IN THE ARBITRATION BETWEEN:
DINGA SIKWEBU " the employee"
NUMSA "the union"
- The arbitration hearing in this matter took place on 11, 14,15, 16 and 18
August 2000 at the arbitrators offices in Johannesburg. It is an expedited
and urgent arbitration, as will appear more fully below. At the commencement
of the arbitration, both parties informed me that the proceedings had to be
concluded and an award made before Sunday, 20 August 2000, as the grievant
will stand for election at the unions congress which begins on 20 August
2000, should he be reinstated. The proceedings were concluded at about 18h30
on 18 August 2000 and I have had to prepare this award and hand it down before
Sunday 20 August 2000, as already indicated. Consequently, it has not been
possible to prepare as thorough an award as I would have liked to, particularly
given the novel and important issues that require determination. Nonetheless,
I have done my best to prepare a reasoned award within the confines of the
time limits imposed upon me by the parties.
- In terms of the arbitration agreement between the parties, my terms of
reference are set out in clause 2 thereof as follows:
"2.2 the Arbitrators terms of reference
shall be to determine whether the dismissal of the Applicant by the respondent
in June 2000 was unfair and if so, whether in all the circumstances the applicant
is entitled to any relief;
2.3 the arbitrator shall exercise the same jurisdiction
and have the same powers as a Judge of the Labour Court and may make any award
he deems reasonable, including but not limited to an award of reinstatement
and/or compensation, or dismissal of applicants claim."
- The union was represented by union officials and the employee was also represented
by a union official. The arbitration agreement specifically excludes legal
- The disciplinary charges against the employee are set out in full in a charge
sheet annexed to a letter dated 17 May 2000 and are set out hereunder as they
appear from the charge sheet:
"1. Dinga Sikwebu is an employee of NUMSA
employed at the NUMSA head office in the capacity of a National Departmental
- It is alleged that cde Dinga Sikwebu published an internal document headed
"The Volkswagen Debacle- the need for a postmortem" during or
around the 10th February 2000 and thereafter circulated the said
document to various other persons, including fellow officials and or members
of the union.
- The contents of the said document contains information and/or statements
which suggests that the union is guilty of an unfair conduct, alternatively
and acted (sic) in an improper manner as a result of which the good name,
reputation and image of the union could be prejudiced thereby.
- The union is charging/alleging that the following acts of misconduct were
committed by cde Dinga Sikwebu: -
Count 1 Cde Dinga failed to adhere to the required
standard relating to the way in which he is expected to carry out his duties
thereby prejudicing alternatively, potentially prejudicing the policies
and/or interest of the union. (sic)
Count 2 Cde Dinga acted in a manner, which is
detrimental to the administration, discipline and effectiveness of the union.
Count 3 Cde Dinga acted in a manner unbecoming
of a person in his position.
Count 4 Cde Dinga acted in a manner displaying
contempt towards the union and or its leadership and office bearers.
Count 5 Cde Dinga acted in a manner which undermined
the interest (sic) of the union and its leadership."
- The material facts which gave rise to the charges against the grievant
and his subsequent dismissal are largely common cause and are set out immediately
hereunder. These common cause facts are based on admissions made by the
parties when the issues were narrowed, documents whose contents were not
placed in dispute by either party during the arbitration hearing and concessions
made by the witnesses:
- The grievant was employed by the union as the National Education Co-ordinator,
based at its head office in Johannesburg.
- The grievant wrote an article entitled: "The Volkswagen
Debacle-the need for a postmortem". The document is marked
"Internal Document" at the top of the first page and
is not on a union letterhead. I do not reproduce the article herein, in
view of its length, but I annex it to this award as Annexure "A"
and forms part of the award.
- The article raises a series of questions about the strike which took
place in January 2000 by union members and other employees employed by
Volkswagen at Uitenhage, the issues which led to the strike and the unions
responses to and handling of the strike.
- The grievant gave copies of the article to Mthuthuzeli Tom, the unions
President, Vincent Mabuyakhulu, its Vice President and Omar Gire, its
National Treasurer. The three are collectively referred to as the National
Office Bearers ("NOBS), although they do not constitute the full
compliment of the NOBS, as these would normally include the unions
General Secretary and Deputy General Secretary. The grievant gave them
the article on 9 February 2000 and said to them that it contained his
views on the Volkswagen strike.
- The grievant circulated the article to certain specified union officials
and office bearers via e-mail on 10 February 2000. A list of the intended
recipients includes three administrators and the Regional Secretary of
the unions Eastern Cape region.
- On 16 February 2000, the Eastern Capes Regional Secretary addressed
a letter to the unions Head Office Secretariat, responding to the
content of the article written by the grievant. The letter, inter alia,
calls for the unions National Executive Committee, ("NEC"),
which was due to meet on 18 and 19 February 2000, to debate grievants
"conduct" and take appropriate steps in terms of its constitution.
