Crown Footwear (Pty) Ltd v National Union of Leatherworkers and Others (DA7/2000) [2000] ZALAC 9 (1 January 2000)

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[2000] ZALAC 9
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Crown Footwear (Pty) Ltd v National Union of Leatherworkers and Others (DA7/2000) [2000] ZALAC 9; (2001) 22 ILJ 1109 (LAC) (1 January 2000)

IN THE
LABOUR APPEAL COURT OF SOUTH AFRICA
HELD
AT DURBAN
CASE NO: DA 7/2000
In
the matter between:
CROWN
FOOTWEAR (PTY) LTD
Appellant
and
NATIONAL
UNION OF LEATHER WORKERS
First
Respondent
SECOND
TO 25
TH
RESPONDENTS
Further
Respondents
___________________________________________________________________________
JUDGMENT
__________________________________________________________________________
MOGOENG
JA
INTRODUCTION
[1] This
is an appeal against a judgment of the Labour Court in a dispute
between the Appellant and the Respondents about the fairness
or
otherwise of the dismissal of the 2
nd
and Further Respondents (“the individual Respondents”). The
Labour Court found the dismissal to be unfair and ordered
reinstatement
with a final warning. This appeal is directed against
the order of reinstatement with a warning.
BACKGROUND
[2] The
individual Respondents are members of the National Union of Leather
Workers (“the union”). They were employed by the
Appellant as
charge hands or supervisors. On 06 July 1998 members of the union
employed by various employers countrywide commenced
a protected
national strike in support of a demand for an increase in wages and
the improvement of the terms and conditions of service.
Members of
the union employed by the Appellant, including the individual
Respondents, participated in the strike. At the time when
the strike
ballot was conducted and when the strike began, the union demanded a
12% wage increase across the board. The employers’
organisation,
of which the Appellant was a member, had made an offer of a 7.5% wage
increase across the board.
[3] On
the morning of the commencement of the strike, the Appellant’s
production manager, Mr Ashworth, enquired from the individual
Respondents why they were participating in the strike. He had to ask
them, he said, because as supervisors they formed part of management
and they were not supposed to go on strike. He was also of the
opinion that the strike was ‘illegal’. The individual
Respondents
then informed him that they would be willing to return to
work if the Appellant granted them a wage increase of 10% across the
board.
[4] Pursuant
to this discussion, the Appellant issued an ultimatum to the
individual Respondents to resume their duties on 07 July
1998 failing
which they could be dismissed. The Appellant also reported the
matter to the union which expressed the view that the
individual
Respondents should return to work forthwith and that their strike was
illegal.
[5] On
08 July 1998 a meeting was held to discuss the individual
Respondents’ continued participation in the strike action. It
was
attended by the individual Respondents, their union representative,
some members of the Appellant’s management, including Mr
Ashworth,
the Appellant’s labour consultant and the Appellant’s attorney.
At the meeting Mr Ashworth again stated that the strike
was
unprotected on the basis that the individual Respondents were on
strike for a 10% wage increase which was a different demand
from that
of the union. He again asked them to return to work but indicated
that even if they did return to work the Appellant reserved
the right
to take disciplinary action against them. The individual Respondents
refused to go back to work and remained on strike
until it ended on
13 July 1998.
[6] A
disciplinary enquiry was held. The charge preferred against the
individual Respondents was that they had participated in an
unprotected strike. That charge was based solely on their demand for
a 10% wage increase. They were found guilty and a sanction
of
dismissal was imposed on all of them. They lodged an appeal but the
decision of the disciplinary hearing was confirmed.
[7] The
individual Respondents then instituted an unfair dismissal claim in
the Labour Court to challenge both the finding that they
had
participated in an unprotected strike and the sanction of dismissal.
The finding of guilt, of participating in an unprotected
strike, was
upheld whereas the sanction was reduced from dismissal to a final
written warning. The Appellant now appeals only against
the sanction
imposed by the Labour Court.
Should
the supervisors have been dismissed?
[8] The
Court
a
quo
found that the dismissal of the individual Respondents was unfair and
reinstated them. The sanction of dismissal was changed to
a final
warning. There are two reasons advanced in support of the reduction
of sanction and I deal with them below.
The
confusion
[9] The
Court
a
quo
found that the individual Respondents were confused and that it was
as a result of that confusion that they demanded a 10% wage increase.
