South African Municipal Workers Union obo Abrahams and Others v City of Cape Town and Others [2011] ZALCCT 27 (17 June 2011)



Principle:
An employee has a duty to assist the employer to bring guilty employees to book and a failure to assist in this respect amounts to misconduct.

Facts:
During 2007, the City of Cape Town was engaged in a restructuring process to ensure that employees were placed in correctly graded posts. Comprehensive consultations had occurred in relation thereto between the third respondent and employees and their trade unions. Employees were assured that the process will not affect them in so far as their terms and conditions of employment are concerned.
Despite warnings that disciplinary action would be taken, a mass strike and traffic blockade took place involving police members.

Charges were brought against each of the applicants. The disciplinary hearing took place over an extended period between 17 March and 11 July 2008. It was agreed between parties that a single hearing be held for all those charged without admitting that the first respondent and the chair of the hearing were entitled to adopt the doctrine of “collective guilt” or common purpose. After the conclusion of the disciplinary hearing, the applicants together with the other two employees were not found guilty on one charge, and guilty on other charges. The chairperson imposed a sanction of dismissal. An appeal to an appeal tribunal was unsuccessful as a result of which the applicant’s referred an unfair dismissal dispute to the SALGBC. On 31 July 2009, the third respondent delivered his award, which award confirmed the dismissal of all the employees (applicants) save two who were reinstated with no back pay.



Extract from judgement
[31] The first attack on the award of the arbitrator is that the arbitrator committed an error of law in finding that the employees could be dismissed on the basis of a collective and without any individual proof of their misconduct.

[32] Item 7(a) of the code of Good Practice requires the employer to prove on a balance of probabilities, that the employee was actually guilty of misconduct. This may be easy in some cases and prove difficult in others. Proof is particularly difficult in cases where a number of employees are involved in the same misconduct, collective misconduct. In such circumstances, it is required that it be shown on a balance of probabilities that each employee was actually involved before a disciplinary action can be taken against them. This therefore means that there needs to be proved that the employee was actually involved and that no one should be found guilty in circumstances where no proof can be presented showing that the employee was involved in the identified acts, merely because he or she was part of a collective.

[33] In the case of NSCAWU & Others v Coin Security Group (Pty) Ltd there was a strike, and workers engaged in acts of misconduct. The employer dismissed all of them on the basis that the misconduct was committed in furtherance of a collective aim (common purpose). The Industrial Court found that while the workers engaged in a collective action, there was no indication that any of the employees were directly involved in the relevant misconducts. The Court found further that the employer relied on collective guilty than on the doctrine of common purpose.
[34] With regard to the above situation Grogan, had this to say:
“However, there are exceptions to the principle that employees cannot be held collectively liable for misconduct in circumstances where a particular culprit cannot be identified”.

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[44] From the above, it is clear that the exception to rule herein is to be found in the principle of derivative justification and the principle of common purpose.

[45] In our given case, the applicant, SAMWU, mobilized its members, planned to move in a convoy from Bonteheuwel through the N2 to the Civic Centre. The plan was executed as planned. However, the identification could only be made at the Civic Centre and indeed all the applicants were identified there. No identification was made from Bonteheuwel through the N2 to the Civic Centre. The question that needs to be answered is whether their guilty in respect of the blockade and can be imported from the fact that they were present at the Civic Centre and had given no explanation of how they got there.

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[47] The applicants seem to be of the view that the circumstances of the case are such that they cannot give rise to a derivative justification mainly because the applicants had not given explanation as to how they got there and therefore their participation in this misconduct cannot be established on a balance of probabilities.

[48] In line with the comments made by Labour Appeal Court as I outlined in paragraph 37, the applicant had a duty to assist the management to bring the guilty to book and a failure to assist in this respect amounts to misconduct. A disciplinary hearing is a process by which the employer used in an endeavour to establish the truth. The applicants were given the opportunity to tell the employer the truth at the disciplinary hearing, they chose not to do so. For the fact that the whole scenario was planned and executed as planned by the applicants and its members, had the desired effect and applicants were warned that participation would lead to disciplinary action, it is reasonable to find that on a balance of probabilities the applicants were involved with the events along N2 freeway.

