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[2020] ZALAC 15
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Roberts Brothers Construction (Pty) Ltd and Another v National Union of Mineworkers and Others (PA08/18) [2020] ZALAC 15; (2020) 41 ILJ 2107 (LAC); [2020] 10 BLLR 1030 (LAC) (18 May 2020)
IN THE LABOUR APPEAL
COURT OF SOUTH AFRICA, PORT ELIZABETH
Reportable
Case No PA08/18
In the matter between:
ROBERTS BROTHERS
CONSTRUCTION (PTY) LTD
First Appellant
MPUMALANGA
CONSTRUCTION (PTY) LTD
Second
Appellant
and
NATIONAL UNION OF MINE
WORKERS
First
Respondent
UNATHI STIMELE
Second
Respondent
W
TWALO & 10
OTHERS
Third
and Further Respondents
Heard:
18 February 2020
Delivered:
18 May 2020
Summary:
Dismissal ---Strike – Unprotected industrial action ---Employer
dismissed employees for not heeding to ultimate without
engaging with
union --- in terms of Item 6(2) of the Code of Good Practice:
Dismissal (Schedule 8 to the LRA 1995)---Duty of employer
to contact
a trade union in terms of Item 6(2) of the Code is restricted to
trade union enjoying organisational rights and or is
sufficiently
represented ---Union not enjoying organisational rights and
insufficiently represented --- Labour Court’s judgment
set
aside and Appeal upheld.
Coram: Waglay JP,
Murphy and Savage AJJA
JUDGMENT
MURPHY AJA
[1]
The appellants appeal against the judgment of the Labour Court
(Lagrange J) holding
that the dismissal of the second and further
respondents (“the employees’) arising from their
participation in unprotected
strike action in August 2013 was
procedurally unfair and awarding them compensation in the amount
equivalent of six months remuneration.
[2]
The transcribed record of the Labour Court proceedings is incomplete
because the evidence
of some witnesses was not recorded. However, the
narrow grounds of appeal are restricted to: i) determining the nature
and extent
of the duty in Item 6(2) of the Code of Good Practice:
Dismissals (“the Code”) in Schedule 8 to the Labour
Relations
Act
[1]
(“the
LRA”) which obliges an employer to contact a trade union to
discuss the course of action it intends to adopt
in relation to
dismissal of striking employees; and ii) whether the compensation
granted by the trial court was just and equitable
in the circumstance
of this case. The parties agree that the judgment of the Labour Court
accurately records the facts of the matter,
that there are no factual
disputes on appeal and that the incomplete record is sufficient for
deciding the appeal.
[3]
The appellants are construction companies. The second respondent was
employed by the
second appellant (‘Mpumalanga Construction’).
The remaining respondents were employed by the first appellant
(‘Roberts’).
The employees are represented by the first
respondent, the National Union of Mineworkers (“NUM”).
[4]
The appellants were jointly engaged in a rural bridge construction
project in a rural
area in the Lady Frere District in the Eastern
Cape. The employees were all construction workers who resided in huts
on site. They
embarked on a strike from 21 August 2013 to 23 August
2013. The strike was unprotected because the employees did not give
the appellants
the required notice in terms of section 64(l)(b) of
the LRA. The employees were given three ultimata on 21 August 2013 at
8:30
am, 11:00 am, and 13:50 pm, respectively, in terms whereof they
were instructed to report for duty at 10:00am, 13:30 pm and 15:00
pm
respectively. All the ultimata informed the employees that they had
embarked on an unprotected strike contrary to the provisions
of the
LRA causing severe prejudice to the company, and instructed them to
cease immediately and to resume their normal duties,
failing which
they would be dismissed. The employees were ‘called upon to
seriously consider the consequences of (their)
actions and the effect
of (their) actions on their continued employment with the company.’
[5]
The strike occurred because the employees were aggrieved about their
living conditions
on-site, in particular the intermittent and
inadequate supply of electricity resulting in their not having
heating, lighting and
the means to prepare food.
[6]
The employees did not comply with the ultimata and were eventually
dismissed on 25
September 2013 for embarking on the unprotected
strike.
NUM referred an unfair dismissal dispute to
the CCMA for and on behalf of the second respondent against
Mpumalanga Construction.