- The NEC meeting of 18-19 February 2000 debated the issue and resolved
that the NOBS should investigate the matter and take appropriate disciplinary
action if required.
- Sometime in February 2000, the exact date is not available, Mabuyakhulu
sent the grievant a letter containing some seven questions, which he stated
to constitute the terms of reference of the investigation ordered by the
- The grievant responded to the letter referred to in paragraph 5.8 above
on 8 March 2000. The grievant heard nothing afterwards.
- On 17 May 2000, the union charged the grievant with alleged misconduct
as set out in paragraph 4 above.
- A disciplinary hearing took place on 22 May 2000, presided over by Mr
Peter Shiburu, a member of the unions National Finance Committee.
Mr Shiburu is also a member of the NEC and attended the NEC meeting of
18-19 February 2000.
- In a written decision, the chairperson of the hearing found the grievant
guilty of all the charges and dismissed him from the unions employ
with effect from 12 June 2000.
- The grievant appealed against his dismissal by notice dated 26 June
2000. An appeal hearing never took place but the reasons therefore are
- Prior to the distribution of grievants article on 9 February 2000,
and prior to his dismissal, Osborne Galeni, a union official employed
as sector co-ordinator, wrote and distributed an article entitled: "Who
will be next to be sent to Golgotta?" This article also
deals with issues surrounding the Volkswagen strike, and contains harsh
and strong words and opinions about the unions handling of the strike.
Osborne Galeni gave the union President a copy of the article and also
gave copies to other union officials at its head office.
- As at the conclusion of this arbitration, no disciplinary action has
been taken against Galeni.
- The same Osborne Galeni wrote and distributed an article entitled: "Let
us not stoop so low". This article was distributed by e-mail
on 9 February 2000, and its named recipients are exactly the same as those
to whom grievants article was addressed. Galeni gave this article
to Mthuthuzeli Tom before he distributed it. The article addresses alleged
problems within the union regarding political debates and jockeying for
positions. Galeni has not yet been disciplined for writing and circulating
- At the arbitration hearing, the union called two witnesses. The first
was Mthuthuzeli Tom, ("Tom"), its President. The thrust of his
evidence was that officials and members of the union may only raise issues
for debate through the formal constitutional structures of the union such
as the NOBS, NEC, Central Committee meetings and Regional Executive Committee
and other formal constitutional structures of the union. Such issues as
they may wish to raise and debate with other employees of the union or members
must be screened by the NOBS, or in the case of someone at a regional office,
by the Regional Office Bearers ("ROBS"). These office bearers
have the right to reject the circulation of a document for debate within
the union if in their opinion, the opinions expressed therein are in conflict
with their interpretation of union policies. According to Tom, the distribution
per se of a document or article without the prior approval of the NOBS or
ROBS or other formal structures of the union constitutes misconduct and
makes the author liable for disciplinary action. This is because such conduct
is in breach of a provision in a unions policy document called "Numsa
Meetings/Structures/Policy. Clause 4.1 of this policy provides as follows:
"Communication between Head Office and the regions
will be through the General Secretary and Regional Secretarys offices.
Correspondence will flow through the administration department in both offices."
- Tom further testified that the contents of the grievants article
made him angry and upset. This was because the article allegedly referred
to him as a collaborator when all his efforts and those of other union office
bearers and officials were aimed at resolving the strike and avoiding the
dismissal of the striking employees and the threatened relocation of a Golf
IV project by Volkswagen which had created 1000 jobs. In his opinion, the
article divided the union, created hatred towards its leaders and did not
offer any solutions to the problems which the union was experiencing at
- Further, according to Tom, the article had strengthened the arm of the
unions competitor in the region, who was using the same terminology
as used by the grievant in his article to entice union members to resign
from the union.
- Tom also testified that the grievant had, in January 2000 and prior to
writing and circulating the article, telephoned him and asked him about
the suspension of the thirteen shop stewards. He testified that he had given
the grievant the reasons for the suspensions and therefore found it mischievous
for the grievant to raise the same question in his article. Further, the
unions regional and national leadership had not called for debate
on the Volkswagen strike, the grievant had no political authority to initiate
such a debate and could only act in respect of political issues when authorized
to do so. The grievant had not been requested to write an article on the
Volkswagen strike, writing the article did not fall within his job functions
and by writing it he had violated the unions policies. Further, the
unions national and regional leadership was not accountable to the
grievant and he therefore, had no right to ask questions of such leadership
and expect answers thereto.
- In conclusion, Tom denied that the grievant had been dismissed to scuttle
his chances of standing for election for the General Secretary position
at the unions national congress to be held from 20 August 2000. He
testified that nominations for positions had not yet been received, both
at the time of grievants dismissal and as at the date of arbitration.
He also testified that the relationship between the grievant and its leadership
was not good, and was characterized by anger, disappointment and demoralization.
