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1998
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[1998] ZALAC 19
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ICS Group Limited t/a Dairybelle v National Union of Food Beverage Wine Spirits and Allied Workers and Others (JA61/97) [1998] ZALAC 19 (11 March 1998)
IN
THE LABOUR APPEAL COURT OF SOUTH AFRICA
(HELD
AT JOHANNESBURG)
CASE NO: JA61/97
In the
matter between
ICS
GROUP LIMITED trading as
Appellant
DAIRYBELLE
(BLOEMHOF
(Respondent in the Court
a quo
)
and
NATIONAL
UNION OF FOOD,
First Respondent
BEVERAGE,
WINE SPIRITS
(First applicant in the Court
a quo
)
AND
ALLIED WORKERS
LUCAS
KUBU AND OTHERS
Second and Further Respondents
(Second
and Further Applicants
in
the Court
a quo
)
_________________________________________________________________
JUDGMENT
_________________________________________________________________
CONRADIE JA
This is an appeal in terms of
section 17(21A)(a) of the Labour Relations Act, 28 of 1956 against
a determination by the Industrial
Court that the second and further
respondents were unfairly dismissed. They were reinstated from the
date of the determination
but not awarded any compensation. I shall
refer to them as the workers.
When the appeal was due to be
heard on 26 November 1997 the respondents applied for a
postponement. There were two reasons for the
application. They
wished to deliver a notice of cross-appeal against the refusal of
the Industrial Court to order retrospective
reinstatement and also
required time to reconstruct a record of certain evidence which had
not been recorded. The postponement
was granted. Costs were
reserved.
The workers were employed at the
appellant's factory in Bloemhof. The first respondent was their
collective bargaining representative.
The factory produces butter,
cheese and milk powder in a twenty-four hours per day, seven days
per week operation. For this reason
it had been agreed that the
appellant might call upon its employees to work overtime and on
Sundays and public holidays.
Wage negotiations between the
appellant and the first respondent failed. A conciliation board was
then established to consider
the dispute. Shortly before the board
was to meet for the first time on 29 March 1996 the workers, or
some of them, during the
night shift of 27 March, embarked upon
go-slow industrial action which continued and intensified on 28 and
29 March. A meeting
was held on 28 March. The appellant's case is
that management was informed at the meeting that the workers had
decided no longer
to work overtime, or on Sundays and public
holidays; as for the go-slow, one of the shop stewards, Mr. Kubu,
denied that there
was a go-slow in progress. Kubu, who testified
in the Industrial Court, said, however, that he had merely raised
with management
the workers' objection concerning the selection of
those expected to work overtime and that the question of go-slow
industrial
action had not even been raised by management.
I am satisfied, on a
preponderance of probabilities, that there was indeed a go-slow in
certain areas of the factory. The minutes
of the meeting of 28March
1996 reflect, in my view sufficiently clearly, that management was
troubled by and enquired about "proceedings
on the cheese
factory floor". Production analyses by Mr Potgieter
demonstrated a marked drop in output during the three
days in
question. Furthermore, Mr. Surics
,
the appellant's human
resources manager, telephoned the first respondent's regional
organiser Mr. Matela, to inform him of the
go-slow, at the same
time asking him to investigate the allegations. Mr. Schlenter, the
appellant's factory manager, also involved
Matela who responded by
letters to Surics and Schlenter, not that there was no go-slow, but
that the go-slow had not been raised
by management at the meeting
of 28 March. This evasive response, together with the other
factors, and the fact that the appellant
on 29 March began bringing
in replacement staff from its other factories, lead me to conclude
that there had indeed been a go-slow.
So does the consideration
that the meeting of 28 March was called urgently. Whether it was
called by the appellant or by the
first respondent does not matter.
The point is that it was a crisis meeting. This urgency was quite
inappropriate to a consideration
of what the first respondent says
was discussed, namely the selection of workers for overtime and
holiday shifts. I do not agree
with the court
a quo
that the
go-slow was a strike. Since the workers' representatives denied
the very existence of the industrial action, obviously
no demand
was articulated. Nevertheless, whether the industrial action was or
was not a strike
stricto sensu
, it was conduct of a sort
which entitled the appellant to exclude the collectively
under-performing participants in it from the
factory.
