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2024
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[2024] ZALCJHB 174
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Western Province Caterers Health Care Division (Pty) Limited v Food and Allied Workers Union and Others (C99/2024) [2024] ZALCJHB 174 (19 April 2024)
THE LABOUR COURT OF
SOUTH AFRICA
AT JOHANNESBURG
Of Interest to other
Judges
case
no:
C
99/2024
In
the matter between:
WESTERN
PROVINCE CATERERS HEALTH CARE DIVISION (PTY) LIMITED
Applicant
and
THE
FOOD AND ALLIED WORKERS UNION (FAWU)
First
Respondent
BONGANI
MGIJIMA
Second
Respondent
MEMBERS
OF FAWU (As per Annexure “A”)
Third
to Eighteenth Respondents
Heard
:
19 April 2024
Delivered
:
(
This judgment was handed down electronically by emailing a
copy to the parties. The date of delivery of this judgment is deemed
to be 22 April 2024)
Summary:
(Return day – Strike interdict – unprotected –
rule discharged)
JUDGMENT
LAGRANGE J
[1]
This applicant employer (‘W P Caterers’) seeks
confirmation of an interim rule, issued on 15 March 2024,
interdicting the first respondent union (‘FAWU’) and its
members from striking in support of a demand for organisational
rights and related relief. It also seeks a punitive cost order
against the first FAWU or, alternatively, against all the
respondents.
On 19 April, the rule was extended pending judgment
being handed down.
[2]
After unsuccessfully engaging with the employer, FAWU referred an
organisational rights dispute to the CCMA. The conciliating
commissioner confirmed that the union wished to embark on strike
action, to which the employer objected pointing out that it is
engaged in providing essential services in the form of catering
services to patients at private health clinics. In the absence
of
being able to satisfy the commissioner that it was engaged in an
essential service, the commissioner issued a certificate of
outcome
marking the block on the form identifying a “Strike/Lockout”
as the next step.
[3]
The next day (5 March 2024), the second respondent, Mr B Mgijima
(‘Mgijima’), a union official, advised the
employer’s
private clinic client that the union had obtained a certificate which
entitled it to strike at the client’s
premises. The client
contacted WP Caterers to convey its concerns and the latter engaged
its attorneys who started corresponding
with FAWU. The gist of the
lawyer’s letters to FAWU concentrated on advising the union
that any strike action it initiated
relying on the certificate of
outcome would be unprotected because the employees were working in an
essential service. A copy of
the essential service determination was
attached to the first letter sent to FAWU.
[4]
FAWU’s written response, penned by Mgijima, took the view that
if the employer wanted to dispute the union’s
right to embark
on strike action, it had to deal with the certificate of outcome
first. Clearly, it adopted the view that the certificate
was a seal
of approval on the legal status of any consequent strike action, a
persistent legal myth still held to be true in some
union circles. He
urged the applicant to focus its attention on resolving the impasse
and that if it failed “…
to communicate a roadmap in
resolving this issue, strike will remain the only option as per the
certificate.
”
[5]
The employer responded by dispelling the argument that the
certificate was any kind of authorisation of strike action
which
would be unprotected on account of taking place in an essential
service. An ultimatum was issued to the union calling upon
it to
issue a written undertaking by 16h00 on 7 March 2024, to the effect
that its members would not engage in any strike action.
The union
responded somewhat as it did before, challenging the employer to do
what was necessary to set aside the certificate,
which was followed
by a mild tirade in which it blamed the employer for the union having
to approach the CCMA. It claimed that
the employer had been
unreceptive to efforts to settle the dispute in a conciliatory matter
or by arbitration. Nonetheless, it
held open the door to further
engagement provided the employer treated the respondents as equals.
The letter concluded by stating
that FAWU had no issues with the
client or the service it provided in general.
[6]
In any event, in the absence of obtaining the undertaking it had
sought, the employer decided to launch the urgent application
to
interdict any impending strike action, which was heard on 15 March.
The application was not opposed.
