took him back they would have to take
everybody back but Mole denied this was said.
The extended appeal process after 26 April
[131] On AMCU’s request, a further opportunity was provided for dismissed
employees to appeal commencing on 30 April 2013. This was arranged by
agreement between AGA and AMCU at a meeting on 29 April 2013 at the
Johannesburg Country Club. AMCU, through its attorneys, had requested
a collective appeal on behalf of the dismissed members, but AGA would
not accede to that. Jacobs claimed that it was decided not to agree to this
because it was felt that there might be great injustices done to some
individuals in a collective appeal, because individuals would not be able to
offer explanations relating to them personally, a view also expressed by
van Heerden. According to the letter from AGA to AMCU recording the
understanding:
“It was agreed to provide all employees with another opportunity
to appeal. In this regard you are to impress on your members to
avail themselves in order to appeal. As agreed, your members
Page 50
will be able to lodge and present themselves for such appeal as
from 07:30 on Tuesday, 30 April, up to 17:30. And depending the
remaining people we will deal with such appeals until 14:00 on
Tuesday, 2 May 2013.”
The letter also reaffirmed the status quo as far as Saturday work was
concerned but AGA committed itself to revive discussions about it at a
meeting on 6 May 2013. The applicants also agreed that on 30 April Mr J
Mathunjwa, the AMCU President (‘Mathunjwa’), had advised his members
and officials to make use of the appeal process. The cut-off at 14H00 was
subsequently extended to 17H00. Another part of the agreement was two
AMCU officials could attend as observers. Jacobs was reluctant to agree
that it was management’s decision that workers could not be represented
by AMCU officials, but this would seem consistent with their approach to
the issue of representation in the disciplinary enquiries.
[132] On the morning of 29 April, the applicant’s attorneys advised the
respondent’s attorney that AMCU officials would be assisting members
lodging appeals of the following day. It appears that Nkalitshana did arrive
at the appeal venue on 30 April, and was eventually allowed access to the
venue but did not appear in any of the individual hearings being
conducted. Van Heerden testified that Nkalitshana and Mthunjwa had
been at the venue from around 09h30 to 13h30, and that they had some
deliberations with management personnel there, but nothing arising from
this was brought to his attention.
[133] Ndlovu, who did not live in mine accommodation but lived in Klerksdorp,
denied ever being made aware of this opportunity by AMCU or anyone
else. According to the company, of the 500 odd workers dismissed 330
AMCU members attended an appeal enquiry. Makwekwe, who also did
not live at the mine but caught a taxi to work from his home near Orkney,
claimed not to have heard of the extended appeal arrangement. Similarly,
Gwadiso also claimed not to have heard about the extended appeal
process. Mphahlele in his cross-examination explained that the dismissals
created a significant degree of dislocation because some members would
have gone home after being dismissed and might not have been aware of
Page 51
the opportunity to appeal. Others did not live on the mine premises. At the
time the union was not necessarily aware of the extent to which there was
non-attendance at the appeal hearings.
[134] While the appeal process was in progress, the mine obtained a search
warrant on 30 April 2013 and on 2 May a search was conducted at the
hostel by the SAPS supported by mine security personnel in which a
sizeable quantity of iron bars, knives, sharpened metal spikes,
knobkerries’ and other potentially dangerous objects were seized. It was
common cause that the items could have belonged to either NUM or
AMCU residents of the hostel, though it was in fact NUM that had asked
management to conduct such a search.
Subsequent developments
[135] It is apparent from correspondence media briefings issued by AMCU from
AMCU to the chamber of mines and to the Minister that the union initially
adopted the stance that workers were not scheduled to work on Saturday
20 April because it was an off Saturday. It was only in a media briefing
issued on 9 May that the union demonstrated that it was aware that the
mine was “non-operational” on account of the section 54 notice and the
“alleged unprotected industrial action could have been averted” if the mine
had notified workers that there would be no work on that Saturday
because of the notice.
Duties of workers during the application of the section 54 notice
[136] The versions given by the applicant’s witnesses about the very limited, or
non-existent, work performed at the shaft during the operation of the
section 54 notice was not essentially challenged during their testimony,
except to the extent that a concession was sought that they were required
to go to their places of safety and await instructions. However, the later
company witnesses were led at great length on the extent and importance
of the work that should have been and was performed by underground
team members whilst the notice was effective. Initially, Jacobs simply
confirmed that even though operations were suspended, it remained a
Page 52
normal working day and workers were still obliged to attend work “to do a
number of activities, their cleaning activities”. He elaborated:
“There is refresher training, there is training and workers must be
available in the unlikely event that the section 54 is lifted, so that
production can… resume immediately.”
[137] Jacobs expanded on the waiting places, and which workers were
supposed to report in terms of the red notice. Essentially he described it
as a place where workers could sit and training could be given and issues
giving rise to the section 54 notice could be reviewed. A photograph of
such an area showed a rudimentary underground area with seating and a
flipchart. Madondo described waiting places in the following terms:
“ A waiting place is a place that is required in terms of our
standards and our procedures, that is the last place that any
worker can get to that is safe before they can enter a working
place. Now, a working place in this case, it refers to stoping
areas where drilling operations and blasting operations occur, as
well as development ends, which is at the extremities of the Mine.
So somewhere in the crosscut, 50 metres to 100 metres, you will
get a waiting place, and a waiting place is a place that is set up so
that it is safe, it is not affected by the blasting operations and the
such, and so any worker proceeding to his working place will then
be required to get to the waiting place and wait there for further
instructions.”
On each of the six levels of the mine there could be 10 to 20 waiting
places accommodating crews comprising 18 employees. Under cross-
examination, he sought to explain that the waiting area was simply the last
part of a much larger safe area which extended all the way back to the
station. It was only after employees ventured beyond the waiting area
towards the mining operations that they entered a working area. It was the
tracks from the station to the waiting place that workers were expected to
clean and his interpretation of the s 54 notice was that even though he
would describe the area from the station to the waiting area as a work
Page 53
place, it was not a ‘working place’ contemplated in the notice which only
referred to working areas beyond the waiting area.
[138] Madondo denied that the Red notice could not be interpreted to permit
such work, because employees were required to await further instructions
which supervisors would have issued and those partly related to the
remedial actions in the s 54 notice concerning track works. The fact that
such remedial actions were not risk free did not mean it was not safe for
the purposes of the s 54 notice. He agreed that the night shift commencing
on 18 April just after the Red Note was issued could have started the
cleaning work but could not confirm they could have completed it by the
time they knocked off the next morning, nor could he say if it could have
been completed in two shifts even if it was the only work done for the
following morning and afternoon shifts on 19 April too. When pressed,
Madondo could not confirm if any instructions of this nature were issued.
[139] To bolster Madondo’s evidence a production shift boss, Mr D Machonga
(‘Machonga’) was called. He claims his supervisor told him to go
underground and talk to his team about the s 54 notice at the waiting
place, then clean the crosscut, load the mud and remove rubbish from that
area.
[140] Jacobs also elaborated further that during the shutdown employees could
still be engaged in functions making the workplace safe, which were not
prohibited by the section 54 notice. In this instance, they were instructed to
clean railway tracks leading to the stopes, but not at the stopes as such. In
the light of this, he believed that despite the section 54 notice, 19 and 20
April were still normal working days and accordingly the company had not
misled the judge hearing the interim application to interdict strike action by
not mentioning the existence of the notice.
[141] Jacobs conceded that he could not dispute the evidence of WA1 that
nothing was happening at the mine when they reported for work on 20
April.
[142] Under cross-examination he did concede that no production losses, as
such, took place but might have occurred if the notice had been lifted
during 20 April and workers were absent. Similarly, Jacobs denied that
Page 54
there had been any deliberate attempt to mislead the court hearing the
interim application on 23 April that Mponeng and Moab Khotsong mines
had suffered production losses the previous Saturday of R11.6 million per
shift, when the founding affidavit had been signed on 22 April. In re-
examination, the court was alerted to the fact that the founding affidavit
referred to losses AGA would face as a result of the “intended action”, and
not to actual losses suffered on 20 April.
[143] During his second day of evidence, at the first opportunity, Jacobs sought
to rectify his unqualified concession that there were no production losses
by explaining that according to his understanding when the gullies were
cleaned, even if no blasting was done, gold would be extracted from the
debris that was cleaned out. After mentioning this very specific new
evidence he said “I just thought I just informed the Court of that…” What
prompted him to suddenly recall this particular detail the following day is
not clear.
[144] Van Heerden agreed that under the s 54 notice there could not have been
normal production but that other instructions were given and in cleaning
the rail haulages ‘a lot of mud’ containing gold bearing material could
have been loaded into hoppers and transported to the plant. Later another
witness, Madondo testified extensively on this alleged productive activity
being performed while the mine was non-operational. On the basis of this
he claimed the mine had suffered losses from non-recovered gold in the
cleared material and in not making the mine safe while the Red Note was
effective. Machonga claimed that on both his Friday and Saturday shifts,
the whole shift was spent on cleaning work of this kind in a 300 metre
crosscut. None of this type of activity nor its extent was even hinted at
when the applicants’ witnesses were canvassed on their obligation to
report to places of safety as set out in the Red notice. Van Heerden also
pointed out that if the safety work set out in the s 54 notice was carried out
the start-up process when operations commenced would be quicker.
[145] The motivation submitted to the Principal Inspector or Mines, which led to
the lifting of the s 54 notice, was that:
“
Page 55
• The following actions and control mechanisms will
continue to take place until the instruction is
complied with. Supervisors, including the mine
overseers, the shift bosses will conduct entry
examinations with the crews to do coaching over
inspection, quality of the entry examinations until the
competent A training has been completed.
Particular focus will be placed in the areas identified
to be non-compliant in the order.
• The training officers will check the quality of the
entry examination until training for supervisors is
completed.
All the deviations found during the auditing of the
rail conditions must be fixed before allowing any
tramming activities to proceed.
Disciplinary action or non-compliance will be dealt
with according to our procedures.”