What led to the confusion was, according to the Court
a
quo
,
Mr Ashworth’s statement that their withdrawal of labour was
unprotected because as managers they were outside the bargaining
unit. Had he not done this, so says the Court
a
quo
,
the individual Respondents would not have made a separate demand from
that of the union.
[10] I
find it difficult to understand this statement. The individual
Respondents knew why they took part in the strike action.
They
participated in the balloting process, the ballot papers spelt out
what the envisaged strike would be all about, and they knew
that the
majority of employees voted in favour of the strike. All they needed
to tell Mr Ashworth was that their union was
demanding a 12%
wage increase across the board and that the strike was protected. I
cannot understand how an allegation that their
strike was unprotected
could confuse them to the point where they had to make a demand for a
10% wage increase. The individual Respondents
failed to explain how
a simple allegation that the strike was unprotected could confuse
them.
[11] In
any event, according to the individual Respondents they called a
union official as soon as Mr Ashworth alleged that their
strike
was unprotected. That official assured them that their strike was
protected. To the extent that they may have been confused,
their
confusion must have been cleared up by that assurance from one of
their own. If they had not yet made the 10% demand, then
it could
not have been made as the result of the confusion. If the demand had
already been made, then it was not made as a result
of Mr Ashworth
alleging that the strike was unprotected.
[12] Counsel
for the Respondents submitted that the confusion was caused by the
ultimatum. This cannot be correct. The ultimatum
was issued long
after the 10% demand was made. It cannot therefore be the excuse for
the demand which preceded it.
[13] I am
satisfied that the finding of the Court
a
quo
that the demand for a 10% wage increase was the result of the
confusion caused by the Appellant is wrong. Accordingly, the
decision
of the Court
a
quo
cannot be justified on the basis of the alleged confusion.
The
ultimatum
[14] The
ultimatum issued by the Appellant was also relied on by the Court
a
quo
as the basis for reducing the sanction. According to the Court
a
quo
,
the Appellant should not have issued the ultimatum that required of
the individual Respondents to return to work while reserving
the
Appellant’s right to take disciplinary action against them. The
Court found that this amounted to approbating and reprobating.
For
this the Court
a
quo
relied on
ADMINISTRATOR,
ORANGE FREE STATE AND OTHERS v MOKOPANELE AND ANOTHER
[1990] ZASCA 69
;
1990 (3) SA 780
(A) (“Mokopanele”).
[15] The
Mokopanele
case is distinguishable from this case. In the
Mokopanele
case, the employer issued an ultimatum to striking employees the
effect of which was that if they returned to work on the stipulated
date, the employer would waive its right of dismissal. The employees
returned to work on that date but they were nonetheless dismissed.

It was for that reason that the Appellate Division found that on the
doctrine of election, the employer had approbated and reprobated
which it could not do. In this case, the employer never gave any
intimation that the individual Respondents would not be dismissed
if
they returned to work immediately. It specifically reserved its
right to take disciplinary action against them, with the possibility
of a dismissal. In any event, unlike in the
Mokopanele
case, the individual Respondents did not comply with the ultimatum.
I therefore find that this basis for reducing the sanction is
also
wrong.
[16] The
fact that all the grounds for the reduction of the sanction of
dismissal, relied on by the Court
a
quo
,
have been rejected does not necessarily mean that this Court must
reinstate that sanction. I will now consider the appropriateness
of
dismissal as a sanction with reference to other relevant factors.
Other
considerations relevant to sanction
[17] In
considering whether or not the dismissal of the individual
Respondents is fair I must take into account the relevant provisions
of the code of good practice (“the code”). (s 188 of the
Labour Relations Act No. 66 of 1995 (“the LRA”)). Item 6(1)
of
the code deals with dismissals for participating in an industrial
action in the following terms:
“
(i) Participation
in a strike that does not comply with the provisions of chapter IV is
misconduct. However, like any other act of
misconduct, it does not
always deserve dismissal. The substantive fairness of dismissal in
these circumstances must be determined
in the light of the facts of
the case, including-
(a) the
seriousness of the contravention of this Act;
(b) attempts
made to comply with this Act; and
(c) whether
or not the strike was in response to unjustified conduct by the
employer.”
I will now
consider the circumstances relating to the strike which are relevant
to the sanction.