[7]
On the 9 April, more than a week before the return day, FAWU filed an
answering affidavit deposed to by Mgijima. In it
he stated that he
had informed the union’s members employed by the applicant that
the strike would be unprotected and that
the union would refer the
organisational rights dispute to arbitration, which they accepted. He
also confirmed that a request for
arbitration of the organisational
rights dispute had already been made on 20 March. Lastly, he stated
that no strike notice had
been issued and stated that “
we do
not intend to give notice of a strike, there has been no strike and
we will not be embarking on a strike.
”
[8]
There was some discussion between the parties prior to the return day
but they could not settle the matter beforehand.
Evaluation
[9]
The applicant’s main concern is the failure of the union to
give any undertaking not to strike, which it argued
necessitated it
approaching the court on the first occasion. It took Mgima’s
responses to its letters, as well as his approach
to its client, to
indicate that the union was intending to embark on strike action.
[10]
The first issue is whether the rule should be confirmed. As the union
has now referred the organisational rights dispute
to arbitration and
has stated under oath it has no intention of striking, that is one
very good reason to discharge the rule. Moreover,
even though this
undertaking was only given after the interdict was granted it was
given well in advance of the return day. In
addition, apart from
expressing a belief that it could embark on strike action, the union
took no further steps, which could have
suggested it was about to
embark on strike action. In the circumstances, there seems to be no
good reason to perpetuate the rule.
[11]
Should the union be held liable for the applicant’s costs? In
view of the finding above, there is no reason why
the union should be
liable for any costs for the hearing on the return day. In view of
the referral of the dispute to arbitration
and FAWU’s
undertaking, it is questionable why the applicant felt compelled to
pursue the confirmation of the rule. There
was no reason for either
party to incur the costs of return day in my view.
[12]
In relation to the initial application, I would agree that the
union’s correspondence could not have reasonably
been expected
to provide any assurance it was not bent on pursuing strike action,
even if it had not yet issued a notice of strike
action. Its conduct
in approaching the employer’s client and advising it that it
could now strike at its premises was not
disavowed. It is true, on a
generous reading, that the union’s second letter did convey
some conciliatory gestures. For example,
it did invite the applicant
to re-engage with it and argued that it was the employer’s
representative at the conciliation
hearing which had argued against
arbitration as a means of resolving the dispute. It might have been
possible to steer the correspondence
into a less confrontational
channel if these issues had been teased out a bit more.
[13]
Nonetheless, I do not think the second response from Mgijima was
sufficient to reassure the applicant that the union
was no longer
intent on strike action as an ineluctable course of action. He
implied this option had been imposed on it by the
applicant and
refused to engage with applicant’s contention that a strike
could not be protected because would take place
in an essential
service.
[14]
I am inclined to make some kind of cost award against the union for
unnecessarily refusing to give the undertaking, which
it only did
after the interim order was issued. It had put the applicant in the
invidious situation of deciding whether to take
a chance the union
would not strike weighed up against the union’s conduct, which
suggested it believed its only legal recourse
was strike action and
that it was completely deaf to the employer’s detailed
explanation why a strike would not enjoy protected
status in light of
the essential services determination. It was argued for the union
that the union’s stance was no different
from other situations
where there is contestation over the legal status of planned strike
action, which can only be resolved at
court. There is some merit in
that argument, in situations where there really are two plausible
contesting versions of the protected
status of a strike. However, in
a case such as this where the dispute does not involve serious
disputes of fact, or is not a matter
of a disputed interpretation of
a collective agreement or the like, but where the employer party
presents an unarguable reason
why the strike cannot be protected, for
which it provides ample support, and the other party refuses to even
engage with that claim,
I do not see why the applicant needs to bear
the costs of bringing an application to establish the obvious.
[15]
However, as I have indicated, I also see no reason why it was
necessary to seek the confirmation of the rule in this
matter.
[16]
In the circumstances, as a matter of fairness and law both no cost
order should be made.
Order
1.
The rule is discharged.
2.
Each party must bear their own costs.
R G Lagrange
Judge of the Labour Court
of South Africa
.
Appearances:
For the
Applicant:
M van der Berg
Instructed
by:
Bernard,
Vukic, Potash & Getz
For the
Respondent: G Doble of
Cheadle, Thompson and Haysom