CC CASE NO :
SCA CASE NO : 576/2012 LAC CASE NO : JA42/2011 LC CASE NO : JS953/2008 In the matter between:
NATIONAL UNION OF PUBLIC SERVICE AND
ALLIED WORKERS obo MANI AND NINE OTHERS Applicant and:
NATIONAL LOTTERIES BOARD Respondent
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FOUNDING AFFIDAVIT
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I, the undersigned,
SUCCESS MATAITSANE
do hereby make oath and state that:
A INTRODUCTION
1 I am the General Secretary of the National Union of Public Service and Allied Workers (“NUPSAW”), a registered trade union that is herein representing the former employees of the respondent.
2 I am duly authorised to depose to this affidavit on behalf of the applicant acting on behalf of its members.
3 The facts contained herein are, unless otherwise indicated, within my personal knowledge and are both true and correct. Where I make a submission of law, I do soon the advice of my legal representatives and which I accept as correct.
4 The respondent is the National Lotteries Board (“NLB”), an entity constituted in terms of the Lotteries Board Act 57, of 1997 as amended and the former employer of the applicant’s members.
5 The applicant is applying to this Court to appeal against the whole judgment and order of the Supreme Court of Appeal (“the SCA”) delivered in National Union of Public Service & Allied Workers (“NUPSAW”) obo Mani and Nine Others v National Lotteries Board [2013] ZASCA 63 (24 May 2013).
6 In the SCA judgment, that Court dismissed the appeal on the grounds that there was no automatically unfair dismissal. The dismissals of the employees were also found to be procedurally and substantively fair.
7 The judgment and order of the SCA is attached to this affidavit marked “A”.
B THE ISSUE
8 The question before the Labour Court and the SCA was whether ten employees who are members of the trade union NUPSAW at the National Lotteries Board were dismissed as a result of their support for, and associating themselves with, a lawful trade union activity and, if so, whether such dismissal was automatically unfair as contemplated in section 187(1)(d) of the Labour Relations Act 66, of 1995 as amended (“the LRA”) read together with the relevant provisions of sections 4 and 5 of the LRA.
9 The SCA (as did the Labour Court) found that the employees had been dismissed for insubordination and bringing the employer and its chief executive into disrepute. But the basis for both findings was that the employees were
“associating [themselves] and supporting” their union’s grievance letter and petition against the employer’s chief executive.
10 The issue is thus:
10.1 whether associating oneself with the lawful activities of one’s trade union is capable in the circumstances of this case of constituting insubordination and bringing the employer into disrepute; and
10.2 whether such association in the circumstances of this case should be visited with a dismissal sanction.
11 It is submitted that the right that is implicated in this case is that enshrined in section 23(2)(b) of the Constitution which is in turn given content by sections 4(2)(a) and 5(2) of the LRA read together with section 187(1)(d) thereof.
C FACTS IN BRIEF
12 During 2008 the employees of the National Lotteries Board raised grievances with the employer.
13 These grievances concerned, among other things, the chief executive officer’s leadership style, the extent of his powers and whether his contract of employment was in line with the practice in government agencies. The shop stewards sought advice from the Gauteng provincial office of NUPSAW which advised them to take the matter up with management.
14 On 20 March 2008 the union, through its shop stewards, addressed a letter to the employer’s human resources manager requesting a meeting with the Human Resources Committee, a sub-committee of the Board of Directors of NLB, to discuss these concerns.
15 On 1 April 2008, the Human Resource Manager responded that the shop stewards had no right to demand the chief executive officer’s contract and invited them to follow the grievance procedure.
16 On 16 April 2008, the union referred the dispute to the CCMA requiring disclosure of the chief executive officer’s terms of reference.
17 On 9 May 2008, Ann Hofmeyr (a commissioner of the CCMA) directed the parties in the following terms:
“In view of the willingness of both parties to settle the matter, the conciliation will be extended for 30 days to give parties the opportunity to:
1 draft a motivation to the Board of the National Lotteries Board outlining the reasons why it is important for the contract of employment of the CEO to be made public
2 to specify in writing expectations of the staff in terms of overall organisational performance + delivery”
16 Pursuant to that agreement, which was signed by parties representing the employer and the employees, the union addressed a motivation letter to the human resources manager dated 23 May 2008.
17 When the union received no response to the 23 May 2008 letter, the union addressed a petition, on the union’s letter-head, to the human resources manager dated 3 June 2008. The petition, signed by 41 union members and sent “in addition to the letter dated 23 May 2008”, expressed a loss of confidence in the CEO’s ability to run the organisation and urged the board to ask the CEO to resign or to relieve him of his duties by 30 June 2008.
18 On 30 May 2008, the Mail and Guardian newspaper published an article in which it made reference to the 23 May 2008 letter.
19 On 5 June 2008, the union addressed a letter to the Human Resource Manager in which it defended its right to issue a vote of no confidence in the CEO as stated in the petition and the letter dated 23 May 2008. The letter defended the union’s right to publish information to the public for information and support. The letter urged the board to address the concerns raised by the union and to honour the terms and conditions of the collective agreement.
