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[1997] ZALAC 5
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Air Products (Pty) Ltd v CWIU and Another (JA37/97) [1997] ZALAC 5 (12 December 1997)
Air Products (Pty) Ltd v CWIU & another
Labour Appeal Court, Johannesburg
Judgment
Date:
12/12/1997
Case No:
JA37/97
Before:
Myburgh JP, Froneman DJP at Conradie, Judges of Appeal
_______________________________
Appeal in terms of section 17(21A)(a) of the 1956 Act
Dismissal
– Operational reasons – Employer not obliged to consult
with employee or his union before transferring him
from one
department to another, even if reason for transfer a redundancy in
one department.
Misconduct
– Insubordination – Refusal to obey instruction to
transfer – Such amounting to gross insubordination
where only
reason is employee’s desire to avoid night shifts.
Transfer
– Transfer from one plant to another not amounting to
unilateral amendment to terms of employment when job employee
is
required to do remains the same – That transfer entails working
night shifts not done in first plant irrelevant.
Unilateral
amendment of terms and conditions of employment – Internal
transfer from one plant to another not amounting to
unilateral change
when work employee is required to do remains the same – That
transfer entails working night shifts not
done in first plant
irrelevant.
Judgment
Myburgh
JP: The second respondent, Mr. MJ Mmadi, was dismissed by the
appellant (“the Company”) on 23 May 1996 for gross
insubordination for refusing to carry out an instruction.
Represented
by the first respondent (“the union”) Mmadi sought a
determination from the Industrial Court that his dismissal
was
substantively and procedurally unfair. The Industrial Court found
that the instruction was reasonable and valid; that Mmadi’s
refusal to obey the instruction constituted misconduct; that
dismissal was not the appropriate sanction; and that the dismissal
was procedurally unfair (in that the company failed to consider any
mitigating factors before taking the decision to dismiss).
Mmadi
commenced employment with the company as a temporary worker on 22 May
1989. On 4 September 1989 he was given permanent status.
In July 1990
he was promoted from doing general duties to being an operator. Until
June 1995 he was employed at the high pressure
fill plant (“hp
plant”). He worked day shift one week followed by night shift
the following week. In July 1995 Mmadi
was transferred to the
cylinder test plant, which is situated about 80 metres from the hp
plant on the same premises. He continued
to work day and night
shifts, alternating weekly. Commencing the week after 17 April 1996,
the work load at the cylinder test plant
decreased to such an extent
that it was not necessary to have a night shift. The two employees on
night shift joined the two employees
on day shift.
After
about two weeks the company formed the view that it did not need four
employees on the day shift at the cylinder test plant
but that the
work load at the hp plant had increased sufficiently to justify the
employment of an extra person at the hp plant.
The company took the
decision that as Mmadi was the longest serving grade four operator
and because he had previous experience
at the hp plant, he should be
transferred to the hp plant. At the hp plant he would again be
required to work day and night shifts.
On 9
May 1996 Mmadi was called to a meeting with Mr. MD Hellyer, the
facilities manager, and Mr. IM de Waal, the production manager
at the
hp plant. Hellyer was the senior manager on site. Hellyer informed
Mmadi of the decision to transfer him from the one plant
to another
and motivated the decision. A note of what transpired at the meeting
reads, in part:
“
MH
explain the reasons for the decision to transfer J Mmadi as an
operator in the cylinder test facility to the hp plant as an hp
fill
operator as follows:
1.
The back of log
of cylinders out of test was dramatically reduced from 8 500 to
approximately 1 000 cylinders.
2.
As a result of
the reduction of these cylinders it is no longer necessary to run two
shifts. The night shift has been eliminated,
and we are currently
working the day shift consisting of four people. The current work
load does not justify the amount of people
in this plant. After
calculating the number of cylinders coming out of test in the next
three years, we are confident that three
people on a normal day shift
will be sufficient to cope with the work load.
3.
We are currently
experiencing various problems in the hp full plant due to the
increased demand by our customers. There are currently
two shifts in
this operation, consisting of a senior operator, operator and two
general duty men. We also have CO
2
operator that works day shift only. With all the problems in the hp
plant, we have decided that it will be in the best interest
of the
company to transfer J Mmadi from cylinder testing where the work load
does not justify the labour to the hp plant where
the additional
labour can be used more productively. This will also relieve a lot of
pressure off the people currently working
in the hp plant.”
Mmadi informed management that he did not wish to
take the transfer as he wanted to continue to work day shift only. He
was asked
to explain his problem with working night shift. He said
that he had “… a problem in the location … it is
a
private matter”. Hellyer and De Waal adopted the attitude
that unless Mmadi was forthcoming with an acceptable explanation
he
would be required to commence work at the hp plant on 13 May, four
days later. He failed to do so.
On
the following day, 10 May, a meeting was held between management,
represented by Hellyer and De Waal and the four hp plant employees,
ie Mmadi, and Messrs M Mphela, G Makgati and S Moja. The company
again motivated the transfer of Mmadi form the cylinder test plant
to
the hp plant. Moja informed management that Mmadi was not willing to
work night shift and that he felt that he had been instructed
to
report to the hp plant whereas he should have been requested to do
so. Hellyer indicated that Mmadi had still not given the
company a
valid reason for not carrying out the instruction. Mmadi then
informed management that he wished to be retrenched rather
than to
work at the hp plant. Hellyer explained that the company was bound by
a provision in the wage agreement not to effect any
retrenchments.