[146] It was put to Jacobs that in terms of the instruction issued by the Inspector
of mines in the section 24 notice that there would be no cleaning of tracks
until the investigation was completed and that it was only after the Green
Note was issued on 21 April 2013 that the instruction was issued to fix the
deviations found during the auditing of rail conditions before any tramming
activities could proceed. Jacobs maintained that this did not mean that
cleaning activities would not take place while the red notice was in
operation.
[147] Under re-examination, Madondo went so far as to claim that between 10
and 30 % of normal ore production in a shift could be recovered simply
Page 56
from the cleaning operations done in a crosscut, while mining operations
were not in progress.
Overt statements of bias against AMCU
[148] Lebodi claimed that he was told by the appeal chairperson. He also
claimed that he was told by one Jabulane Tshabalala, who had previously
been an AMCU member, that if he went and apologised to management
and signed a ten year membership agreement with NUM he could go back
to work. However when he was shown the photograph of the person with
the corresponding name and the same company number which Lebodi
had provided, he denied that it was the same person he had spoken to.
According to the company records of the individual in question had no
union affiliation Lebodi also claimed that at the appeal hearing when he
was asked why he should not be dismissed and gave the explanation that
there was no transport available he was told that he must go away “with
his AMCU” by the chairperson of the hearing. Jacobs disputed that AGA
would ever have entertained the alleged tied membership agreement
mentioned and pointed out that AGA was the first to really embrace AMCU
as a union when it emerged compared to other mining houses.
Evaluation
[149] In its response to the applicant’s statement of case, AGA contended that
because the alleged unprotected strike was only for a day, no ultimatum
was given to workers to return to work nor was this practical given the
circumstances of the strike, but they had been cautioned against
unprotected strike action on numerous occasions. Mphahlele disputed that
it would have been impractical to issue ultimatums because the company
could have used loudhailers, notice boards and meetings to do so.
Discrimination
The sixty-four stop orders
[150] On 24 April, when the disciplinary enquiries were underway, NUM
provided AGA with membership forms of sixty-four employees, claiming
that since they were NUM members no action should have been taken
Page 57
against them. AGA refused to process the forms and recognise the
individuals as NUM members because it claimed that it could not be
certain forms had been completed prior to the strike. In other words it was
concerned that certain AMCU members were trying to change their union
affiliation to avoid association with the strike. It was not disputed that 22 of
the NUM forms submitted were apparently completed by applicants in this
matter. According to van Heerden’s testimony, 18 of those on the list had
no previous union affiliation and 42 were recorded as AMCU members.
The forms were not accepted because the last one to be completed had a
date of 19 April and earliest dated back to February so they should have
been submitted earlier.
[151] Mphahlele was clearly reluctant to accept that the company’s refusal to
accept these forms was indicative of an even-handed approach to the two
unions, but he clearly saw it as an expression of its determination to
ensure that AMCU members could not avoid disciplinary action by the
stratagem of changing their union affiliation. However, it was AGA’s case
that it only came to learn of the twenty-two applicants’ membership of
AMCU when they were identified as such in the case. AMCU’s main
concern, as expressed by Mphahlele, was that the company was only too
willing to accept that if NUM members said they could not get transport to
the mine, their excuse was accepted but when the same justification was
offered by the applicants they were dismissed. He attributed this to
hostility by AGA towards AMCU. Moreover, although the company refused
to accept the stop orders from NUM it was only the AMCU members
amongst the sixty-four who were dismissed, which suggested that the
company was specifically targeting them. Van Heerden who had also
suggested that workers who wanted to get to work could have done so by
other means. He also said that the only reason NUM members were not
charged with striking was because they said they wanted to go to work but
were being prevented from doing so by AMCU members’ intimidatory
actions. He claimed that even a small group of workers could stop a whole
shift from working if they intimidated them. On the other hand, he felt that if
the AMCU members wanted to work they would have made the means to
Page 58
get there, like others who did report for work or who reported at the
helipad.
[152] Jacobs agreed that some of the 64 stop order forms submitted were
signed on 15 March 2013 and, on the face of it, this suggested that the
relevant AMCU member had not sought to join NUM for opportunistic
reasons. However, membership forms were usually received soon after
they were signed and the timing of the submission of the forms lead AGA
to believe that the change of affiliation was an opportunistic move related
to the strike. Van Heerden was tested under cross-examination that only
27 rejected stop-orders were returned to NUM by AGA and all of the
rejected forms were of persons who were dismissed, whereas the
remainder were not. He strongly denied that the company had retained the
other forms and had not rejected all the stop orders.
[153] It was put to Mphahlele that the company’s willingness to reconsider the
cases of AMCU members who had a valid justification for not being at
work on 20 April and the fact that at the time 46 AMCU members were not
dismissed showed that the company was not unsympathetic where there
was a genuine reason for an employee’s absence. Mphahlele accepted
that the company was remedying some individual cases, but felt that this
paled into insignificance in the light of the number of employees who were
dismissed. As with the example of the sixty-four stop orders, these were
relatively trivial gestures by the company when compared with the vast
number of non-AMCU members who were allowed to return to work
despite having been absent on 20 April.
The Disciplinary Process
[154] In an internal briefing document of AGA, drawn up in preparation for the
enquiries, the disciplinary process including potential risks and an
alternative plan was set out. Under the list of alternatives if employees
refused to attend the scheduled disciplinary hearings, it was stated,
amongst other things:
“Hear the cases as per the above plan or mass dismiss AMCU
members who participated in the stayaway on Thursday”
Page 59
Mphahlele interpreted this to mean that there was already a plan to
dismiss AMCU members.
[155] AMCU also argued that based on the attendance records readily available
to the company, it ought to have been obvious that some persons did not
report for work for reasons the company should have accepted as
legitimate.
[156] Jacobs denied that the company had targeted AMCU members, but was
of the view that it was clearly AMCU that had consistently driven the
Saturday work demand and NUM was the first to make contact with the
company to advise that their members would not support it with the strike
and were being threatened and intimidated. Madondo testified that during
the morning of 20 April while he was at the shaft working, he was
approached by local NUM leaders. In relation to the contention that NUM
members were excused from attending work on the basis that no transport
was available, whereas this excuse was not accepted from AMCU
members, Jacobs explained that it was obvious that NUM members could
not have boarded buses, whereas it was part of the stated plan of AMCU
leadership to disrupt the bus transport. This was part of an orchestrated
action and even if buses had been available AMCU would have made sure
that people did not make use of them. He believed that the intimidation
taking place at the bus terminal was aimed at non-members of AMCU. He
accepted that some AMCU members might not have supported the strike,
which was why the mine provided the alternative of reporting at the
helipad, even though none of the 200 odd persons who reported there
were transported to the shaft. He agreed the mine could not prove who did
not go to work because no busses were provided, but expressed the view
that it was the responsibility of individuals to disassociate themselves from
what was happening.
[157] Jacobs also disputed that the company’s actions were aimed at
maintaining NUM’s majority status at Moab Khotsong, because union
membership strength was only relevant at company level, and it did not
matter which union was stronger at a particular business unit.
Page 60
[158] During the course of Jacobs’s cross-examination he was questioned about
a list of persons rostered to work on 19 or 20 April, that was only
discovered while the trial was under way. What that list showed is that
approximately 38 persons who were dismissed on the company’s own
records had a legitimate reason for their absence. Jacobs denied that the
failure to exclude these persons from disciplinary hearings or to exonerate
them on the basis of what period on the list was indicative that the
company was intent on getting rid of AMCU members irrespective of the
merits of their individual cases. It was inevitable in dealing with the 585
employees who were subjected to disciplinary enquiries that errors would
have crept in. These were clarified when van Heerden testified. In all, 26
of those dismissed were either on sick leave (like Gwadiso), clocked in at
the shaft (such as Makwekwe and Mzileni), not scheduled to work, on
family responsibility leave, attending training (such as Ndlovu). A further
10 employees who were found not guilty at the disciplinary or appeal
hearing but never returned to work.
[159] During the course of the trial, a review was conducted on the cases of 36
individuals whose circumstances suggested they ought not to have been
amongst those dismissed. Of those, the company made offers of
reinstatement with backpay to 20 individuals. Two others were recorded
as being re-employed and were withdrawn as applicants. These offer were
formalised during van Heerden’s testimony on18 February 2015. Prior to
that date only two offers of reinstatement had been made.
Were the applicants on strike on 19/20 April 2013?
[160] It is clear that the conditions of Saturday work had been identified as a
source of grievance not only at Moab Khotsong mine but across the
company. Motloi’s evidence supports this. Communications between AGA
and AMCU preceding, and during, 19 and 20 April 2013. The
preponderance of the evidence also points to the conclusion that AMCU
local leadership was galvanising for a strike on the Saturday shifts of
19/20 April 2013. Mphahlele agreed that from what he had heard and read
that members had claimed not to work on Saturday, but the advent of the
Page 61
section 54 notice automatically disposed of the notion that they were on
strike.
[161] When Jacobs communicated with Mphahlele on 19 and 20 April 2013, it is
common cause that he did not convey the course of action which AGA
intended to take in relation to the individual applicants. It is also apparent
that Jacobs did communicate with Mphahlele, but Mphahlele was initially
noncommittal and it was only after receiving the request for urgent
intervention in the form of the SMS at around 11H00, that Mphahlele was
prompted to agree to meet with Jacobs. Once the belated commitment
was made, Jacobs did not take up the offer by firming up a meeting.
Fairness of dismissal as a sanction
[162] Jacobs had defended the imposition of dismissal on the basis that they are
workers at Moab Khotsong on final warnings and were aware of them, the
company had taken “quite lengthy steps” to try and approach the action
and that brought the potential consequences of embarking on it to the
attention of national and local leadership. Moreover, there was no remorse
shown by the leadership or the dismissed employees. Given that the
workers had followed the leadership of the top seven which were “almost a
law unto themselves at the time” they did not believe the relationship with
those employees could be salvaged. The company was clearly of the
impression that the local leadership was at odds with national leadership
on the Saturday work issue, but the union had failed to take a lead in this
instance as it had done at Mponeng to unlock the situation. He also
dismissed the possibility of re-establishing an employment relationship
with the dismissed workers given that the company was currently in a
restructuring mode and had shed 2000 jobs since 2012 in the low gold
price environment.