- Cross-examined by the grievant, Tom denied that union officials had asked
for a briefing on the strike at Volkswagen, notwithstanding the fact that
a union official called as a witness at the disciplinary hearing by the
union had said such a call had been made. He also denied that there were
tensions at the unions head office that the grievant had played a
positive role to reduce it, again in spite of evidence to that effect given
by a union witness at the disciplinary hearing.
- Tom also denied that the Volkswagen strike had generated public interest,
stating that the only interest was from "external forces" intended
on destroying the union. He also denied that he had said that the union
would not defend the Volkswagen employees dismissed for striking, that the
quotation in an article in the Business Day newspaper of 24 January 2000
to that effect was wrong, as were remarks attributed to Dumisa Ntuli, the
unions Information Officer, by Business Day on 25 January and the
Sowetan newspaper on 26 January.
- Taken through the questions raised in the grievants article in the
light of his answers to questions posed, Tom initially agreed that some
of the questions posed were, such as the one about who the crisis committee
was, when objectively assessed in the light of the information available
at the time the article was written, legitimate questions. However, after
the lunch break on the same when the grievant continued with his cross-examination,
he completely changed his tack and said all the questions raised in grievants
article were illegitimate because they were contained in an illegitimate
- Tom also said he was not aware of an interdict obtained by the union against
the thirteen shop stewards at Volkswagen who had been suspended and that
he had never been required to authorize the institution of proceedings to
obtain one. Referred to a minute of a meeting at which Tom referred to vultures
within the union and the need to get rid of them, the witness stated that
he had indeed referred to vultures, that these were individuals who were
making life unbearable for the union leaders, that they would be gotten
rid of through union structures. He stated, however, that the grievant was
not one of them.
- Tom also testified that although the grievant had given him the article,
he did not read it until days later when he got calls from people complaining
about the contents. He said that when the grievant gave him the article,
the grievant mentioned that it contained his personal views about the Volkswagen
strike, but he did not read it then or shortly thereafter because he was
too busy with some Germans regarding the strike dismissals themselves. None
of the other NOBS to whom the article had been given raised the content
thereof with him, prior to him receiving calls from these other people.
- Tom also testified that after the grievant had circulated the article
and the NEC had authorized an investigation, the NOBS entrusted the grievant
with the responsibility for preparations for the unions national congress
to be held in August 2000, including the drafting of policies to be debated
at the congress and developing resolutions to be table at the congress.
He also conceded that the grievant had continued to interact with the NOBS
after the circulation of the article, that the grievant had organized the
national and regional workshops in preparation for the unions congress,
in the period after the NEC meeting of 18 and 19 February 2000. Further,
that he had personally requested the grievant to represent the union at
a government workshop regarding the armaments industry which fell outside
grievants responsibility and that the grievant had performed all his
functions diligently, reporting to the NOBS, until his dismissal.
- The unions second witness was Mr. Irvin Jim, ("Jim"),
the unions chairperson for the Eastern Cape region. In his evidence
in chief, he dealt largely with the circumstances that led to the initial
expulsion and subsequent suspension of thirteen shop stewards at Volkswagen,
the efforts made by the union to resolve the problems there, the strike,
efforts to resolve it and the subsequent dismissal of some 1300 workers,
including a large number of union members. He explained that the thirteen
shop stewards did not attend the unions local shop stewards council
meetings or COSATUs shop stewards meeting, did not report back to
all members but only to a clique and generally disregarded the procedures
and policies of the union as enshrined in the unions constitution.
- Jim also testified that the Eastern Cape did not receive the grievants
article from the grievant himself, although he conceded that at the disciplinary
hearing, the grievant had demonstrated that he had indeed sent it to their
region. He testified that at the time they received the article, it was
not the time for debates or discussion on the Volkswagen strike. In his
opinion, the article challenged the unions leadership and was opportunistic,
as was the grievant who had written it.
- According to Jim, the article poses questions, the unions Eastern
Cape region was not accountable to the grievant, the article was critical
of and challenged the unions Eastern Cape and national leadership.
Further, he said that while union and staff members have the right to express
political views, it would be wrong for one of them to circulate an article
stating a view which is against a union position.
- Under cross-examination, Jim was asked what damage the grievants
article had caused to the union. His response was that the article was for
public consumption and had undermined the unions position, that the
article had added fuel to those attacking the union but that the main issue
was not whether the article had caused damage, but the principle that the
grievant had chosen a route that cast doubt on the leadership of the union.
Asked whether there were resignation or threatened resignations by union
members due to the article, he answered in the negative, stating that the
point was that the article had fallen into the hands of opportunists who
had an agenda of their own. He also conceded that the strike was a national
issue and there was a need to assess it, but through the structures of the
union. Asked whether the Eastern cape region had issued a briefing to other
regions about the strike, Jim said that when there was an inquiry from a
region, they supplied information but he did not see a report going out
to all the regions. He conceded that the Volkswagen strike was open for
debate within the union, but said only for defending the union and not by
circulating a document as the grievant had done.