The meeting adjourned to enable Hellyer to consult with Mr. NE
Quillam, the human resources manager. After consulting
Quillam,
Hellyer returned to the meeting with Quillam’s advice that the
company was bound to honour the terms of the wage
agreement. Hellyer
handed Mmadi a written instruction to report at the hp plant on 13
May. The document contained the company’s
motivation for the
transfer.
On 13
May Mmadi refused to report to the hp plant.
A
meeting was held between Hellyer, Quillam and De Waal, on the one
hand, and Mmadi and Messrs H Matshela and O Huto. Matsehal was
a shop
steward of the union. Mmadi said he wanted a union organiser to be
present. The company refused his request, taking the
position that
the company had the right to transfer an employee; that Mmadi would
remain a grade 4 operator; and that the company
did not intend to
retrench Mmadi. Mmadi persisted in his refusal to wok at the hp
plant. The meeting ended with an agreement that
Mmadi could take off
work to consult his union and that a meeting between management and
the union would be arranged within a day
or two (while Mmadi was “off
site”).
On
the following day the union addressed a telefax to the company in
which it was stated:
“
On
the 13/5/96 [Mmadi] was forced by yourself to clock-out, without the
prospect of payment, which to us amounts to a constructive
dismissal.
We accordingly demand that, and we shall inform him so, he return to
his normal working station to perform his duties
at the beginning on
the 15/5/96. We further demand that he paid the wages lost a result
of him being forced to clock-out on the
13/5/96.
We
propose to meet with yourselves on the 20/5/96 at 15h00 to try and
resolve the matter and that until we have meant to discuss
the matter
and reach finality, he remain at cylinder testing where he is
currently working.”
On the same day, in a telefax prepared by Quillam,
the response of the company was:
“
Mr.
Mmadi refused to take up his new position without providing any
reason, and demand to meet with you. I agreed to this, but it
meant
that he would have to leave the plant. It is ridiculous to expect the
company to pay him while he visits your offices. The
agreement that
he would meet with you and arrange and urgent meeting between
ourselves to discuss the serious matter of Mr. Mmadi
refusing to obey
instruction, and his subsequent, unilateral withdrawal of his
service. He was to return to the plant once had
met with you. This he
did not do.
You
have no right to give Mr. Mmadi ‘time off’, until 15 May
1996 to return to the plant, and we demand that he returns
to work
immediately to take up his position at HP fill. Should he continue to
refuse to take up his position he is in breach of
contract, and he is
accordingly, not entitled to payment. Only in the event of Mr. Mmadi
taking up his position in HP fill will
we be available to meet with
you on 20 May 1996 at 15:00.
Until
such time as Mr. Mmadi takes up this position, we are faced with an
urgent problem which needs to be addressed immediately.
Accordingly,
we look forward to your confirmation that Mr. Mmadi will take up his
position of HP fill in which case we can meet
on 20 May 1006, or
alternatively, he does not take up his new position, in which case we
should meet as soon as possible. We propose
that you make yourself
available as a matter of urgency.”
On 15 May Mmadi reported to work at the cylinder
test plant – not the hp plant – and was accordingly given
written notification
to attend a disciplinary enquiry on 17 may for
“failure to carry out a lawful instruction”. He was
suspended on “full
benefits”.
On
the same day Mmadi was informed in writing that if he changed his
mind before 17 May and reported to the hp plant, he should
contact
Hellyer or De Waal.
On 18
May Mr. LL Sibidi, a union organiser, sent a telefax to the company
in which he complained that the company “…
did not
discuss with ourselves that [Mmadi] will be transferred to another
position”. Sibidi repeated the request for a meeting
with the
company on 20 May.
On 20
May Mmadi arrived at the company’s premises to attend the
meeting, but Sibidi did not. The meeting did not take place.
Matshela
informed Mmadi that he disciplinary enquiry was to take place the
next day.
On 21
May Mmadi did not attend the disciplinary enquiry. The enquiry was
chaired by Mr. Kirkley. Kirkley reserved judgment until
23 May, when
Mmadi was dismissed.
On
appeal it was submitted by Mr. Bruinders, on behalf of the
respondents, that the dismissal was substantively unfair for two
reasons:
a)
The transfer of
Mmadi from the cylinder test plant to the hp plant constituted an
amendment to the terms of the contract of employment
which was
effected unilaterally as the company failed to negotiate the
amendment with Mmadi or his trade union (Mauchle (Pty) Ltd
t/a
Precision Tools v National Union of Metalworkers of South Africa
(1995) 16 ILJ 349 (LAC) at 357 D).
b)
The company
failed to meet the obligation to consult with Mmadi’s trade
union, an obligation which existed, so it was submitted.
“…
where that union’s member employed by such employer is declared
redundant” (Chemical Workers Industrial
Union ao v Sopelog CC
(1994) 15 ILJ 90 (LAC); Atlantis Diesel Engines (Pty) Ltd v National
Union of Metalworkers of South Africa
(1994) 15 ILJ 1247 (A) at 1252
F-H).
The
transfer of Mmadi from the cylinder test plant to the ph plant did
not constitute an amendment to Mmadi’s contract of
employment.