[163] Under cross-examination, Jacobs agreed that some 39 individual
applicants did not have a final written warnings but were still dismissed.
However, he was reluctant to agree that these workers should be treated
like those at the Mponeng and Tautona mines on the basis that they had
issued a pre-emptive ultimatum which was consistently communicated
Page 62
through the DJ and the violence which accompanied the action meant that
their dismissal was still justified. Even if they had not been personally
responsible for any of the violence, they had identified themselves with the
action by AMCU. It was only when van Heerden testified that some
explanation was provided for this apparent anomaly. It appeared that 25 of
them were new recruits since the 2012 strike and the remaining 14 should
have been issued with them but were not because at the time they had
been classified as having overstayed their leave and were scheduled to be
at work when the strike was still in progress, whereas the other employees
who were issued with warnings were simply classified as being absent
without permission. van Heerden’s view was that even though the
warnings might not have been communicated to these individuals it was
communicated in general through union structures and in a communique
to workers. Madondo initially agreed that if there were such persons, and
no other complicating factors applicable to them, his view that the
appropriate sanction was dismissal would change. He quickly
reconsidered this view and decided that the sanction would still be
appropriate because they had breached ‘very key rules’ by not complying
with instructions. Moreover, there had been much effort spent
communicating with workers since the 2012 strike that it amounted to a
serious offence. He would not be drawn on comparisons with Tautona and
Mponeng mine in this regard.
[164] Jacobs claimed that the mine had taken into account the fact that a red
notice was operating in evaluating the appropriate sanction even though
he did not initially mention it as a factor taken into consideration. He
assumed that the chairpersons of enquiries had also taken account of long
service of some employees.
[165] When pressed on why workers at Moab Khotsong were treated more
harshly than workers at Mponeng who had not reported for their Saturday
shifts in circumstances where normal production was scheduled and
losses would be have been considerable, Jacobs emphasised that the
union took responsibility and engaged with management at Mponeng.
However, even though an agreement was reached on 29 April with AMCU
at Moab Khotsong that the status quo regarding Saturday work would
Page 63
remain, that did not feature as an issue in considering the appeals which
took place immediately thereafter.
[166] In re-examination, the difference highlighted by Jacobs between all the
prior industrial action at Mponeng and Tautona compared with what
transpired at Moab Khotsong, was the involvement of local and national
AMCU leadership. Jacobs attributed the failure to reach an agreement not
to take disciplinary action was that attempt to get the union involved were
‘futile’, and unlike the strikes at the other mines the Moab Khotsong action
was not called off.
Evaluation
Were the applicants on strike on 19/20 April 2013?
Issue estoppel
[167] As mentioned, on 7 June 2013 the final order confirming the ruling issued
on the 23 April 2013 effectively confirmed the declarator that:
“The withholding of labour on Saturday, 20 April 2013 at the
Applicant’s Mponeng and Moab Khotsong Mines by the further
respondents is declared to be an unprotected strike.”
[168] By the time the final order was granted, AMCU was aware of the s 54
notice which had been issued, but only opposed an order of costs. AGA
argues that the applicants ought to be estopped from disputing whether or
not they had been engaged in an unprotected strike on the basis of the
principle of issue estoppel.
[169] In Prinsloo No And Others v Goldex 15 (Pty) Ltd and Another2 the
SCA reaffirmed the general test of estoppel:
[23] In our common law the requirements for res iudicata are
threefold: (a) same parties, (b) same cause of action, (c) same
relief. The recognition of what has become known as issue
estoppel did not dispense with this threefold requirement. But our
2 2014 (5) SA 297 (SCA)
Page 64
courts have come to realise that rigid adherence to the
requirements referred to in (b) and (c) may result in defeating the
whole purpose of res iudicata. That purpose, so it has been
stated, is to prevent the repetition of lawsuits between the same
parties, the harassment of a defendant by a multiplicity of actions
and the possibility of conflicting decisions by different courts on
the same issue (see eg Evins v Shield Insurance Co Ltd1980 (2)
SA 814 (A) at 835G). Issue estoppel therefore allows a court to
dispense with the two requirements of same cause of action and
same relief, where the same issue has been finally decided in
previous litigation between the same parties.
[24] At the same time, however, our courts have realised that
relaxation of the strict requirements of res iudicata in issue
estoppel situations creates the potential of causing inequity and
unfairness that would not arise upon application of all three
requirements. That potential is explained by Lord Reid in Carl
Zeiss Stiftung v Rayner & Keeler Ltd [1966] 2 All ER 536 (HL) at
554G – H when he said:
'The difficulty which I see about issue estoppel is a practical
one. Suppose the first case is one of trifling importance but it
involves for one party proof of facts which would be expensive and
troublesome; and that party can see the possibility that the same
point may arise if his opponent later raises a much more important
claim. What is he to do? The second case may never be brought.
Must he go to great trouble and expense to forestall a possible
plea of issue estoppel if the second case is brought?'
[25] One can also imagine a situation where a purchaser seeks
confirmation of his or her purported cancellation of the sale in
motion proceedings. The seller may decide that the expensive and
time-consuming game is not worth the candle and thus decide not
to oppose. But if the purchaser were then to sue for substantial
damages the application of issue estoppel in the second case may
cause clear inequity. The same situation will not arise in the case
where all the requirements of res iudicata are satisfied. In that
event the relief sought in both cases will be the same. The seller
will have to decide whether to speak up in the first case or hold his
or her peace in the second.
[26] Hence, our courts have been at pains to point out the
potential inequity of the application of issue estoppel in particular
circumstances. But the circumstances in which issue estoppel
may conceivably arise are so varied that its application cannot be
governed by fixed principles or even by guidelines. All this court
could therefore do was to repeatedly sound the warning that the
application of issue estoppel should be considered on a case-by-
case basis and that deviation from the threefold requirements of
res iudicata should not be allowed when it is likely to give rise to
potentially unfair consequences in the subsequent proceedings
(see eg Kommissaris van Binnelandse Inkomste v Absa Bank Bpk
supra at 676B – E; Smith v Porritt supra para 10).”
[170] In National Union of Mineworkers v Wanli Stone Belfast (Pty) Ltd 3, in
which a final interdict preventing unprotected strike action was confirmed
after the employees in question had already been dismissed, as in this
case, the LAC held that the principle of estoppel did not prevent the
dismissed employees in that case from asserting that they had been
engaged in a protected strike and that their dismissals were consequently
automatically unfair. Firstly, the court reasoned:
“[27] In this matter, the strict requirements of res judicata are not
applicable, because the cause of action and the relief sought are
not the same. In the first matter, the illegal strike was the cause of
action, whereas in these proceedings the unfair dismissal of the
employees is the cause of action. In the first matter, an interdict
was sought, whereas in this matter reinstatement or compensation
was sought for the unfair dismissal of the employees. The court a
quo found that the respondent succeeded in establishing that res
judicata in the form of issue estoppel prevented the appellants
3 (2015) 36 ILJ 1261 (LAC)
Page 66
from raising issues which were finally adjudicated upon in the
interdict proceedings. The question, however, is whether it would
be fair to uphold the plea of issue estoppel on the facts of this
particular case.”4
[171] Turning its attention to the case before it, the LAC found that when the
interim rule was confirmed, the court was most probably not advised that
the strike was over and that the employer should have brought that to the
attention of the court before seeking confirmation of the rule.
Consequently, the LAC held that “… to uphold the plea of issue estoppel
under these circumstances would be contrary to the requirements of
fairness and equity.” 5
[172] In this situation, the facts are similar in that there had been no recurrence
of attempted strike action targeting Saturday work and that the applicants
had already been dismissed by the time the application was heard. It is
true that AMCU knew that a section 54 notice had been in effect during the
alleged strike and could have challenged the final order on the basis that
no strike could have taken place whilst the notice was in operation. On the
other hand, the judge granting the original interim order was not apprised
of the existence of the notice, even though the interdict was only brought
after 20 April. Whatever impact the section 54 notice ultimately would have
had on the determination of whether or not an unprotected strike took
place, it was obviously an issue of potentially great relevance and should
have been disclosed to the court by the applicant both when the interim
order was granted and when confirmation of the order was sought. It might
well have affected the view taken by the judges hearing the application on
both occasions. In these circumstances, I do not think that it sits well in the
mouth of the respondent to seek to rely on the orders granted in those
circumstances to prevent the applicants from raising an issue which it
should have placed before the court itself in any event. For these reasons,
the special plea of issue estoppel should be dismissed even though my
ultimate findings on whether or not a protected strike took place are the
4 At 1270, para [32]. 5 At 1270-1271, paras [33]-[40].
Page 67
same. This brings me to the substantive question, whether or not AMCU
members were engaged in strike action.
Were applicants engaged in strike action on the Saturday shifts of 19 and
20 April 2013?
[173] It is clear that the conditions governing Saturday work, which were set out
in collective agreements concluded between AGA and other unions, had
been identified as a source of grievance not only at Moab Khotsong mine
but across the company. AMCU was evidently mobilising workers over the
issue in both regions of the company. Motloi spoke forthrightly on this. The
preponderance of the evidence also points to the conclusion that AMCU
local leadership at Moab Khotsong was galvanising members for a strike
on the Saturday shifts of 19 and 20 April 2013 from at least 3 April 2013
onwards. The top seven were driving this in parallel with the campaign
being conducted by AMCU at other AGA mines on the issue of Saturday
work. Even though evidence was led that management at Moab Khotsong
claimed to be unsure if such action was imminent, it had started to take
concrete steps in anticipation of a strike happening which suggest it
realised it was a very real possibility. Thus, the briefings were issued by
the DJ on an intensive basis for three days beginning on 16 April and
Madondo met with security personnel early that week concerning the
security of people who would be going to work.
[174] At Mponeng and Tautona mines, AGA had managed to prevent or at least
limit the extent of a Saturday work strike by putting the union on clear
terms and taking unequivocal legal action, but it did not act as decisively
when it came to the looming situation at Moab Khotsong. From the time
that the top seven issued an unambiguous threat on 3 April not only to
stop working on Saturday 20 April but also to disrupt bus transport, there
was no evidence that the local leadership intended retreating from the
aggressive and confrontational stance they had adopted: having made the
threat they simply refused to discuss it with management even when it
was pertinently raised with them by van Heerden. Even though they
refused to discuss the issue with management they continued with the
build up to strike action, amongst other things, by holding mass meetings
Page 68
at the hostel and the stadium at which the call not to work on Saturday
was repeated. Mine management was also aware of this.
