Modise and others v Steve's Spar Blackheath (JA29/99) [2000] ZALAC 1 (15 March 2000)

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[2000] ZALAC 1
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Modise and others v Steve's Spar Blackheath (JA29/99) [2000] ZALAC 1; 2001 (2) SA 406 (LAC); [2000] 5 BLLR 496 (LAC); (2000) 21 ILJ 519 (LAC) (15 March 2000)

137
IN
THE LABOUR APPEAL COURT OF SOUTH AFRICA
HELD
AT JOHANNESBURG
Case No: JA 29/99
In
the matter between
MODISE AND OTHERS Appellants
and
STEVE’S SPAR BLACKHEATH
Respondent
_______________________________________________________________
JUDGEMENT
_______________________________________________________________
ZONDO
AJP
Introduction
[1] This is an appeal against a
determination made by the industrial court in terms of sec 46(9) of
the now repealed Labour Relations
Act, 1956 (Act No 28 of 1956) (
“the old Act”
) in a dispute between the appellants and
the respondent. The dispute was whether or not the respondent had
committed an unfair
labour practice in dismissing the appellants.
The appellants had contended that the respondent had committed an
unfair labour practice
in dismissing them whereas the respondent
contended that it was entitled and justified in dismissing the
appellants and it had
not committed any unfair labour practice. The
determination of the industrial court was that the respondent had
not committed an
unfair labour practice and the appellants’ claim
was dismissed. No order as to costs was made. It is against this
determination
that the appellants appeal. Before considering the
appeal, I propose setting out those facts of the matter which appear
to me to
be relevant in the light of the issues in the appeal.
The facts
[2] The appellants were in the
employ of the respondent. The respondent had other employees in
addition to the appellants. On the
9
th
November 1994 the
majority of the respondent’s employees embarked upon a strike.
That strike continued until the 18
th
November 1994 when
the respondent issued the strikers with letters of dismissal. The
letters of dismissal purported to effect the
dismissal from the
previous day, namely, the 17
th
November 1994.
[3] Although it appears from the
record that it was in dispute whether the appellants had taken part
in the strike, during argument
it was clarified that the appellants
were not denying that during the strike they were part of the group
of workers who were on
strike. The appellants’ point was that they
were not willing participants in the strike. The strike had been
organised by the
South African Commercial, Catering and Allied
Workers Union (
“SACCAWU”
) of which some of the
respondent’s employees were members. The appellants’ case is
that they were not members of that union.
The respondent maintains
that they were.
[4] There is also a dispute between
the appellants and the respondent on what the demand was which was
sought to be enforced through
the strike. The respondent contends
that the demand was that it and other Spar stores in the region in
which the respondent operated
should bargain regionally with
SACCAWU. In argument it was contended on the appellants’ behalf
that the demand was that the respondent
and the other Spar stores in
the region should agree to form a regional bargaining forum in which
collective bargaining would take
place regionally.
[5] Following upon dicta by
Goldstone J in
Barlows Manufacturing Company Ltd v Metal and
Allied Workers Union & Others
1990 (2) SA 315
(W)
at
322H-I
and by Golden JA in
SA Commercial, Catering and Allied
Workers Union & Others v Transkei Sun International Ltd t/a Wild
Coast Sun Hotel, Casino
& Country Club (1993) 14 ILJ 867 (TKA)
at
874F-I,
the respondent contended that, in so far as
the demand was that it and the other Spar stores should bargain
regionally with SACCAWU,
that was a demand which was impossible to
achieve because there was no regional bargaining structure in which
regional bargaining
could take place. On behalf of the appellants it
was conceded that, if the demand was found to be the one contended
for by the
respondent, then such demand was incapable of
achievement. For purposes of this judgement I will assume, without
deciding, that
the demand was the one contended for by the
respondent. I will also assume, without deciding, that the dicta of
Goldstone J and
GoldenJA referred to above under the old Act that a
demand which is incapable of achievement would render a strike
illegal are
correct.
[6] The respondent and other Spar
stores had either refused or failed to comply with SACCAWU’s
demand. Indeed, attempts by SACCAWU
both before and after the
referral of the dispute to conciliation to have meetings with the
Spar Stores concerned had failed. SACCAWU
had then applied for the
establishment of a conciliation board in terms of sec 35 of the old
Act. The statutory period of 30 days
required in terms of sec 35 had
lapsed without the dispute being resolved. SACCAWU had then
conducted a ballot in terms of the
old Act to determine whether the
required size of its members participating in the ballot supported
the calling of a strike. Such
ballot was required to be conducted
secretly in terms of sec 8 read with sec 65 of the old Act. Those
participating in the ballot
had to be members in good standing of
SACCAWU.
[7] According to the respondent the
strikers engaged in unacceptable conduct of various kinds during the
strike with the result
that on the 15
th
November 1994 it
sought an urgent interim interdict from the Witwatersrand Local
Division of the then Supreme Court. A rule nisi
with an interim
interdict was granted by that Court on an urgent basis. The interim
order interdicted the strikers from, inter
alia, continuing with the
strike pending the return day on the basis that the strike was
illegal. The urgent application had proceeded without
opposition. The record does not reveal any evidence that the rule
was subsequently
confirmed.
[8] It does not appear that the
service of the Court order took the form of each striker being
personally handed the order. As
a result the evidence did not reveal
that definitely each one of the strikers became aware of the
contents of the court order.
On the 16
th
November the
respondent issued an ultimatum for the strikers to return to work or
face dismissal. Initially, the deadline for the
strikers to return
to work was 10h00. There is a conflict between the version of the
appellants and that of the respondent on
whether the ultimatum was
subsequently extended. The respondent says it extended the ultimatum
to the end of the day on the 16
th
and told the strikers
that they had to resume work the following morning failing which
they would be dismissed. The appellants
denied that there was such
an extension of the ultimatum.
[9] The appellants’ version is
that they were dismissed on the 16
th
after the ultimatum
had expired without them returning to work. The respondent says it
issued letters of dismissal only on the
18
th
November.
The letters said that the strikers were dismissed with effect from
the 17
th
November 1994. The respondent said the dismissal
followed the strikers’ failure to heed the ultimatum. It is common
cause that
the strikers did not report for duty on the 17
th
November. It is also common cause that, unlike on the other days of
the strike, namely from the 9
th
upto the 16
th
November when the strikers were outside the respondent’s premises,
from the 17
th
November onwards they were not outside the
respondent’s premises. They were simply nowhere to be seen.
The Parties’ Argument
[10] The Appellants submitted that
the court a quo erred in finding that they were willing participants
in the strike. They submitted
further that, in any event, even if
they were willing participants in the strike, that strike was a
legal strike and therefore
their dismissal for participating in it
was unfair. As to the second argument, if the appellants sought to
rely on the contention
that the strike was legal the onus was on
them to prove that the strike was legal. However, they failed
dismally to show that the
ballot that was conducted was regular in
terms of the Act. They could not show that it was secret. They
could not show that those
who voted in the ballot were eligible to
vote nor could they show that those who voted were only those who
were eligible to vote.
For the reason that the ballot was not
conducted in accordance with the old Act, the strike was,
definitely, illegal in terms of
the old Act. It may also have been
illegal for the reason that the demand which it sought to enforce
was incapable of achievement.
[11] In argument before us Counsel
for the respondent sought to draw a distinction between a dismissal
for striking and a dismissal
for a failure to comply with an
ultimatum. It appears that he did this in the belief that, if the
workers were dismissed for failing
to comply with the ultimatum,
that would enable the respondent to escape such obligation to
observe the
audi alteram partem
rule (
“the audi
rule”
) as it might have had. I think the distinction is an
artificial one on the facts of this case. The strikers were on
strike. The
respondent did not approve of their strike and wanted to
bring it to an end. If the strikers stopped striking and returned to
work,
they could not have been dismissed. If they continued with the
strike, they would be dismissed. In any event a reading of the

respondent’s heads of argument reveals an acceptance that the
dismissal was for participation in an illegal strike. It seems that
the attempt to draw the distinction referred to above was an after
thought.
[12] One of the grounds on which
the appellants contended that their dismissal constituted an unfair
labour practice is that the
respondent did not observe the
audi
rule before it could dismiss them. They contended that they were
entitled to be heard before they could be dismissed because the
decision to dismiss them was one which adversely affected their
rights and source of livelihood. In response to this argument,
Mr
Jammy, who appeared for the respondent both in this Court and in the
Court a
quo
, submitted that there was no obligation on the
part of the respondent to observe the
audi
rule. In any
event, submitted Mr Jammy, should it be found that there was such an
obligation on the respondent, such obligation
had been discharged
because, after the respondent had issued the ultimatum, there was
an opportunity for the appellants to have
come forward and said why
they should not have been dismissed and as they had failed to make
use of that opportunity they could
not complain. Mr Jammy submitted
further that our law has never imposed such an obligation.
[13] During argument I asked Mr
Jammy what the basis was for his submission that in this case the
respondent was not obliged to
comply with the
audi
rule, if
one were to assume that there was an obligation such as is referred
to above in our law. Mr Jammy responded by saying
that the basis
for his submission was the same as the basis which the Appellate
Division, as the Supreme Court of Appeal then was
called, decided to
reject the
audi
argument in
National Union of Metal
Workers of SA v Vetsak Co- Operative Ltd & others (1996) 17 ILJ
455 (A)
. The relevant passage is at 468E-G. I will return to
this later in this judgement.