It was not an express, implied or tacit terms of the contract of
employment that he would work only at the cylinder
test plant. He was
employed as an operator. He worked in that capacity at the hp plant
for almost six years (from September 1989
to June 1995) before being
transferred to the cylinder test plant. From July 1995 to May 1996,
less than a year, he worked as an
operator at the cylinder test
plant, doing the same work he had done at the hp plant. The only
difference between the one job and
the other was that at the hp plant
he was required to work night shift every second week, whereas at the
cylinder test plant he
was required to work day shift only. His job,
however, did not change (see Manchie’s case at 357 F –
358 B).
The
submission that he company was obliged to consult with the union is
based on the assumption of fact that Mauchle, the union’s
member, was declared redundant.
It is
true that an employer is obliged to consult with a trade union before
taking a decision to retrench its employees, who are
members of the
union. In the Atlantis Diesel Engines case, Smalberger JA stated at
1252E-G: “It seems to me that the duty
to consult arises, as a
general rule, both in logic and in law, when an employer, having
foreseen the need for it, contemplates
retrenchment. This stage would
normally be preceded by a perception or recognition by management
that its business enterprise is
ailing or failing; a consideration of
the causes and possible remedies; and appreciation of the need to
take remedial steps; and
the identification of retrenchment as a
possible remedial measure. Once that stage has been reached,
consultation with employees
or their union representatives becomes an
integral part of the process leading to the final decision on whether
or not retrenchment
is unavoidable.”
The
need to consult before a final decision to retrench is taken was said
by Smalberger JA at 1252I – 1253B to be rooted in
pragmatism
and principle:
“
It
is rooted in pragmatism because the main objective must be to avoid
retrenchments altogether, alternatively, to reduce the number
of
dismissal and mitigate their consequences. Consultation provides
employees or their union(s) with a fair opportunity to make
meaningful and effective proposals relating to the need for
retrenchment or, if such need is accepted, the extent and
implementation
of the retrenchment process. It satisfies principle
because it gives effect to the desire of employees who may be
affected to be
heard, and helps serve the underlying policy of the
Act – to avoid or at least minimise industrial conflict. Where
retrenchment
looms employees face the daunting prospect of losing
their employment through no fault of their own. This can have serious
consequences
and threaten industrial peace. Proper consultation
minimises resentment and promotes greater harmony in the workplace.”
On the facts of this case the company never
intended to retrench Mmadi. The unchallenged evidence of De Waal, the
production manager
of the hp plant, was that there was no need for
retrenchment; he never considered retrenchment; by transferring Mmadi
to the hp
plant he would “… alleviate a lot of pressure
[on] the other guys working there”; and there been no
moratorium
on retrenchments, he would not have considered retrenching
Mmadi “… because we could accommodate him the hp fill
plant.”
De
Waal’s evidence was consistent with what Hellyer told Mmadi at
the meeting of 9 May 1996, save that Hellyer in addition
referred to
the moratorium in these terms, as recorded in the note of the
meeting: “There is currently a collective agreement
whereby a
moratorium is placed on retrenchment. The company has done everything
in its power to accommodate J Mmadi by creating
this new position in
the hp plant”.
It
is, in my view, of no moment that the company regarded Mmadi’s
post at the cylinder testing plant to be redundant and that
it
created a post for him at the hp plant. The fact is that the company
did not contemplate retrenching Mmadi: his services were
no longer
needed in one division of the company (the cylinder test plant)
whereas they were needed at another division (the hp
plant). Absent
the foreseeablity of retrenchment, the company was under no
obligation to consult the union prior to taking the
decision to
transfer Mmadi.
The
transfer of Mmadi from the cylinder test plant to the hp plant did
amount to a change in working conditions to his potential
prejudice
in the sense that he would be required to work night shift every
second week at the hp plant whereas at the cylinder
test plant he did
not have to work night shift at all.
What
was required of the company in those circumstances, as a matter of
fairness and sound industrial relations practice, was to
attempt to
persuade Mmadi to co-operate and to accept the change in working
conditions: of Mauchle’s case at 359 C-D. The
company did so
after taking the decision to transfer Mmadi but before the
instruction had to be carried out. At the meetings of
9 and 10 May
the company gave Mmadi the opportunity to give a valid reason for not
accepting the transfer. The company indicated
that it would
reconsider its decision if Mmadi provided a valid reason. This is
what is recorded happened at the meeting of 9 May
1996:
“JM:
I do not wish to go there, as I have a problem in the location.
MH: Please explain your problem to us, as we cannot take it into
consideration if we do not know
the
cause of this problem you are experiencing.
JM: It is a private matter and I have to go here and there in the
location.
MH: You are making it very difficult. It you do not inform us of the
problem you are experiencing,
we
cannot take it into consideration……”
(JM was Mmadi and MH was Hellyer.)
At the meeting of 10 May 1996 Hellyer again said
that “J Mmadi could not give any valid reason for the company
to reconsider
their decision to relocate him to the hp plant.”
The
company did not issue the instruction on 9 May without attempting to
persuade Mmadi to accept the transfer. What troubled the
company,
obliviously, was that until two weeks before Mmadi had worked day and
night shift for about seven and a half years without
objection and he
was unable to motivate his refusal to revert to that shift system.
Had he done so satisfactorily, the company
would have reconsidered
its decision to transfer. But at not time prior to his dismissal did
Mmadi justify his refusal.
On 13
May and thereafter the company did not act precipitously. Mmadi was
given time off to consult the union, to reconsider his
position, and
to arrange a meeting between the company and the union. He took time
off. He consulted the union. He returned on
15 May but persisted in
his refusal to carry out the instruction without justifying his
refusal. The meeting which was proposed
for 20 May, before the
commencement of the disciplinary enquiry, did not take place as the
union organiser did not arrive at the
company’s premises.