[175] In light of the threats made to interfere with bus transport, it is extremely
improbable that the chanting crowd which gathered at the bus terminus on
Friday afternoon immediately after an AMCU meeting at the hostel was
there for any other purpose than to discourage anyone from thinking of
boarding the bus waiting there, whether or not direct threats were actually
made to the driver of the bus. No other plausible reason was advanced
why they would have been toyi-toying next to the passenger entrance to
the bus at that time of day in falling rain. There is also the additional
evidence of complaints being received by Management from NUM
representatives about AMCU threats in the week leading up to Saturday.
Added to this there was the undisputed evidence of a serious assault
perpetrated on an NUM member, Mr Faife, who was on his way to work on
Friday. Obviously strike action was imminent on Friday evening and steps
were being taken to minimise attendance at work by interfering with bus
transport to the mine.
[176] Two issues muddy the water as to whether the applicants were engaged
in strike action. The first is whether or not they could conceivably have
been refusing to comply with a lawful instruction to work in the light of the
legal and practical effect of the s 54 notices. Secondly, even if workers
were obliged to perform some duties while the DMR notice was in force,
was the mere fact that they did not report for work, a sufficient reason to
conclude that they were participating in the strike, if the reason they gave
for not reporting for duty was that there was no transport to the shaft,
which was situated some 13 kilometres from the hostel?
The legal effect of the s 54 notice
[177] From the evidence discussed above it is apparent that there is
considerable controversy whether or not the effect of the section 54 notice
was that most workers, including the vast majority of the applicants, had
no duties to perform, nor any obligation to do so. This is one of the issues
that should have been squarely placed before the judge considering the
interdictory relief.
Page 69
[178] As a matter of principle, there is no disagreement between the parties, ,
that workers could not be said to be striking if they did not perform work
which they were not lawfully required to perform because of the section 54
notice.6 The controversy is whether ordinary mining crews could lawfully
be required to perform work. AMCU argued that essentially the effect of
the section 54 notice and the red notice was that mining crews
underground were required to remain at their waiting places because the
section 54 notice emphasised that crews were to be “...removed from the
working places to a safe place”. It is common cause that waiting places
were considered to be safe places. The area of dispute concerns whether
what constituted a safe place extended beyond the waiting place and, if
so, whether any work could be performed in that extended area.
[179] As we have seen, Madondo’s view was that a waiting place is simply the
last safe place before entering a working area in a particular level of the
mine and the area from the station where crews entered a level, up to and
including the waiting place, is a safe place. By contrast, he understood a
working place to be a place where productive mining operations are
conducted. On this interpretation the notice restricting crews from entering
‘working places’ did not mean they could not perform activities in a safe
place. Hence Madondo’s instruction in the Red Note that employees
should proceed to their waiting places, hold safety meetings and wait for
further instructions but they could not enter their usual working places,
which only essential services would have access to.
[180] By contrast, the applicants contend that the term ‘working place’ includes
any place where employees perform work, which would include cleaning
work performed on tracks in cross cuts. Accordingly, such work could not
be considered an activity taking place within a safe place, but is work
performed in a working place. Consequently, the performance of such
work would be in contravention of the section 54 notice, which required
crews to be removed from “the working places to a safe place”. Madondo
would not agree that the place where tracks were cleaned within the safe
area constituted a working place as such, but somewhat equivocally called
6 See e.g., Simba (Pty) Ltd v FAWU & others (1997) BLLR 602 (LC)
Page 70
it an “an area of work.” The cleaning work that crews were expected to
perform fell within the ambit of the ‘further instructions’, which they were
told to await from their supervisors.
[181] What constitutes a ‘working place’ for the purposes of the Mine Health and
Safety Act is a matter of legal interpretation. Although Madondo was not
specifically confronted with the definition of a ‘working place’ as defined in
section 102 of the MHSA7, his notion that it was confined to the area
where productive mining operations were performed by a crew was
challenged under cross-examination.
[182] However, what constitutes a ‘working place’ in the general terms of that
definition does not do justice to the particular way that term is used in the
functional design and architecture of the MHSA. Thus, section 27 (2) of
MHSA imposes an obligation on an employer to designate every ‘working
place’ at a mine, in the absence of that being done by a collective
agreement concluded under s26 of the MHSA. The designation of working
places in a mine is a pre-requisite for the appointment of health and safety
representatives under section 25 of the same act and a building block for
the health and safety organisational structure on a mine. Consequently,
when the term ‘working place’ is used in the context of a particular mine, it
immediately raises the question of whether it can simply be interpreted in
the broadest sense as argued for by the applicants or whether it ought to
be interpreted as a reference to working places designated as such at that
mine Also, when an inspector issues an instruction under section 54 (1)
the instruction is aimed at halting or suspending operations or activities in
parts or all of the mine in question, and does not necessarily have to be
framed with reference to working places.8 If, as in this case, the notice
7 S 102 of the MHSA contains the following definition: 'working place' means any place at a mine where employees travel or work 8 Viz, “54 Inspector's power to deal with dangerous conditions (1) If an inspector has reason to believe that any occurrence, practice or condition at a mine endangers or may endanger the health or safety of any person at the mine, the inspector may give any instruction necessary to protect the health or safety of persons at the mine, including but not limited to an instruction that-
(a) operations at the mine or a part of the mine be halted;
(b) the performance of any act or practice at the mine or a part of the mine be suspended or halted, and may place conditions on the performance of that act or practice;
Page 71
uses that term, it is still on the face of it an arguable point whether it is
intended to be a reference to identified designated working places or just
to any place where work is performed.
[183] However, for the reasons which follow, it is not necessary to determine if
the obligations on mining crews required them to perform work cleaning
the cross cuts, or if such work would have constituted a contravention of
the MHSA.
[184] The parties agreed as a matter of fact that, at a minimum, normal
productive mining operations were suspended during the period of the
notice. To the extent that a factual dispute arose, it concerned the degree
to which activities performed during the notice constituted work which, if
not performed, would cause economic loss to the mine. As previously
noted, in the course of the cross examination of the applicants’ witnesses,
the scope of work AGA claims that crews were required to perform for the
duration of the section 54 notice was not meaningfully canvassed with
them. In my view, it is therefore unnecessary to go further into the extent
of the duties that crews might legally have been required to perform in the
crosscuts because the applicants could not have realised this issue would
be raised in evidence by the employer or that it would assume the
proportions it did. The ambit of duties they allegedly would have performed
is therefore properly confined to the version that the company put to the
applicants’ witnesses.
[185] For present purposes, it is sufficient to recognise that it was within the
scope of the section 54 notice and the Red Note that crews were obliged
to report to their waiting places and that a failure to do so would have
amounted to a failure to obey a lawful instruction. Further, their presence
there was not only for the purpose of reviewing safety procedures, but also
so they would be on standby in the event that ordinary mining operations
could resume. If they were at the waiting places when this happened,
(c) the employer must take the steps set out in the instruction, within the specified period, to rectify the occurrence, practice or condition; or
(d) all affected persons, other than those who are required to assist in taking steps referred to in paragraph (c), be moved to safety.”
Page 72
there would have been a minimal delay in restarting mining operations if
the s 54 notice was uplifted during their shift. As such, a refusal to comply
with the instruction in the Red Note entailed at least a refusal to report to
the waiting place and to remain in attendance there as well as a failure to
attend the safety training conducted there. This refusal amounts to strike
action in the context of the campaign to alter the terms of Saturday
working arrangements. The seriousness of such action is a separate
matter. This immediately raises the second issue namely: was the failure
of workers to report at the mine for their shifts a sound basis for inferring,
in the absence of evidence to the contrary, that their absence was a
consequence of their participation in the strike.
The cause of the failure to report for duty
[186] There was a dramatic drop in attendance by workers reporting for duty
starting with the night shift commencing on Friday evening and continuing
through Saturday. Barely more than a third of all those rostered to work
reported on any of the shifts during that period. To the extent that the
absence of company bus transport might have presented an insuperable
obstacle for any of the hostel dwellers to get to work if they had wanted to,
only 195 of the 585 AMCU members charged with striking lived in the
hostel, so at least a 380 others who did not report for work would have
travelled to the West Vaal premises from outside locations.
[187] In total, 181 AMCU members reported for duty at the mine or at the
helipad, amounting to 9.5 % of all the workers who did so, whereas AMCU
members comprised 17% of the workforce. This indicates that the
attendance rate of AMCU members was half of what could reasonably be
expected if non-participation in Saturday work that weekend had been
evenly spread across the whole workforce.
[188] In comparative terms, the response of AMCU members to the exhortations
broadcast to the hostel dwellers to report to the helipad was even more
lacklustre than the admittedly poor response by non-AMCU members:
non-AMCU members were more than twice as likely to report at the
helipad compared to AMCU members, assuming that the vast majority of
all those who reported to the helipad would have come from the hostel.
Page 73
Although, in absolute terms, nearly fifteen times as many non-AMCU
members reported to the helipad compared to AMCU members, that
number only accounted for 15 % of non-AMCU hostel residents.
[189] Overall, 1327 out of 3043 workers scheduled to work a Saturday shift
reported for work or went to the helipad. This means that about 43% of the
total Saturday shift workforce visibly demonstrated an intention or
willingness to work. Of the 766 AMCU members who ought to have
attended work according to AGA only 181 did so or reported to the helipad
showing that about 23 % of AMCU members on a Saturday shift
demonstrated an intention or willingness to work their shift, which
represents an AMCU participation rate just over half that of non-members.
Expressed in different terms, AMCU members rostered to work would
have made up about 25 % of the Saturday shift workforce, but those
members who did attend or report to the helipad made up only 13,6 % of
the total workforce which did either. This shows that AMCU members were
noticeably ‘under-represented’ amongst those demonstrably willing to
work, whereas non-AMCU members were correspondingly ‘over-
represented’ in that group, relatively speaking. These figures are not really
surprising given that AMCU local leadership was driving the campaign and
the campaign was directed at contesting working arrangements which had
been agreed to with the other unions including the NUM, in particular.