[14] On behalf of the appellants it
was submitted that the appellants’ case was not that, in order to
comply with the
audi
rule, the respondent had to adhere to
any particular form of compliance with the rule. Their argument was
simply that in one form
or another the respondent should have
complied with the rule. It was submitted that compliance with the
audi
rule would take such form as would be dictated by the
practicalities and exigencies of the situation at the time. I deem
it necessary,
in considering this point, to review our case law to
see what the attitude of our courts has been towards the application
and observance
of the
audi
rule in cases of dismissals of
strikers. However, before I can do so, I propose to make a few
general observations on the
audi
rule and the advent in our
law of the concept of the justiciable unfair labour practice.
GENERAL OBSERVATIONS ON THE
AUDI
RULE
[15] The
audi
rule is part
of the rules of natural justice which are deeply entrenched in our
law. In essence the
audi
rule calls for the hearing of the
other party’s side of the story before a decision can be taken
which may prejudicially affect
such party’s rights or interests or
property. Historically, the
audi
rule is part of our
administrative law and, as a general rule, has no application to
private contracts. (see
Embling v The Head Master, St Andrews
College (Grahamstown) & Another
(1991) 12 ILJ 277 (E)
;
Damsell v Southern Life Association Ltd
(1992) 13 ILJ 848 (C) at
859 E-H
; Sibanyoni & Others v University of Fort-Hare
1985
(1) SA 19
(CK
); Mkhize v Rector, University of Zululand &
Another
1986 (1)SA 901 (D) at 904 F). (In passing I mention that
the correctness of the conclusion in the last two decisions that the
audi
rule did not apply is, to say the very least, open to
serious doubt because universities are public institutions which are
funded,
at least partly, with public funds and are governed by
statute). However, there is one exception to the general rule that
the
audi
rule does not apply to private contacts. That is
where a private contract contains a provision which either expressly
or by necessary
implication incorporates the right to be heard. (see
Lace V Diack & others
(1992) 13 ILJ 860 (W)
; Lamprecht
& Another v Mc Nellie
[1994] ZASCA 45
;
1994 (3) SA 665
(A) at 668B -J;
Moyo & Others v Administrator of the Transvaal & Another
(1988) 9 ILJ 372 (W) at 384E-J)
.
The advent of the justiciable
unfair labour practice
[16] About 20 years or so ago the
concept of a justiciable unfair labour practice was introduced into
that branch of our law which
has come to be known as labour law. Had
it not been for the introduction of a justiciable unfair labour
practice in our law, the
acknowledgement made above that, as a
general rule, the
audi
rule has no application in private
contracts would have marked the end of the enquiry on the
audi
argument in this matter. The introduction of the justiciable
unfair labour practice in our law brought about a significant change
in the law of employment in the private sector. Whereas under the
common law an employer had a right virtually to hire and fire
as he
pleased, a serious inroad was made into that right under the unfair
labour practice dispensation. Whereas under the common
law an
employer could fire for a bad reason or for no reason at all
provided the dismissal was on notice, under the unfair labour
practice dispensation, he became obliged not to dismiss even on
notice - unless he could prove the existence of a good reason to
dismiss. Whereas at common law an employer did not have to hear the
employee’s side of the story before he could dismiss him,
under
the unfair labour practice dispensation the employer became obliged
to hear the employee’s side before he could dismiss
him. There
must be few concepts, if there are any, in the history of our law
which have brought about such fundamental change
in our law as the
introduction of a justiciable unfair labour practice has done in our
employment and labour law. In due course
this concept was to ensure
that our employment law would undergo so fundamental a change that
it will never be the same again.
Fortunately, the change was for the
better.
[17] Over the past two decades or
so since the establishment of the industrial court and, later, of
the old Labour Appeal Court,
the application of the
audi
rule
in the sphere of private contracts of employment in our law has been
fully and irrevocably entrenched. Accordingly it can
now be said
with a sufficient degree of certainty that the
audi
rule
applies to contracts of employment in South Africa which are subject
to the Labour Relations Act even if such contracts do
not contain a
provision which, either expressly or by necessary implication,
incorporates such rule. It is against this background
that I propose
to consider our case law over the past two decades or so.
[18]
Is there an obligation in
our law on an employer to observe the
audi
rule
before it can dismiss strikers?
In considering our case law the
inquiry is whether or not in our law there is an obligation on an
employer to observe the
audi
rule when contemplating the
dismissal of strikers. This question needs to be considered because
Counsel for the respondent submitted
that in our law there has never
been an obligation on an employer, who is faced with a strike, to
observe the
audi rule
before it can dismiss strikers. In this
regard I must mention that he did not make any distinction between
legal and illegal strikers
nor did he make one between strikers in
the private sector and strikers in the public service. Not that I
think he should have
for I do not think that such a distinction
would have any basis in law.
[19] For the reasons that follow I
am unable to uphold the submission that in our law there has never
been an obligation on an employer,
who is faced with a strike, to
observe the
audi
rule before it can dismiss strikers. When
the audi rule was introduced, into our employment law in the private
sector through the
justiciable unfair labour practice the
audi
rule applied to all dismissals, irrespective of the reason for
dismissal. It applied to dismissals for misconduct which at that
stage in the development of our law encompassed both strikes which
complied with statutory procedures [section 65 of the Labour
Relations Act, 1956 (
“the old Act”
)] and those which did
not comply with such procedures, to retrenchments - hence the duty
to consult- and to dismissals for incapacity.
[20] In our law there has always
been exceptions to the general rule requiring the observance of the
audi
rule in the sphere of administrative law. When the
audi
rule was introduced into the sphere of private contracts of
employment in our law, there is no reason to suggest that it came
without
the same exceptions that we know it to have in our
administrative law. By this I do not necessarily mean that the
audi rule was
introduced into our employment law in the private
sector via our administrative law. A reading of the first cases of
the industrial
court reveals that the industrial court derived the
audi
rule from the good practices which some employers had
already implemented, from some English cases and from the ILO
Convention
on Termination of Employment No 158 of 1982. The advent
of the justiciable unfair labour practice did not introduce the
audi
rule in the law of employment in the public sector. The
audi
rule has always been applicable in certain circumstances where a
public functionary contemplates taking a decision that could
prejudicially
affect the rights or interests or property of an
individual. In my view the dismissal of public servants for
striking would, generally
speaking, have fallen within the sphere of
application of the
audi
rule in the administrative law
context. Obviously, even in the public sector there would have been
exceptions where the employer
could not have been said to be obliged
to observe the
audi
rule.
[21] Furthermore, the submission by
the respondent’s Counsel runs contrary to a number of cases which
can be found within the
breath and length of our law over the past
twenty years or so where dismissals of strikers, both in the
private sector and public
sector, were found to be unfair (in the
private sector) or unlawful (in the public service) on the basis
that, although the employers
in those cases had been obliged to
observe the
audi
rule before they could dismiss their
striking employees, they had failed to do so. (See
Chemical
Workers Industrial Union and Others v Electric Lamp Manufacturing of
SA (PTY) Ltd (1989) 10 ILJ 347 (IC) at 351H-352C
;
BAWU &
Others v Palm Beach Hotel (1988) 9 ILJ1016(IC) at 1024D-E
;
BAWU
& Others v Edward Hotel (1989) 10 ILJ 357 (IC) at 374B-E
;
Shezi & Others v Republican Press (1989) 10 ILJ 486 (IC)
at 488G-J;
Black Electrical and Electronic Workers Union &
Others v M D Electrical (1990) 11 ILJ 87 (IC)
at 95 H-96A;
Lebona & Others v Trevenna (1990) 11 ILJ 98 (IC)
at
104F-G;
Mathews & Others v Namibia Sugar Packers (1993) 14
ILJ 1514 (IC) at 1527B-J
;
NUMSA & Others v Lasher Tools
(Pty) Ltd (1994) 15 ILJ 169 (IC)
at 180A-D and 182C-D;
Food
and Allied Workers Union & others v Mnandi Meat Products &
Wholesalers (1995) 16 ILJ 151 (IC) at 161E-G; Mayekiso v
Minister of
Health and Welfare & Others(1988) 9 ILJ 227 (W) at 230E-H;
Mokoena & Others v Administrator of the Transvaal
(1988) 9 ILJ
398 (W) at 404A-G; Mokoponele en andere v Administrateur, Oranje-
Vrystaat en Andere
1989 (1) SA 434
(O)at 440D-442I; Zenzile &
others v Administrator of the Transvaal & Others (1989)10 ILJ 34
(w) at 38I-41A; Administrator,
Transvaal & Others v Zenzile &
Others
1991 (1) SA 21(A)
; (1991) 12 ILJ 259 (A)at 265H-270B; Nkomo
& Others v Administrator, Natal & Others (1991) 12 ILJ 521
(N) at 526F-528A;
Zondi & Others v Administrator, Natal &
Others (1991) 12 ILJ 497 (A) at 505B-D.