Thereafter
Mmadi failed to co-operate in any way with the holding of the
disciplinary enquiry.
Mmadi’s
attitude throughout the period 9 to 21 May was one of gross
insubordination.
The
company had a valid reason to dismiss him.
The
Industrial Court found that the dismissal was procedurally unfair on
the basis that the chairman of the disciplinary enquiry
had not
considered any mitigating factors. There was no evidence to justify
the finding. The chairman of the disciplinary enquiry,
Kirkley, had
emigrated to New Zealand at the time of the Industrial Court hearing
and was unavailable to the company. It does not
follow that because
Kirkley was not called that he did not consider factors in favour of
Mmadi such as his long service and clean
disciplinary record.
The
appeal is dismissed. The determination of the Industrial Court is
altered to read: “The application is dismissed”.
It is in
accordance with the requirements of the law and fairness that no
order as to costs be made.
(Conradie
JA concurred in the judgment of Myburgh JP.)
Froneman
DJP: This is a dissenting judgment. I have had the benefit of reading
the majority judgment written by Myburgh JP, but,
unfortunately, I am
unable to agree with its reasoning and findings. Broadly speaking
there are three areas where we differ. The
first concerns a different
emphasis on the significance of certain facts. The second is that in
my respectful view the majority
is inconsistent in the application of
their own view of the law to the facts. Lastly, in my view of the law
also differs from that
expressed in the majority judgment. In what
follows I shall attempt to set out my views on these matters in a
succinct and understandable
manner.
The
facts
The second respondent (“Mmadi”) was
dismissed for his refusal to obey an instruction from the appellant
(“the
company”) to move from on department where he was
working to another, after a decision was taken that his post in the
former
department had become redundant. Both the decision to declare
his post redundant and the decision to transfer him were taken by
the
company without prior consultation with him, his fellow employees or
the first respondent (“the union”). These
decisions
detrimentally affected Mmadi in the sense that he, and not one of the
other three employees at the cylinder test plant,
had to move to the
hp plant. In turn, this meant that he was required to work night
shift at the hp plant, something not required
at the cylinder test
plant.
In my
view this constituted a material change to not only his present
working conditions but especially to his expectation of future
working conditions. It should be kept in mind that it was envisaged
that the day shift only system at the cylinder test plant would
endure for a substantial period of time. Not having to work at night,
even though one might have done so in the past, may indeed
be a very
powerful attraction in any working situation.
The
company confronted Mmadi with its decisions to declare his post
redundant and transfer him without any prior warning and at
a stage
when he was alone, unassisted by fellow employees or union officials.
It is expecting too much from him in these circumstances
to set out
his case for overturning these decisions cogently and persuasively in
the short passage of time afforded to him during
the first meeting on
9 May 1996. He and his fellow employees at all times thereafter
insisted that union assistance to him would
be fair and equitable. I
agree.
The
reasons for not retrenching Mmadi upon his post being declared
redundant was stated by the company to be the fact that the
collective wage agreement precluded retrenchment. That agreement was
negotiated by the union and the clause against retrenchment
is
clearly one primarily for the benefit of the employees. If one of the
employees was prepared to forego that benefit and the
parties who
concluded the agreement, viz the company and the union, agreed
thereto, retrenchment could follow. The agreement was
not an absolute
bar to retrenchment, as the company insisted it was. Consultation on
its particular implementation in this present
case with Mmadi and the
union was not out of the question.
The
purpose for which Mmadi was allowed to contact his union after the
meeting on 13 May 1996 was to set up a meeting between Mmadi,
Quillam
and the union organiser to discuss the issues giving rise to the
dispute. Such a meeting was never held: when Mmadi and
the union
organiser met Quillam on 29 May 1996 they were told by him that Mmadi
had been dismissed.
What
these facts show, in my view, is that the company had adopted and
attitude, after taking the decisions already referred to,
which not
only initially gave Mmadi insufficient time to respond properly, but
which also precluded the company from giving proper
consideration to
the question of the union’s involvement and the case it might
have presented on Mmadi’s behalf. In
doing so is acted
prematurely, overhastily and, in my view, unfairly.
Discussion
of the legal position
The
competence of this Court (established by
section 167
of the
Labour
Relations Act 66 of 1995
, “the new Act”), to hear this
appeal from the Industrial Court (established by the Labour Relations
Act 28 of 1956,
“the old Act’) is derived from the
provisions of sections 1, 2 and 5 of schedule 7 to the new Act. The
effect of these
provisions is that the case needs to be determined in
accordance with the provisions of the old Act, despite the latter’s
repeal by the new Act. The new Act came into operation on 11 November
1996.
Under
the provisions of the old Act the Industrial Court could determine
unfair labour practice disputes and could make orders of,
inter alia,
reinstatement and compensation in respect of these disputes (section
46(9)(c) of the old Act). The Industrial Court’s
unfair labour
practice jurisdiction was a statutory one and did not displace or
oust the jurisdiction of the ordinary civil courts
to determine
disputes arising from the common law contract of employment.
Employment relationships were thus governed by two distinct
and
formally autonomous legal regimes: the one statutory, the other in
terms of the common law.
The
Industrial Court’s unfair labour practice jurisdiction was
introduced as a result of the perception that the common law
contract
of employment could not adequately deal with problems arising from
present day employment relationships (of Brassey, Cameron,
Cheadle
and Olivier The New Labour Law, at 2-9). The co-existence of two
systems governing employment relationships, each with
it own set of
rules and adjudication structures, created its own problems.