- Jim also stated that he is not aware of anybody from the union having
been dismissed before for writing an article. He also said that the provision
relating to communication and correspondence between the unions regions
and head office referred to above is the one that prescribes that issues
for discussion and debate within the union can only be raised through the
unions formal structures. When challenged to point where in the clause
such a provision appears, he said that it did not appear anywhere but was
a culture within the union. He also said that members and officials of the
union could only raise debates through the NOBS, and that this has been
established by culture, custom and practice within the union.
- The union closed its case after the conclusion of Jims evidence.
- The grievant testified that he wrote his article at a time when Volkswagen
had already dismissed 1300 workers, including members of the union. He was
on holiday in Cape Town when the strike started and learnt about it from
the media. He telephoned Tom to find out what was happening, in the light
of media reports that the strike was over an internal dispute in the union.
He suggested to Tom the need for an internal briefing within the union.
He went back to work on 1 February 2000, where he found that there was tension
amongst staff members arising out of the Volkswagen strike, in particular,
between Mr Dumisa Ntuli, the Information Officer, and Osborne Galeni, one
of the sector co-ordinators. He also found out that staff members at Head
Office had different versions of the events that were unfolding at Volkswagen.
Galeni had already distributed an article on the matter (referred to in
paragraph 5 above). He was informed by colleagues that they had approached
Tom for an internal union briefing on the matter but none had been forthcoming
as at the time. The unions General Secretary at the time, Mr Peter
Dantjie, was not in the office, was on leave but had also tendered his resignation.
There were enquiries from the unions fraternal international organizations
but they could not be given an appropriate response in the light of lack
of clarity on what was happening. Sector co-ordinators were also being asked
by employers and union members as to what was happening at Volkswagen and
were offering different explanations.
- The grievant testified that in the light of all of these factors as sketched
out above, he decided to write the article that led to his dismissal. In
writing the article, his primary objective was to look at how the union
as a collective could execute the immediate task of securing the reinstatement
of the 1300 dismissed workers. The grievant referred to the opening and
closing paragraphs of the article, which read as follows:
"While the most immediate task facing the union
in relation to the Volkswagen strike is to win back the jobs of the dismissed
workers, a post-mortem of what happened must begin
Clear answers to these questions will allow us to draw
the necessary lessons from the dispute. They will also help us to deal with
what is now pressing-the immediate reinstatement of the dismissed workers."
- The grievant testified that in his view, in order to achieve the objective
as set out in the article, there was a need to establish the facts of what
had happened and to interrogate the strategies which had been applied to
deal with the issue. He testified that his primary objective has been ignored
by the union, which concentrated on the request for information in the form
of questions posed in the article.
- The grievant testified that he was approached by Mabuyakhulu after the
NEC meeting of 18 and 19 February 2000, and told of the investigation ordered
by the NEC into his conduct regarding the article and its distribution.
At his request, he was furnished with the terms of reference in the form
of seven questions during February, and he responded thereto on 8 March
2000, setting more or less what is captured in his evidence herein. He heard
nothing from the union until some two and a half months later, when he was
given the charge sheet on 17 May 2000, for a hearing which was to take place
on 24 May 2000. He was surprised by this, both because he had received no
feedback and such a long time had lapsed since his response.
- The grievant testified that after the distribution of the article, the
NEC of 18 and 19 February and the institution of the investigation, he continued
to work with the NOBS, including Tom, and did not notice any tension. He
did briefly meet with the NOBS and expressed his dissatisfaction with the
investigation but all agreed to await its outcome. He was, in this period,
entrusted by the NOBS with the responsibility of taking charge of preparations
for the unions national congress, which included developing themes
for policy and resolutions to be tabled at the forthcoming congress. As
part of these preparations, he organized the national and regional workshops
for the congress, where the material he had prepared was used to formulate
policies and resolutions to be tabled at congress. During all this time,
he interacted with the unions regional leaders, including those from
the Eastern Cape. He was also requested to take charge of the membership
department but declined due to the heavy workload that he was already carrying.
- The grievant further testified that he had previously and on many occasions
written articles in his personal capacity for publication in the unions
newsletter, the Labour Bulletin and newspapers. On all these occasions,
he would give the secretariat a copy, out of what he calls "political
courtesy", so that they should not learn of these from the media after
publication. He is adamant that he never asked for permission nor was he
ever told that he could not write and publish such articles. Some of these
articles were critical of the unions position. He was never disciplined
for publishing these articles. He disputed the unions interpretation
of clause 4.1 of the policy on meetings and structures. He explained that
the reason for the policy, including 4.1, was that after the formation of
the union as a result of the merger of some seven unions in 1987, there
were effectively three head offices, with three national secretaries, based
at three different cities. This resulted in unco-ordinated administration
and different approaches, which led to the adoption of the policy to structure
formal communication within the union. This had nothing to do with the expression
of views on topical matters or the circulation of documents. The only policy
with regard to the expression of views was in respect of an editorial code
for articles to be published in the unions newsletter and journal.