) [ A reading of some of
the cases emanating from the private sector reveals that in some of
them the employers had attempted to
observe the
audi
rule and
in others the employers had made no attempt whatsoever to observe
the
audi
rule. In others the employers had internal
disciplinary procedures on which the industrial court based its
finding but in others,
the industrial court’s finding was based
simply on its unfair labour practice jurisdiction.]
[22] Some of the cases I have
included above are stay-away cases whereas others are normal strike
cases. I have included stay-away
cases because the difference
between a normal strike and a stay-away is technical. If one accepts
that generally speaking a strike
is a collective refusal to work by
workers for the purpose of compelling compliance with their demands,
a stay-away would probably
fit into that loose definition. I cannot
see why it can be said that a worker who participates in a stay-away
is entitled to the
benefit of a hearing before he can be dismissed
but one who participates in a normal strike is not entitled to a
hearing before
he can be dismissed. Such an approach would encourage
stay-aways more than normal strikes. Under the old Act stay-aways
in the
form of strikes for political reasons were absolutely
prohibited whereas normal strikes were only prohibited in certain
circumstances.
[23] In addition to the above
cases reference can also be made to Black and
Allied Workers’
Union & Others v Prestige Hotels CC t/a Blue Waters Hotel
(1993) 14 ILJ 963 (LAC).
At 971 E, the old Labour Appeal Court
held, albeit obiter, that the argument that an employer had an
obligation to afford strikers
a hearing before it could dismiss them
had merit. However, the Court, per PC Combrinck J (sitting with
assessors), stated that
the
audi
rule would only apply to the
dismissal of illegal strikers and not to that of legal strikers
because the former would be committing
misconduct by going on an
illegal strike whereas the latter would not be committing any
misconduct by going on a legal strike
but would be doing what is
permissible in our law. I have difficulty with this because it seems
to suggest that those who obey
the law are denied the benefit of the
audi
rule and those who do not obey the law are entitled to the
benefit of the
audi
rule. There may be a temptation to say:
If the strike is a legal or protected one, what is the need for the
audi in such a case?
The answer to this is that there are situations
where, arguably, an employer may be entitled to dismiss legal
strikers e.g. where
the legal strike has taken too long a time may
come when the employer may be entitled to dismiss the legal
strikers. I can see
no reason why in those circumstances the legal
strikers can be said to have no right to state their case before
they can be dismissed.
Already sec 67(5) of the new Act contemplates
that legal strikers may be dismissed where the reason for their
dismissal is based
on the employer’s operational requirements. In
such a case it seems clear that under the new Act the employer would
be obliged
to comply with the consultation requirement of sec 189 of
the new Act which is a form of the observance of the
audi
rule. I can see no reason why an employer would be obliged to
observe the
audi
rule in the form of consultation if the
reason for the dismissal of legal strikers is based on the
operational requirements of
the employer but would not be obliged to
observe the
audi
rule in whatever form if the reason for
dismissal is based on the notion that the strike, being illegal,
constitutes misconduct.
[24] Mr Jammy’s submission also
runs contrary to the views expressed by certain eminent academic
writers and labour law practitioners,
namely, Edwin Cameron [now Mr
Justice Cameron], Prof Martin Brassey, Prof Halton Cheadle, and
Rycroft and Jordaan.
[25] In 1990 Prof Martin Brassey
wrote an article titled :
“The Dismissal of strikers”
which appeared in (1990) 11 ILJ 213-240. At 225-226 Brassey wrote
that individual hearings before strikers could be dismissed would
be
impractical and senseless but emphasised that
“a hearing should
nonetheless be given to the collective bargaining representative of
the strikers and to those
who bona fide believe that, as a
result of whatever reason, their absence was justifiable.” With
this I agree.
(See also Martin Brassey’s arbitration award
in Man Truck & Bus SA (Pty) Ltd v United African Motor and
Allied Workers Union
(1991) 12 ILJ 181 (Arb) at 192F-H
where
Martin Brassey, sitting as an arbitrator in a dispute of the
dismissal of strikers, accepted that an employer must give strikers
a collective hearing in the sense that their case must be put for
them by their representatives.)
[26] In Current Labour Law, 1997,
at 38 Cheadle expressed his views on whether strikers are entitled
to be heard before they can
be dismissed in the following terms :-
“A good case can be made out that an employer should give
employees or their trade union an opportunity to address the
employer
on sanction before dismissal. This can be effected by
giving the trade union an opportunity to make representations on
sanction
or including in the ultimatum itself an invitation to
employees to make such representations. This should be supplemented
by an
invitation to individual employees to approach the employer
after dismissal if the reason for not working is not participation

in the strike. This does not impose too heavy a burden on the
employer - it is common labour relations practice and it goes a long
way to ensure that the employees are fairly treated. There is also
the argument that the Code of Good Conduct : Dismissal imposes
a
more stringent requirement than the general application of the rule
developed by the courts under the old LRA. It is only in
‘exceptional circumstances’ that the employer may dispense with
pre-dismissal procedures (para 4(4) of Schedule 8). Accordingly,
the
employer may have to go further than was expected of it under the
old LRA.”
[27] As long ago as 1986 Edwin
Cameron wrote an article entitled:
“The Right to a Hearing
before Dismissal - Problems and Puzzles.”
It appeared in two
parts in (1986) 7ILJ 183-217 and (1988) 9 ILJ 147-186. A reading of
that article reveals that Cameron acknowledged
that as a general
rule or requirement a worker is entitled to an opportunity to be
heard before he can be dismissed. Thus Cameron
says at the top of
p165:
“The starting point is that every employee faced with a
dismissal is entitled to a hearing...”
Cameron then
acknowledges that there are exceptions to this general rule. He
gives these as the so-called crisis zone situations,
a waiver or
quasi waiver situation and situations where, although the denial of
procedural justice is not condoned, the employee
is nevertheless not
granted any relief by reason of the employer’s failure to ensure
procedural fairness (see pp 173-178 in the
second part of the
article). Cameron rejects the attempts evident in some cases to
create further exceptions to the requirement
for a pre-dismissal
hearing by stating that an employer is exempted from giving a
pre-dismissal hearing where there are many workers
involved or where
the workers act collectively (see bottom of page 176 upto the top of
p177 of the second part of his article.)
He rejects also the
notion that no hearing
is required in mass dismissals. (See
p.170 of the second part of his article.) It seems to me that, upon
a proper analysis of Cameron’s
article, his view is that the
situations where an employer would be exempted from complying with
the general rule or requirement
for a pre-dismissal hearing are the
three exceptions to the audi rule that I have referred to above
which Cameron acknowledges
in his article as the true exceptions.
Subject to what I say elsewhere in this judgement about a waiver and
the article in general,
I have no quarrel with Cameron’s views in
this regard.
[28]
In their book: A Guide
to South Labour Law: 2
nd
edition, Rycroft and Jordan say
at 207
“ while circumstances might warrant an attenuated
hearing, the right to a hearing is so fundamentally important in the
context
of industrial relations that only exceptional circumstances
such as those referred to by Cameron will warrant dismissal without
a hearing of any kind.”
At 225 the learned authors say that,
where a strike is not
“legitimate”
, this may provide the
employer with a
“substantively fair reason for terminating the
employment relationship for good.
” Then they continue and say:
“Before it can do so, however, two requirements
have to
be met: the employer has to give the employees an opportunity to
address it either through their union ... or through an
elected
committee so that they could debate their decision to strike’,
and, secondly it is required to issue an ultimatum in
order to give
the employees sufficient time to consider the matter and return to
work
.”
[29] In their book: The South
African Law of Unfair Dismissal, 1994, 2
nd
ed, Le Roux
and Van Niekerk discuss the dismissal of strikers from 293-316.
There they do not deal with the issue of a hearing
in the context of
a dismissal of strikers. However, at 152-183 the learned authors
deal with procedural fairness of dismissals.
They acknowledge the
existence of the general requirement for a fair hearing before an
employee can be dismissed. Then at 174-176
they deal with exceptions
to the
audi
rule. It is significant that they do not anywhere
suggest that the dismissal of strikers is one of the exceptions
where an employer
does not have an obligation to have a hearing. On
the contrary at 183 they make the point that the normal rules
regarding procedural
fairness
“will, in all
probability,
apply to discipline for group misconduct”
. Participation in
an illegal or unprotected strike is, obviously, group or collective
misconduct.
[30] Article 7 of ILO Convention on
Termination of Employment No 158 of 1982 provides as follows:.
“
The employment of a worker
shall not be terminated for reasons related to the worker’s
conduct or performance before
he is provided an opportunity
to defend himself against the allegations made, unless the employer
cannot reasonably be expected
to provide this opportunity.”
It is clear from the provisions of
article 7 that international standards are such that the only basis
on which an employer can
escape the obligation to give a hearing
where the reason for dismissal is based on the employee’s
conduct, or performance is
if he cannot reasonably be expected to
give such a hearing in a particular case. There is no provision for
another exception in
the form of a dismissal for participation in a
strike.
[31] In his book: Labour and
Employment Law Wallis SC deals with the right to a hearing prior to
dismissal in par 36. There the
learned author affirms that it is
sensible and equitable that an employer affords an employee a
hearing before it can dismiss him.
Although Wallis does not
specifically discuss a hearing for strikers, also he does not say
that the right to a hearing he refers
to does not apply to a
dismissal for participation in a strike.