What
was required in the labour field was the creation and development of
a coherent jurisprudence by the Industrial Court under
its unfair
labour practice jurisdiction that would give employers and employees
fairly certain legal guidelines to apply in the
employment
relationship (of Thompson and Benjamin South African Labour Law, vol
1, A1-52 note 6, A1-62 et seq). Unfortunately a
number of factors
emerged which made this enterprise rather difficult and, in the view
of some, impossible. For the purposes of
this discussion it is only
necessary to deal with one of those factors, viz the view that the
Industrial Court does not determine
unfair labour practice disputes
according to the dictates of legal principles, but according to a
moral assessment of what is fair
or not.
The
genesis of this rigid distinction between law on the one hand, and
fairness on the other, is the decision in Media Worker Association
of
South Africa and other v Press Corporation of South African Ltd
(Perskor)
[1992] ZASCA 149
;
1992 (4) SA 791
(A); (1992) 13 ILJ 1391 (A) at 798J –
802A (SA)). In that case effect was given to the obvious need to
allow expert assessors
to take part in the determination of whether a
particular labour practice was fair or not in labour appeals under
the old Act.
This could only be done if such a determination did not
amount to a question of law, the determining of which the assessors
could
not take part in under the old Act. It was held that this
determination was not a decision on a question of law:
“
The
position then is that the definition of an unfair labour practice
entails a determination of the effect or possible effects
of certain
practices, and of the fairness of such effects. And, when applying
the definition, the Labour Appeal Court is again
expressly enjoined
to have regard not only to the law but also o fairness. In my view a
decision of the court pursuant to these
provisions is not a decision
on a question of law in the strict sense of the term. It is the
passing of a moral judgment on a combination
of findings of fact and
opinions. It follows that the Chairman’s prerogative of
deciding questions of law … need not
stand in the way of the
conclusion … that assessors should participate in answering
the ultimate question.” (at 798H-J
(SA)).
The
conclusion to be drawn from this approach is that each unfair labour
practice case can only be determined on an ad hoc basis
and cannot
form the basis for developing general legal principles or guidelines.
In
National Union of Metalworkers of South Africa v Vetsak Co-op Ltd and
others (1996) 17 ILJ 455 (A) at 459D-459A
1
Nienaber JA stated the following:
“
We
were invited by counsel to formulate guidelines as to the
circumstances in which the dismissal of workers participating in a
lawful strike would constitute an unfair labour practice in terms of
the Labour Relations Act 28 of 1956 (the LRA). In finding
an unfair
labour practice the tribunal concerned is expressing a moral or value
judgment as to what is fair in all the circumstances
… The
test is too flexible to be reduced to a fixed set of sub-rules; which
is why one is somewhat sceptical of recent attempts
by the Labour
Appeal Court (the LAC) and academic writers to typify and rank the
considerations which are to be factored into a
finding of fairness …
The
most one can do is to reiterate that there are two sides to the
inquiry whether the dismissal of a striking employee is an unfair
labour practice, the one legal, the other equitable. The first aspect
is whether the employer was entitled, as a matter of common
law, to
terminate the contractual relationship between them – and that
would depend, in the first place, on the seriousness
of its breach by
the employee. The second aspect is whether the dismissal was fair –
and that would depend on the facts of
the case. There is no sure
correspondence between lawfulness and fairness …”
The logical consequence of this approach is that
it is a futile exercise, when determining fairness, to seek guidance
from decided
cases on matters of principle. For the reasons that I
will set out later I do not, with respect, agree that the approach
apparent
from the excerpts quoted above should still be followed. I
am unsure, however, where exactly the majority stands in this regard,
because the judgment does refer to and rely on the decisions in
Mauchle (Pty) Ld t/a Precision Tools v National Union of Metalworkers
of South Africa (1995) 16 ILJ 349 (LAC);
[1995] 4 BLLR 11
(LAC) and
Atlantis Diesel Engines v National Union of Metalworkers of South
Africa (1994) 15 ILJ 1247 (A);
[1995] 1 BLLR 1
(A). In terms of the
Vetsak decision these cases did not lay down binding legal
principles, or even guidelines. They cannot, therefore,
be regarded
as binding authority.
Nevertheless, even if they are regarded as such,
they do not, in my respectful view, offer support for the majority’s
conclusion
that the company was under no obligation to consult Mmadi
or the union prior to taking the decision to declare Mmadi’s
post
redundant and to transfer him.
The
Atlantis Diesel Engines case (supra) held that prior consultation
with a trade union is necessary on redundancy leading to
retrenchment. It did not deal with the situation where the redundancy
did not lead to retrenchment, as in the present case. The
judgment
did not purport to deal with such a situation, nor did it expressly
or impliedly restrict the necessity of consultation
only to
retrenchment cases. Its rationale for requiring consultation, viz
that “(p)roper consultation minimizes resentment
and promotes
greater harmony in the workplace” (at 1253B (ILJ)) would apply
not only to operational decisions leading to
retrenchment, but also
to those decisions which materially affect changes in working
conditions, the very stuff that concerns employees
and trade unions
most intimately.
_____________________
1
Also reported at
[1996] 6 BLLR 697
(AD) – Ed
In my view the reasoning in the Atlantis Diesel
Engines case supports the extension of the requirement of
consultation to this kind
of situation, rather than the opposite.
