National Union of Metalworkers of SA on Behalf of Dhludhlu and Others v Marley Pipe Systems (SA) (Pty) Ltd (2022) 43 ILJ 2269 (CC)
In South Africa (SA), the winter season has been dubbed as the ‘strike season’ as it is the time of the year when wage negotiation disputes breakout. Section 23 of the Constitution enriches the right of each employee to strike and the Labour Relations Act 66 of 1995 (LRA), gives effect to this right to strike under its s 64 provisions. The recent Constitutional Court (CC) matter in Dhludhlu comes as no exception to SA’s strike season. This case note seeks to critically analyse the CC’s judgment in this matter.
Background
The salient facts of this matter can be summarised as follows:
The respondent, Marley Pipe Systems (SA) (Pty) Ltd (the employer), operates in the plastics industry. It, therefore, operates under the jurisdictional parameters of the Metal and Engineering Industries Bargaining Council (MEIBC). The employer is obliged to bargain at sectoral level under the auspices of the Plastics Negotiating Forum (PNF).
On 5 May 2017, an agreement pertaining to wage increases was concluded before the PNF (the PNF Agreement). The PNF Agreement itself was not finalised until 13 July 2017 and it basically permitted employer PNF members to grant wage increases above the prescribed minimum threshold. This is what the employer sought to do in this matter. It proposed an increase of 7,5%, while leaving bargaining room for a higher percentage, pending of course the outcome of the MEIBC negotiations, held under the auspices of the PNF.
On 5 July 2017, the employees (the strikers) of the employer partook in a work stoppage, which prompted the employer to engage the applicant (NUMSA) on its proposed wage increases. NUMSA and the employer only met on 13 July 2017. NUMSA was only engaged by the employer not because it was a member to the PNF Agreement but because the strikers were its party members. A day later, on 14 July 2017, an unprotected strike ensued at the employer’s Nigel Plant pursuant to the ongoing wage negotiations. In essence the employees were demanding a 15% increase ‘across the board’ as opposed to the proposed 7,5 % increase.
As a direct result of the strike action, a senior employee of the employer, Mr Steffens, was assaulted. Mr Steffens was employed as the head of the employer’s Human Resources department. As a means of subsiding the harm already caused by the strike action, an urgent interdict was granted by Lagrange J, essentially declaring the strike action to be unprotected and prohibiting the employees from further engagement with the strike and any conduct flowing from the strike action.
During July to August 2017, disciplinary proceedings were convened and held against the offending 148 strikers. They were all individually charged with participation in an unprotected strike and assault. The strikers were found guilty on all counts. It was also found that the strikers all acted with a common purpose in perpetrating the assault against Mr Steffens. An independent chairperson issued a sanction of dismissal. An attempt at conciliation was made before the MEIBC but no consensus could be reached.
Labour Court (LC) proceedings
The matter was then escalated to the LC for adjudication. The LC proceedings commenced before Phehane AJ, where it was found that the unprotected strike and assault were not in compliance with orderly collective bargaining. At all material times, the strikers were represented by the applicant union, NUMSA, which only instituted proceedings on behalf of 41 of the dismissed 148 strikers.
In his evaluation of the evidence before him, Phehane AJ noted that the strikers acted with common purpose. He drew inference from the strikers’ reply to the allegations and reasoned that their collective bare denial of the charges against them was indicative of their collective agenda, which was to subvert orderly collective bargaining. Simply put, there was a meeting of the minds between the strikers to engage in the strike action, to assault Mr Steffens and to thereafter, plainly deny involvement and refute their liability.
Labour Appeal Court (LAC) proceedings
On appeal before the LAC, Savage AJA did not stray from the LC’s decision. The LAC placed heavy reliance on the evidentiary burden deposed before the LC by the employer. On evaluation of the evidence, the LAC determined that only 12 employees could directly be linked with the assault. The 41 appealing strikers could not be directly placed at the scene of the assault. As the evidence could not directly implicate the 41 appealing strikers, inferential reasoning in establishing actual participation in the misconduct was the only way the LAC could conclude that the 41 appealing strikers acted with a common purpose. It was noted that the strikers associated themselves directly and with a common purpose before, during and after the perpetration of the misconduct. The LAC found the appellant striker’s failure to distance themselves from the misconduct to be consistent with their intention to participate fully in the unprotected strike action and the ensuing assault. The LAC concluded that the appellant strikers must have foreseen the ensuing fallout and, therefore, acted despite this foresight. The appeal failed at the LAC stage.
CC proceedings
The matter was then referred to the CC on appeal. The unanimous judgment was penned by Madlanga J. The CC took cognisance of the evidentiary burden resting on employers in making a case against individual offending employees. The CC specified that while it was sympathetic to the predicament faced by employers, it was equally cognisant of the plight of innocent employees who stood as sacrificial lambs before the enraged employer’s chopping board. The CC distinguished between the perpetrators, spectators and bystanders and took the stance that the same punishment could not be dished out across the board, although there was no complicity by those who were ‘there’ but not committing the violence.
The CC accepted the LAC’s finding insofar as it placed the appealing strikers on the scene. But where the CC’s argument deviates with the LAC is where the LAC dictates that the appealing strikers should have ‘intervened to stop the assault’ or ‘dissociated themselves’ from the violence.
The CC discussed that there is no standing legal obligation for humans to protect each other from physical harm. The CC did concede that this obligation does exist at a moral level but not legally.
In regard to dissociation, the CC placed reliance on National Union of Metalworkers of South Africa obo Nganezi and Others v Dunlop Mixing and Technical Services (Pty) Limited and Others (Casual Workers Advice Office as Amicus Curiae) 2019 (8) BCLR 966 (CC) and S v Mgedezi and Others [1989] 2 All SA 13 (A), which requires that there must be evidence, direct or circumstantial, of association with the violence. From the CC’s perspective, mere presence and watching was not enough to satisfy the evidentiary burden.
Madlanga J found that a guilty verdict was incongruous with instances where an employee was simply a bystander and ‘merely being where’ the violence took place. Individual complicity of each offending employee is necessary before a sanction of dismissal can be justified. The CC ruled that the principles of common purpose were not met in the matter. In the premises, the CC concluded that the dismissal of the 41 appealing strikers was substantively unfair. The appeal was upheld at the CC level and the matter was accordingly remitted to the LC for further consideration on an appropriate sanction.
Judgment appraisal and concluding remarks
Undoubtedly, the CC’s finding set the tone and inadvertently raised the bar higher when it comes to the evidentiary burden placed on employers when they seek to sanction employees for acting with a common purpose in the commission of acts of misconduct during strike action. Not only is it no longer enough to place the employees at the scene, but the CC’s judgment also now requires employers to produce evidentiary proof positively identifying and placing the alleged offending employees at the scene participating in the acts of misconduct. The scales have most certainly shifted.
Undoubtedly, employers must exercise greater effort to meet their evidentiary burden. Increased technological reliance, such as access control and CCTV systems, including intruder detection equipment will need to be used by employers to ensure better visibility. Without this standard real time monitoring equipment, making out a common purpose case against offending striking employees would prove near impossible.
