South African Chemical Workers Union and others v Afrox Limited (JA24/98) [1999] ZALAC 8 (23 June 1999)

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[1999] ZALAC 8
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South African Chemical Workers Union and others v Afrox Limited (JA24/98) [1999] ZALAC 8; [1999] 10 BLLR 1005 (LAC); (1999) 20 ILJ 1718 (LAC) (23 June 1999)

IN
THE LABOUR APPEAL COURT OF SOUTH AFRICA
HELD
AT JOHANNESBURG
CASE
NO : JA 24/98
In
the matter between :
SOUTH
AFRICAN CHEMICAL WORKERS UNION
&
OTHERS APPELLANTS
and
AFROX
LIMITED RESPONDENT
JUDGMENT
FRONEMAN
DJP
:
INTRODUCTION
[1] The dismissal of employees
during a strike is an exercise fraught with difficulty. The stakes
are usually high on all sides.
On the one hand not only the work,
but often the very livelihood of individual employees is endangered.
On the other, the continued
viability of a commercial enterprise
may be placed at risk. Both these interests are obviously important
to the well-being of
society. Lawmakers attempt to lay down fixed
rules to create certainty in these situations. Inevitably, however,
the courts end
up pronouncing upon the application of the law to
specific practical circumstances. It is only then that the holy
grail of absolute
certainty of the law is shown up for what it is.
[2] This appeal concerns one
of those practical situations. The Labour Relations Act 66 of 1995
(“the LRA”), a product of the
new democratic order, seeks to
protect striking employees from dismissal if they play the power
game according to its rules. It
also seeks to safeguard the
continued commercial viability of enterprises, even in strike
situations. This clash of interests
lies at the heart of the
dispute in this appeal.
THE FACTS
[3] The respondent (“Afrox”)
dismissed 48 of its drivers (“the dismissed employees”) during a
strike by them in February
1997. The total workforce of the drivers
at Afrox’s Germiston and Pretoria plants was 52. Only the
dismissed employees were
on strike at the time. The four
non-striking drivers were also dismissed at a later stage.
[4] The strike was a protected
one in terms of the provisions of the LRA. It had started on 10
January 1997. A sympathy strike
by other workers at Afrox was also
in operation at the time of the dismissal. It was also protected in
terms of the LRA’s provisions.
[5] The dismissed employees
contend that they were dismissed for their participation in the
strike - something the LRA does not
allow. Afrox denies this. It
says that their dismissal was based on its operational needs -
something the LRA does allow.
[6] The operational need to
change from the way in which the drivers worked in the past was not
in dispute. This need stemmed from
the fact that the drivers had
worked hours in excess of statutory limits and of what was permitted
in terms of safety practices
by Afrox’s parent company. The
manner in which this problem had to be overcome gave rise to
dispute.
[7] By the end of 1995 Afrox
had decided to bring the level of the drivers’ work within
legitimate and acceptable norms. It initiated
consultations with
shop stewards of the appellant (“the union”) and other
representatives of the drivers in April 1996, in
a joint effort at
finding a solution to the problem. Afrox’s solution was a
staggered shift system : a system of rotational
shifts whereby one
shift of drivers would do weekend work as normal time, not overtime.
The employees proposed a continuation
of the system of voluntary
overtime, but that it be implemented more effectively so that
overtime limits were not exceeded.
[8] A number of meetings were
held in April and May 1996, but no solution was forthcoming.
Following upon industrial unrest, a
relationship building exercise
involving outside facilitators was held during August. An
undertaking was obtained from Afrox that
the employee proposal would
be given a month’s trial in September.
[9] The progress of the trial
was supposed to be monitored at weekly meetings. One such meeting
was held on 6 September during
which problems were discussed. There
was no discussion about the discontinuance of the trial. On 11
September, three days before
the next monitoring meeting, Afrox
convened an unscheduled meeting with shop stewards and other worker
representatives. At the
meeting Afrox recorded that the trial had
failed and gave notice of its intention to introduce a staggered
shift system. Final
notice to this effect was given on 26
September.
