FAWU v Rainbow Farms (Pty) Ltd (C65/12) [2014] ZALCCT 7 (29 January 2014).
“Picketing rules exist for a purpose, and are integral to the peaceful exercise of the right to strike. An integral element of picketing rules is the respect that striking employees are required to show towards those who elect not to participate in the strike. When striking employees breach picketing rules, they disrespect others, especially when that disrespect is directed against those who wish to work. When striking employees breach picketing rules, and especially when they engage in conduct that is designed to threaten those who not to participate in the strike, they can expect to be disciplined.”
In other words all the striking employees who disobey the picketing rules expose themselves to discipline and possible dismissal and it is not necessary for management to rely on any doctrine of common purpose, as correctly pointed out by justice Van Nierkerk in the unreported judgment in FAWU v Rainbow Farms (Pty) Ltd (C65/12) [2014] ZALCCT 7 (29 January 2014).
Extracts from the judgment [thanks to Saflii]
[1] This is an application to review and set aside parts of an arbitration award made by the respondent, to whom I shall refer as ‘the arbitrator’. The proceedings under review were conducted in terms of s 188A of the Labour Relations Act, 66 of 1995 (the LRA), which enjoys the unfortunate but in this case prescient heading ‘Agreement for pre-dismissal arbitration’. The purpose of s 188A is to permit allegations of misconduct made against employees to be tested by a process of statutory arbitration, bypassing domestic disciplinary procedures. Although these proceedings were initiated as a single review, there are three separate cases in issue. They all emanate from an agreed procedure in terms of which the arbitrator conducted consecutively a number of hearings into allegations of misconduct made against the second and further applicants following a strike at the first respondent’s premises in Worcester in June 2011. Those parts of the award that are sought to be reviewed and set aside relate to the dismissal of Z Newu and 13 others, Allen Rose Skafungana and Chrispan Melite.
The applicable legal principles
[2] I propose to discuss the applicable legal principles and thereafter to assess each case on its merits. The test to be applied in any review of a decision made by an arbitrator in terms of s 188A is that which applies to a review of an award issued under s 145. That test was enunciated by the Constitutional Court in Sidumo v Rustenburg Platinum Mines Ltd (2007) 28 ILJ 2405 (CC) and recently affirmed by the Supreme Court of appeal in Herholdt v Nedbank (2013) 34 ILJ 2795. In the latter judgment the court summarised the position as follows:
‘[25] In summary, the position regarding the review of CCMA awards is this: A review of a CCMA award is permissible if the defect in the proceedings falls within one of the grounds in s 145 (2) (a) of the LRA. For a defect in the conduct of the proceedings to amount to a gross irregularity as contemplated by s 145 (2) (a) (ii), the arbitrator must have misconceived the nature of the inquiry or arrived at an unreasonable result. A result will be unreasonable if it is one that a reasonable arbitrator could not reach on all the material that was before the arbitrator. Material errors of fact, as well as the weight and relevance to be attached to particular facts, are not in and of themselves sufficient for an award to be set aside, but are only of any consequence if their effect is to render the outcome unreasonable.’
[3] In the present instance, the applicants do not contend that the arbitrator misconceived the nature of the enquiry. To the extent that they rely on a gross irregularity in the form of material errors of law or fact (or the weight or relevance to be attached to particular facts), is approach to be adopted is the following:
a. Those errors, if demonstrated, are not in and of themselves sufficient to warrant interference. They are only of any consequence to the extent that their effect renders the decision under review unreasonable.
b. The fundamental enquiry remains whether the outcome of the proceedings (i.e., the arbitrator’s decision on the existence of any misconduct, or an appropriate sanction for that misconduct, or both) falls within a band of decisions to which a reasonable decision-maker (presumably a fictional reasonable arbitrator) could come on the available material.
[4] In Goldfields Mining South Africa (Pty) Ltd v CCMA (JA 2/2012, 4 November 2013) the Labour Appeal Court confirmed that the applicable test does not admit what has been referred to as a “process-related review”, at least in the sense that it is no longer open to a reviewing court to set aside an arbitration award only on account of a process-related irregularity on the part of the arbitrator. This has the consequence that the failure by an arbitrator to mention a material fact in the award, or to deal with any issue that has a bearing on the issue in dispute, or any error in regard to the evaluation of the facts presented at the arbitration hearing, is of no consequence.