- Finally, the grievant testified that he believed that the NEC had pre-judged
him, as appears from the minutes of its meeting of 18 and 19 February, where
it is stated that he had shown disrespect for the work of the union and
had undermined its political authority, that the chairperson of the disciplinary
hearing was a member of the NEC and had also prejudged him in that capacity
and that the union was applying discipline inconsistently as it has not
disciplined Galeni, who had also written and distributed an article on the
Volkswagen strike and which was also highly critical of the union and how
it had handled the strike.
- Under cross-examination, the grievant stated that although he gathered
from reading the letter from the Eastern Cape region responding to his article
that there was anger over the article, he did not apologise because he did
not believe that he had done something wrong. He stated that if his article
was critical of the unions Eastern Cape leadership, this in itself
did not mean he should apologise. He also conceded that having heard from
Jim at the arbitration the precise details about the reason for the suspension
of the thirteen shop stewards at Volkswagen, he accepted that the union
had no option but to suspend them.
- The grievant further said he believed that his article was good for the
union as its stated intention was to address the issue of the reinstatement
of the dismissed workers. Asked who was guilty of political witch-hunting
as claimed in a quotation attributed to him by the Mail and Guardian newspaper
of 28 July 2000, the grievant said that it was people who had initiated
disciplinary action against him but had turned a blind eye to other documents
being circulated in the union at the time. The grievant stated that he was
not questioning the right of the NEC and NOBS to take disciplinary action
against him but was demanding that he must be afforded a fair hearing.
- It was put to the grievant that his article had divided the unions
regions and membership, had damaged its image and undermined discipline
and the effectiveness of the union. He denied this assertions, and stated
that what had divided the regions was his dismissal, and not the article.
It was also put to him that his article had strengthened organizations opposed
to the union in the Eastern Cape. The grievants response was that
he had not circulated the article to anybody outside the union, the article
was marked for internal discussion and he could not be held responsible
for whoever leaked the document to the unions adversaries. With reference
to an article issued by the Workers International Vanguard League, which
it was alleged, contained views similar to those expressed by the grievant
in his article, the grievant denied that there was a link between the two
articles or that he was somehow responsible for the circulation of the other
article. He also stated that it was because of his alleged link with the
Workers International Vanguard League that he had been disciplined and dismissed,
and that this amounted to victimization, as the League was not acceptable
within the union, it being perceived as a fringe extreme leftist party.
In this regard, he stated that in the letter from the Eastern Cape, at the
NEC, in the terms of reference, at his disciplinary hearing and the arbitration,
(through the evidence of Tom and Jim to that effect) there was a consistent
attempt to find and establish commonality between his views and those of
the League, which was being used to justify the view that his article was
not acceptable and he deserved to be disciplined for writing and distributing
- Asked whether anybody had the right to agitate against and flout the unions
policies, the grievant replied not, but said there was a right to influence
union structures to adopt different policies.
- When asked why he did not seek the information he required directly from
the Eastern Cape region, the grievant pointed out that both Tom and Jim
had said that the union leadership was not accountable to the grievant and
therefore, had no obligation to respond to queries from him. He stated that
the questions he asked in his article were not conclusions, but sought answers
from which conclusions could be drawn. He also stated that even given the
information that he had now obtained, he was still of the view that the
union could have handled some of the issues differently.
- Asked how he thought he could work with the NOBS after all that has happened,
the grievant replied that disagreements should not be equated with divisions
and that he had in any event worked with them even after the article was
- The grievant then called Mr Omar Gire, the unions national treasurer,
as his first witness. Gire had only attended the arbitration after he was
subpoenaed to attend. Prior to giving evidence, he requested me to record
that he had only come to the arbitration in response to a subpoena, that
it is his understanding that there is an NEC decision requiring him to support
its decisions, that both the grievant and Tom were his friends and that
for these reasons, he did not wish to give evidence. I explained to him
that he was only required to give evidence about facts within his personal
knowledge, that the decision to dismiss the grievant was made by Mr Shiburi
and not the NEC and he could therefore, give evidence without breaching
the NEC decision. I also informed him that he could decline to answer any
specific question that he felt would compromise him. He then, subject to
what I have recorded, agreed to give evidence.
- Gire testified that he had known the grievant since 1995, had a good relationship
with him and that while the grievant worked as regional education co-ordinator,
he had never been disciplined. He also testified that he had learnt of the
strike from the news media, that he went to Uitenhage with other NOBS for
a meeting to discuss the strike and that any strike against the union was
not good for the union.
- Gire further testified that the grievant had given him the article together
with the other NOBS on 9 February, that he read it some time later in the
plane, probably on 10 February when he went back to Cape Town. He remembers
that he later commented to the grievant that he found some of the questions
raised in the article interesting but did not really read the article in
detail to refer to all the questions raised therein.
- Under cross-examination, he stated that he could not really comment on
the grievants relationship with the NOBS after the article was distributed
as unlike Tom and Mabuyakhulu, he is not based at Head Office and only goes
there for meetings.