After the exclusion of the
workers (which the first respondent characterised as an illegal
lockout), there was an attempt by the
first respondent to arrange a
meeting for 30 March 1996. Nothing came of that, nor did anything
come of a meeting proposed for
1 April. However, on 2 April the
parties did meet. While they were conferring, a crowd of workers
outside the factory gate became
restive. Some of the crowd stoned
milk delivery trucks and a bus which were waiting for an opportune
moment to enter the factory
premises. Extensive damage was caused
by this unfortunate break-down of control. Its aftermath, as we
shall presently see, was
the reason for the collapse of the
settlement reached at a further meeting held on Wednesday 10 April
1996. At this meeting it
was agreed that the excluded workers would
be allowed to recommence work with the morning shift on Friday 12
April, the appellant
having in the meantime phased out the
substitute staff. Each worker was required to sign an undertaking
that he or she would "commence...
normal duties (including
voluntary overtime when required) as soon as I am allowed to
re-enter the company premises." This
undertaking was
accompanied by an ultimatum calling upon workers to sign the
undertaking and notifying them that unless they did
so by 08:00 on
Thursday 11 April 1996, they would be dismissed.
The ultimatum was not well
received by the shop stewards. There was a reluctance to accept the
ultimatum. Their attitude, which
was not entirely unjustified, was
that since the workers had already agreed to return to work the
threat of an ultimatum was inappropriate.
This resulted in a
further delay and the issue of a further ultimatum in the same terms
expiring at 06:00 on 13 April 1996 (the
time at which the first
shift was to recommence work) and attaching the same undertaking for
signature by the workers. This time
the undertaking was signed by
everyone, but unknown to management, a storm was brewing about the
agreement reached on 10 April.
Management was adamant that it
had at the meeting refused to accede to a union demand not to
discipline those workers who had been
identified as having been
involved in the stone throwing incident on 2 April 1996. The first
respondent's version of the meeting
was that it had been agreed that
those workers would not face disciplinary charges. I do not believe
that one need resolve the
difficult question of what in actual fact
transpired at the meeting. It is clear that whether or not the
appellant persisted
with its stance that offenders would be
disciplined, the first respondent's representatives believed that
disciplinary charges
would not be pressed. It may be that the
appellant was brought under the impression that the union agreed
with its position by
the strong condemnation of violent strike
behaviour in general expressed by its regional representative, Mr.
Matabane. Nevertheless,
it seems certain that the union did not
interpret the discussions in the same way. The following day
Matela faxed a letter to
the appellant, probably in response to a
telefax dated the same day enclosing a copy of the undertaking which
union members were
required to sign. In it he said:
"Our members do want to go
back to work tomorrow after they have signed an undertaking as
agreed yesterday. Copy thereof enclosed
for your information, not
the one which has an ultimatum which we agreed that it would not
form part of the undertaking - plus 5
workers that no disciplinary
measure will be taken".
Moreover, as soon as the shift
lists for the proposed return to work on 13 April came to its
attention Matela, on behalf of the
union, on 12 April faxed to
Surics a message to the effect that the names of certain employees
(who are mentioned in the telefax)
were not on the shift lists
provided to the union. The message was a cryptic one but it should
nevertheless have been comprehensible
- and alarming - to the
appellant. During discussions at the venue for the meeting of the
conciliation board on 12 April 1996,
the question of disciplinary
action against offending workers had been raised. It was,
therefore, not a new complaint.
The individual employees did not
resume work on Saturday 13 April 1996. Again, there is a dispute
about how this came about. According
to Schlenter he was at the
factory gate from five o'clock that morning. Not a single worker of
the morning shift turned up for
work. The respondents' version is
completely different. All the workers turned up at the gate but
were refused admittance by
officials of the appellant. There were
no shift lists, only the names of workers against whom disciplinary
action was contemplated.
Of the two versions I prefer that of the
appellant. The probabilities strongly favour it. It defies
understanding that the
appellant, after having patiently negotiated
the return of its workforce and having laid off its temporary
workers, would for no
discernable reason refuse them entry to the
premises. It is much more likely that the early morning shift
workers, incensed by
what they thought was a breach of faith by
management and inspired by a sense of solidarity with the workers
whose jobs might
be imperilled by disciplinary action, decided to
stay away in protest.
The appellant's reaction was one
of dismay. Relations with the shop stewards were already strained.
At one point, management even
refused to negotiate with them as
representatives of the workers. That attitude, fortunately, did not
persist but it left scars
which were opened up from time to time
thereafter by what the appellant regarded as obstructive conduct by
the shop stewards.
So when there was this latest evidence of what
appeared to be undisciplined behaviour, the appellant at 06:00 on
Monday 15 April
1996 issued one last ultimatum. The appellant's
exasperation with what to it was the workers' aberrant behaviour is
palpable in
the first paragraph:
"Despite your undertaking to
commence normal duties and arrangements made to re-enter the premises
from 06:00 on Saturday 13
April 1996, we note that you have once
again chosen to disregard any agreements reached. This notice serves
as an ultimatum that
you are to re-enter the premises as indicated
on the shift lists (provided to the shop stewards) commencing 06:00
on Tuesday 16
April 1996. If you fail to make yourself available
within the time indicated on the shift list, you will be dismissed
forthwith."