[32] What is the basis for
requiring an employer to observe the
audi
rule if he
contemplates the dismissal of his striking employees? The basis on
which it was found in the cases of Mayekiso (supra)
and Mokoena
(supra) by Goldstone J that the employers in those cases were
obliged to observe the
audi
rule before they could dismiss
was that the workers were members of a compulsory pension fund
the benefits of which they would
lose if they were dismissed. Goldstone J’s reasoning was followed
by
Coetzee J in Zenzile & Others v Administrator of the
Transvaal & Others (1989) 10 ILJ 34(W). In the Zenzile appeal
(1991 (1) SA 21
(A) ; (1991) 12 ILJ 259 (A))
the Appellate
Division found it unnecessary to rely on the strikers’ membership
of a pension scheme in order for it to decide
whether the employer
had been obliged to give the strikers a hearing before it could
dismiss them. The Appellate Division said
once the dismissal was
for misconduct, there was such an obligation. It needs to be
pointed out that the Appellate Division did
acknowledge that there
could be cases where the employees’ membership of a pension scheme
could possibly be relied upon. In fact
in Zondi’s case (supra) the
Appellate Division did approve Goldstone J’s reliance on
membership of a pension scheme as given
in Mokoena and Mayekiso as a
basis for the application of the
audi
rule in those cases.
(See Zondi’s case (1991) 14 ILJ 497 (A) at 503D.)
[33] In the light of the rationale
for the finding of the Appellate Division in Zenzile, I am of the
view that, where the dismissal
is for misconduct, as would be the
case where the employer’s reason for dismissal is that employees
have participated in or are
continuing with, an illegal strike, an
employer is obliged to observe the
audi
rule before it can
dismiss strikers. However, I do not think that, where the basis for
the decision to dismiss is not misconduct,
there would be no such
obligation. On the contrary, I think that there still would be such
an obligation. In regard to public
service, this view would be
supported by cases such as
Administrator, Natal & Another v
Sibiya & Another
[1992] ZASCA 115
;
1992 (4) SA 532
(A) and; Minister of Water
Affairs v Mangena & others (1993)14 ILJ 1205 (A)
[34] At 538E-I in Sibiya Hoexter JA
had the following to say about when a decision can be said to
attract the
audi
rule:
“The rule does not require
that the decision of the public body should, when viewed from the
angle of the law of contract, involve
actual legal infraction of the
individual’s existing rights. It requires simply that the decision
should adversely affect such
a right. No more has to be demonstrated
than that an existing right is, as a matter of fact, impaired or
injuriously influenced.
Here the contract of service created
reciprocal personal rights of the respective parties. Of immediate
significance for the respondents
was their right to receive regular
remuneration in exchange for their services. The existence of that
right was linked to and
depended upon the duration of the contract.
The appellants’ right under the contract to give notice
terminating it cannot alter
the fact that the decision to give
notice palpably and prejudicially affected the existing rights of
the respondents. In approaching
the Court below, the respondents in
no way challenged the appellants’ contractual right to give them
notice. They did no more
than to assert their claim to be treated in
a procedurally fair manner before the appellants exercised such
right.”
Hoexter continued at 538J-539B and
said:
“
The classic formulation of
the
audi
rule encompasses not only ‘existing rights’ but
also “the property’ of an individual when it is prejudicially
affected by
the decision of a public official. The word ‘property’
would ordinarily tend to connote something which is the subject of
ownership.
In my view, however, the concept of ‘property’ to
which the
audi
rule relates is wide enough to comprehend
economic loss consequent upon the dismissal of a public sector
employee. To workers in
the position of the respondents (and more
particularly the first respondent, an elderly individual with eight
dependants) the immediate
financial consequences of dismissal are
likely to be very distressing.”
[35] Although all the above remarks
by Hoexter JA as to when the
audi
rule applies were made in
relation to the dismissal of employees in the public sector where
their employer would be exercising
public power when dismissing
them, in my judgement they apply equally to the dismissal of
employees in the private sector whose
employment was governed by the
Labour Relations Act, 1956 after the introduction of the justiciable
unfair labour practice in our
law. I say this because it was when
the industrial court sought to give content to the unfair labour
practice provisions of the
old Act that it decided to introduce the
requirement of a hearing before dismissal
into our employment law applicable
to the private sector.
[36] In the light of all of the
above it, therefore, seems to me that it can be said with a
sufficient degree of certainty that,
in the context of dismissal,
an employer is obliged to observe the
audi
rule where his
decision may adversely affect an employee’s rights. In this
regard, it is sufficient, it seems to me, if, as Hoexter
JA said in
Sibiya’s case, an existing right is, as a matter of fact, impaired
or injuriously influenced. It can also now be accepted
that in our
law an employer’s decision to dismiss an employee is a decision of
that kind in that it adversely affects an employee’s
right to
regular remuneration in exchange for his services. An employer’s
decision to dismiss is a decision that causes the kind
of economic
loss to the employee that attracts the application of the
audi
rule.
[37] For the overwhelming majority
of workers in this country their job is about all they and their
families depend upon for a
living. If you take away their job, you
almost take away their whole being and you subject them, their
families and, sometimes,
their communities to famine and starvation.
The latter point is easily demonstrated in dismissals of large
numbers of workers in
the mines. In my judgement basic justice
between employer and employee dictates that a decision with such
implications for those
affected by it and their families should not
and cannot be taken without the worker(s)or their union or
representatives concerned
being afforded an opportunity to be heard
in one way or another .
[38] I think it is necessary at
this stage of this judgement that I make one thing crystal clear.
That is that, when I say, as I
have done above, that there is a
general rule or requirement that, when an employer contemplates the
dismissal of his striking
employees, he should observe the audi
rule or he should give them an opportunity to state their case, I am
not referring to any
special obligation on the part of the employer
or to any special right which attaches to strikers by virtue of
their being strikers
per se. What I am referring to is the basic
general rule which everyone accepts exists in labour law which says
that an employer
is obliged to give an employee a hearing or an
opportunity to state his case before he can dismiss him.
[39] The above general rule is my
point of departure. I then reason that a striker is an employee and,
therefore, he, too, is entitled
to a hearing before he can be
dismissed. I take the view that, when an employee goes on strike, he
does not lose the basic right
to a hearing which he otherwise has.
Indeed, if going on strike made him lose such a right, then the law
would be treating him
worse than it does, an employee who has stolen
from his employer because such an employee would still be entitled
to a hearing
before he can be dismissed. If that is how our law
treated an employee who may well be seeking to participate in the
process of
collective bargaining - for a strike is an integral part
of the collective bargaining process- which our law seeks to
promote,
then, in my judgement, that would make neither logic nor
sense. Fortunately I think on this point our law
demonstrates more logic and sense
than that .
[40] As could be expected, it was
not in all the strike dismissal cases over the past 20 years or so
that the courts were prepared
to find dismissals of strikers unfair
or unlawful by reason of employers not observing the
audi
rule when contemplating such dismissals. There were cases where the
courts refused to make such findings even when employers had
failed
to give strikers a hearing or to observe the
audi
rule. Most
emanated from the private sector while only two or three emanated
from the public service. Some of the cases are:
Lefu & others
v Western Areas Gold Mining CO (1985) 6 ILJ 307 (IC); Langeni &
others v Minister of Health & Welfare
and others (1988) 9 ILJ
389 (W), Moyo & others v Administrator of the Transvaal &
Another (1988) 9 ILJ 372 (W); NUMSA &
others v Elm Street
Plastics t/a Adv Plastics(1989) 10 ILJ 328 (IC); MWASA & others
v Perskor (1989)10 ILJ 44I (IC); FAWU &
others v Hercules Cold
Storage (Pty) Ltd (1989) 10 ILJ 457 (IC); FAWU & others v
Hercules Cold Storage (Pty)Ltd(1990)11 ILJ
47 (LAC); FAWU &
others v Willowton Oil and Cake Mills (1990) 11 ILJ 131 (IC); PPWAWU
& Convencor (1990)11 ILJ 763 (IC);
MAN Truck and Bus (SA) (Pty)
Ltd v United African Motor and Allied Workers Union (1991) 12 ILJ
506 (Arb); NUMSA v G.M Vincent Metal
Sections (Pty)Ltd (1993) 14 ILJ
1318 (IC); NUMSA V G.M. Vincent Metal Sections (Pty)Ltd
1999 (4) SA
304
(SCA);Metal and Allied Workers Union & others v BTR Sarmcol
- A Division of BTR Dunlop Ltd (1995) 16 ILJ 83 (IC); NUMSA &
others v Boart MSA (1995) 16 ILJ 1098 (IC); National Union of Metal
Workers of SA v Vetsak Co-operative Ltd & others (1996)
17 ILJ
455 (A); Plascon Ink & Packaging Coating (Pty)Ltd v Ngcobo &
others (1997) 18 ILJ 327 (LAC)).
In
Majola & others v D&A
Timbers (Pty)Ltd (1997); 8 ILJ 342 (LAC)
McCall J
refrained
from deciding the fairness of the dismissal on the basis of argument
based on the
audi
rule
[41] Having listed above such cases
as I have been able to find which occurred over the past twenty
years or so where the courts
refused to find dismissals of workers
unfair
or unlawful
on the basis that the employers
had failed to afford strikers a hearing, I must hasten to point out
that the majority of those cases
did not hold that in general an
employer does not have the obligation to give a hearing when
contemplating the dismissal of workers.