[10] The drivers refused to
work the staggered shift system when it was sought to be implemented
on 30 September. The union declared
a dispute, but after
negotiations agreed that, with effect from 2 October, its members
would work in terms of a staggered shift
system pending the
resolution of the dispute. This system entailed that those members
of the union who were contractually bound
to do so would work
staggered shifts whilst those who were not contractually so bound
would continue with their normal shifts.
[11] Afrox was content with
this system, as it appeared to deal satisfactorily with the excess
overtime problem. The dismissed
employees were not : they
considered it an unfair labour practice to impose two different sets
of conditions of employment for
people doing the same work. At a
meeting held on 16 October they gave expression to their views,
indicating that no drivers were
prepared to work staggered shifts.
It was at this meeting that the possibility of retrenchment was
raised for the first time.
On 28 October the union declared a
dispute and applied for the establishment of a conciliation board to
consider the dispute concerning
the failure to reach a settlement on
the implementation of a staggered shifts. The attempt at
conciliation failed and the strike
commenced on 10 January 1997,
after due compliance with the statutory requirements for a protected
strike in terms of the LRA.
Afrox made alternative arrangements for
the driving work which, after initial difficulty, worked reasonably
satisfactorily.
[12] From 20 January to 22
January the parties participated in a mediation process, but the
mediator could not resolve the dispute.
On 24 January Afrox invited
the union to commence consultations on the operational requirements
of the company, also giving notice
that non-compliance with its
demands to work staggered shifts would lead to dismissal. The first
meeting was proposed for 27 January,
but due mainly to difficulties
presented by the union the first meeting was only held on 12
February. By that time Afrox had already,
on 31 January, given
notice of a proposal that the work of the drivers be contracted out
to independent operators. It had also
given notice that
retrenchment would follow upon the collapse of the consultative
process.
[13] At the meeting of 12
February Afrox indicated at the outset that in order to run its
business efficiently and safely it now
had to consider contracting
out the bulk driving. It invited the union and shop stewards to
make proposals before it embarked
on that process. The union made a
number of proposals, the effect of which was that the employees
would not work staggered shifts,
but would return to the old
overtime system. This was not acceptable to Afrox : it insisted on
consultations about contracting
out. No agreement could be reached
on this aspect either. The meeting was adjourned after a union
official suggested that the
parties should declare a dispute about
the failure to agree on contracting out; a suggestion rejected by
Afrox.
[14] On 13 February the union
went ahead and declared a dispute about a failure to reach agreement
on the contracting out issue.
On the same day other workers at
Afrox went on strike in sympathy with the strike by the dismissed
employees.
[15] Afrox responded to these
events by informing the union on 14 February that it had confirmed
its decision to proceed with contracting
out. This meant that the
work of all drivers would be performed by an external contractor.
The result would be the retrenchment
of all drivers, which would
take effect on the date of the letter of retrenchment. Afrox also
launched urgent proceedings to
interdict the participation in the
strike by other employees, but failed in its attempt to do so. The
actual contracting out of
the driving work only occurred later, in
April and May.
[16] The individual employees
were finally dismissed on 17 February. A second application to
interdict the continuing strike by
other employees followed, this
time successful. The reason for its success lay in the dismissal of
the dismissed employees : there
was no dispute left for the other
employees to strike about.
[17] The union and individual
employees sought redress for their alleged unfair dismissal in the
Labour Court, before Landman, J.
They failed : hence, finally, this
appeal.