Provided that the arbitrator gave the parties a full opportunity to state their respective cases at the hearing, identified the issue that he or she was required to arbitrate, understood the nature of the dispute and dealt with its substantive merits, the function of the reviewing court is limited to a determination whether the arbitrator’s decision is one that could not be reached by a reasonable decision-maker on the available material.
. . .
[25] In her award, the arbitrator refers to Grogan Dismissal and the application of the common purpose doctrine to the determination of misconduct in employment-related cases. The arbitrator found that the applicants had associated themselves with the misconduct of the group, a group that had moved from a designated picketing area toward non-striking employees and the SAPS, an event immediately followed by stones being thrown by and shots fired by the SAPS. The arbitrator concluded that the conduct of the applicants was clearly designed to intimidate the non-striking employees and to prevent them from tendering their services. The applicants were accordingly found guilty on the charge of intimidation.
[26] The primary attack in these proceedings is directed at the arbitrator’s application of the doctrine of common purpose. In particular, the applicants contend that there are no specific findings regarding the conduct of particular individuals and the absence of any finding that any of the applicants associated themselves with individuals found to have committed specific acts of violence. The applicants also contend that there was insufficient evidence regarding the conduct of the group as a whole to sustain any finding of acts of violence committed by the group. An alternative and more plausible explanation, the applicants contend, is that the shots were fired by the SAPS because they and the applicants were in disagreements about where the applicants should be picketing. Principally on this basis, the applicants contend that the arbitrator committed errors of fact and law and failed properly to apply her mind to the question of whether the applicants had committed acts of violence.
[27] It follows from the summary of the applicable legal principles above that the relevance of any mistake of law or fact is limited to the extent to which they render the outcome of the proceedings unreasonable. If that outcome is capable of being sustained irrespective of the arbitrator’s conduct or reasoning, then it must be sustained.
[28] It is common cause that the applicants were part of the group that marched and the non-striking employees and the SAPS. It is also common cause that the group left the designated picketing area and carried sticks and knobkerries as they marched. The evidence that the group conducted themselves aggressively as they advanced on the non-striking employees and the SAPS was not seriously called into question, and is clearly reflected on the videotape.
In my view, that in itself is an act of serious misconduct. The applicants chose to leave the area that was designated for the purpose of picketing when they saw the Capacity employees being brought to the plant. Their clear intention was to prevent the employees from working. Deliberate breaches of picketing rules may have become so common so as to characterise South African industrial relations life, but that does not mean that they are acceptable. Picketing rules exist for a purpose, and are integral to the peaceful exercise of the right to strike. An integral element of picketing rules is the respect that striking employees are required to show towards those who elect not to participate in the strike. When striking employees breach picketing rules, they disrespect others, especially when that disrespect is directed against those who wish to work. When striking employees breach picketing rules, and especially when they engage in conduct that is designed to threaten those who not to participate in the strike, they can expect to be disciplined.
[29] In other words, irrespective of any application of the doctrine of common purpose in relation to the act of throwing stones, the evidence discloses an act of serious misconduct on each of the applicants that participated in the march from the designated picketing area toward the non-striking employees. In any event, the labour courts have long recognised that individual employees may legitimately be dismissed on account of the actions of a group of which they are part, and that it is not necessary to establish one or more acts of misconduct by each member of the group for that consequence to be sustained. (See, for example, Foschini Group v Maidi & others [2010] 7 BLLR 689 (LAC)). This is not to apply any criminal law test relating to common purpose; it is a principle that recognises that for the purpose of the maintenance of discipline in the workplace, in certain circumstances, responsibility for the collective conduct of a group is indivisible.
[30] In short, the evidence before the arbitrator is sufficient to sustain the reasonable conclusion that the applicants had committed an act of serious misconduct, and that their dismissals were a reasonable response to that misconduct.”