WBHO Construction (Pty) Ltd v Themba Hlatshwayo N.O. and Others

WBHO Construction dismissed 41 workers for intimidation of subcontractors and management and engaging in undesirable activities leading to the shutdown of the construction site on 14 September 2013. The dismissals occurred immediately after a three-week protected construction industry strike ended on 12 September 2013. The strike had not been peaceful and an interdict was obtained against interference by strikers. On Friday 13 September, the striking workers returned to the site around midday (delayed due to transport arrangements from their hostel in Germiston to the site in Menlyn, Pretoria). Site manager Kotze, who was absent at a meeting, instructed via phone that workers be told there would be no overtime work on Saturday 14 September as there was no time to plan work. This message was conveyed through line managers and shop steward Motsatse. On Saturday morning, the workers arrived at the site around 06:40, briefly entered, then left to take up position at the gate, locking it and denying access. Subcontractors who had been on site were forced to leave. Workers were observed carrying iron rods, pipes, and sticks, and were aggressive in demeanor. Management witnesses testified to intimidation and threats. The site remained shut down for the day, causing financial losses of approximately R80-90,000 to WBHO, plus losses to subcontractors. Similar conduct occurred on Monday 17 September when workers again refused overtime and forced subcontractors off site. The workers were suspended and then dismissed following a disciplinary inquiry.

• Whether the CCMA Commissioner committed reviewable irregularities in evaluating the evidence
• Whether intimidation of subcontractors and management was proven
• Whether the workers engaged in misconduct by shutting down the site
• Whether the sanction of dismissal was appropriate for the proven misconduct
• The proper scope of review under section 145 of the Labour Relations Act
• The application of the Sidumo test for unreasonableness in arbitration awards
• Whether mitigating factors excluded dismissal as an appropriate sanction

The appeal was upheld. The order of the Labour Court was set aside. The award of the Commissioner was set aside. The dismissal of the respondents was found to be not unfair. No costs order was made given the ongoing relationship between the union and management.

1. When reviewing CCMA awards under section 145 of the LRA, irregularities or errors in relation to facts or issues will render an award unreasonable where they are material to the determination of the dispute and have a distorting effect on the arbitrator's conception of the enquiry and the ultimate outcome. 2. An arbitrator commits a reviewable irregularity by failing to address the charge as framed and instead focusing on too narrow an issue, thereby asking the wrong question. 3. Findings of fact that ignore material contextual evidence, rely on evidence not properly put in cross-examination, or are based on untenable inferences constitute irregularities that may render an award unreasonable. 4. Intimidation in the workplace is not negated by the absence of physical injuries; threatening conduct, aggressive demeanor, display of potential weapons, and forcing persons to act against their will through fear constitutes intimidation. 5. When workers engage in coordinated action involving intimidation and use of force to shut down a workplace, rather than following proper grievance procedures, dismissal is an appropriate sanction absent compelling mitigating circumstances. 6. Purported mitigating factors that are based on wrong findings of fact, that misconceive the nature of the conduct, or that fail to balance the interests of the employer and consequences of the misconduct, cannot justify a lesser sanction than dismissal for serious misconduct involving intimidation and illegal work stoppages. 7. Display of power over circumstances and persons through intimidation is an aggravating factor demonstrating the seriousness of misconduct, not a mitigating factor showing "restraint."

The Court made several non-binding observations: 1. The arbitration hearing was "very poorly conducted" over 12 days, with deficiencies in the record including missing transcripts and incomplete reconstruction of evidence. The Court endorsed the Labour Court's pragmatic approach in dealing with the incomplete record with the parties' consent. 2. The Court noted it would have been more appropriate for management to have held a proper minuted meeting with the shop steward regarding the transition back to work after the strike, followed by proper notice to workers, rather than the informal approach taken. This lack of deftness, however, should not be exaggerated or exploited to rationalize the workers' conduct. 3. The Court observed that in construction projects, work is "ipso facto an orchestrated process requiring coordination of resources and deployment of capacity, not a rote process that can be activated or ceased at the drop of a hat," lending inherent plausibility to the need to plan work. 4. The Court commented on the appropriateness of not making a costs order "in view of the ongoing relationship between the union and management and the fact that it was appropriate for the union to seek to resist the appeal and defend the review judgment in its favour." 5. The Court stated that "only a zero-tolerance stance by the courts can bring such conduct [resort to mob-power to ventilate grievances] to an end" and that courts have "repeatedly held that the resort to mob-power to ventilate grievances is utterly unacceptable." 6. The Court noted the regrettable omission of evidence about what work the employees actually performed on the Friday afternoon when they returned from strike, stating this was "much to be regretted."

This judgment is significant in South African labour law for several reasons: 1. It clarifies the scope of review of CCMA arbitration awards under section 145 of the LRA, applying and refining the principles from Sidumo and Mofokeng regarding when irregularities in the evaluation of evidence have a distorting effect on the outcome sufficient to render an award unreasonable. 2. It emphasizes that when evaluating misconduct charges, arbitrators must consider the full scope of the charge as framed, not just isolated elements. The charge here was not limited to intimidation per se but extended to conduct that brought the site to a standstill. 3. It reinforces a zero-tolerance approach to industrial action that involves intimidation, threats, or use of force, even where no physical injuries result. The Court rejected the notion that absence of physical harm negates intimidation. 4. It clarifies that the existence of grievances or procedural irregularities in how work instructions are communicated does not justify resort to intimidatory conduct or mob action. Proper grievance procedures must be followed. 5. It provides guidance on what factors properly constitute mitigation in dismissal cases, rejecting factors based on incorrect findings of fact or those that misconceive the gravity of the misconduct. 6. It demonstrates that courts will intervene when review courts themselves fail to properly hold arbitrators accountable for material irregularities, even where the review court has identified some errors. The judgment serves as an important statement against vigilante-style industrial action and reinforces the importance of adherence to established labour relations norms and dispute resolution procedures.