THE LAW
[18] The LRA requires that its
provisions be interpreted to give effect to the statute’s primary
objects, and in conformity with
the Constitution and South Africa’s
public international law obligations (
section 3
). One of its
primary objects is to give effect to and regulate the fundamental
labour rights in the Constitution (
section 1 (a)
). This
Court has often emphasised the importance of interpreting and
applying the provisions of the LRA in proper constitutional
context
(
Chemical Workers Industrial Union v Plascon Decorative (Inland)
(Pty) Ltd
[1998] 12 BLLR 1191
(LAC); (1999) 20 ILJ 321 (LAC)
para [18];
Johnson & Johnson (Pty) Ltd v Chemical Workers
Industrial Union
[1998] 12 BLLR 1209
(LAC); (1999) 20 ILJ 89
(LAC) para [22] and the cases cited there). The Constitution and
the provisions of the LRA are thus the
starting points for any
analysis of the law relating to the dismissal of employees during a
strike.
[19] That is not to say the
history of our law relating to the dismissal of striking employees
is entirely irrelevant. A brief
look at the evolution of that law
and a comparison with the present position is instructive in a
number of ways.
[20] The common law did not
recognise an employee’s right to strike. Strike action
constituted a fundamental breach of contract
which entitled an
employer to dismiss employees who participated in the strike
(compare
R v Smit
1955 (1) SA 239
(C) at 244 A). The right
to dismiss striking employees moved away from its contractual
origins to one rooted in collective bargaining
in terms of the
previous Labour Relations Act’s (Act 28 of 1956) unfair labour
practice jurisdiction (
National Union of Metalworkers of SA v
Vetsak Co-operative Ltd
[1996] ZASCA 69
;
1996 (4) SA 577
(A); (1996) 17 ILJ 455
(A);
National Union of Mineworkers v Black Mountain Mineral
Development Co (Pty) Ltd
1997 (4) SA 51
(A); (1997) 18 ILJ 439
(HC)). There remained nevertheless, a reluctance to accept that
this was a development of law in the strict
sense, as is evidenced
by the refrain that determining the fairness or otherwise of a
dismissal involved a “moral or value judgement”
and not the
application of law (
Vetsak’s
case, above at 592 B - I; and
also, more recently,
National Union of Metalworkers of SA v GM
Vincent Metal Sections (Pty) Ltd
, unreported case no 116\96
(SCA), para [18]).
[21] In contrast, the
fundamental labour rights set out in the Constitution include a
right to strike (
section 23 (2) (c)
), but no explicit right
to dismiss striking workers. The Constitution, however, also
enshrines a right to fair labour practices
(
section 23 (1)
).
These rights are given expression and regulated in the LRA. The
right to strike is subjected to a number of significant limitations
in the LRA (compare
CWIU v Plascon Decorative (Inland) (Pty) Ltd
above, para [21]), whilst an employer’s fundamental right to fair
labour practices is recognised in the employer’s right to
dismiss
an employee for a fair reason based on operational requirements and
in accordance with a fair procedure (
sections 67(5),
188(1)(a)(ii) and (b), and 189 of the LRA; Johnson and Johnson v
CWIU
above, para [23]).
[22] The difference between
the old and new, and the evolution of our law even under the old
order, serve to illustrate a number
of important truths. Amongst
these is that the changing content of the law relating to,
specifically, the dismissal of striking
employees, was very often
influenced by the prevailing views of not only the social, economic
and political realities of the day,
but also of the nature of the
law itself. But the new constitutional dispensation changes much of
that. Social, economic and political
relations in a democratic state
founded on the values set out in section 1 of the Constitution
cannot be the same as under an undemocratic
and racially exclusive
order, as the old order was. Fairness has become the hallmark, or
essence, of labour law and practice,
not only a moral adjunct
thereto. So-called ‘moral’ values have become
constitutionalized rights.
[23] This means that the
uncritical adoption of previous statements of the law relating to
the dismissal of strikers under the previous
Labour Relations Act
must
be avoided. But it also means that judges must guard against
casting their own subjective views on the nature of the law and
socio-economic
or political realities in the misleading mould of
value-free, objective ‘law’. The best one can aspire to in
interpreting
and applying the law is to attempt to neutralise the
effect of one’s own subjective preconceptions by being aware of
them.