Another, similar, ultimatum was
issued later the same morning. Not one of the employees heeded it.
By six o'clock the morning
of 16 April 1996 another complicating
factor had intervened. The appellant's employees had held a strike
ballot the previous afternoon.
The vote was overwhelmingly in
favour of strike action. The appellant had always doubted the
legality of the strike action not
only because of the questionable
balloting procedure, but because the conciliation board had not yet
reported that deadlock in
the negotiations had been reached.
Anyway, it took the view that the individual respondents and their
co-employees had been dismissed
prior to the commencement of the
strike and that if they wanted to strike after having lost their
jobs, that was their concern.
The employees, on the other
hand,having at first refused to return to work because they thought
that the appellant had breached
the terms of the settlement
concluded on 10 April now remained away because they believed that
they were legitimately out on strike.
The whole thing had turned
into an industrial relations nightmare.
Eventually there was another
meeting on 24 April 1996. Each side restated its own position. No
progress was made towards finding
a solution. On 2 May 1996, the
appellant wrote to "all dismissed members of NUFBWSAW", a
letter reading as follows
-
"Pleased be advised that the
company is holding your previous position (prior to your dismissal
on 16 April 1996) open until
12h00, Friday 10th
May
1996.
If you fail to notify the company of your
willingness to be employed by aforesaid time and date, the company's
offer to employ you
will fall away. The company will then be free to
employ someone else in your previous position.
Kindly note that you will be
required to enter into a contract of employment if you would like to
work for the company. Such contract
must be signed by both parties
before the deadline of
12h00 on Friday, 10th May 1996.
"
Immediately another dispute
developed. The appellant maintained that the letter had been
distributed to workers in the Boitumelong
Township on 3 May 1996.
The union said that the letter was regarded as "advertising
jobs of our members to Boitumelong Community."
The appellant
blamed the shop stewards for "barriers to communication."
Meanwhile the union had referred the letter
to its attorneys. As if
there was all the time in the world, they wrote to the appellant
asking whether it intended to re-employ
rather than reinstate and
saying that the dismissals were unfair in the first place and would
be litigated unless all dismissed
employees were reinstated by 10
May 1996. That, of course, was the return date of the re-employment
offer. The appellant had
already by fax transmission on 7 May
warned the first respondent that the date would not be extended.
It was not. And so while
the union was arguing about this and that,
the next calamity occurred. Its members lost their chance of
getting back their jobs
even if it was not on terms as favourable as
they might have wished.
The appellant only began filling
the vacancies a month later, so that prompt settlement negotiations
might have helped to restore
the workers' jobs. But by the middle
of August when settlement negotiations did resume the dispute had
become very much harder
to resolve, and in the end, despite the good
offices of the member of the executive council for finance and
economic affairs of
North West and litigation in the Industrial
Court, it remains unresolved to this day, nearly two years later.
I do not believe that it can be
maintained that the union, for some sinister reason of its own,
fabricated the excuse of non-compliance
with the settlement of 10
April in order to either keep the employees from returning to work
or to justify their failure to have
returned to work. The
correspondence immediately after the event demonstrates that the
union's concern, even if it was mistaken,
was genuine. The letter
of 14 April 1996 clearly sets this out. I quote the relevant
paragraphs which are 5, 6, 7 and 8:
" 5. You have on the morning
of the 12 April told the Union delegation that met you at the
Department of Labour that, you were
no longer recognised (
sic
)
the agreement we reached with you on the 10th April 1996 and that you
were going to institute disciplinary action against some of
our
members for alleged misconduct on their part during the time of the
lock out.
6. That was in stark contrast
and a serious repudiation of the agreement we reached with you on
the 10 April 1996 and also constituted
a total disregard for
commitments made by you.
7. The delegation immediately
there upon telephoned the writer and the writer telephoned you from
your Klerksdorp plant.
8. The writer indicated to you
that it was against the agreement reached to continue to discipline
those members but you insisted
that you would proceed with the
hearings."
Surics wrote back on 15 April
1996 denying that management had agreed to waive disciplinary action
against offending union members.
This denial was countered by a
detailed response from Mr. Matabane, the first respondent's
secretary general, dated 17 April 1996.
At one point in the letter
he expresses what I think was probably the crux of the difficulty.
He says:
" The writer explained the
union's position clearly and indicated that it was a condition that
if your company decided to press
on with the hearings then we would
not be able to convince the workers to return to work."
These words were written after
the dismissal but for the reason which I have given I do not think
that one has to do here with an
opportunistic justification for what
had happened on the thirteenth. The probable explanation for the
failure of the morning
shift to report for work is that the workers
felt aggrieved. The reason for their grievance could only have
been the proposed
disciplining of the stone-throwers.