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[50] The applicant is of the view that the requirement that employees have a duty to assist the management in bringing the culprit to book, which involves them stating their non- involvement, is contrary to Section 192 (2) of the Labour Relations Act. Section 192 (2) puts the onus to proof the fairness of the dismissal on the employer. It appears that the applicants are of the view that by expecting the employee to assist the employer in the circumstances outlined above is to shift such onus to the employee. I do not think so. This situation is, in my view, akin to the question of inconsistency where an employee alleges inconsistency. The employee must show the basis thereof, for example he must reveal the name of the concerned employee and also the circumstances of the case. This is necessary for the employer to respond properly to the allegation. Failure to do so, may lead to a finding that no consistency exists or was committed by the employer. This situation never shifts the onus from the employer to the employee to prove that there is no consistency. Of course, it should be understood that one’s involvement or failure to do so may have adverse consequences both ways. If one keeps quiet an inference that he supported or was actually involved may be made. While on other hand revealing ones involvement may lead to a finding of guilty. I do not think that this is in conflict with Section 192 (2) of the LRA at all as it is the consequence of the nature of employer -employee relation.

[51] In the premise, I am of the view that the arbitrator correctly found that the circumstances of this case are such that the misconduct committed at along N2 can be imported on those who were identified at the Civic Centre for reasons stated above.

[52] The second attack on the arbitrator’s award is that he committed an error of law in finding that the Disciplinary Procedure Collective Agreement (DPCA) did not require the first respondent to demonstrate the individual guilt of each and every employee.

[53] Clause 7.1 of ‘DPCA’ provides that the hearing shall be conducted by the presiding officer who may determine the procedure to be followed subject to the following:
“7.1.1 the rules of Natural justice must be observed in the conduct of the proceedings”

[54] Clause 7.2 provides that the prosecutor shall bear the duty to commence and, the burden to prove each and every allegation(s) on a balance of probabilities.

[55] The applicants are of the view that by approaching the matter from collective misconduct approach, the arbitrator has failed to apply the above agreement in so far as individual proof of involvement is concerned. I am unable to understand why the applicants would say that because all the applicants were given an opportunity to inform the respondent of their non involvement if any, they were present or properly represented at the hearing. It also appears that those who gave account of themselves were not dismissed by the first respondent.

[56] In so far as collective misconduct (derivative misconduct) is concerned, I have indicated above that in principle it is required that individual guilt be proved before one is found guilty. However, as illustrated above there are exceptions in the circumstances of derivative misconduct or common purpose. The circumstances of this case fall squarely within the principles as I said above. I cannot see how the DPCA was violated because every applicant was given opportunity to defend himself or herself. It will serve no purpose to repeat it here. Consequently I find no irregularity on the part of the arbitrator.

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[71] It is clear to me that the commissioner applied his mind properly to the facts when he reached the conclusion he reached. I agree with him that the fact that all employees were offered the arrangement and the applicants having rejected it cannot now be heard to say it was unfair to them because those who embraced it had some advantages of withdrawals of charges or charges not being pursued against them. The advantages were open to all and were not hidden in any way. The arbitrator lamented also the fact that when he looked at the whole scenario some of the people appearing before him would not be appearing had they took the advantage.

[72] I may also add that from the record and the papers, it is clear that some of the employees who were party to proceedings of the day in question were identified at the disciplinary hearing. It cannot be said therefore that because there were not disciplined together with the others that amounts to inconsistency. Indeed it appears from the papers that the respondent disciplined the other employees who were identified at the disciplinary hearing and also those that were identified at the arbitration hearing as fellow wrongdoers but not disciplined. On this basis, I agree with the arbitrator that discipline was not administered capriciously.

[73] Can it be said that the arbitrator arrived at a decision a reasonable decision maker could not reach? I do not think so; in the premises, my order is as follows:
(1) The application for review and setting aside of the arbitration award issued under case no PSH447-08/09 is dismissed.
(2) The applicants to pay costs of the application.