The
decision on the facts in the Mauchle case in my respectful view also
supports a finding that consultation prior to making the
decision to
declare Mmadi’s post redundant and to transfer him was called
for. In the matter a decision was made to change
the working
conditions of employees only after consultation with the union. The
change in working conditions did not amount to
an amendment or change
of the contractual terms of employment, but nevertheless Myburgh J
(as he then was) stated the following
(at 20D-E (BLLR); 359C-D
(ILJ)):
“
As
it was not a term of the contracts of employment that an operator was
obliged to operate one machine only, there was no requirement
in law
or fairness for the company to negotiate with the union. What was
required of the company, as a matter of fairness and sound
industrial
relations practice, was to attempt to persuade the applicants to
co-operate and to accept the change in practice …
When that
process failed, the company was entitled to issue the instruction: an
instruction which was lawful and reasonable.”
On the facts it was found that this had indeed been
done. The employer had stated its proposals for the change in working
conditions
on 3 September 1992. Consultations then took place over a
number of days before a decision was made to introduce the change in
working conditions on 8 September 1992 (at 14G – 16 C (BLLR);
353B – 355C (ILJ)).
The majority judgment interprets the Mauchle decision
as only requiring some form of consultation after the decision to
change working
conditions is made. With respect, this does not
accord, firstly, with the facts of the Mauchle case (where
consultation preceded
the taking of the decision) and, secondly, it
flies in the face of the fairly generally accepted principle that
hearing a person’s
representations before making a decision is,
for many reasons, to be preferred to hearing representations only
after a decision
had already been made (see Atlantis Diesel Engines
case (supra) at 1252F-J (ILJ); Mohamedy’s v Commercial Catering
and Allied
Workers Union of SA (1992) 13 (ILJ) 1174 (LAC) at 1179F-H;
Attorney-General, Eastern Cape v Blom and others
1988 (4) SA 645
(A)
at 668D-E).
Insofar
as the majority judgment therefore relies on the existing case law to
justify its conclusion, my respectful view is that
the case law does
not offer the necessary support.
As
indicated earlier, however, I do not agree that the approach, based
on a strict distinction between law and fairness and the
characterization of the finding on fairness as a “moral”
or “value” judgment, still needs to be followed.
The
historical origin of the need to characterize unfair labour practice
determinations as “moral” or “value”
judgments, as distinct from issues of fact and law, lay, as mentioned
earlier, in the need to allow expert assessors to take part
in the
determination of whether a particular labour practice was fair or not
in labour appeals under the old Act. That particular
problem no
longer exists, as this Court is a different creature from the labour
appeal court under the old Act and assessors take
no part in its
decisions (see section 167 of the new Act).
Insofar
as peculiarities under the old Act necessitated the creation of a
third kind issue, viz a “moral” or “value”
issue in respect of fairness, in addition to issue in respect of
fairness, in addition to issues of fact and of law, they are no
longer relevant.
Without
the need to accommodate assessors in appeals under the old Act, the
case for a threefold distinction between issues of law,
issues of
fact, and “moral” or “value” issues, becomes
less compelling.
The
premise underlying the threefold classification of issues into those
of fact, those of law and the third category of value or
moral
issues, is that the nature of determining the first two. This
conclusion was reached in the Perskor case (supra) with reliance
on
jurisprudential analyses of the concepts of questions of law and
questions of fact in Salmond on Jurisprudence 12 edition at
65-75 and
an article by WA Wilson, A Note on Fact and Law
(1963) 26 MLR 609.
These analyses seem to proceed from the assumption that issues of
fact and of law are determined by the mechanical “finding”
of facts and the law, a process which involves no interpretation or
discretion on the part of the judge; whilst determining fairness
does
involve subjective interpretation and the exercise of a subjective
discretion.
There
is a considerable body of literature which challenges that assumption
(cf eg Friedman Legal Theory (1960) at 402; Georgia
Warnke Justice
and Interpretation (1992) at 4; AJ van der Walt Tradition on Trial: A
Critical Analysis of the Civil Law Tradition
in South Africa Property
Law (1995) 11 South African Journal on Human Rights 169; Ph J Thomas
Fin de siecle of Funksionele Romeinse
reg? (1997) 60 Tydskrif vir
Hedendaagse Romeinshollandse Reg 202). It is, however, unnecessary to
enter that jurisdictional debate
in order to illustrate that “moral”
or “value” judgments are part and parcel of the
determination of matters
of fact and law as well. Sufficient examples
are to be found in our common law.
In delictual matters it is virtually an everyday
occurrence that judicial officers make findings on the requirements
of unlawfulness
and negligence on the basis of assessments,
respectively, of reasonableness, according to the boni mores of the
community (see
Minister van Polisie v Ewels
1975 (3) SA 590
(A)), and
of the standard of the reasonable man. These are also imprecise,
flexible standards. They also involve “value”
judgments
on the part of the judicial officers in deciding what is reasonable,
or what the standard or conduct of a reasonable
man in the particular
circumstances of the case would be, and whether the conduct of a
party in the case measures up to that standard.
That fact has,
however, never prevented the acceptance of those decisions as laying
down legally binding principles of law on the
basis of precedent.