- Osborne Galeni was called as the second and last witness for the grievant.
He testified that he is the sector co-ordinator for Energy, Basic Metal,
Heavy and Light Engineering and Defense. He has been with the union since
1987 and with the unions predecessor since 1985. He has been based
at the unions head office since 1994.
- Galeni testified that he wad written his article, "Who will be
next to be sent to Golgotta?" after the dismissal of the
1300 workers but before the grievant had distributed his. He gave Tom a
copy of his paper and also gave copies to other staff members at head office
who asked for a copy. Tom never said anything to him regarding the paper
and its contents. He also wrote another article, "Let us not
stoop so low". He once more gave Tom a copy thereof but he never
heard from him again. He also distributed his article on 9 February 2000,
with the assistance of a colleague, by e-mail to the same people to whom
the grievant had sent his article. As at 18 August 2000 when he was giving
evidence in the arbitration, nobody within the union had approached him
to say that an investigation has been launched into his authorship and distribution
of the articles or that any disciplinary action is going to be taken against
him in respect thereof.
- Under cross-examination, Galeni said that he had approached Tom and asked
for information on the Volkswagen strike but Tom never reverted back to
him. He also said that he did not sent his first article to the Eastern
Cape because he was engaging people at head office where there was already
tension between himself and Dumisa Ntuli. He further said that when he gave
his second article to Tom he told the latter that he was going to circulate
it and wanted debate on the issue raised therein. Asked whether he knew
of the rule that communication should go through the General Secretary or
Regional Secretary, he said he did but did not understand it to mean censorship
by these individuals. He also corroborated grievants evidence with
regard to the circumstances under which the provision relating to the flow
of correspondence and communication through the General or Regional Secretaries
Was the grievant fairly dismissed?
- In finding the grievant guilty of charge 1, Shiburi concluded that the
grievant had admitted that a document to be circulated at the unions
head office had to be approved by the General Secretary and that the grievant
had failed "to display the quality of skills that is expected of
any national education co-ordinator of any union." There simply
is no basis for this conclusion in the evidence given by the grievant at
the disciplinary hearing. The verbatim transcript of the disciplinary hearing
contains no admission by the grievant that he required the approval of the
unions General Secretary prior to circulating a document. On the contrary,
even then, as now, the grievant said that he would consider any comments,
favourable or not, from the General Secretary but not his approval. The
conclusion that the grievant had failed to display the skills of a national
co-ordinator seems to be a thumb-suck because nobody ever questioned the
grievants competency as a co-ordinator.
- In this arbitration, it was common cause that the grievant was more than
competent and his performance was not at issue. It was also common cause
that he wrote the disputed article in his personal capacity, as appears
from the covering letter accompanying the article, which states that it
is a personal piece. Tom also stated in his evidence that writing an article
of this nature was not part of the grievants job function.
- The question is whether it is then competent to charge and find the grievant
guilty of failure to adhere to the required standard relating to the performance
of his duties in respect of an article written and distributed in his personal
capacity. In my view, such a conclusion is untenable. The union, having
maintained that it was not part of the grievants job to write the
article, cannot then raise issues relating to adherence of standards in
relation to his job as a basis for disciplining him.
- In this arbitration, the union adopted a slightly different view, namely,
that failure to adhere to standards refers to non-compliance with clause
4.1 of the unions policy on structures and meetings referred to elsewhere
in this award. The unions argument that that clause means that an
article such as the one written by the grievant must be approved by the
NOBS first and be distributed through the General Secretarys office
does not make much sense. Clause 4.1 is part of a broader resolution whose
stated objective is "the effective co-ordination and supervision of
staff at all levels" of the union. As conceded by Tom, even correspondence
and communication between sector co-ordinators and staff in the regions
is not processed in terms of 4.1. The union also did not contest the grievants
explanation of why 4.1 and the other provisions in the policy were introduced,
namely, to merge the administration of a union born out of a merger of seven
unions which had their own administration and communication structures.
The clause is clearly aimed at formal correspondence and communication within
the union to ensure efficiency. It simply does not discover articles such
as those written by the grievant and Galeni.
- In my view, clause 4.1 is of no application and cannot assist the union
to prove the first charge. It is even worse to suggest, as the union does,
that this clause also means that a staff member or union member must obtain
permission from either NOBS or ROBS prior to writing and circulating an
article. Tom rightly conceded that the clause contains no such provision.
- There was debate between the grievant and the unions witnesses,
and in particular, Tom, around the question of whether or not clause 4.1,
if given the interpretation contended for by the union, amounts to an unlawful
interference with the grievants constitutionally guaranteed freedom
of expression. In view of the conclusion that I have arrived at as to the
meaning of this clause, I do not find it necessary to express an opinion
on the matter.
- It follows that the union has failed to prove that the grievant is guilty
of misconduct in respect of charge 1.