[24] It is now necessary to
return to specifics.
Section 5
(1)
of the LRA prohibits
discrimination against an employee for exercising any right
conferred by the LRA.
Section 67
(4)
states that an employer
may not dismiss an employee for participating in a protected strike
or for any conduct in contemplation
or in furtherance of a protected
strike.
Section 187
(1) (a)
makes a dismissal contrary to
section 5
, or for participating in or supporting a protected strike
(or an intention to do so), automatically unfair.
[25] Balanced against these
provisions is
section 67
(5)
, which provides that
section
67
(4)
does not preclude a fair dismissal for reasons related to
an employee’s conduct during a protected strike, or for reasons
based
on the employer’s operational requirements. ‘Operational
requirements’ are defined in
section 213
as those
requirements ‘based on the economic, technological, structural or
similar needs of an employer’.
Section 192
(2)
provides
that once the existence of a dismissal is established (by the
employee -
section 192
(1)
), an employer must prove the
fairness of the dismissal. This would include proving, in the case
of an alleged automatically unfair
dismissal under
section 187
(1)
, that the dismissal was not contrary to
section 5
, nor for
any of the reasons set out in
section 187
(1) (a) - (f).
[26] It is not immediately
apparent why it was necessary in
section 67
(5)
to provide
explicitly that
section 67
(4)
did not preclude a dismissal
based upon operational requirements. Notionally such a dismissal
would in any event not have been
precluded by
section 67
(4),
because the definition of operational requirements in
section 213
does not restrict those requirements to those
not
flowing from (or
only
flowing from) a strike or its
consequences. (The other qualification in
section 67
(5)
,
however, relating to conduct during a strike (protected or not), is
in the nature of a true exception or proviso to
section 67
(4)
).
[27] The purpose of the
‘operational requirements dismissal’ qualification in
section 67
(5) seems to be to counter any possible argument to the effect that
the strike protections in the LRA must be extensively interpreted
as
protecting an employee from dismissal for operational needs
if
those needs were caused by the strike or the consequences of the
strike
. This was a submission initially advanced in the written
heads of argument by Mr Brassey who, together with Mr van der Riet,
appeared
for the union and the dismissed employees on appeal. In
his oral argument Mr Brassey retreated somewhat from the original
submission,
qualifying it in some important respects.
[28] The argument that a
dismissal based on operational requirements flowing from a protected
strike or its consequences should
itself be proscribed is
superficially attractive. It fits in with an approach that
constitutional rights, given without express
limitation in the
Constitution, ‘should not be cut down by reading implicit
limitations into them’ (per Kentridge AJ in
S v Zuma &
others
1995 (2) SA 462
(CC), para [15], quoted by Cameron JA in
CWIU v Plascon Decorative (Inland) (Pty) Ltd
above, para
[20]). In addition it may be argued that normal contractual
remedies have, in general, been abolished in relation to
protected
strikes (including dismissals and the continuing obligation to pay
non-dismissed strikers during a strike -
section 67 (3))
and
that the outcome of a protected strike should be left entirely to a
power play between the opposing parties. To allow dismissals,
even
for operational requirements, in these circumstances would undermine
the power play when it becomes most effective in the
hands of the
striking employees (compare Du Toit & Others,
The
Labour
Relations Act of 1995
, 2
nd
ed, at 418).
[29] Mr Gauntlett, who
appeared with Mr Franklin for Afrox, suggested that there was both a
textual and a substantive answer to
this argument.
Section 67(5)
provides for an explicit limitation on the protection of striking
employees. The limitation itself is not textually limited by
either the language of
section 67
(4)
or the definition of
‘operational requirements’ in
section 213
. The
substantive answer, he submitted, lay in the functional limits of
the right to strike, a factor alluded to by Landman, J
in the court
below, where he spoke of the dependence of the right to work ‘on
the existence in economic terms of the enterprise’.