In
the concurring judgment of Olivier JA in Eerste Nasionale Bank van
Suidelike Afrika Bpk v Saayman NO
[1997] ZASCA 62
;
1997 (4) SA 302
(A)
2
the
concept of bona fides in the law of contract is, with respect,
illuminatingly discussed to show that its function was “om
gemeenskapsopvattings ten aansien van behoorlikheid, redelikheid en
billikheid in die kontraktereg te verwesenlik” (at 319B;
see
also at 321J – 322E, 323H – 324A and 326G).
___________________________
2
Also reported at [1997] 3 AJL SA 391 (A) – Ed.
In critically discussing a dictum of Kotze JA in
Weinerlein v Goch Buildings Ltd
1925 AD 282
at 295 Olivier JA states
(at 319J – 320A):
“
Die
probleem met hierdie stelling is dat dit skyn uit te gaan van ‘n
statiese, afgeslote sisteem: as billikheid nie reeds
as ‘n
regsreel gepositiveer is nie, cadit quaestio. Beteken dit dat die
bona fide beginsel erens in die verlede uitgewerk
is en nie in die
toekoms tot nuwe regsreels of verwere aanleiding kan gee nie? Hierdie
dictum staan vernuwing en aanpassing in
die weg en reflekteer dat dit
slegs die taak van die howe is om die reg te vind en nie te skep nie,
‘n siening wat nie by
die gees van ons reg of die behoeftes van
ons gemeenskap pas nie.”
A rigid distinction between law and fairness is
therefore not only perhaps jurisprudentially unsound, or at least
disputed, but
it does also not accord with the acceptance, in other
areas of our common law, that fairness and reasonableness indeed form
an
inherent part of those areas of the law. When the old Act
therefore enjoins the Industrial Court to determine whether a labour
practice is fair or not, the criterion of fairness is the only legal
criterion, demanded by the statute itself. The inquiry is thus
a
legal one only. If there was any uncertainty about this previously,
the fundamental right to fair labour practices in the Constitution
should dispose of any lingering doubts in that regard. The new
constitutional dispensation ushered in by, first, the interim
Constitution
Act 200 of 1993, and now the Constitution of the
Republic of South Africa Act 108 of 1996, offers a different
background and context
within which the provisions of the old Act are
to be interpreted and applied. The right of everyone to fair labour
practices is
now entrenched as a fundamental legal right in the
Constitution (sections 23(1) and 27(1) of the final and interim
Constitutions
respectively) and not only as a function of non-legal
considerations of fairness promote the spirit, purport and objects of
the
fundamental rights in the Constitution (cf Du Plessis v De Klerk
[1996] ZACC 10
;
1996 (5) BCLR 658
(CC). Fairness is indeed a flexible and imprecise
criterion, but so are many other legal criteria. That in itself does
not make
it impossible to lay down legal principles or guidelines, it
only makes it more difficult than in cases where there are more
precise
and certain requirements.
An
unfair labour practice is defined in section 1 of the old Act as:
“Any
act or omission, other than a strike or lock-out, which has or may
have the effect that-
(i)
any
employee or class of employees is or may be unfairly affected or that
his or their employment opportunities or work security
is or may be
prejudices or jeopardised thereby;
(ii)
the
business of any employer or class of employers is or may be unfairly
affected or disrupted thereby;
(iii)
labour
unrest is or may be created or promoted thereby;
(iv)
the
labour relationship between employer and employee is or may be
detrimentally affected thereby”.
The
factors mentioned in the definition show that fairness should be
assessed by having regard to the interests of both employer
and
employee. These interests are often of a conflicting nature.
Nevertheless it is the duty of the courts to balance these competing
interests and arrive at a conclusion based on fairness. How is that
to be done without falling into the “trap of undue
subjectivity”
(words used by Didcott J in his concurring
judgment in S v Makwanyane and another
1995 (6) BCLR 655
(CC) at
734A)?
I
think it should be recognised at the outset that an entirely
objective and neutral answer to the problem is not possible. The
best
one can strive for is to arrive at a conclusion in a rationale and
reasoned manner by having regard to the wording of the
section itself
and the objectives of the old Act, read in the context of our
society’s transformation to a more egalitarian
constitutional
democracy. In doing so one should always be wary of clothing one’s
own preconceptions and prejudices in a
supposedly neutral and
objective garb.
It
has been suggested that the unfair labour practice jurisprudence
should be developed in such a manner as to advance the objects
of the
old Act, viz industrial peace, social justice, individual equity and
economic development (Thompson and Benjamin (supra)
at A1 – 67
to A1 – 70). The provisions of the Constitution seem to
reinforce these objectives. The definition of an
unfair labour
practice in the old Act also expressly or impliedly supports these
objectives.
As
far as individual labour matters are concerned the definition
embraces two apparently opposing interests: business efficiency
and
individual equity. It is the weighing up of these two interests
which, in practice makes for the hardest cases. This is one
of those
cases.
The
definition in the old Act does not expressly state that the common
law contract of employment is to be used as the only starting
point
for the determination of fairness under the Act. There are sound
reasons for being cautious in allowing the terms of the
common law
contract of employment to dominate the determination of an unfair
labour practice issue. Such kind of thinking easily
leads to a rigid
distinction between law and fairness, which is unjustified where
fairness is part and parcel of, or inherent in,
in the law itself.
Where express contractual terms are agreed upon by the employer and
employee it is, generally, fair to insist
on compliance with those
terms. Where it comes to terms implied by law as naturalia of the
contract, however, the same considerations
do not always apply.