Indeed, in the majority of
those cases the courts acknowledged the general rule but found
grounds of justification for the employer’s
failure to give the
workers a hearing.
[42] In the following cases which
are among those referred to above, the courts held either that the
strikers had waived or abandoned
their right to a hearing or that a
hearing would have been pointless or would have served no purpose or
that in the particular
circumstances the employer could not
reasonably have been expected to give the strikers a hearing:
Rikhotso; Lefu; Elm Street Plastics; Perskor; Hercules Cold
Storage (industrial court judgement); Conventacor; MAN Truck &
Bus
(SA) (Pty)Ltd v United African Motor and Allied Workers Union
(arbi); Plascon - Ink & Packaging.
Among the cases
included in the above list are cases where
the courts dealt
with the matters on the basis that the striking employees had been
afforded an opportunity to be heard but had
not utilised it and not
on the basis that the employers did not have the obligation under
discussion.
(See Nehawu & others v Administrator of Natal &
others (1989) 10 ILJ 675 which was overruled in Zondi’s case
supra; Hercules
Cold Storage (Pty)Ltd (LAC judgement); Boart MSA
(supra).
)
[43] Among the cases referred to
above, there are some where the basis for the courts’ conclusion
that the employers’ failure
to afford the employees a hearing
before dismissal did not violate the employees’ right to a hearing
was that the employees
had waived or abandoned their right to a
hearing. That is possible in our law and I have no quarrel with
the principle. However,
by and large, it is with the application of
that principle to most, if not, all of the cases referred to above
where this was relied
upon that I have difficulty. In Man Truck
(supra), for example, which was an arbitration, the arbitrator
accepted that an employer
had an obligation to give its striking
employees a collective hearing in the sense that their case must be
put for them by their
representatives. However, he held that in
that case the employer had not been so obliged because the
representatives of the workers
had refused to meet with the
management. From this the arbitrator inferred that they had waived
their right to be heard.
[44] Provided that the meeting that
the representatives of the workers refused to attend was a meeting
whose purpose was for the
employer to hear why the workers should
not be dismissed, I have no quarrel with the conclusion that, in
such a case, the strikers
cannot be heard to complain that
they
were not heard before dismissal. If, however, they were invited to a
meeting whose purpose did not include that, then I cannot
see how
they can be said to have waived their right to be heard. They may
well be happy not to attend a particular meeting for
whatever
reason, good or bad, but they may be more than keen to attend one
the purpose of which is to give them an opportunity
to make
representations why they should not be dismissed. It is not apparent
from the report what the purpose was of the meeting
which the
workers’ representatives refused to attend.
[45] Another case where it was said
that striking employees had waived or abandoned their right to
be
heard was
National Union of Metal Workers of S.A. & others v
Elm Street Plastics t/a Adv Plastics
(1989) 10 ILJ 328 (IC). At
338 A - D in that case it was held that there was an obligation on
the employer to give the strikers
a hearing before they could be
dismissed. However, it was emphasised that there would be no such
obligation in a case where the
workers could be said to have
“abandoned their entitlement to a pre-dismissal hearing”
.
It was said that strikers could be said to have abandoned their
entitlement to a hearing where the nature of their conduct was
such
that their employer was justified in regarding it as a repudiation
of their contracts of employment or where the strikers’
conduct
established that no purpose would be served by holding a hearing or
where such a hearing would be
“utterly useless”
. In that
case the industrial court held that by engaging in an illegal strike
the employees had repudiated their contracts of employment
and were,
therefore, not entitled to a hearing. The industrial court also
sought to justify its finding that the workers were not
entitled to
a hearing by stating that by their conduct the strikers had made it
plain that a hearing would be pointless - and that
they had waived
their right to a hearing (p. 338A - J).
[46] Counsel for the respondent
sought to rely on the passage at 338C -F in Elm Street Plastics. In
that passage the industrial
court said there is no obligation on an
employer to give strikers a hearing before it can dismiss them where
the circumstances
indicate that the workers have abandoned their
entitlement to a pre-dismissal hearing. I have no quarrel with
this statement
as a matter of law. This is the argument of a
waiver. I would simply caution that whether in a particular case it
can be said
that workers have waived their right to be heard before
dismissal is an issue that would have to be decided in the light of
three
important considerations. The one is that the party who
pleads a waiver must prove it. The second is that a waiver is not
lightly
inferred. The third is that the requirements for a waiver,
as they are known in our law, would have to be proved. The onus to
prove a waiver is on the party alleging it.
[47] In
Laws v Rutherford
1924
AD 261
at 263 Innes CJ
said in effect that, where conduct is
relied upon to found a waiver of a right, such conduct must be
“plainly inconsistent with an intention to enforce such right”
.
(See also
Hepner v Roodepoort -Maraisburg Town Council
1962 (4)
SA 772
(AD) at 778 F-G)
In this regard, to state what in my view
is the obvious, going on, or, participating in, a strike is not
conduct plainly inconsistent
with an intention on the part of
strikers to enforce their right to be heard should the employer
contemplate their dismissal. The
conduct relied upon would have to
be conduct other than striking per se.
[48] It seems to me that in Elm
Street Plastics the industrial court decided that the employer’s
failure to afford the strikers’
a hearing was justified because by
their conduct the strikers had abandoned their entitlement to a
pre-dismissal hearing. The
conduct on the part of the workers which
the court relied upon there for that conclusion was given as
“participating in mass action (strike), the purpose and nature
of which is plain (amounting to a
repudiation of their
contract of employment.)”
Although an employer may think it
plain that, when workers participate in a strike, they repudiate
their contracts of employment,
this can simply be no basis for
denying strikers the right to be heard before they can be dismissed
because if they are granted
an opportunity to state their cases they
may show that their conduct does not constitute repudiation in the
sense that they no
longer want to continue with their employment
contracts.
[49] As the industrial court also
relied on certain views expressed by Cameron in his article, I turn
to deal with some aspects
of that article. At 176-178 of his article
Cameron discussed a waiver and quasi-waiver as some of the
exceptions to the requirement
for a pre-dismissal hearing. After
emphasising that in law a waiver occurs when a person, with full
knowledge of a legal right,
abandons it, he expressed the view that
in the employment context it would be unrealistic to apply the full
requisites of the legal
doctrine of a waiver before an employee’s
conduct could be said to exempt an employer from the hearing
requirement. He said all
that should be required
“is that the
employee should indulge in conduct which establishes that the
employer can no longer reasonably or fairly be expected
to furnish
an opportunity for a pre-dismissal hearing.”
[50] At 177 of his article Cameron
referred to certain strike dismissal cases and said they showed
that circumstances may exist which could entitle an employer to
conclude that the workers had abandoned their entitlement to normal
pre-dismissal procedure. He said this may be because :-
(a) the workers have repudiated
their contracts of employment; or
(b) the workers have engaged in
other conduct which renders the enforcement of pre-dismissal
procedures pointless.
[51] With regard to (a) I prefer
the view which Cameron expressed earlier in his article where he
criticised the
“no difference”
approach to pre-dismissal
hearings. If one rejects the no difference approach, one would find
it difficult to say an employer need
not afford workers a
pre-dismissal hearing if they are repudiating their contracts of
employment because, while on the face of
it, it may appear to the
employer (before the benefit of a hearing) that the employees are
repudiating their contracts of employment,
as I have said above it
may well be that, if he afforded them the benefit of a hearing, he
could be persuaded that they were not
repudiating their contracts of
employment. He might never get to know that unless he affords the
employees the benefit of a hearing.
[52] In regard to (b) namely the
proposition that an employer should be exempted from the requirement
of a pre-dismissal hearing
where a hearing would be pointless I
would prefer the view which Cameron expresses at 162 of his article
in the context of commenting
on the so- called
“open and shut”
approach. There he emphasised that to say a hearing will not be
necessary because it appears that there are no facts to be
established
assumes, wrongly said Cameron, that the central reason
for a hearing is to establish facts. A hearing is also concerned
about what
sanction should be imposed in the light unacceptable
conduct. Even if the facts are known, a hearing may bring a
completely different
understanding or perception about the conduct
complained of.
[53] The only situation which I am
able to envisage where it can be said that an employer’s failure
to give a hearing may be justified
on the basis that a hearing would
have been pointless or utterly useless is where either the workers
have expressly rejected an
invitation to be heard or where it can,
objectively, be said that by their conduct they have said to the
employer: We are not interested
in making representations on why we
should not be dismissed. The latter is not a conclusion that a court
should arrive at lightly
unless it is very clear that that is,
indeed, the case. However, in my view, the
latter scenario falls within the
ambit of a waiver. Accordingly the normal requirements of a waiver
must be present. What I say
in this judgement about the
“pointless”
approach and the
“utterly useless”
approach must be
understood subject to what I have just said. There is no
justification for creating an additional exception to
the audi rule
in order to escape the normal consequences attendant upon a failure
to meet the requirements of established exceptions
to the audi rule
e.g. waiver I can see no difference between this
“pointless”
approach and the
“no difference”
approach. Cameron
rejected the
“no difference”
approach in the same
article. The
“pointless”
approach seems to be the same
approach as the
“utterly useless”
approach. Sometimes
the pointless or utterly useless approach is applied where it is
thought that the employer was in possession
of, information relating
to, or, knew, why the employees were striking
(see McCall J in
Plascon Ink & Packaging Coating (Pty) Ltd V Ngcobo & others
(1997) 18 ILJ
327
(LAC) at 339I - 340G).