A right to
strike is predicated on the very existence of an enterprise
providing employment for the employees who wish to exercise
that
right. The employer’s right to fair labour practices in the form
of a right to a fair dismissal based on operational requirements
(
section 188
(1)
;
Johnson & Johnson v CWIU
, above,
para [23]) must come into play when the exercise of the right to
strike threatens the continued operation of the employer’s
enterprise.
[30] In my view these
submissions are sound. The conclusion is thus that operational
requirements, even those caused by the protected
strike or its
consequences, may justify a dismissal, for operational reasons, of
employees participating in or conducting, a protected
strike,
provided that the requirements of the LRA in this regard are met.
[31] The first enquiry in such
a case would be to determine the
reason
for the
dismissal of the striking employees. If that reason is for
participation or support (or intended participation or support)
of a
protected strike, and not for operational requirements, the
dismissal will be automatically unfair (
section 187
(1) (a)
).
[32] The enquiry into the
reason for the dismissal is an objective one, where the employer’s
motive for the dismissal will merely
be one of a number of factors
to be considered. This issue (the reason for the dismissal) is
essentially one of causation and
I can see no reason why the usual
twofold approach to causation, applied in other fields of law,
should not also be utilised here
(Compare
S v Mokgethi and others
1990 (1) SA 32
(A) at 39D - 41A;
Minister of Police v Skosana
1977 (1) SA 31
(A) at 34). The first step is to determine
factual
causation : was participation or support, or intended participation
or support, of the protected strike a
sine qua non
(or
prerequisite) for the dismissal? Put another way, would the
dismissal have occurred if there was no participation or support
of
the strike? If the answer is yes, then the dismissal was not
automatically unfair. If the answer is no, that does not
immediately
render the dismissal automatically unfair; the next
issue is one of
legal
causation, namely whether such
participation or conduct was the ‘main’ or ‘dominant’, or
‘proximate’, or ‘most likely’
cause of the dismissal. There
are no hard and fast rules to determine the question of legal
causation (compare
S v Mokgethi
, above, at 40). I would
respectfully venture to suggest that the most practical way of
approaching the issue would be to determine
what the most probable
inference is that may be drawn from the established facts as a cause
of the dismissal, in much the same
way as the most probable or
plausible inference is drawn from circumstantial evidence in civil
cases. It is important to remember
that at this stage the fairness
of the dismissal is not yet an issue (see para [33] below). Only if
this test of legal causation
also shows that the most probable cause
for the dismissal was only participation or support of the protected
strike, can it be
said that the dismissal was automatically unfair
in terms of
section 187
(1) (a)
. If that probable inference
cannot be drawn at this stage, the enquiry proceeds a step further.
[33]
Section 188
(1)
provides that a dismissal that is not
automatically
unfair, is unfair if the employer fails to prove that the reason for
the dismissal is a
fair
reason based on (amongst
others) the employer’s operational requirements and that the
dismissal was effected in accordance with
a fair procedure (
section
188
(1) (a) (ii) and (b)
). It is only at this stage that
fairness of the dismissal comes into the picture.
[34] As has already been seen,
section 213
defines ‘operational requirements’ as those
based on economic, technological, structural or similar needs of an
employer.
[35]
Section 189
sets
out the requirements for a fair procedure for dismissals based on
operational requirements. The requirements are aimed at
a joint
consensus seeking approach and compliance with the formal
requirements of the section depends on the achievement of this
purpose (
Johnson & Johnson v CWIU
, above, paras [26] to
[30]).
[36] It is implicit in the
terms of
section 189
(2) that an employer, apart from taking part in
the formal consultations on the aspects set out in the section,
should also take
substantive steps on his or her own initiative to
take
appropriate
measures to avoid the dismissals; to
minimise the number of dismissals; to change the timing of the
dismissals; to mitigate the
adverse effects of the dismissals; to
select a fair and objective method for the dismissals (see also
section 189
(7)
) and to provide appropriate severance pay for
dismissed employees (see also
section 196
). What is
appropriate will depend on the facts of each case, and on the
evidence presented about the steps taken, if the matter
proceeds to
court (compare
para [43]
below).