The workers were not in law
entitled to withhold their services even if the appellant had acted
in breach of the settlement agreement.
The appellant's obligation
(if there was one) to refrain from disciplining their co-members was
not reciprocal to their obligation
to tender their services. The
remedy was misconceived. The proper procedure would have been to
interdict the disciplinary proceedings,
or better still, to have
allowed them to run their course and then to have challenged their
legality in the Industrial Court.
In that way the jobs of a handful
of people would have been jeopardised instead of more than two
hundred. The respondents acted
very foolishly in sacrificing the
settlement for a purpose which could far more effectively have been
attained in another way.
The respondents were at fault in
several respects. First there was the go-slow. It is always an
insidious form of industrial
action, all the more so in the present
case because the workers' representatives denied that anything of
the kind was occurring.
The appellant thus had no room to
negotiate and in my view acted properly in refusing to honour its
side of the employment contract
towards workers who were
deliberately refusing to honour theirs. Secondly, there was the
violence. Although violence was in
general terms condemned by
spokesmen of the first respondent, the first respondent took up the
cudgels on their behalf in seeking
to ensure their exemption from
disciplinary measures. The workers, also, did not dissociate
themselves from the violence. On
the morning of 13 April they
demonstrated their solidarity with the alleged offenders. This
demonstration of solidarity, and this
is the third point, was itself
a form of impermissible industrial coercion. Fourthly, there was
the strike which was conceded
by
Mr Buirski
for the
respondents to have been illegal. The conciliation board had not
reported that negotiations had reached a deadlock.
Finally, it was
foolhardy of the first respondent and the workers not to have taken
up the offer of re-employment extended to
them on 2 May. The
workers could, if needs be under reservation of their rights, have
litigated about their perceived entitlement
to reinstatement while
at the same time feeding themselves and their families.
However, the appellant was also
at fault. It already knew on 12 April, the day of the conciliation
board meeting, that the first
respondent was incensed about what it
regarded as a breach of the April 10 agreement. The matter was
discussed between Surics
and the union delegation. It knew,
therefore, at the time that it issued the ultimatum of 15 April,
that the workers were not
refusing to return to work for no reason
other than to make mischief. I think that the appellant should at
least have attempted
to clear up the misunderstanding before issuing
another ultimatum.
At the time of the issue of the
last ultimatum the appellant knew that a strike ballot was to be
held. It could, of course, not
have known whether the workers were
going to vote in favour of strike action or not. But by the time
the ultimatum came to be
enforced the morning of 16 April, the
appellant knew that a strike had been called to commence later. If
the workers had returned
to work at 06:00 that morning and left
again at 07:00 to start their strike, it would have been quite clear
that the refusal to
work was now because of strike action and that
it should be dealt with on that footing. The appellant considered
that it had
pre-empted the strike by dismissing the workers before
it commenced. That may be correct in law, but I do not believe that
it
can in the circumstances be said to have been fair. It had no
reason to believe, at the time that it enforced the ultimatum, that
the workers were staying away from work for any reason other than
that they believed that they were out on strike. It should,
from
the commencement of the morning shift on 16 April, have treated the
workers as though they were out on strike. That, in
my opinion,
would have been the fair thing to do.
It follows that the appellant had
committed an unfair labour practice and that the second and further
respondents are entitled to
be reinstated. I have detailed above
why, in my view, the conduct of the workers deserve censure;
fairness does not demand that
they be retrospectively reinstated;
the order of the court
a quo
is, in this respect also,
correct.
The costs of the postponement of
the first hearing of the appeal should be paid by the respondents.
They tendered these costs
in their application for a postponement
in order to lodge a cross-appeal. The inadequacy of the record is
not in the circumstances
a matter which should carry an adverse
costs order.
1. The appeal and cross-appeal are
dismissed with costs.
2. The wasted costs of the
postponement of the appeal on 26 November 1997 are to be paid by the
respondents.
3. Each of the second and further
respondents is to present himself or herself at the premises of the
appellant to advise it of his
or her intention to resume employment
within thirty days of the date of this order.
4. The appellant shall, in respect
of each of the respondents who presents himself or herself as
required in paragraph 3, give effect
to the order of the court
a
quo
within fourteen days of expiry of the said thirty days.
5. This order shall not operate
with regard to any respondent not complying with the terms of
paragraph 3.
...................................
CONRADIE
JA
I
concur: ..................................
MYBURGH JP
I
concur: ..................................
FRONEMAN DJP
Appearances: Mr H.H. Bell of
Edward Nathan and Friedland Inc for the appellant
Mr P. Buirski instructed by Mlambo
and Modise for the respondents
Date of hearing: 20 February 1998
Date of
Judgment: 11 March 1998
Internet
site: (http://www.law.wits.ac.za/labourcrt)