[190] The relatively high proportion of non-attendance by AMCU members
compared to non-AMCU members strongly supports an inference that a
significant number of AMCU members had decided not to go to work on
their Saturday shift to support the campaign to change the terms of
Saturday work and consequently were on strike.
[191] That said, it is also true that a large number amounting to approximately
half the remaining non-AMCU workers who should have reported for work
(1119 out of 2277) did not do so. None of these workers were subject to
disciplinary enquiries. It appears AGA adopted the view that they were not
wilfully absent because they were not AMCU members and no other union
was agitating for a change in the overtime regime, so it was accepted that
the absence of this large group of individuals was due to other legitimate
Page 74
reasons such as a lack of transport or intimidatory tactics of AMCU
members. It took this view even though it was not disputed that two-thirds
of workers did not live at the hostel and on AGA’s own version should not
have been reliant on bus transport to the shaft. This would mean that
about 1500 non-AMCU members ought to have been equally able to get to
work as the AMCU members who did not live on the mine, so it would
have been reasonable to expect that about 380 more non-AMCU
members ought to have reported for their shift. By contrast, a lack of
transport was not regarded as an acceptable defence to the charge of
striking by AMCU members. The implications of these figures will be taken
up later.
Were the dismissals automatically unfair?
Only AMCU members were dismissed.
[192] S 5(2)(c) of the LRA provides:
“(1) No person may discriminate against an employee for exercising any right conferred by this Act.
(2) Without limiting the general protection conferred by subsection (1), no person may do, or threaten to do, any of the following-
(a) …
(c) prejudice an employee or a person seeking employment because of past, present or anticipated-
(i) membership of a trade union or workplace forum; …”
Read with s 187(1), which provides that a dismissal “…is automatically
unfair if the employer, in dismissing the employee, acts contrary to section
5...”, these sections frame the ambit of this claim.
[193] It is common cause that only AMCU members were dismissed for
participating in the strike. The question is whether this was in
consequence of selecting them for dismissal in breach of the provisions
above, or put differently that it was their union membership which was the
primary reason for their dismissal. The basis of this claim has a number of
strands. The ones which require the most attention relate to the claim that
Page 75
only AMCU participants in the strike were dismissed and the claim that the
company accepted justifications for non-attendance from non-AMCU
members which it did not accept from AMCU members. Before dealing
with those two grounds, I will address the others.
Miscelaneous allegations of the applicants being singled out solely on
account of their union membership.
[194] A number of other reasons suggest a direct discrimination on account of
union membership were advanced:
194.1 There was evidence tendered of direct comments made by
various Chairpersons of disciplinary or appeal enquiries to the effect
that they were being dismissed because of their AMCU membership.
194.2 NUM members who had participated in the month long
unprotected strike during 2012 had not been dismissed and had
been issued with final warnings, whereas twenty two AMCU
members in this instance who had not received written warnings
because they had not participated in the 2012 industry strike were
nonetheless dismissed including two of them who had testified to this
effect in their disciplinary proceedings.
194.3 The company made no effort to exclude some 21 AMCU members
who had a justifiable reasons for not being at work on their Saturday
shift, in circumstances where it ought to have known that this was the
case at the time the hearings were conducted.
194.4 The company had planned to dismiss AMCU members en masse.
194.5 The company dismissed 22 AMCU members who had signed
NUM membership forms, which NUM had submitted to the company
at the time of the disciplinary enquiries, but not 42 others who had
signed the membership forms and were not previously AMCU
members.
[195] Dealing with the question of whether there was an intention to dismiss
AMCU members en masse, the applicant relies principally on an internal
planning outline of the disciplinary enquiries. After outlining the process for
conducting individual enquiries with small groups of workers, and
Page 76
identifying the possible risk that workers might refuse to board the buses
to come and attend the enquiries, the document contains the following:
“Alternative Plan: (employees refuse to attend the scheduled disciplinary
hearings)
• Brief to MKM dismissed employees to report to Eagle’s roost on
Thursday by no later than 10:00 or else be dismissed.
• Hear the cases as per the above plan or mass dismiss AMCU
members who participated in the stay away on Thursday.
• Brief dismissed employees of their right to appeal (appeals to be
heard by Friday, 26 April 2013).”
(Underlining added).
[196] Read in context I think the passage relied on by the applicants simply
indicates that the company was considering what it should do if the
individual enquiries which intended to proceed with could not take place.
What was envisaged was that in the absence of AMCU members
attending enquiries and advancing an explanation for their absence from
work they would all be dismissed, but that would still be subject to another
opportunity to provide a defence in an appeal hearing. Elsewhere I have
discussed the fact that the decision to only charge AMCU members for
participation in the strike was not an unreasonable one as such.
[197] There is no doubt that Jacobs struggled to explain why 39 AMCU
members without final written warnings for previous strike action were
dismissed, given that so much emphasis was placed on the importance of
such warnings being issued in the company’s attempt to justify the
differential treatment of workers who went on strike at Tautona and
Mponeng before the final written warnings for the 2012 strike had been
formally issued to them. As mentioned above, 14 of them simply had not
been issued with the warnings in error, and ought to have received them.
The remaining 25 were correctly recorded as not having written warnings.
In the context of the claim of automatically unfair dismissal, I am not
satisfied however that AGA intended to treat these individuals differently
because of their union membership, but that it negligently failed to verify
that all those dismissed indeed had received the warnings. for the 2012
Page 77
strike. During the trial, the company eventually conceded this omission
and offered to reinstate 23 of the applicants who were not on a final written
warning at the time of the dismissal, with six months back pay. Two of this
group were not offered reinstatement because they were dismissed for
other misconduct as part of the top seven or the 17 alleged instigators.
The quantum of backpay is still a matter of contention which is dealt with
later.
[198] As regards the issue of the company pressing ahead with enquiries
against individuals whose own attendance records showed that they were
not absent from work or had a good reason not to be there, such as being
on sick leave, the explanation given by van Heerden for these omissions
was, in the main, a plausible one. The attendance register which was used
at the disciplinary enquiries was drawn from attendance records obtained
on Saturday 20 April. In the case of 18 applicants, their reasons for non-
attendance was that, the relevant documentary records were only filed
after the attendance register of 20 April was extracted and accordingly did
not appear on it, or their attendance was not captured because the
clocking records were drawn from shaft clocking points, and did not record
clocking ins at access gates. In the case of two others, they were
erroneously recorded as being rostered for work when they should not
have been.
[199] The company may be criticised for not having been as thorough as it
should have in not checking records against the most recent information,
but in the context of conducting large-scale hearings of this nature under a
degree of time pressure owing to concerns about possible mass action of
the kind experienced that Mphahlele and Tautona mines if they did not
conduct the hearings expeditiously, these omissions were not a reflection
of a deliberate strategy of disregarding exonerating factors.
[200] Much was made of the 64 stop orders and the AMCU members who were
amongst us who signed NUM membership forms, but whose change of
membership was not recognised, which resulted in them being identified
as AMCU members for the purposes of disciplinary action. On evaluation
of the evidence, I am satisfied that AGA did not receive the stop orders
Page 78
and did so on the basis that it had reason to believe that some of the
forms had been completed opportunistically because the timing of the
submission of the forms conveniently coincided with the institution of the
disciplinary proceedings. In consequence, it did not recognise the
apparent change of allegiance of the 22 odd AMCU members and they
were disciplined together with the others. The fact that they did not take
disciplinary action against those who were existing members of the NUM
who had signed the forms or against signatories who previously belonged
to no union was consistent with AGA’s general approach of not charging
non-AMCU members on the basis that they were not affiliated to a union
that had instigated or supported the strike action. How the company
actually accepted the AMCU members’ change of allegiance,that also
could have been interpreted as an approach favouring NUM over AMCU
as it might suggest that employees who switched allegiance to NUM would
be protected. As mentioned elsewhere this was in fact an allegation made
by one of AMCU’s witnesses. I am not persuaded on the evidence that
AGA acted in bad faith in rejecting the forms at the time that they were
submitted and in not recognising the change of allegiance.
[201] Makwekwe, Gwadiso, Tiyo and Lebodi all testified to specific remarks
expressly demonstrating hostility towards AMCU members and indicative
of an intention to proceed with their dismissal simply on that basis. AGA
attacks the credibility of Makwekwe and Gwadiso because their names did
not appear on the attendance register as being present at the enquiries
and there were no documents available that would have demonstrated
they had attended one. Moreover, they appeared in the original list of 217
applicants, whom AMCU claims did not attend disciplinary enquiries. It is
true that Gwadiso said she saw Ndlovu at the disciplinary hearings, though
he never testified to seeing her there. It is also true that AGA was not able
to produce a hearing bundle for everyone who did attend a hearing, but it
is unusual for there to be neither an attendance record nor documents.
[202] In Lebodi’s case, he claimed that his enquiry and his appeal hearing
where chaired by the same individual, but this was shown to be incorrect.
He had claimed that it was the appeal chairperson who had told him “You
must go away with your AMCU”. The fact is that he was wrong about his
Page 79
claim that both hearings were chaired by the same person certainly puts
the credibility of his account in some doubt. Though it is not implausible
that in the context of the events leading up to the dismissal of the top
seven and the instigators, that some remarks expressing hostility towards
AMCU might have been made, it seems somewhat improbable that a
person chairing an enquiry would risk making such a foolish remark. Tiyo’s
evidence was that he had given a note showing that he was at training to
Mr Steyn who was coordinating activities at the disciplinary hearing. Steyn
had allegedly torn up his note and said words to the effect that: “We do not
want AMCU people here.” Steyn could not recollected if he had spoken to
Tiyo but pointed out that he was not conducting any of the hearings
himself and that any explanation Tiyo had tendered would have been
dealt with in his enquiry, not by him. He also queried why he would make
such a risky statement and behave so vindictively to one individual in the
context of AGA conducting 300 enquiries.