[37] The onus is on the
employer to prove all the requirements for a fair dismissal set out
in paras [31] - [36] above (
sections 192
(2) and
188
(1)
).
The standard of proof is that of a balance or preponderance of
probabilities, as in ordinary civil cases.
[38] It follows that it can no
longer be said that the court’s function in scrutinising the
consultation process in dismissals
for operational requirements is
merely to determine the good faith of the employer (compare
SACTWU
and Others v Discreto (a division of Trump & Springbok Holdings)
[1998] 12 BLLR 228
(LAC), para [8]; (1998) 19 ILJ 1451 (LAC)). The
matter is now one of proof by the employer, on a balance of
probabilities of :-
- the cause or reason for the
dismissal (
paras [31] and [32]
above);
- the defined ‘operational
requirements’ that the dismissal was based on (
para [34]
above);
- a fair procedure in
accordance with
section 189
(
para [35]
above);
- the facts upon which a
finding of a substantively fair reason for the dismissal can be made
(
para [36]
above).
[39] Except for proving that
the reason for dismissal is not an employee’s actual or intended
participation in, or support of,
a protected strike, proof of the
further requirements for a fair dismissal based on operational
requirements in cases involving
the dismissal of striking employees
is notionally no different from dismissals where there is no strike
in operation. There are,
nevertheless, important considerations in
protected strike dismissal cases which warrant special scrutiny in
the assessment of
the fairness of these dismissals.
[40] Mr Gauntlett urged us not
to lapse back into the test of functional necessity (or dismissal as
a last resort) for determining
the fairness of the dismissal, as
expounded in cases like
BAWU v Prestige Hotels CC t/a Blue Waters
Hotel
(1993) 14 ILJ 963 (LAC) 973 A -C and
Cobra Watertech v
NUMSA
(1995) 16 ILJ 582 (LAC) 616F, but rather to adopt the
approach set out in the
Vetsak
and
Black Mountain
cases, referred to above
(para [20]
). For the reasons set
out in
paras [19] - [23]
above, I think it is better to adopt
neither approach, but to seek a solution from the provisions of the
LRA and its impact on
the collective bargaining process itself.
[41] The general approach of
the LRA is to immunise employees participating in a protected strike
from normal delictual and contractual
consequences (
section 67
(2)
). In return an employer is not obliged to remunerate
employees during a protected strike (
section 67
(3)
) and it
may employ replacement labour during a protected strike, except for
designated maintenance services and during offensive
lock-outs
(
section 76
). The outcome, or resolution, of a strike is
thus normally left to the respective positions of power of the
opposing parties.
Dismissal only becomes a weapon in exceptional
circumstances, when operational requirements dictate its use
(
section 67
(5)
). Even in non-strike dismissals based on
operational requirements an employer must seek appropriate measures
to avoid dismissals,
minimise their number, change their timing and
mitigate their adverse effects (
section 189
(2) (a)
). These
are all indications that dismissal should at least not be the first
resort, even though the LRA does not expressly state
that dismissal
should only be used as a last resort when dismissing for operational
reasons.
[42] What this suggests is
that, in protected strike dismissals based on operational needs, an
employer needs to prove that, in
addition to other options
considered to avoid the dismissals, it also paid proper attention to
the possibility of allowing the
outcome of the protected strike to
be dictated by the normal power play involved in those situations.
It must also be kept in
mind that in such situations employees may
have the subjective belief that they are protected from dismissal
because the strike
complies with the formal requirements laid down
in the LRA. Their possibly defiant rhetoric during the strike must
therefore be
assessed with this in mind; a particular instance of
what Mr Brassey called the ‘cathartic’ or ‘therapeutic’
function of
strikes.
