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  • 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 applicants 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, AMCUs membership at Moab

    Khotsong was 799 and NUMs 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 AMCUs 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 AMCUs 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 respondents gold mining operations in the respondents

    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

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