[18] It is
not disputed that the individual Respondents were members of the
union, that they participated in the balloting process
and even voted
in favour of the industrial action. These are the steps they took to
comply with the LRA. It is also common cause
that the strike which
followed this process was protected. However, the individual
Respondents did not fall within the bargaining
unit and the Appellant
partly relied on this point, from the outset, for suggesting that the
individual Respondents were participating
in an unprotected strike.
This issue is settled as appears in
CWIU
v PLASCON DECORATIVE (INLAND) (PTY) LTD
(1998) 12 BLLR 1191
(LAC) at 1199 at paragraph (29):
“
[29] The
issue in the present case is whether non-bargaining unit employees,
whose conditions of service the strike demand did not
directly
affect, could embark on an otherwise protected strike. That
parallels the question Zondo AJ dealt with in Afrox Ltd v SA
Chemical
Workers Union and others (1) (supra), where workers employed by the
same employer at different plants embarked on strike
action. Zondo
AJ concluded (at 403I) that ‘once a dispute exists between an
employer and a union and the statutory requirements
laid down in the
Act to make a strike a protected strike have been complied with, the
union acquires the right to call all its members
who are employed by
that employer out on strike and its members so employed acquire the
right to strike’. It follows that in my
view this conclusion was
correct.”
Clearly,
the fact that the individual Respondents were non-bargaining unit
members cannot on its own render the strike unprotected
in so far as
they participated in it whereas it remains protected for the
participating employees who fall within the bargaining
unit.
[19] In
considering the question of whether dismissal was an appropriate
sanction, certain factors of this case need to be taken into
account.
The one is the factor that drove the Court
a
quo
to the conclusion that the second and further Respondents’
participation in the strike was illegal. That is that the second and
further Respondents had made a demand that the Appellant pay them a
10% increase before they return to work. This occurred in
circumstances
where the rest of the strikers were demanding a 12%
increase. On the reasoning of the Court
a
quo
,
this turned what was a legal participation by the second and further
Respondents in the strike into an illegal participation. I
refrain
from expressing a view on the correctness or otherwise of this
conclusion by the Court
a quo
because there was no cross-appeal. Accordingly I have to approach
the matter on the basis that that finding by the Court
a
quo
stands. In my view, assuming that the making of that demand by the
second and further Respondents was a breach of the provisions
of the
Act, such breach was of a minor nature.
[20] Another
factor which must be taken into account is that the period during
which the second and further Respondents did not work
was a period
during which they were entitled to withhold their labour by
participating in the country-wide strike anyway. There
can simply be
no doubt that the second and further Respondents would have
participated in the country-wide strike even if they had
not made the
demand for a 10% increase. They had participated in the ballot the
result of which was that the majority of the workers
voted in favour
of a strike. Their participation in the strike only ended when the
country-wide strike ended. When the country-wide
strike ended, they
did not continue striking for purposes of achieving their own demand
for a wage increase.
[21] There
is something illogical about the Appellant’s approach to this
matter. That is that it had a workforce whose members
withheld their
labour from it for the same period demanding a wage increase. One
section of the workforce demanded a 12% wage increase
before they
could return to work while the other section demanded a lower
increase, namely 10% increase, before they could return
to work. The
two sections of the workforce returned to work on the same day.
Apart from this difference in the wage increase demanded,
the conduct
of the two sections of the strikers cannot be distinguished. The
Appellant now seeks to visit that section of the workforce
that
demanded a lower increase with dismissal whereas that section of the
workforce that demanded a higher increase is not being
visited with
any disciplinary action.
[22] In
the light of all the above circumstances I am of the opinion that the
sanction of dismissal was inappropriate and that it
rendered the
dismissal unfair. For the above reasons, I can see no basis for
interfering with the decision of the Court
a
quo
.
Accordingly, the appeal is dismissed with costs.
____________________
M.T.R.
MOGOENG JUDGE OF APPEAL
I
agree
________________
R.M.M.
ZONDO
JUDGE
PRESIDENT
I
agree
______________
M.M.
JOFFE
ACTING
JUDGE OF APPEAL
Appearances
Appearing
for the Appellant : Adv G.O. van Niekerk SC
instructed
by
Millar & Reardon Attorneys
Appearing
for the Respondent : Adv S.M. Govender
instructed
by
Jay Reddy Attorneys
Date
of hearing : 24 August 2000
Date
of judgment :