[43] This does not necessarily
mean that dismissal will only be fair if used as a means of last
resort. By making fairness of the
dismissal a matter of proof
(
sections 188
(1) (a)
and
192
(2)
), the LRA has made
the assessment of fairness dependent on the factors proved and
canvassed in evidence in court. This imposes
a discipline upon the
parties to the dispute and the person hearing the case. If an
employer wishes to show that it considered
appropriate options other
than dismissal it must present evidence to that effect and explain
why it chose a particular course and
not another. If an employee
wishes to challenge that evidence it must do so by proper
cross-examination on the relevant issues
and, if considered
necessary, by leading rebutting evidence. If this shows up the
untenability of the employer’s position, it
will have a material
effect in the final assessment of fairness. The presiding officer’s
assessment of the fairness or otherwise
of the dismissal will also
be dependent on the evidence presented before him or her. An
assessment on ‘moral’ considerations
not based on the evidence
led at the trial will be impermissible. (All this is not new. It
happens every day in all courts, in
relation to all sorts of
different kind of issues. It is the very stuff of litigation and
adjudication.)
[44] The requirements that
must be proved to show substantive fairness are those set out on
section 189
(2)
, read with
sections 189
(7) and
196
(
para [36]
above). The employer bears the onus of proving
substantive fairness and the other requirements set out above (in
para [37]
), and must do so on a balance or preponderance of
probabilities (the civil standard of proof). If a presiding officer
is unable
to conclude, on the basis of the evidence presented to her
or him, that a dismissal was fair, it follows (because of the
incidence
of the
onus
) that the employer will fail in its
defence to a claim by an employee for unfair dismissal.
APPLICATION OF THE LAW TO
THE FACTS
The reason or cause for the
dismissals (compare paras [31] and [32] above
)
[45] The origin for the need
to change Afrox’s old driving system of overtime lay in the fact
that this system contravened statutory
limits on working hours and
company policy on safety. This was not disputed, nor was it
disputed that the need to change predated
the strike embarked upon
in January 1997.
[46] To determine whether the
employees’ participation or conduct in the protected strikes was
the reason for their dismissal,
and thus made the dismissal
automatically unfair, one first has to ascertain whether such
participation or conduct was a
factual
cause for the
decision to dismiss. To do this one must ask whether the dismissal
would have taken place had there been no participation
in the strike
(or had there been no strike). In my view the answer to this must
be no. On the available evidence Afrox was quite
happy with the
modified staggered shift system which was in operation from the
beginning of October 1996 until the strike started
in January 1997.
It does not seem probable that Afrox would have implemented a
contracting out system when it was happy with the
results of the
modified staggered
shift system. What must also,
however, be kept in mind is that no dismissals would have occurred
had there been no need to modify
the old overtime system. This need
was the original factual cause of all that followed.
[47] Once it is accepted that
participation in the strike was also a
factual
cause
for the dismissal of the employees, the next question is whether
participation in the strike was, as a matter of probable
inference
from the facts, the only real or proximate cause of the dismissal
(in other words, whether such participation was the
legal
cause of the dismissals). I do not think that the question must
necessarily be answered positively. The need to change the old
system predated the strike. The possibility of retrenchment was
first mentioned in October 1996, before the strike; consultations
about the implementation of the contracting out took place during
the strike; and the union was warned that dismissal would follow
on
the lapse of these consultations. Although it is probably true to
say that the continued participation in the strike contributed
to,
or accelerated the decision to dismiss, it seems to me that it
cannot be said to be the main, or proximate, or dominant cause
for
the dismissal. The need to get the business going again on a
permanent and more stable basis was as pressing a consideration,
if
not more so. Whether the
timing
of the dismissals was
appropriate belongs more properly to the enquiry whether the
dismissals were fair.
[48] It follows that Afrox
discharged the onus of proving that the reason for the dismissals
was not for the employees’ participation
in the strike.
‘
Operational
requirements” -
section 213
(compare para [34] above
).
[49] It is not disputed that
the change to the old system was necessary by reason of the needs
mentioned in
section 213
.