[203] The allegations made by the individual witnesses are serious. However in
the context of a carefully planned bureaucratic enquiry process conducted
by HR personnel it seems somewhat improbable that such comments
would have been made openly in that environment. It also seems such
outrageous statements would not have been noticed by other workers
present, but none of these allegations were corroborated. Consequently I
am not inclined to attach any weight to them.
Non-AMCU members participated in the strike but were not dismissed
[204] AMCU contends that only AMCU members were subject to disciplinary
proceedings for their alleged participation in a strike and were ultimately
dismissed. It is not a matter of dispute that NUM and other non-AMCU
members were immunised from any disciplinary action that AMCU
members were subjected to. In essence, AGA contends that it was
inherently improbable that NUM members were participating in the strike
whereas it was inherently probable that AMCU members were.
Consequently, it was perfectly rational for it to subject only AMCU
members to disciplinary enquiries.
Page 80
[205] Firstly, AGA points out that NUM was not supporting the calls for
amending Saturday working arrangements and was a party to the
collective agreements which regulated them. AGA argues that on this
basis alone, the participation of NUM members must fail because of the
absence of a demand emanating from their union. While this certainly may
be indicative that NUM members were not supporting the strike, of course
it does not follow that because their union did not officially support the
strike that none of them participated in it. In theory, it is not implausible
that some NUM members too might have liked to see an improvement in
the Saturday working arrangements, despite the official stance of their
union.
[206] Further, AGA argues that, apart from the evidence of Lebodi, who claimed
that the NUM members he travelled to work with had gone to a two-hour
meeting at the hostel, there was no direct evidence of NUM members
being on strike. Mphahlele could not offer any evidence that they had
participated when asked to do so under cross examination. Added to this,
there was the evidence of at least one serious incident of assault on an
NUM member on his way to work and there were ongoing complaints
starting on Friday evening from NUM local leadership about its members
being intimidated and expressing their own members wish to report for
work. Against this, AMCU argues that Rohrs had previously given
evidence at the disciplinary enquiry of the top seven that “various
employees”, most of them being AMCU members, had embarked on the
strike. Moreover, he could not identify more than a handful of AMCU
members in the crowd visible in the video footage. Magakwe also
conceded that it was possible that NUM members were part of the crowd
gathered at the bus terminus on Friday evening. In this regard, it is also
noteworthy that there was no attempt by AMCU to identify any non AMCU
members amongst the crowd appearing in the footage. Although there
was some very generalised evidence that the campaign against existing
Saturday working arrangements enjoyed wide support beyond AMCU
membership, there was no direct evidence of non-AMCU members at
Moab Khotsong expressing their support. All in all, it must be said that the
Page 81
direct evidence of NUM participation in the strike is extremely slender
especially having regard to the large numbers of those absent from work.
[207] Also, if one considers the evidence of the attendance figures the
significantly higher proportionate attendance of non-AMCU members
clearly indicate that it was much more likely that a non-AMCU member
would have reported for work than an AMCU member which strongly
suggests they were less likely to have supported the strike. In my view, all
the evidence is not enough on its own to establish on a balance of
probabilities that non-AMCU members were probably participating in the
strike.
Lack of transport was only accepted as a legitimate reason for non-
attendance by non-AMCU members
[208] Another distinct strand in AMCU’s argument is that when AMCU members
had tried to explain that their non-attendance at work during the strike was
owing to the absence of transport, this defence was rejected out of hand.
Yet, it was one of the explanations provided by NUM for its members not
reporting for work and that explanation was not questioned by the
company. It is common cause that only one bus was put into service only
on the evening of 19 April and that buses never left the transport terminus
after no one boarded it. It is also common cause that AGA decided not to
provide further transport for the remainder of the Saturday shifts.
Consequently, it is a fact that there was no bus transport provided by the
mine for the Saturday shifts.
[209] AGA argues that this issue can only be considered in the context that
AMCU members were on strike and NUM members were not. Because
NUM members were not on strike it followed that they would have
tendered their services if there was no transport or acts of intimidation. By
parallel reasoning it was for AMCU members to discharge the evidentiary
burden that they would have tendered their services if there was transport,
because they were on strike. Because only a handful gave evidence at the
trial that this was the reason they could not attend work, the rest of the
Page 82
AMCU members who rely on this defence had failed to discharge the
burden of proving this was the reason each of them did not report for work.
However, when this justification was offered as a defence by a number of
AMCU members at their disciplinary enquiries, it was simply not accepted.
In terms of the summary of 557 applicants enquiries referred to by the
applicants in the course of evidence, approximately 250 of them had
advanced lack of transport as the sole reason or one of the reasons why
they had not reported for their Saturday shift.
[210] Jacobs expressed the view that AMCU members who wished to
disassociate themselves from the strikers could have reported to the
helipad but only 13 did so. He agreed that the mine itself could not prove
which individuals had not attended work because of the lack of transport,
but also pointed out that only a third of the mine’s workforce lived at the
hostel. AGA argued that as far as AMCU members advanced a defence
that there was no bus transport available they could still have got to work if
they had wanted to as was evidenced by the testimony of Ndlovu,
Makwekwe, Mzileni, and WA1. Madondo also testified to seeing Mguzulwa
and Shumi (members of the top 7) at the mine on Saturday. Further, 214
leaders reported at the gateway training centre including 16 who were
AMCU members. Most significantly, 43% of those rostered to work did
report for work or reported at the helipad, including 181 AMCU members.
AGA relies on these figures to show that it would have been relatively
easy for those who wish to get to work to have done so even in the
absence of company transport.
[211] It follows that it was also relatively easy for the great majority of those who
did attend work on the Saturday shift to do so. Thus, we know that 952
non-AMCU members reported for duty on their Saturday shifts which
comprised about 41 % of non-AMCU members rostered to work. We also
know that a further 194 reported to the helipad. That leaves 1338 non-
AMCU employees who were rostered to work who did not report for work
or at the helipad. On the basis that two thirds of that number did not live at
the hostel on the company’s version, about 896 non-AMCU members
should also not have been dependent on bus transport to get to the shaft.
In passing, it should be mentioned that it although it was said that the bus
Page 83
transport was for the hostel residents, it was never put to witnesses living
off the mine premises that they were obliged to use their own transport to
get to the shaft or that they were not entitled to catch company buses from
the hostel to the shaft.
[212] The company accepted the absence of the 1338 non-AMCU members,
despite assuming that they wished to work, because they could not get
transport or that there were acts of intimidation. Evidence of intimidating
action presented at the trial was confined to the activities of the group
gathered at the bus terminus and the assault on the NUM member in the
early hours of 20 January. There was no evidence led of any intimidation
taking place at the shaft itself. If it is accepted that the impact of the
chanting crowd at the transport terminus would have mainly affected
residents of the hostel who would otherwise have used the bus transport,
the fact that so many other non-AMCU members still reported for work
strongly suggest that the intimidatory actions mentioned did not impact on
the decision taken by numerous individuals to report for work, even if it is
also accepted that the intimidatory action probably had a ripple effect
beyond those workers immediately exposed to it. Moreover, even in the
environment close to the hostel when the opportunity was provided for the
workers on the day shift to report at the heliport 194 non-AMCU members
still did so. There was no evidence any of those workers were subject to
harassment or intimidation.
[213] In summary, the effective basis for differentiating between AMCU
members who did not report for work and non-AMCU members was that:
213.1 AMCU members were more probably absent because they were
striking since AMCU leadership was driving the campaign to change
existing Saturday work arrangements, whereas NUM was not.
213.2 Non-AMCU members who did not report for work probably failed
to do so either because there was no transport or there was
intimidation.
213.3 On that basis AGA felt it was justifiable to select only AMCU
members for disciplinary action on the grounds of participating in an
unprotected strike.
Page 84
213.4 However, when AMCU members advanced the lack of transport
as the only reason for not reporting for work this justification was not
acceptable because either they ought not to have been reliant on the
bus transport anyway, or they should have made other arrangements
as so many other workers did.
[214] AGA contends that the differentiation in treatment is simply a reflection
that AMCU members were participating in the strike and non-AMCU
members were not. Based on the attendance figures discussed above, it
was more likely that an AMCU member would have been absent from
work than a non-AMCU member. Therefore as an initial organising
principle for deciding who was most likely have participated in the strike,
this was not an irrational or inherently unfair basis for selecting candidates
for disciplinary action. This is quite apart from the fact that no other unions
were supporting the action. However, when it came to deciding who would
be dismissed and the justification for non-attendance advanced by an
AMCU member was the lack of transport, that defence was rejected out of
hand as unacceptable. This resulted in an anomalous disparity of
treatment which is difficult to justify.
[215] Even if non-AMCU members were not presumed to be on strike, their non-
attendance was still excused on a blanket basis that they could not get to
work because of a lack of transport or intimidation. AGA claims that the
differential treatment was simply based on participation in the strike action,
but the point is that this defence directly concerns whether or not such
non-attendance was because of participation in strike action or some other
reason.
[216] It is important to note at this juncture, as observed above, that despite the
criticisms of the company in overlooking attendance records in the initial
enquiries, it did accept other explanations from AMCU members being
absent from work. The ostensible reason it did not accept an absence of
transport as a reason was that a significant number other individuals did
report for work. However, it did not apply the same logic to non-AMCU
members to whom it imputed that justification. No good reason was
advanced for the different approach adopted. It is one thing to argue that
Page 85
charging AMCU members with striking was not unfairly discriminatory.
However, it is quite another to say that AMCU members who cited lack of
transport as the real explanation for their absence were required to show
that they could not reasonably have found alternative means of travelling
to the shaft, if they wanted to rebut the reasonable inference that they
were absent because they were on strike, when other workers were
excused for this reason without any need to demonstrate they made some
effort to get to work. AMCU members who advanced this defence to a
charge of participating in unprotected strike action, were unfairly
discriminated against vis-à-vis non-AMCU members whose absence for
the very same reason was excused simply because they did not belong to
a union whose local leadership had supported the strike action.
Accordingly, AMCU members who advanced a defence of lack of transport
were unfairly discriminated against because of their union membership
and their dismissals were automatically unfair for that reason.