The utterly
pointless useless approach is one where it is said that, an employer
is not obliged to afford workers the benefit
of being heard where a
hearing would have been utterly useless. I think the reasoning
adopted by the Appellate Division in rejecting
the no difference
approach would justify the rejection of the
“pointless”
or
“utterly
useless”
approach.
[54] In Sibiya’s case (supra)
Hoexter JA stated that the necessity for a hearing was present in
the mind of the employers but
mistakenly they conceived the inquiry
to be a one-sided affair. In that case the
employers had taken the attitude
that all the information relevant to the inquiry was to be found in
the staff files. Because of
this they did not give the workers a
hearing. In regard of this approach HoexterJA had this to say at
539 F-G in Sibiya: “
But given the opportunity of a hearing,
the respondents might have been able to call attention to relevant
suggestions as to a
solution of the problem of the redundant workers
which had not occurred to the appellants. In my view, this was a
case in which
elementary fairness required that the respondents
should have been accorded a hearing before the appellants took their
decision
to dismiss the respondents.”
(See also Hoexter JA in
the Zenzile appeal
1991 (1) SA 21
(A) at 37 B-C where he said as a
matter of principle if the dismissal is disciplinary or punitive in
nature, then
“even if the offence cannot be disputed, there is
almost always something that can be said about sentence and if there
is something
that can be said about it, there is something that
should be heard...”)
[55] In the light of this I am of
the view that the conclusion reached in Elm Street Plastics that the
workers had abandoned their
entitlement to a hearing before they
could be dismissed was without any factual basis. Finally on Elm
Street Plastics I need to
point out that Elm Street Plastics
acknowledged the existence of the general obligation or requirement
for an employer to give
workers a hearing if their dismissal is
contemplated. The passage relied upon by Counsel for the respondent
relates to those exceptions
where it is recognised that the
audi
rule does not apply. In the end the case of Elm Street Plastics
does not assist the respondent.
[56] Another case on which
respondent’s Counsel relied was Media
Workers Association of
South Africa & Others v Perskor (1989) 10
ILJ 4 41 (IC)
.
In particular Mr Jammy relied on the passage appearing at 455C-D of
that case. There the industrial court acknowledged the existence
of
the general rule that an employer must afford an employee a hearing
if he contemplates his dismissal. The acknowledgement of
this
general rule by the court in that case does not support the
submission which Mr Jammy made in his argument that there is no
such
rule. However, the court held in that case that a hearing would
have served no purpose. The industrial court gave no reasons
for
its conclusion that a hearing would have served no purpose. I have
already expressed my views about this approach above and
will not
repeat them. Just as the industrial court in Perskor gave no
reasons for its conclusion that a hearing would have served
no
purpose, Mr Jammy also made no submissions on why a hearing could
not have served any purpose in this case. To my mind a hearing
in
this case could have served a purpose because the union and the
workers could have made representations on why they believed
that
the strike was a legal strike and why, even if it was not legal,
they should not be dismissed.
[57] In FAWU & others v
Hercules Cold Storage (Pty)Ltd 1998 19 IJL 457 (IC) the industrial
court also followed the approach
adopted in Perskor. While in
Hercules Cold Storage the industrial court acknowledged the
existence of the general obligation on
an employer to observe the
audi
rule, it held that no purpose would have been served by
giving the workers a hearing in that case. Unlike in Perskor, in
Hercules
the industrial court purported to give a reason why a
hearing would have served no purpose in that case. It said the
strike had
been organised by a trade union and all an employee could
have said in a hearing would have been how he had voted in the
strike
ballot and that he was expected to take part in the strike.
In my judgement this reasoning is based on speculation and can be

no basis for relieving an employer from the general obligation to
observe the
audi
rule when contemplating the dismissal of
workers. In that case, like in this one, it is clear that the union
involved had taken
some steps to try and make the strike a legal
one. An employee could well have come to a hearing and argued that
he only took part
in the strike in the reasonable belief that it was
a legal strike and that, if the strike was not legal, he would not
continue
as that could put his job at risk which he did not want to
do.
[58] Another case which Mr Jammy
referred to in support of his submission is
National Union of
Metalworkers of SA v Vetsak Co-operative Limited and
others
(1996) 17 ILJ 455 (A)
. In particular he relied on the passage
appearing at 455C-D. At 468E-G in Vetsak the Appellate Division
considered a contention
that the company
“committed an unfair
labour practice by failing to give each worker a hearing before the
decision was finally taken to dismiss
him.”
The Appellate
Division dealt with this argument in the following terms:-
“The
workers acted collectively. Vetsak responded collectively. On the
Saturday, the day after the ultimatum was issued, the workers
met to
discuss their response. That response was to refuse to heed Otto’s
appeal on the Monday morning urging them to return
to work. To
insist on a separate hearing for each worker in those circumstances
would be to require Vetsak simply to go through
the motions. On the
facts of this case there was no duty upon Vetsak to accord each
worker a further separate hearing before the
dismissals were put
into effect.”
[59] It is clear from the passage
at 468 E-G in
Vetsak
that the argument which the Appellate
Division was called upon to deal with was not the same as the
argument which this Court has
to deal with in the present appeal.
There the argument was that the employer should have given the
strikers individual hearings.
Here the argument is that the
respondent should have complied with the
audi
rule in
whatever form the circumstances permitted. Also at 468 E it is
stated that the unchallenged evidence was that it was only
when the
workers failed to make further representations or to return to work
that the employer commenced with dismissals. This
suggests that the
employer had invited the workers to make representations why they
should not be dismissed and that they had failed
to make such
representations. If that is what happened, then, in my view, that
was compliance by the employer with the
audi
rule.
Accordingly it was not open to the workers to complain afterwards
that they had not been heard when they, themselves, had
failed to
take up an invitation to be heard. No such invitation was extended
to the strikers in this case. The fact that the conduct
of the
workers is collective is no basis for denying the workers the right
to be heard. I note, as shown elsewhere in this judgement,
that in
his article Cameron also rejects the notion that the collective
nature of the workers’ conduct exempts an employer from
giving
workers a hearing. (See end of p 176 to top of p.177 of second part
of Cameron’s article).
[60] Mr Jammy also referred to
NUMSA V G.M. Vincent Metal Sections (Pty) Ltd
1999 (4) SA 304
(SCA)
.
G.M. Vincent is one of a number of cases which arose out of a
country-wide strike which was called by NUMSA in the metal industry
in 1992. At 318A-D the Supreme Court of Appeal dealt with the
argument that the dismissal of the strikers in that case was unfair
because the employer had not afforded the strikers a hearing before
“implementing the ultimatum” to return to work or be considered
as dismissed.
[61] Melunsky AJA assumed, without
deciding, that there may be situations where fairness demands that
an employee be given a hearing
before dismissal pursuant to an
ultimatum. He concluded that G.M Vincent was not a case in which
fairness demanded that the strikers
should have been given a
hearing. His reasons for this conclusion appear to have been that:-
(a) the employees in that case had
made no effort to comply with the ultimatum, but, in stead, had
decided to ignore it; for this
reason Melunsky AJA was of the view
that the holding of separate hearings or even a collective hearing
would have been a pointless
and unnecessary exercise;
(b) there would have been practical
difficulties in the holding of hearings,
(c) the holding of hearings would
have rendered the ultimatum ineffective because they would have
resulted in substantial further
delay in bringing matters to a head.
[62] I have a few observations to
make in relation to the decision in G.M. Vincent. The first is that
the Supreme Court of Appeal
did not decide that an employer is not,
as a general rule, obliged to observe the
audi
rule when it
contemplates the possible dismissal of strikers. It said even if
there may be situations where fairness demands that,
the case before
it was not such a case. Accordingly the decision in G.M. Vincent is
no authority for the proposition that an employer
has no obligation
to observe the
audi
rule when contemplating the dismissal of
strikers. The second is that the Supreme Court of Appeal did not
deal with a scenario
where it is contemplated that the hearing could
precede the issuing of an ultimatum. The third observation is that
it is clear
from the reasons given by Melunsky AJA that he had a
formal hearing in mind. In this appeal the reference to a hearing is
not intended
to necessarily refer to a formal hearing but is
intended to include any acceptable form of the observance of the
audi
rule.
[63] The fourth observation I wish
to make about G.M. Vincent is that the Supreme Court of Appeal was
not referred to those Public
Service judgements which have long
affirmed the obligation on an employer to observe the
audi
rule when contemplating the dismissal of strikers which have been
referred to above. Some of those cases are its own judgements.
That
the Supreme Court of Appeal was not referred to such cases is to be
inferred from the fact that such cases are not included
in the list
of cases recorded in the report as the cases that Counsel referred
the Court to. Also the Supreme Court of Appeal
was not referred to
the articles of Professors Martin Brassey and Cheadle which I have
referred to above in this judgement which
clearly support the view
that an employer does have the obligation to give strikers a hearing
when he contemplates their dismissal.