- Count 2 is predicated upon an argument by the union that there is a link
between the grievants article and the one distributed by the League,
as well as the formation of a rival union which was recruiting employees
from among union members at Volkswagen. Shiburi found the grievant guilty
on this charge but for reasons which are slightly different from those advanced
by the union in this arbitration. Shiburi concluded that he could not understand
why the grievant wanted information and at the same time, the article was
an input towards the February NEC. He also concludes that he does not think
that the grievant should have contributed to the solution of the problem
in the manner he did, i.e. by writing and circulating the article.
- In my view, both Shiburis conclusions and the unions argument
are entirely without merit. It is astonishing that Shiburi believes that
seeking information and making a contribution towards resolving a problem
are incompatible and mutually exclusive. As the grievants article
suggests, the unions immediate task was to resolve the impasse over
the dismissal of the 1300 workers. However, for staff members such as himself,
additional information and clarity was required to be able to meaningfully
contribute to the debate towards a solution. Shiburi also does not say in
what other manner should the grievant have sought to make his contribution.
- As for the unions submissions in the arbitration, there is simply
no evidence to support the contentions being advanced. None of the unions
witnesses suggested that the grievant had circulated his article to anybody
outside the union or that the grievant intended the article to reach people
outside the union. Nor could the union produce any shred of evidence that
the grievant had anything to do with the article that the League produced
and distributed. No other evidence has been tendered to suggest in what
way the article has been detrimental to the administration, discipline and
effectiveness of the union.
- I accordingly conclude that the grievant is not guilty on this count and
should not have been found guilty by the union either.
- In respect of Count 3, that of acting in a manner unbecoming of a person
in his position, Shiburi found the grievant guilty because the grievant
was "expected to as speedily as possible collect all the information
and provide answers and also advice the structures of the union about the
best way to resolve the problem, but cde. Dinga did not do that instead
he asked questions."
- In this arbitration, both Tom and Jim were at pains to emphasize that
the grievant had no right to seek answers from the Eastern Cape region or
the NOBS and that it was not part of his responsibility to advise the union
leadership on how to deal with the Volkswagen strike and that they were
not accountable to him. That being the position of the union, it is incomprehensible
that Shiburi could find the grievant guilty on this charge.
- Similarly, I conclude that the grievant is not guilty of misconduct in
respect of this charge. A national education co-ordinator who raises questions
and invites debate on a matter of such importance as the Volkswagen strike
and the dismissal of 1300 union members can hardly be accused of acting
in a manner unbecoming of a person in his position.
- Regarding count 4, Tom and Jim testified that in raising questions about
the suspensions of the thirteen Volkswagen shop stewards, the interdict
against them, the remarks attributed to Tom that the union would not defend
the union members who failed to heed the companys ultimatum and return
to work, the grievant was being contemptuous towards the union and its leaders.
Shiburi, in dealing with this charge, simply stated that "this becomes
evident in the manner in which Cde. Dinga crafted his questions that relates
to the roles of the leadership and also the union." His conclusions,
brief as they are, seem to be consistent with the views of Tom and Jim.
- There is no doubt the questions raised by the grievant regarding the role
of the union leadership, both in the Eastern Cape and nationally, during
the strike are phrased in a manner that is critical of the union leadership,
subject to what the answers are to the questions posed. The article is clear
that such criticism becomes real only if the answers confirm preliminary
views held by the grievant. For example, if it were true that the union
had sought an interdict against its own members, the grievant is obviously
critical of such a decision and raises questions about its implications.
The same can be said of the statement attributed to Tom in Business Day
about whether or not the union would defend its members were they to be
dismissed for failing to heed the ultimatum.
- Having said that, I think criticism cannot always be equated to contempt.
I do not share the view that the questions posed and the criticism inherent
in them, always depending on the answers, come anywhere near showing contempt
for the union and its leaders. The nature of the issues is such that they
required critical evaluation. The strike was an unusual one, the suspension
of constitutionally elected shop stewards a matter deserving debate, the
use of courts to resolve an internal union dispute a novel one within the
union. The manner in which the questions were posed, and the potential criticism
arising out of possible answers to the questions, indicate concern from
the grievant than contempt. Indeed, during his cross-examination, Tom initially
agreed that some of these questions were legitimate until after the lunch
break on the second day of his cross-examination, when he did a complete
somersault and labeled all questions illegitimate because they were in an
illegitimate document. I cannot help but believe that a discussion between
Tom and some other person during the lunch break led to his dramatic about
- I conclude that count 4 cannot be sustained and the grievant is not guilty
of misconduct in respect thereof.
- Count 5 is in substance, not different from charge 2, as both go towards
the effect that the article had on the union and its leadership. It is also
indirectly linked to the same issues raised in count 4. There is no evidence
that the article and circulation undermined the interests of the union and
its leaders. The article clearly raised issues whose resolution is in the
best interests of the union. It emerged in evidence that the January strike
by Volkswagen workers was not the first one. They had also struck against
the union in July 1999 when the thirteen shop stewards were initially expelled
from the union by a meeting of the Uitenhage shop stewards local council.