[217] In any event, not all of the applicants had advanced that defence, so it still
remains to consider if the dismissals of the remainder of the applicants
were substantively and procedurally unfair. To the extent that I am
incorrect in my finding in respect of those who advanced a defence of lack
of transport the analysis which follows would, in that case, apply to them
too.
The Substantive and Procedural Fairness of the dismissals
Procedural unfairness
[218] The procedural fairness of the applicants’ dismissals requires
consideration of two issues. The first relates to the steps taken by the
employer to give the strikers a reasonable opportunity to reflect on what
they are doing and to abandon their strike action. The second concerns
the provision of an opportunity for strikers to make representations why
they should not be dismissed for striking before a final decision is taken.
Page 86
Steps prior to the dismissal
[219] The proper starting point for analysing this leg of procedural fairness is
item 6 (2) of the Code of Good Practice: Dismissal which reads:
“Prior to dismissal the employer should, at the earliest opportunity,
contact a trade union official to discuss the course of action it intends to
adopt. The employer should issue an ultimatum in clear and
unambiguous terms that should state what is required of the employees
and what sanction will be imposed if they do not comply with the
ultimatum. The employees should be allowed sufficient time to reflect on
the ultimatum and respond to it, either by complying with it or rejecting it.
If the employer cannot reasonably be expected to extend these steps to
the employees in question, the employer may dispense with them.”
[220] In National Union of Metalworkers of South Africa (NUMSA) v CBI Electric
African Cables the LAC held that the purpose of contacting the union is:
“‘Firstly, it affords the union an opportunity to persuade the strikers to
resume work and secondly, it provides a safeguard against possible rash
action by the employer.”9
[221] In this instance, there was no attempt made to issue an ultimatum to the
workers at the time the strike commenced on Friday evening or during the
course of Saturday. Announcements were made from security vehicles
every 10 minutes during the night of Friday 19 and April and early the
following morning. All these announcements only told workers who could
not get to work that they could report to the helipad. No mention was made
that people who did not report for work were engaged in an unprotected
strike , nor were they advised of the consequences of not going to work or
reporting to the helipad, namely that they could be dismissed.
[222] It was argued by Jacobs that the Management brief issued on 16 April by
Madondo, which the DJ had read out at regular intervals was a ‘pre-
emptive’ kind of ultimatum. The brief itself simply asserts that if workers
collectively unilaterally withdrew from Saturday work that would be ‘similar
to strike action’ (my emphasis) and that the company ‘reserved its rights’
9 [2014] 1 BLLR 31 (LAC) at para 35
Page 87
to take ‘the necessary action when people do not adhere to existing
agreements’. The somewhat blandly worded brief does not say that a
collective failure to report for Saturday work that weekend would be
regarded as unprotected strike action and that the company would take
disciplinary action which might include dismissal of anyone participating in
such action.
[223] Even if the brief might in principle have served a purpose similar to an
ultimatum, it fundamentally failed to state ‘in clear and unambiguous
terms’ what was ‘required of the employees’ and what sanction [would] be
imposed if they [did] not comply with the ultimatum’. There was therefore
no direct warning to employees in advance what the consequences of
them not honouring the Saturday work arrangement could be nor was
there an attempt to communicate the consequences of pursuing such a
course of action when the mine was bombarding workers with
communications to report to the helipad. If reporting at the helipad was
regarded as a substitute for reporting to work and if it was intended that
employees who did so would not be regarded as participating in
unprotected strike action this was also never conveyed. Curiously, it was
only on the following Monday that management thought it prudent to point
out in Madondo’s briefing that day on the events of the weekend that “final
warnings issued following the previous unprotected strike in 2012 are
still in force.” Prior to the Saturday shift it had not been felt necessary to
bring this factor to any of the employees’ attention, even though it was a
decisive factor according to AGA in the decision to dismiss most of the
applicants.
[224] The second issue concerns what attempts were made to contact a union
official to advise on the course of conduct the company was intending to
embark on if workers did not report for work. The degree of contact
between AGA and union officials in the events leading up to 19 and 20
April and during the course of the strike or a matter of considerable
controversy. Essentially, this issue revolves around a few limited cellphone
communications between Jacobs and Mphahlele
Page 88
[225] In considering these communications it is necessary to be mindful of the
evolution of AGA’s evidence on these communications in the course of the
trial and the consequential amendment of its statement of response, which
have already being discussed above.
[226] When Mphahlelewas cross-examined during his initial evidence, it was put
to him that there were communications between him and Jacobs on 19
and 20 April, which appeared, at face value, to be possibly contrary to the
admission made by the company and recorded in the pre-trial minute that
“The respondent made no contact with any AMCU trade union official on
19 and / or 20 April 2013 to discuss the course of action that it intended
adopting in relation to the individual applicants herein.” At that point in the
proceedings the applicants knew that the respondents were seeking to
withdraw that admission on the basis of the conversations mentioned.
Notwithstanding the recorded admission, the applicants had also
nonetheless admitted by that stage that Mphahlele had received an SMS
from Jacobs at 10h55 on Saturday morning. That SMS clearly made
reference to an “earlier telecom” between them. Jacobs also requested to
meet with Mphahlelethat morning and requested the urgent intervention by
Mphahlele and the AMCU national leadership. Jacobs went on to express
his concern about the situation having the potential to escalate and to lead
to widespread violence and unprotected strike action at AGA’s Vaal River
mines. The focus of the SMS’s was on achieving a resolution, but contains
no mention of direct or indirect threats of dismissal if workers did not report
for work.
[227] According to Jacobs, the earlier telephone conversation took place at
around 07H00, at which point he claimed Mphahlele as noncommittal
because he was involved in a church function but nonetheless undertook
to revert to him. The previous day Jacobs claimed that he had attempted
to get hold of Mphahlele sometime around 18 H00 and 19 H00 but
Mphahlele had not taken his calls and he left a detailed voice message
asking him to call him back and intervene in the matter.
[228] It was common cause that there was a further conversation between them
about an hour after the SMS was sent on Saturday morning and that they
Page 89
agreed to have a meeting, subject to Jacobs reverting to Mphahlele
However Jacobs did not revert as there was no chance of recovering the
shift and AGA’s focus shifted towards formulating its legal strategies going
forward.
[229] What emerges from these communications is that Jacobs did attempt to
contact Mphahlele to seek his assistance though he did not specifically
advise him of the course of action that AGA intended to take against
AMCU members if they persisted with their strike. Mphahlele did not recall
Jacob’s alleged attempt to communicate in the evening of 19 April, but
conceded that he might have been involved in a church function on the
Saturday morning. In Mphahlele’s initial evidence he did say that if he had
known that ultimatums had been issued and if he had been contacted
about an alleged unprotected strike he would have driven there and tried
to speak to Jacobs and the relevant mine management to see if the union
could discuss the issue and assist.
[230] Given the reference in the SMS to the previous conversation earlier that
morning, it seems probable that the conversation did take place and that
the subject matter of conversation was reasonably accurately reflected in
the SMS itself. Otherwise, Mphahlele could have been expected to take
issue with it . In the circumstances, it does not seem that Mphahlele acted
with any speed to deal with the matter because a period of approximately
5 hours appears to have elapsed between the early morning conversation
and the time when he agreed to meet with Jacobs. Even if there had been
no mention of ultimatums as such it ought to have been obvious that an
unprotected strike was underway and that the company was seeking the
assistance of the national union officials to resolve it.
[231] The more controversial communication between Mphahlele and Jacobs is
the one of 16 April, which Jacobs first alluded to in his evidence in chief,
but which had never been put to Mphahlele under cross examination.
Leave was granted on 23 March 2015 to allow the respondent to remedy
this defect in its cross-examination and the applicants were also permitted
to cross-examine Jacobs further on this call following Mphahlele’s
additional cross-examination and re-examination.
Page 90
[232] The evidence is canvassed above under the events of 16 April.
Essentially, Jacobs claimed that he had conveyed his concerns to
Mphahlele about the threat to boycott Saturday work, reminding him of the
legal action taken at Tautona and Mponeng and expressing the hope that
it would not be necessary to follow the same route. He also claimed to
have outlined the ramifications of strike action for AMCU and its members.
The upshot of Mphahlele’s evidence was that he could not recall the
specifics of a conversation on 16 April but recalled a conversation with
Jacobs about AGA engaging with AMCU on the Saturday work issue. He
was more confident that there had not been a discussion about the
situation at Moab Khotsong as distinct from a general discussion about
engaging on the Saturday work issue. He was also insistent that if he had
been specifically forewarned of impending strike action at Moab Khotsong
he would have gone to the mine the following day.
[233] From Jacob’s email to Hart on 16 April, it is reasonable to assume there
had been a communication between him and Mphahlele that day.
However, the email reveals no more than Jacobs recording an intention to
formally engage AMCU in discussions on the Saturday work issue. It gives
no indication that a warning of impending strike action at Moab Khotsong
had been canvassed with Mphahlele It is true that Mphahlele’s recollection
of the details of each specific conversation he had with Jacobs was poor,
and he did not claim to have the ‘photographic mind’ Jacobs appeared to
have. He was more confident that they had never discussed an imminent
strike at Moab Khotsong because his recollection was that the only
discussion on engagement on the Saturday issue had been at a general
level, and because he thought it very improbable he would not have gone
to the mine if they had discussed the Moab Khotsong situation specifically.
[234] It is true that Mphahlele was tardy in dealing with Jacobs on Saturday 20
April, but previously he had been prompt in intervening directly at other
mines when the call for intervention was made by management and the
seriousness of the situation was made clear. If Jacobs had called for his
intervention in unambiguous terms and had warned him that an
unprotected strike was looming at Moab Khotsong and if Mphahlele had
agreed to investigate and revert, it does raise the question why Jacobs
Page 91
never followed up on Mphahlele’s alleged commitment before he called
him late on Friday evening. His subsequent conversations with Mphahlele
on 19 and 20 April also make no reference to Mphahlele’s apparent
inaction since the call on 16 April. Given the failure of Jacobs to make any
follow up despite Mphahlele’s supposedly inaction over the next couple of
days, it seems more likely that the call to Mphahleleon 16 April had not
dealt specifically with events unfolding at Moab Khotsong. It is true that it
seems reasonable to expect that Jacobs would have raised the alarm at
that time, but AGA’s general approach to the looming situation at Moab
Khotsong was oddly low-key in nature.