[64] The last observation relates
to the conclusion that it would have been a pointless and an
unnecessary exercise for the employer
in G.M. Vincent to afford the
strikers a hearing. My difficulty with this conclusion is that this
was a case where the union had
taken various steps prescribed by the
old Act for making a strike legal. For that reason, it is not
difficult to imagine that,
given a hearing, at least some of the
strikers or their union could have presented argument to the effect
that the strike was legal
and that, therefore, they were entitled to
participate in the strike and that they should, therefore, not be
dismissed because
the employer would be committing an unfair labour
practice if it dismissed them in those circumstances. Indeed, it
appears from
the judgement of the industrial court in the same
matter that, when the matter was argued in the industrial court, it
was the
union’s case that it (and, a fortiori, the strikers)
believed that the strike was legal
(see NUMSA V G.M. Vincent
Metal Sections (Pty) Ltd (1993) 14 ILJ 1318 (IC) at 1320J-1321A)
.
In fact the belief of the union and the strikers that the strike was
legal could not have been an unreasonable one because an
application
brought by SEIFSA (the employers’ organisation) to the then
Supreme Court to interdict the strike on the basis that
it was
illegal had failed and an appeal had had to be noted to a Full
Bench which then granted the interdict. (See 1993 14 ILJ
1318 (IC)
at 1321A). In those circumstances I cannot, with respect, see how it
could be said that a hearing would have been a pointless
and an
unnecessary exercise in such a case. I am of the opinion that the
approach adopted by the Appellate Division in Zondi and
Zenzile is
the one to be preferred. To this can be added the expansion of the
Zenzile approach by the Appellate Division in Sibiya’s
case as to
the application of the audi rule in dismissal cases.
[65] Lastly, on G.M. Vincent, it
was said that disciplinary inquiries would have resulted in a
substantial further delay in bringing
matters to a head and thus
rendering the ultimatum largely ineffective. However, I can see no
delay that could have been caused
if the employer had given the
strikers an opportunity to make written representations within a
certain number of hours e.g. 24
or 48 hours why they should not be
dismissed. That would have been compliance with the
audi
rule. I am therefore of the opinion that G.M. Vincent does not
assist the respondent in this case.
[66] There are also cases where the
view has been expressed that an employer is relieved of his
obligation to observe the
audi
rule when contemplating the
dismissal of an employee or employees if he cannot reasonably be
expected to observe the audi rule
in a particular case. That is
taken from the provisions article
7 of ILO Convention 158 of
1982 which have already seen referred to above. Also some of the
cases (e.g. Haggie Rand, infra,) relied
on a similar provision which
was in the notorious 1988 amendments to the old Act. The predecessor
to the above Convention was ILO
Convention no 119 (1963) which had
the same provision but without the exception. In my view this
exception, in the context of our
law, should not be seen as adding
to our recognised exceptions to the audi rule but rather as an all
embracing phrase under which
all those exceptions fall. I see that
in their book on the law after the 1988 amendments:
The New
Labour Relations Act, Cameron
et al expressed a similar view at
115 when they dealt with the meaning of a similarly worded exception
to the requirement of a
fair procedure as then contained in par
(a)(ii) of the then definition of an unfair labour practice. The
learned authors said at
115:
“This seems in effect to confirm
the three exceptions which Cameron acknowledges as the true
exceptions in his article.”
[67] During argument Counsel for
the respondent also submitted that a requirement that an employer
should observe the
audi
rule when contemplating the dismissal
of strikers would be impractical. However, after I had asked him
what would be impractical
about the employer sending a letter to the
strikers or their union or representatives inviting them to make
written representations
by a given time why the strikers should not
be dismissed for striking illegally, he conceded that this could be
done. To my mind,
the concession was properly made.
[68] There are judgements which
seem to suggest that an employer who contemplates the dismissal of
strikers is relieved of his obligation
to afford the strikers a
hearing if he issues a fair ultimatum.
(See NUMSA v Haggie Rand
Ltd (1991)12 ILJ 1022(LAC) at 1028 F- 1029; FAWU & others v
Mnandi Meat Products & Wholesalers
CC (1995) 16 ILJ 151 (IC) at
161 F-H; Plascon Ink & Packaging Coating (Pty)Ltd v Ngcobo &
others (1997) 18 ILJ 327 (LAC)
at 338F-339D)
. I must mention
that the Labour Appeal Court which gave the Haggie Rand and the
Plascon Ink judgements is the previous Labour Appeal
Court which had
the status of a High Court and was constituted before a single judge
sitting with assessors. Its status was lower
than that of this Court
which is on the same level as the Supreme Court of Appeal in matters
falling under its jurisdiction.
[69] The reasons advanced in Haggie
Rand for the above view were that:
(a)
“ Management had acted
fairly”
;
(b) it
“could not reasonably
have been expected”
of the management to
“hold a hearing
or inquiry”;
(c) to require the employer to give
the strikers a hearing after the issuing of an ultimatum but before
dismissal would emasculate
the ultimatum because the ultimatum would
have to read that the strikers were required to return to work or be
dismissed but subject
to a disciplinary hearing; this
requirement would amount to
demanding the employer to sheathe the sword and render it
ineffective in circumstances where the workers
are engaging in a
power struggle - and that would not be fair.
(d) it is artificial to require an
employer who is directly affected by flagrant, unmistakable
misbehaviour of an employee to conduct
an enquiry into such
misbehaviour after such employer has himself deemed it necessary to
issue a dismissal ultimatum as a result
thereof.
[70] With regard to the reason
given in (a) above, that is not, with respect, a reason at all; it
begs the question. With regard
to (b), that was based on the
specific exception to the
audi
requirement which was provided
for in the notorious 1988 amendments to the old Act which was later
repealed. The question in regard
to (b) is whether there was a
proper factual basis for this conclusion. I am unable to find any
such factual basis in that case
justifying that conclusion . As to
(c), I can do no better than refer to what was said in
Betha &
others v BTR Sarmcol (A Division of BTR Dunlop Ltd (1998) 19 ILJ 459
(SC ) at 514A-F
. There Olivier J.A, whose judgement was
concurred in by Zulman JA, said:-
“
In my view there is also
another underlying misconception in the reasoning of the court a
quo, namely,: The court a quo discussed
the power struggle between
employers and employees in terms appropriate to battle and warfare.
It perceived a correlation between
a strike, which it characterized
as the ultimate weapon of the union, and dismissal, which it saw as
the employer’s ultimate
weapon. The judgement suggests and seems
to me to be based on the premise that recourse to the one
automatically legitimizes recourse
to the other.
It was argued by counsel for the
appellants, correctly in my view, that this is neither our law, nor
could it be. It is settled
law, thus ran the argument, that to
strike is a legitimate instrument in the process of collective
bargaining that the Act so emphatically
endorses: the threat of it
makes collective bargaining realistic and its occurrence serves, by
the attrition it entails, to break
deadlocks in the process for
which there would otherwise be no resolution. Dismissal, in
contrast, destroys the relationships of
employment upon which
collective bargaining is premised and so damages and often wholly
destroys the relationship. There is no
equivalence between the two
and the one that the court a quo set up is illusory. Dismissal is
not one of the ‘weapons’ that
an employer might use unless the
need to resort to this sanction is compelling. It is, in other
words, not a reciprocal right,
but an extraordinary one. The court a
quo, in my view, reached its decision that the workers were fairly
dismissed because they
did not capitulate completely and were
consequently not entitled to reinstatement, on a faulty perspective
of the true legal position.”
[71] As to (d) it seems that the
effect of what the learned Judge in Haggie Rand was saying is that
once an employer has issued
an ultimatum, he cannot bona fide
consider representations that may be made to say there should be no
dismissal. While on the one
hand this may be true, it must be
remembered that the employer would have to hear workers who, after
the issuing of an ultimatum,
may make representations to say, for
example, that they were not willing participants in the strike. The
employer cannot refuse
to hear them without taking the risk of being
found to have acted procedurally unfairly towards them.
[72] I do not need to say anything
about the case of FAWU v Mnandi Meats because there the industrial
court relied on Haggie Rand
without adding to the reasons given in
Haggie Rand. I also do not need to say anything about Plascon Ink
in connection with this
point because, in that case, too, no
additional reasons were given for this proposition. In Plascon Ink
Mc Call J said that the
passage in Haggie Rand at 1028G-1029A was
quoted with apparent approval by Van den Heever JA in Buthelezi &
others v Eclipse
Foundries Ltd (1997) 18 ILJ 633 (A) at 642I-643E.
In Buthelezi’s case the Appellate Division was dealing with the
question whether
it would be permissible to hold that the employer
was obliged to follow a procedure which the workers themselves were
insisting
was not necessary. In the context in which Van den Heever
JA referred to the passage, it does not appear to me that it can be
said
that he was saying that as a general rule an employer is
relieved of his obligation to observe the
audi
rule when
contemplating the dismissal of strikers if he gives or has given the
strikers a fair ultimatum. At any rate his reference
to the passage
in Haggie Rand was obiter because later on in his judgement he says
that the point about procedural fairness was
not pursued on appeal
before the Supreme Court of Appeal.
[73] A hearing and an ultimatum are
two different things. They serve separate and distinct purposes.