NUM also referred an unfair dismissal
dispute against Roberts for and on behalf of remaining respondents
against the first appellant.
The unfair dismissal disputes were
referred to the Labour Court for adjudication against the two
appellants respectively under
different case numbers. The referrals
were later consolidated by agreement.
[7]
The Labour Court held that over the course of the three ultimata
being issued, the
employees had time to consider their decision to
persist with strike action and understood the implications of the
ultimata or
threat of dismissal contained in the last one. They thus
had sufficient time to reflect on their actions, but decided to risk
the
consequences of continuing with the strike action, despite the
ultimata and the site manager pleading with them to return to work.
[8]
The Labour Court accepted that the strike was in response to a
legitimate demand for
the provision of better electrical supply for
heating, lighting and cooking needs. It held though that the strike
was not provoked
by unreasonable management conduct. The appellants’
ability to provide the kind of electricity supply sought by the
employees
was constrained by factors not entirely within its control.
The appellants were unable to provide the kind of electricity power
sought by the employees and there was no obligation on them to do so.
Moreover, the strike was also not in response to management
implacability. The employees had failed to engage senior managers on
the issue despite having had the opportunity to do so the
day before
the strike when the managers visited the site.
The strike,
hence, was not a spontaneous response to any conduct on the part of
management but rather carefully timed action to
cause maximum
inconvenience to the appellants by interrupting the pouring of
concrete on the day of its delivery to the site.
[9]
Furthermore, the employees were aware that similar grievances had
been resolved at
a different site by employees invoking a grievance
procedure with the union’s assistance. The employees moreover
did not
invoke the grievance procedure and neither did they obtain
the union’s assistance or advice before embarking on
unprotected
strike action. They also did not seek the union’s
assistance or advice after they were issued with ultimata despite the
fact
that they were given reasonable opportunity to reconsider their
actions.
[10]
Despite the substantive fairness of the employers’ response to
the strike, the Labour Court
was critical of their failure to ‘take
the simple precaution of phoning a union official to try and make the
strikers see
reason even if the union did not have a majority
presence in the workplace and was not a recognised representative of
the employees.’
It noted that the reason for the appellants’
failure to contact the union before dismissing the employees was most
probably
that they ‘did not regard it as obligatory because the
union was only representative of a small percentage of the workforce
(approximately 7%)’. However, Ms Sihlalha, a director of
Mpumalanga Construction, testified that the appellants did not
contact the union because there was no recognition agreement with it.
Notwithstanding the union’s lack of representivity,
the Labour
Court held:
‘
The
prospect of union intervention might have resulted in some resolution
being found to address the underlying disgruntlement which
fuelled
the strike. At least in this respect the company was seriously remiss
in not seeking to communicate with the union once
the strike was in
progress, which affects the procedural fairness of the dismissals.’
[11]
The Labour Court, as discussed, accepted that the strike was serious
because it had lasted for
two days, without any heed being paid to
the ultimata despite a reasonable opportunity being afforded to the
employees to reconsider
their actions, and the strike was calculated
and not a spontaneous event. It concluded as follows:
‘
In
light of the above, I am not persuaded that the applicants’
dismissals were substantively unfair but I agree they were
procedurally unfair to the extent that the respondents did not take
the necessary and sensible step of contacting the union to
try and
end the strike other than issuing the ultimatums and pleading with
the strikers.’
[12]
The Labour Court thus held that the dismissal of the employees was
substantively fair but procedurally
unfair and ordered the appellants
to pay the employees compensation equivalent to six months salary
each.
[13]
The respondents on appeal (the employees and NUM) accept the findings
of the Labour Court and
that the only substantive issue on appeal is
the finding that Item 6(2) of the Code required the appellants to
contact the union
prior to issuing ultimata or dismissing the
employees, to allow the union to intervene at an early stage, and
that this requirement
is an element of the employees’ rights to
procedural fairness.
[14]
Item 6(2) of the Code reads as follows:
‘
Prior
to dismissal the employer should, at the earliest opportunity,
contact a trade union official to discuss the course of action
it
intends to adopt. The employer should issue an ultimatum in clear and
unambiguous terms that should state what is required of
the employees
and what sanction will be imposed if they do not comply with the
ultimatum. The employees should be allowed sufficient
time to reflect
on the ultimatum and respond to it either by complying with it or
rejecting.’