20 On 6 June 2008 the attorneys representing the National Lotteries Board addressed a letter to the Gauteng branch of the union in which it demanded,
among other things, that the union and its members withdraw the petition unequivocally by 9 June 2008 failing which disciplinary proceedings would be instituted against the employees that signed the petition.
21 Following the attorneys’ letter to the union, three signatories to the petition withdrew their support for the petition. That left 38 employee members still supporting the petition.
22 On 17 June 2008 the employer charged each of those 38 (including three shop stewards in that number) with:
22.1 Insubordination; and
22.2 disrespectful behaviour;
22.3 bringing the name and integrity of the employer and the CEO into disrepute; and
22.4 material breach of the duty to act in good faith and refusal to work under the supervision and control of the CEO.
23 The basis for each of these was that the employees had associated themselves with and supported the trade union letter and petition. This was even stipulated in the charge sheet itself.
24 The chairperson of the disciplinary hearing on 6 August 2008 found that in the context of disputes between the union and the employer, “it did not seem to [the chairperson] that structures had been put in place to establish effective channels through which the union was able to articulate grievances. The arrangements that are in place are inadequate to address the demands of a relatively new collective bargaining arrangement.”
25 At the end of the disciplinary hearing before pronouncing on the appropriate sanction, the chairperson of disciplinary hearing of his own accord invited the employees to endorse an unconditional apology to the chief executive officer and the board dissociating themselves from the contents of the 3 June 2008 petition written under the auspices of the trade union.
26 Those not willing to do so and persisted with their support of the union letter would face dismissal.
27 Ten employees that are represented by the union in this application refused to distance themselves from their trade union’s lawful activities. They were found
guilty of the first two charges and dismissed. The third charge was found not to have been proven.
28 The Labour Court in its 3 February 2011 judgment confirmed the findings of the chairperson of the disciplinary hearing that the dismissals were procedurally and substantively fair. The SCA heard the appeal on 7 May 2013. In a judgment delivered on 24 May 2013, the SCA dismissed the appeal.
29 I deal with the SCA judgment below.
D THE JUDGMENT OF SCA
30 In outlining the relevant facts, the Court found that the letter of 20 March 2008 penned by the three shop stewards to employer’s human resources manager in which the union raised complaints about the leadership style of the chief executive officer expressly demanded sight of the chief executive officer’s contract of employment (see paragraph 7). The letter of 20 March 2008 in fact states that “we as the Union would like to meet the HR Committee in light of the following: the employment contract of the CEO, the nature of the contract... We request you kindly meet us in due course so that we can get the latter ironed out and put to rest.” With respect, the Court’s conclusion on the facts is incorrect.
31 It is also worth stating that the petition dated 3 June 2008 was written as an addendum to the letter of 23 May 2008.
Grievance Procedure
32 The Court found that the employees should have used the grievance procedures provided for in both the staff policy document and the LRA.
33 The staff policy document to which the Court refers defines a grievance as any matter which an employee feels is unfair other than conditions of employment.
Stage three of the grievance procedure provides that “an employee is required to lodge a grievance with the chief executive officer who is required to investigate the matter and to address the grievance.” The staff policy is deficient in that it makes no provision for instances where the complaint concerns the conduct of the CEO. Furthermore, the staff policy fails to consider grievances lodged by a union. The staff policy further states that the rejection of the grievance shall not preclude the employee from resorting to the other external remedies provided for in Labour legislation.
34 I submit that it is not correct that a grievance procedure existed to address the concerns raised by the union with respect to the conduct of the chief executive officer. The union made every attempt to resolve the dispute by engaging the employer through several requests for meetings. When that attempt failed,
the union approached the CCMA for conciliation of the matter. On the directions of the CCMA, the union wrote the motivation letter of 23 May 2008 to which the 3 June 2008 was an addendum. The union’s members were penalised by the employer for these actions.
Insubordination
35 The Court, in confirming the finding of the Labour Court of insubordination makes reference to case law (see paragraph 31). With respect, these cases are distinguishable on the facts from those in this matter. In the cited cases, there had been actual repeated refusal by an employee and in other instances employees to obey a reasonable request of the employer.
36 The present case is distinguishable from all these cases in that there was no refusal to work or co-operate with their line managers or immediate supervisors. In fact, the employees in this case did not desist from working at the employer after 30 June 2008. Also, the chairperson of the disciplinary hearing found that there was no evidence to indicate a refusal to work by the employees. This was the basis for dismissing the third charge.
Relationship Irretrievably Broken Down
37 The Court held that the “unrepentant intransigence rendered the continued employment relationship between the parties intolerable. The relationship between them had irretrievably broken down.” (see paragraph 34).
38 It was the applicant’s case that the chief executive officer was not the immediate supervisor of the employees and as such he was not in a position to determine whether or not there was a poor working relationship preventing the employees from conducting their duties.
39 The employer did not lead evidence during the disciplinary hearing and the hearing in the Labour Court that the employment relationship had broken down irretrievably to the extent that dismissal was the only possible sanction for the misconduct. The employer did not call an immediate supervisor of the employees to give evidence in this regard at both hearings. In any event, the chief executive had himself indicated that these employees would be welcome back if vacancies arose.