Terms
implied by law are essentially judge-made rules that were made in a
different era and which have now solidified into immutable
law:
“
The
dearth of express terms in employment contracts has given the courts
full rein to fashion by means of the implied terms of ‘status’
of their own choosing for employees. Although the court has
frequently stated that the basis of implying terms is the unstated
intention of the parties, it is clear that they have manipulated the
test in order to create rights and duties that the courts
themselves
have judged to be appropriate for the ‘right’ kind of
employment relationship.” (Christie, England,
Cotter,
Employment Law in Canada 2 edition at 175.)
Similar
comments can be made on the naturalia of our common law contract of
employment, fashioned as law by our courts in earlier
times.
When
the fairness of a particular labour practice is therefore defended on
the basis that it is the common law prerogative of the
employer, care
should be taken to avoid characterising the debate as one of “law”
against non-legal considerations
of fairness. It is not. The law, in
the form of the old Act, requires a legal assessment based on
fairness. What therefore needs
to be weighed up is the fairness of
terms implied by law into the common law contract of employment in a
different era and context,
as against contemporary notions of
fairness in the employment field.
The
obligation of an employee to obey the instructions of the employer is
seldom an express terms of any contract of employment.
It is, in most
cases, a term implied by law, said to be fundamental to the
employment relationship (see Le Roux and Van Niekerk
The South
African Law of Unfair Dismissal at 140). Generally speaking, having
regard to the considerations under the old Act and
Constitution
mentioned earlier, however, it cannot be said that the existence of
such an obligation is unfair according to contemporary
notions.
In
Mauchle’s case (supra) the fairness of such a general
obligation was assumed, but it was qualified in two ways, viz that
it
had to be “lawful” as well as “reasonable”.
“
The
second question which must be decided is the broad one whether the
instruction … was lawful. If that instruction constituted
a
unilateral amendment to the terms of employment of the applicants,
the instruction would have been unlawful. The narrower inquiry,
consequently, is whether the instruction did constitute a unilateral
amendment to the terms of employment of the applicants”
(at 18E
– F (BLLR); 357D (ILJ)).
And further (at 19E (BLLR); 358D (ILJ)):
“The
third question is whether the instruction was reasonable.”
I would respectfully venture to suggest that for
the purposes of determining an unfair labour practice dispute under
the old Act
it is unnecessary to have separate requirements of
“lawfulness” and “reasonableness”, and that
it would
suffice simply to ask whether the instruction was fair. If
fair, it is lawful. If unfair, it is unlawful. Fairness equates to
lawfulness
under the old Act. This approach would also avoid the
confusion generated by the distinction between contractual
“lawfulness”
and statutory “fairness”.
In
order to determine whether the instruction was fair (or “reasonable”
in the terms used in the Mauchle case) in the
present case one has to
decide whether it was necessary for the company to consult Mmadi or
the union before the decision was taken
to make the post redundant
and transfer Mmadi to the new post.
The
effect of the decision by the company in the present case was that
Mmadi’s previous position was made redundant and he
was moved
to a new department. Had he remained in his old position he would
not, in future, have had to work night shifts. The
company was
entitled to take these decision, provided that it involved Mmadi in
the consultation process prior to the decisions
being taken, and
provided, further, that such a decision was rationally justified on
operational grounds. Its decision affected
Mmadi, but it would not
have unfairly affected him in terms of the definition of an unfair
labour practice in the old Act had he
been given the opportunity to
state his case in regard thereto prior to the decision being taken.
It is
common cause that Mmadi was never consulted before the decision was
made. The decision may be rationally defensible on operational
grounds, but that is beside the point. The failure to consult was
unfair and the resulting instruction was thus not reasonable.
In my
view it is necessary to formulate a rational and coherent approach to
give expression to the requirements set out in the definition
of an
unfair labour practice in the old Act. Due regard must be paid to the
needs and interests of employer and employee alike.
The best way, in
my view, is to accept that in modern day employment neither employer
nor employee benefits from a static employment
concept where their
respective rights and obligations are case in stone at the
commencement of the employment relationship. What
the employer needs
is the flexibility to make decisions in a dynamic work environment in
order to meet the demands of business.
What the employee seeks is not
only a wage, but a continuing obligation of fairness on the part of
the employer, also when h or
she makes business decisions affecting
the employee’s work. That obligation of fairness should
manifest itself in both a
formal and a substantive manner. Formally
consultation is necessary before decisions are to be taken that
materially affect employees
in their working relationship.
Substantively those decisions must be justifiable by genuine
operational requirements. This case
concerned only the formal
requirement. The particular conclusion I have come to favours the
employee, but different facts may lead
to a finding in favour of the
employer (cf WL Ochse Webb & Pretorius (Pty) Ltd v Vermeulen
1997
(2) BLLR 124
(LAC)).
Conclusion
It
follows that I am of the view that Mmadi’s dismissal was
unfair. Both he and his union should have been consulted prior
to the
company taking the decision to declare his post redundant and to
transfer him. The instruction to report for work at the
other
department was unfair.
The
fact that Mmadi’s transfer may have been sound for operational
reasons does not justify a decision not to reinstate him.
Upon proper
consultation after reinstatement the same result, viz a transfer, may
eventually have resulted. On the other hand,
it may not have. It is
impossible to imagine what solution proper consultation may have
provided.
I
would therefore dismiss the appeal with costs.
For
appellant:
Adv R
Burgess instructed by Webber Wentzel Bowens
For
respondent:
Mr.
TJ Bruinders instructed by Cheadle Thompson & Haysom