[15]
In finding that the dismissal of the employees was procedurally
unfair because the appellants
failed to contact the union to discuss
the course of action it intended to adopt, the Labour Court relied
on the decision
of this court in
National
Union of Metalworkers of SA & others v CBI Electric African
Cables
[2]
which held:
‘
[T]he
respondent did not follow a proper procedure in issuing the
ultimatum. In terms of the code
….
it
was incumbent on the respondent to engage with the union before
issuing the ultimatum on 25 June 2007. This, the respondent
failed to
do. Item 6(2) of the code makes it clear that prior to dismissal
the employer should, at the earliest opportunity,
contact a trade
union official to discuss the course of action it intends to adopt.
This is necessary for two reasons. Firstly,
it affords the union an
opportunity to persuade the strikers to resume work and secondly, it
provides a safeguard against possible
rash action by the
employer.’
[16]
The issue that arises in the present appeal is whether an employer is
obliged in terms of Item
6(2) of the Code to contact a trade union
official of any trade union regardless of its representative status
at the workplace.
Although the representative status of the union is
not discussed in the judgment in the
CBI
Electric African Cables
case, it is
evident that the employer and the union had been engaged in ongoing
negotiations about a shift system, thus suggesting
that the union, in
that case, enjoyed representative status. That is not the case in
this appeal. Here the union had only a handful
of members, making up
about 7% of the workforce, and did not enjoy recognition or
organisational rights granted in terms of Chapter
III of the LRA.
[17]
Item 6(2) of the Code is a guideline which ought to be followed, but
is not strictly binding
in that Schedule 8 is not a legislative part
of the LRA.
[3]
Nevertheless, in
its application, it should be interpreted to give effect to the
primary object of the LRA to promote orderly collective
bargaining.
The LRA provides for industrial pluralism but favours majoritarianism
in collective bargaining and does not compel
employers to bargain
with trade unions in good faith; instead, in addition to protecting
procedural industrial action, Chapter
III of the LRA grants
representative trade unions organisational rights such as access to
the employer’s premises, stop-order
facilities and relevant
information. These rights are conferred only upon unions that
represent a majority of members or which
are “sufficiently
representative”. Unions who have minimal membership can act on
behalf of their members in other capacities,
but will be denied an
organisational presence or role as a bargaining agent until they
become sufficiently representative.
[18]
The concept of “sufficiently representative” is not
defined in the LRA. In determining
representivity and the concomitant
rights that follow, regard must be had to the history of the
bargaining relationship in the
workplace, the growth potential of the
union and whether the union can make a meaningful impact on
collective bargaining in the
workplace. A minority union with
significant representation thus may be entitled to organisational
rights. The trade union contemplated
in Item 6(2) of the Code is a
union of this kind. The duty of the employer to contact a trade union
in terms of Item 6(2) of the
Code is restricted to contacting a trade
union that has been granted organisational rights under Chapter III
of the LRA or enjoys
contractual rights under a recognition agreement
concluded with the employer. The duty obliges the employer to contact
an appropriately
recognised bargaining agent.
[19]
In this case, the union did not enjoy any organisational rights under
Chapter III of the LRA,
and it is likely that it was not entitled to
them on grounds of it not being sufficiently representative, nor was
it party to a
recognition agreement with the employer. In the
premises, there was no duty on the appellants to contact the union in
terms of
Item 6(2) of the Code before issuing the ultimata or
dismissing the employees. It follows that the dismissal was not
procedurally
unfair. The appeal must succeed for that reason. This is
not a case in which equity demands an award of costs.
[20]
The appeal is upheld and the order of the Labour Court is set aside
and substituted with an order
dismissing the application.
_________________
JR Murphy
Acting
Judge of Appeal
I agree
_________________
B Waglay
Judge
President
I agree
________________
K Savage
Acting
Judge of Appeal
APPEARANCES:
FOR THE APPELLANT:
R Orton
Instructed by: Snymans
Attorneys
FOR THE RESPONDENTS:
Adv BL Boswell
Instructed
by Wesley Pretorius Attorneys
[1]
Act
66 of 1996.
[2]
[2014]
1 BLLR 31 (LAC).
[3]
See
the definition of” this Act” in section 213 of the LRA.