40 The conclusion drawn by the Court in this regard is with respect erroneous.
The Reason for the Dismissal
41 The Court found that the “correctly construed, affected employees were dismissed not for petitioning their employer but for their acts of insubordination”
(see paragraph 32).
42 Charges 1 and 2 which were upheld by the disciplinary hearing and Labour Court speak of “insubordination and disrespectful behaviour making the employment relationship intolerable by associating yourself and supporting the contents of the union’s letter...” and “bringing the name and integrity of the NLB and the CEO into disrepute and making the continued employment relationship intolerable by associating with and supporting the contents of the union’s letter of 23 May 2008...”
43 It is clear ex facie the charges that it is the association with the activities of the trade union that is considered offensive as opposed to the contents of the letters written by the trade union. The insubordination stems from the employees supporting the trade union activity which in this instance was addressing the letter of 23 May 2008 and petition of 3 June 2008 to the board through the Human Resource Manager.
44 The Court erred in its finding that the dismissal of the ten employees was not as result of petitioning the employer but for the act of insubordination. In the disciplinary hearing, the chairperson found that union had “overstepped the
the attention of the appropriate manager”; “the union decided not to play ball but rather play the man”, “by associating themselves with these actions,... the individual employees made themselves guilty of insubordination and disrespectful behaviour.” Ostensibly, the basis for which the employees were dismissed was their association with the activities of the trade union.
45 Furthermore, it was the case of the applicant that even if the employees were guilty on the charges preferred against them, the sanction of dismissal was inappropriate.
46 The employment relationship as indicated above had not irretrievably broken down and the employer did not present evidence of previous instances of misconduct of this sort.
47 The right to participate in lawful trade union activities including petitioning is protected in sections 187(1)(d), 4(2)(a), 5(1) and 5(2) of the LRA and enshrined in the section 23(2)(b) of the Constitution of the Republic of South Africa.
48 It is the applicant’s case that the dismissals were as a result of supporting lawful trade union activities, and the applicant contends that this is contrary to the LRA and an unjustifiable violation of a constitutional right.
49 Finally under this heading, the courts have already established the test for determining whether dismissal was automatically unfair. In the circumstances of this case it is this:
49.1 Would dismissal have occurred if the employees had not supported the union’s motivation letter and petition? If the answer is yes, then the matter ends there and the dismissal was not automatically unfair. But if the answer is no, then a second inquiry is necessary
49.2 Was support for the motivation letter and petition the main or dominant or proximate or most likely cause of the dismissal? If the answer to this is yes, then the dismissal was automatically unfair.
50 It is clear from the facts of this case that the ten employees would not have been dismissed if they had not supported the union’s motivation letter and petition. This is borne out by the fact that those who withdrew their support were spared dismissal.
51 It is also clear from the facts that their support for the union’s motivation letter and petition was at least the most likely cause of their dismissal (see SA Chemical Workers Union and Others v Afrox Ltd (1999) 20 ILJ 1718 (LAC) at para 32).
52 On this test, it is respectfully submitted that the employees’ dismissal was automatically unfair. They should be re-instated.
INTERESTS OF JUSTICE
53 It is respectfully submitted that not only does the applicant have reasonable prospects of success in this case but that it is also in the interests of justice (particularly in the labour relations sphere) that this Court considers the issues arising in this case and decide them.
54 The application raises a constitutional issue which is essentially the interpretation and application of sections 187(1)(d), 4(2)(a), 5(1) and 5(2) of the LRA read together with sections 23(2)(b), 23(4)(a) and 16 of the Constitution and international law.
55 It is for the union to determine its statutorily and constitutionally protected activities within the law. It is not for the courts to prescribe to trade unions the courts’ own preferred course that the trade unions should follow in asserting their rights and the rights of their members.
56 In any event the suggested approach that the trade union should rather have followed (namely a grievance procedure) is not only inadequate but also
undesirable as the chief executive officer would have been judge in a grievance lodged against him.
57 The implication of the SCA judgment is to curtail the right to lawful trade union activities as conferred by the LRA and enshrined in the Constitution.
58 For the reasons set out above, the applicant submits that in the interests of justice this Court grants the applicant leave to appeal and the relief sought in the notice of application to which this affidavit is attached.
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DEPONENT
SIGNED AND SWORN TO BEFORE ME AT _______________ ON THIS _______
DAY OF JUNE 2013, THE DEPONENT HAVING ACKNOWLEDGED IN MY PRESENCE THAT HE KNOWS AND UNDERSTANDS THE CONTENTS OF THIS AFFIDAVIT, THE PROVISIONS OF GOVERNMENT GAZETTE R1478 OF 11 JULY 1980 AS AMENDED BY GOVERNMENT GAZETTE R774 OF 20 APRIL 1982, CONCERNING THE TAKING OF THE OATH, HAVING BEEN COMPLIED WITH.
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COMMISSIONER OF OATHS