[235] From the narrative above it is very difficult to believe that the company
genuinely was unsure if strike action was likely at Moab Khotsong,
particularly given the interaction with AMCU local leadership in meetings
with management when the Saturday working issue was raised and the
increasing mobilisation by the leadership. It was reasonable to expect that
the company would have raised concerns with the national leadership
immediately after the threat made by the local leadership on 3 April
especially when it was coupled with an unashamed promise to disrupt
transport. Yet, in the whole period between 3 April and the strike on 19
and 20 April, not a single letter emphasising what the company’s stance
would be if such threats were persisted with was sent to AMCU head
office, even though that modus operandi had been usefully employed at
other mines which hitherto had a much more violent recent history.
[236] AGA rationalised the different approach at Moab Khotsong on the basis
that it was trying to engage the union to build a longer term and that there
was more time to allow the union to take the necessary steps to rectify the
situation. The main difficulty with this explanation is that it is apparent that
the focus of AGA’s interaction with AMCU senior leadership on Saturday
working arrangements was essentially to deal with the issue in the West
Wits region of the company, and that communications about imminent
strike action over Saturday working arrangements related to events at
Tautona and Mponeng mines. Even after there had been a meeting at the
Itireleng hostel on 11 April at which the issue of not working on Saturdays
was discussed, there was no attempt to directly communicate with AMCU
Page 92
head office on the situation at Moab Khotsong even though ultimatum’s
were issued in respect of Tautona and Mponeng. After the further warning
sign at the meeting on 15 April with the top seven when they refuse to
even talk about Saturday work when it must have been obvious that they
were escalating the campaign on the ground, the company embarked on
an intensive briefing program directed at the workforce, but there was no
further direct attempt to engage the local leadership of AMCU to put them
on terms, nor was national leadership of the AMCU advised of the
recalcitrant attitude of the top seven or of the briefing which had been
issued to the workforce. It seems remarkable that there was not a single
piece of correspondence directed by AGA to AMCU head office during that
week.
[237] In the circumstances, I accept that AGA made some effort to convey to the
workforce that a failure to work on Saturday work would be unacceptable
and could be construed as industrial action, the thrust of that
communication was not as unequivocal as a proper ultimatum would have
been. There was also no effort at the time it was communicating through
repetitive announcements with the workforce at the hostel to convey a
clear ultimatum to them during the course of the strike action. I also accept
that at least once the strike action commenced that AMCU national
leadership, as represented by Mphahlele, had sufficient information to
have recognised the need to intervene even if the consequences of failing
to bring the strike action to end were not spelt out. In this regard, I think it
is reasonable to acknowledge that while there is an obvious need for
unambiguous and explicit communication to striking workers about the
employer’s intentions, it is sufficient for the purposes of seeking the
union’s assistance that it be advised of the unfolding events and that its
urgent assistance in resolving the situation is required. The company’s
relative reticence in dealing with AMCU national leadership at Moab
Khotsong compared to the way it had handled the situation at Mponeng
and Tautona is discussed below.
Page 93
The opportunity to make representations
[238] In Modise & others v Steve's Spar Blackheath10 , the LAC held that:
“When the audi rule was introduced into our employment law in the private sector
through the justiciable unfair labour practice, the audi rule applied to all
dismissals, irrespective of the reason”11
The majority of the court also asserted clearly that this did not need to take
the form of convening individual disciplinary enquiries. Thus in rejecting an
argument advanced by an employer in another case that convening
disciplinary enquiries would have resulted in a substantial further delay in
bringing matters to a head and thus rendering the ultimatum largely
ineffective, the LAC held:
“I can see no delay that could have been caused if the employer had
given the strikes an opportunity to make written representations within a
certain number of hours, e.g. 24 or 48 hours, why they should not be
dismissed. That would have been compliance with the audi rule.”12
[239] It is important not to overstate the requirements of the opportunity an
employer must give strikers to make representations before deciding to
dismiss them. It is clear from the citation mentioned and from several other
references in the majority judgment in Modise that ordinary disciplinary
enquiries are not envisaged and there is no requirement that they need to
take an individual or collective form.
[240] In this instance, it is true that the Inquiries convened by AGA were of a
summary nature and were convened with no advanced warning. There
was also no attempt to engage with AMCU nor even to invite workers to
ask for representation. Van Heerden and explained that the company had
decided against a collective enquiry and collective appeals on the basis
that a more individualised treatment would give each worker a better
opportunity to present the specific explanation for their non-attendance.
While the approach was robust and brief, the fact that a number of
10 2001 (2) SA 406 (LAC); (2000) 21 ILJ 519 (LAC) 11 At 525, para [19] 12 At 541, para [65]
Page 94
charged individuals were found not guilty at the original enquiries does
demonstrate that a number of them were able to make use of the
opportunity to present justifications for their absence and that those
justifications were accepted, at least where the explanations did not relate
to the absence of transport. It cannot simply be ignored that 46 of those
charged were found not guilty as a result of the internal disciplinary
processes.
[241] Apart from the fact that the company made no arrangement for
representation of any sort, I do not think it can be said that workers were
not afforded any opportunity to be heard before they were dismissed,
albeit that the enquiries were convened in a drumhead fashion. The fact
that some of their representations were not seriously considered is an
issue which relates more to the substantive fairness of their dismissals.
[242] However, it must be said that the way the enquiries were convened hardly
gave the applicant’s an opportunity to consider how they might approach
the enquiries. It is true that the announcement was made by the DJ to the
workers who had been corralled at the buses that they were going to be
given an opportunity to explain why they were not at work, which is the
essence of the main defence to a charge of participating in an unprotected
strike given that a worker was not at work during the strike. However, they
were not given the pro forma charge sheet to mull over before they were
called to their individual enquiries. Further, there was no practical
opportunity to seek any advice, let alone obtain assistance in making
representations. Effectively, they were isolated from contact with the
union, until they had been dismissed. However, I am satisfied that these
limitations were cured or mitigated by the extended appeal process.
[243] As regards the appeal process, it does seem that communication of the
right to appeal was not well done. However, it was extended and AMCU
was a party to the extended appeal process. The attenuated right to
hearings in strike dismissals does not extend to a right to an appeal
hearing as a matter of course and in so far as it is offered, there is no
reason in principle why it has to be more elaborate than the dismissal
hearing in its execution.
Page 95
[244] In conclusion, even if a large number of the applicants’ dismissals were
not automatically unfair because they actually were absent from work
because they supported the strike, AGA’s approach in dismissing the
applicants for embarking on unprotected strike action, without issuing clear
and unambiguous ultimatums to workers to return to work or face the
prospect of dismissal, was procedurally unfair. The briefs issued before
the strike, though prudent, were too tentatively worded to serve as an
advance ultimatum and in any event did not justify the failure to issue any
ultimatums once the strike had commenced. Further, although they were
afforded an opportunity to make representations, they were unnecessarily
deprived of any reasonable opportunity to consider the representations
they should make or to obtain advice on how to make representations,
even if they were not entitled to union representation at the hearings.
Substantive unfairness
[245] Item 6(1) of the Code deals with the substantive fairness of dismissing
participants in an unprotected strike. It reads:
“Participation in a strike that does not comply with the provisions of
Chapter VI is misconduct. However, like any other act of misconduct, it
does not always deserve dismissal. The substantive fairness of
dismissal in these circumstances must be determined in the light of the
facts of the case, including –
(a) the seriousness of the contravention of this Act;
(b) attempts made to comply with this Act; and
(c) whether or not the strike was in response to unjustified conduct
by the employer.”
[246] In National Union of Metalworkers of South Africa (NUMSA) v CBI Electric
African Cables 13, the LAC explained that this was not a list of exhaustive
considerations in determining the fairness of a strike dismissal, viz:
13 [2014] 1 BLLR 31 (LAC).
Page 96
“[30] In his work Grogan expresses the view that item 6 of the Code is
not, and does not purport to be, exhaustive or rigid but merely identifies
in general terms some factors that should be taken into account in
evaluating the fairness of a strike dismissal. He, therefore, opines that in
determining substantive fairness regard should also be had to other
factors including the duration of the strike, the harm caused by the
strike, the legitimacy of the strikers’ demands, the timing of the strike,
the conduct of the strikers and the parity principle. I agree with this view
as the consideration of the further factors ensures that the enquiry that
is conducted to determine the fairness of the strike-related dismissal is
much broader and is not confined to the consideration of factors set out
in item 6 of the Code.”
(underlining added)
Criteria of substantive fairness set out in item 6 (1) of the code
[247] In this matter, there is no reason to believe that the attitude of the local
AMCU leadership at Moab Khotsong regarding the Saturday work
demands were any different from the views expressed by Motloi. Their
perspective was that they were not bound by agreements concluded by
other unions and were free to pursue their demands. Insofar as AMCU
national leadership had cautioned them against strike action, they were
indifferent to such advice just as they were indifferent to warnings from
Moab Khotsong management to respect the prevailing collective
agreements. It may be that they might have felt that it was an inherently
unfair to be bound by agreements concluded by unions they were no
longer members of, and that some allowance might be made for a limited
understanding of the binding effects of collective agreements in terms of
section 23 of the LRA, but they also made absolutely no attempt to follow
the appropriate dispute resolution mechanisms of the LRA.
[248] In fact, the refusal of the top 7 to engage with management on the
Saturday work issue or the impending strike action was probably indicative
of the fact that they were aware that they would be tackled on the
unlawfulness of the intended action. Quite apart from not invoking any
appropriate dispute resolution mechanisms, they were not even interested
in debating the issue with mine management. Clearly their expectation
Page 97
was that the strike action of members was likely to yield more fruitful
results than discussing the issue with management.
[249] In short there was no attempt whatsoever to comply with the LRA before
embarking on strike action and strike clearly contravened s 65(3)(a)(i) of
the Act which prohibits strikes where workers are bound by a collective
agreement regulating the issue in dispute. The issue of provocation by the
employer does not even arise in this instance nor was it argued.