There had also been a similar strike at Daimler-Chrysler (then Mercedes-Benz
of SA) some years back. It seems to me that a union official who raises
the kind of issues that the grievant raised for internal debate is doing
so for the benefit of the union rather than to its detriment or to undermine
- The union sought to argue that the grievant could only raise these issues
through the unions constitutional structures such as NOBS, ROBS, NEC
or Central Committee meetings. I have not been provided with any evidence
of such a policy or provision in the constitution. On the contrary, the
grievant testified to the countless occasions on which he had written articles
and had them published, including one where although the then General Secretary
of the union, who has since passed way, disagreed with some of the views
therein, he still went ahead with publication and the General Secretary
said he would write a rejoinder.
- I therefore conclude that the grievant is not guilty on this charge either.
- It follows that the grievant was not guilty of any misconduct. I accordingly
conclude that grievants dismissal was unfair in that there was no
valid reason for his dismissal.
- The grievant also raised a number of alleged procedural issues. These
center around whether the NEC prejudged him and the fact that Shiburi, who
was a member of the NEC, should have disclosed this fact and recused himself.
- In the NEC minutes, it is stated that there are individuals, (and it is
not in dispute that the grievant was one of them) who had shown disrespect
for the work of the union. The NEC then resolved, inter alia, that an investigation
must be conducted and disciplinary action taken if found appropriate, that
individuals, including the grievant, do as they please and undermine the
political authority of the union and that failure to obtain the blessings
of the NOBS before circulating a document amounts to undermining the political
authority of the union.
- Decisions of the NEC are binding on the union and its members. It seems
to me that having pronounced that the grievant and other unnamed individuals
were disrespectful of the political leadership of the union and that failure
to obtain the blessings of the NOBS prior to circulating a document undermined
the union leadership, the grievants guilt was determined by the NEC.
Shiburi, as a member of the NEC, was bound by such a decision. The only
issue that really remained for determination was the appropriate penalty.
My view in this regard is supported by the simply unjustifiable and at times
incomprehensible findings made by Shiburi.
- I need to mention that I also believe that, in addition to the reasons
given above for finding that grievants dismissal was unfair, the union
also applied discipline inconsistently. I refer to the uncontested evidence
that Galeni wrote two, and not one, articles during the same period as the
grievant and to date, has not been disciplined, let alone dismissed. I also
believe that if one compares the strong and harsh language used by Galeni
in his first article, it is incomprehensible how it could be said that the
grievants article is unacceptable and yet do nothing about Galenis
- In the result, I am of the view that grievants dismissal was also
- The grievant seeks reinstatement. I cannot see any reason why he should
not be reinstated. Tom testified that he cannot work with the grievant because
of the contents of the article. The fact is Tom has worked with the grievant
since the article was distributed on 10 February until grievants dismissal
on 13 June 2000. As a member of the NOBS, he was party to a decision to
entrust to the grievant the extremely important responsibility of taking
charge of congress preparations, a responsibility normally performed by
the General Secretary of the union. The grievant interacted with all the
regions for four months after he wrote and distributed the article, including
the Eastern Cape. Neither Mabuyakhulu nor Gire have said that they cannot
work with the grievant. On the contrary, they worked with him until his
dismissal. Mabuyakhulu assisted in presenting the unions case during
the arbitration and cross-examined the grievant as well. He did not once
put it to the grievant that the relationship between the two had broken
down. The evidence from Tom was that until his dismissal, the grievant carried
out all his duties with due care and diligence. There is simply no evidence
to suggest that the distribution of the article that the grievant wrote
led to a breakdown in the relationship with the union leaders and staff
members. Even if Tom believes he cannot work with the grievant, the fact
is that as the union is the sum of its members and I do not believe that
the views of only one person should be determinative of the issue.
- In my view, the disciplinary action against him was completely unjustified
and even more his dismissal. He was put through a needless enquiry, had
to approach the courts and eventually this arbitration in circumstances
where this should not have happened.
- The grievant requested that I should order the union to pay his disbursements
for the arbitration, given that he incurred expenses in securing the attendance
of witnesses at the hearing. He also requested that I should order the union
to pay his legal costs, arising from an urgent application that he brought
in the Labour Court and which was settled by an agreement to refer grievants
dispute to private arbitration.
- My powers extend to making a costs order as I am given the same jurisdiction
and powers as a judge of the Labour Court. I am of the view that the costs
related to the Labour Court application fall outside my powers. Those should
have been dealt with when that application was settled.
- I accordingly make the following award:
- The dismissal of the grievant is unfair as it was not effected for a
valid reason nor in accordance with a fair procedure;
- The union is ordered to reinstate the grievant into the position that
he occupied at the time of his dismissal and on terms no less favourable
than those that applied at the time of his dismissal;
- Grievants reinstatement is retrospective to the date of his dismissal
and he is to resume his duties on 19 August 2000;
19 AUGUST 2000
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