Fair procedure in
accordance with
section 189
(compare para [35] above
).
[50] Afrox started the
consultation process to change the old system in April 1996. It
restarted the process again during the strike
when the need to
contract out the bulk driving became more acute. Its proposals
prior to consultation dealt with the issues required
by
section
189
of the LRA. Landman J’s finding that it complied with
fair procedural requirements was not seriously challenged on appeal.
Substantive fairness -
section 189
(2), read with
sections 189
(7) and
196
(compare paras
[36] and [38] - [43] above
).
[51] The submissions relating
to the unfairness of the dismissals for operational reasons rested,
broadly speaking, on two foundations,
namely that (1) the timing of
the dismissals was premature, and (2), that there was an equally
effective, but less harmful way
in which Afrox could have ensured
that the work was done - by implementing the staggered shift system
unilaterally.
[52] The premature dismissal
argument relied, essentially, on three factors. These were (1) that
at the time of the dismissal the
implementation of the contracting
out system was not yet in place; (2) that the dismissal of the
non-striking drivers only took
place at a later stage; and (3) that
the dismissal of the striking drivers was necessary to end the
sympathy strike by other employees.
[53] I must confess that
because of these factors I had serious doubts about the fairness of
the timing of the dismissals. Two
considerations have convinced me
that these doubts are insufficient reasons for interference on
appeal. The first is that Afrox
made it clear, prior to entering
into renewed consultations about contracting out during the strike
and before the strike by other
employees commenced, that dismissal
would follow immediately upon the collapse of the consultation
process. It was the union,
not Afrox, that brought that
consultation process to an end by declaring a dispute. The union
did this whilst being fully aware
of the consequences of such a
step. This had nothing to do with defiant rhetoric on the issue
which led to the strike, namely
the refusal to work staggered
shifts. The second arises from the nature of an appeal itself.
Landman, J, in the trial court,
accepted the credibility of the
witnesses called on behalf of Affrox, particularly that of the
witness Campher. This witness had
given explanations in answer to
questions directed to him on these issues. No reasons were advanced
on appeal why Landman J’s
credibility findings in this regard
should be upset or interfered with on appeal. In their absence any
interference on appeal
is unwarranted.
[54] The second leg of the
argument on fairness - that Afrox could, instead of dismissal,
unilaterally have implemented a staggered
shift system - was not one
squarely, or even obliquely, raised in cross-examination of Afrox’s
witnesses, or by the leading of
evidence on behalf of the union and
the dismissed employees. The closest mention to managerial
prerogatives in this regard was
in relation to implementation of the
modified staggered shift system in October 1996, but the witnesses
were not taxed on this
option in relation to alternatives available
in January or February 1997 when the strike was in operation. There
is thus no foundation
in the evidence on record to justify a finding
of unfairness in the dismissal of the employees on this ground.
CONCLUSION
[55] On the facts established
by the evidence on record Afrox discharged the onus of showing that
it dismissed the dismissed employees
for a fair reason based on its
operational requirements, and not for the reason that they
participated in, or supported, the protected
strike then in
operation.
CONDONATION
[56] Both parties applied for
condonation of defects in their respective procedures. The
explanations offered were not entirely
convincing, but not so
deficient in nature to justify refusal of condonation. As a mark of
disapproval no costs orders are made
in relation to these
condonation applications.
ORDER
[57] In the result, the appeal
is dismissed with costs, such costs to include the costs of two
counsel.
_________________
J
C FRONEMAN
Deputy
Judge President
I
agree.
_________________
S
NGCOBO
Acting
Judge President
I
agree.
_________________
F
KROON
Judge
of Appeal
Date of hearing : 30 March
1999
Date
of judgment :
Appellant’s representative
: M S M Brassey SC & J G van der Riet
Instructed by : Routledge
- Modise Attornets
Respondent’s representative
: J J Gauntlett SC & A E Franklin
Instructed by :
Webber Wentzel Bowens Attorneys