They occur, or, at least ought
to occur, at different times in the
course of a dispute. The purpose of a hearing is to hear what
explanation the other side has
for its conduct and to hear such
representations as it may make about what action, if any, can or
should be taken against it. The
purpose of an ultimatum is not to
elicit any information or explanations from the workers but to give
the workers an opportunity
to reflect on their conduct, digest
issues and, if need be, seek advice before making the decision
whether to heed the ultimatum
or not. The consequence of a failure
to make use of the opportunity of a hearing need not be dismissal
whereas the consequence
of a failure to comply with an ultimatum is
usually, and, is meant to be, a dismissal. In the case of a hearing
the employee is
expected to use the opportunity to seek to persuade
the employer that he/she is not guilty, and why he/she should not be
dismissed.
In the case of an ultimatum the employee is expected to
use the opportunity provided by an ultimatum to reflect on the
situation,
before deciding whether or not he will comply with the
ultimatum. In the light of all these differences between the
audi
rule and the rule requiring the giving of an ultimatum, there can be
no proper basis, in my judgement, for the proposition that
the
giving of a fair ultimatum is or can be a substitute for the
observance of the
audi
rule.
[74] Another question which arises
once it is accepted that a hearing and an ultimatum are two separate
requirements and that the
one cannot be a substitute for the other
is: which of the two requirements must be complied with first? In
other words must an
employer first observe the
audi
rule and
only later issue an ultimatum or must he first issue an ultimatum
and then observe the
audi
rule? Although I incline towards
the view that the observance of the
audi
rule must come
before an ultimatum can be issued, I am of the view that it is not
necessary to decide this issue in this case because
no hearing was
given in this case either before or after the ultimatum. It is
significant to point out that in almost all the cases
I have
referred to above where the courts upheld the requirement for a
hearing in strike dismissals, ultimata had been given before
the
strikers were dismissed. That did not deter the courts from
insisting on the requirement for a hearing nor did the courts have
to decide which side of an ultimatum a hearing had to be or should
be.
[75] Maybe the right time for the
observance of the
audi
rule is before an ultimatum can be
issued because, at that stage, unlike when the ultimatum has been
issued, the employer may
be more amenable to persuasion. If the
observance of the
audi
rule must take place before an
ultimatum is issued, the way it could work may well be the
following: the employer would invite
the strikers or their union or
their representatives to make representations by a given time why
they cannot be said to be participating
in an illegal or
illegitimate strike and, if that is so, why they should not be
issued with an ultimatum calling upon them to
resume work by a
certain time or be dismissed. The dismissal would only result from a
failure to comply with such ultimatum. If,
after hearing or reading
their representations, the employer is satisfied that the strike is
illegal or illegitimate and that it
would not be unfair to issue an
ultimatum at that stage, he could then issue an ultimatum calling
upon them to resume work by a
certain time or face dismissal. If
they complied with the ultimatum, he would not dismiss them. If they
failed to comply with the
ultimatum, he would then be entitled to
dismiss. In that case there would have been an observance of the
audi rule and the employer
will have been able to dismiss those who
defy his ultimatum. In that case there can be no complaint by the
strikers that they
were not given an opportunity to state their case
before they could be dismissed. It may well be that this is how the
audi
rule can be observed in the context of a strike and an
ultimatum but, as I have already said, it is not necessary to decide
the
point.
[76] It has also been said that,
because strikers act collectively when they go on strike, an
employer is entitled to respond collectively.
This has been said in
order to make the point that an employer in such a situation is
justified in not affording strikers a hearing
when he contemplates
dismissing them. (See
Vetsak at
(1996) 17 ILJ 455(A) at
468E-G
). In my view the employer’s right to respond
collectively to employees’ collective action is not mutually
exclusive with the
strikers’ right to be heard before they can be
dismissed. That an employer is entitled to respond collectively
means nothing
more than that he can deal with the strikers as a
group and not as individuals. The employees’ collective action
does not give
the employer a licence to disregard the audi rule
altogether. There is no reason why the employer cannot comply with
the audi rule
by calling for collective representations why the
strikers should not be dismissed.
[77] I have had the benefit of
reading the dissenting judgement of my Colleague, Conradie J.A.
Conradie JA disagrees that, when
an employer contemplates the
dismissal of striking employees, as a general rule or requirement,
he is, subject to certain exceptions,
obliged to give them or their
union or their representatives an opportunity to state their case
before he can dismiss them. Here
below I propose to compare the
merits and demerits of the two approaches. I will call my approach
the
audi
approach and my Colleague’s approach the
“no
audi”
approach.
[77.1] The
audi
approach
introduces certainty in the law in an area in which uncertainty and
confusion abounded under the old Act. This was because
the approach
adopted by the High Courts in respect of cases of dismissals of
public service strikers with regard to the observance
of the audi
rule and the approach adopted by the industrial court, the previous
Labour Appeal Court and the Appellate Division
towards the same rule
in relation to the dismissal of strikers in the private sector were
completely inconsistent. The confusion
and uncertainty that I refer
to in this area of the law under the old Act is also referred to by
John Grogan at 294-5 of his
book: Workplace Law, 4
th
ed. He calls it
“confusing jurisprudence”
. The no-audi
approach will perpetuate this uncertainty. Part of the reason why
the no audi approach will perpetuate this uncertainty
is that it
fails to establish a general rule or requirement one way or the
other even if it is one which says as a general rule
an employer
is not obliged to observe the audi rule before it can dismiss
strikers. Instead it says whether or not in a particular
case an
employer is obliged to observe the audi rule will depend on whether
it is fair to do so. That is vague and means that an
employer will
not be able to know in advance if he is obliged to observe the audi
rule. The audi approach brings in certainty because
it affirms a
general rule which every employer will know in advance. It
acknowledges that such a rule is not absolute and therefore
acknowledges the existence of exceptions to the rule. The exceptions
are also exceptions which are well known in our administrative
law
in relating to the audi rule.
[77.2] The no-audi approach is
contrary to one of the values which our constitution enshrines and
seeks to instil in our democratic
society, namely, equality before
the law. It perpetuates inequality before the law in the way the
courts treat striking workers
in the private sector and striking
workers in the public service. I say this because, in terms of the
no-audi approach, it must,
in my view, be accepted that, if the
striking workers are public sector workers, they certainly will be
entitled to the benefit
of the audi rule before they can be
dismissed. However, if they are from the private sector, then they
will probably be denied
the right to be heard before they can be
dismissed. This has to be so because there are clear and
unmistakable authorities in the
form of cases of the Appellate
Division to the effect that the audi rule must be observed before
striking workers in the public
service can be dismissed. These are
cases which my Colleague does not say were wrongly decided.
[77.3] The audi approach is
principle-based whereas the no-audi approach seems to be lacking in
any principle but seeks to have
cases decided on a case by case
basis. If one studies the cases on which the no audi approach
relies, one is driven to the conclusion
that they were not based on
any principle but each case was decided on its own and, in most of
them, without even reference to
the High Court judgements in respect
of the dismissal of strikers in the public service where it had been
held that an employer
in the public service was obliged to observe
the audi rule. In other words the courts did not ask themselves
what, if anything,
made the private sector cases distinguishable
from those public sector cases where the audi rule had been upheld
even in respect
of strikers. If they had, I think they would have
concluded that nothing did.
[77.4] The audi approach is based
on logic whereas the same cannot be said of the no-audi approach.
This can be demonstrated by
having regard the premise of the audi
approach and the conclusion it reaches. This premise is that every
worker is entitled to
be heard before he can be dismissed; a striker
is a worker; therefore a striker, too, is entitled to be heard
before he can be
dismissed.
[77.5] The audi approach
acknowledges the test emanating from cases of the Appellate Division
to the effect that a decision which
could prejudicially affect an
employee’s right to regular remuneration or a decision to dismiss
for disciplinary reasons attracts
the application of the audi rule
(See the Sibiya and Zenzile cases). The no-audi approach does not
only not do this but also it
fails to explain why the test as
pronounced in Zenzile and Sibiya is good enough for dismissals in
the public service but not good
enough for strike dismissal cases in
the private sector.
[77.6] The audi approach is in
keeping with international standards. This cannot be said of the no
audi approach. I say this because,
quite clearly, the ILO Convention
on Termination of Employment NO 158 of 1982 contains a general rule
that an employer must not
dismiss a worker for reasons based conduct
or work performance without having first given such worker an
opportunity to defend
himself against the allegations made against
him. In this regard the Convention does not say this does not apply
to cases where
workers are dismissed for striking. On the contrary
it should apply also to the dismissal of strikers because those
would fall
under dismissals for reasons based on the employee’s
conduct. The Convention makes provision for one exception which is
broad
enough to refer to all the exceptions that normally apply to
the audi rule. The no-audi approach is either directly contrary to
the convention or at least it is inconsistent with it.
[77.7] The no-audi approach will
more often than not result in the employer and the workers or union
only getting to exchange views
about the legality or legitimacy or
otherwise of the strike for the first time in court when the
dismissal of strikers is challenged-
which may be many months or
even a year or two after the dismissal. The audi approach seeks to
ensure that, before the major decision
of dismissal can be taken,
the employer and the workers will know each other’s case on why
the strike may be said to be legal,
illegal or illegitimate and why
the strikers should or should not be dismissed.
[77.8] The audi approach is likely
to strengthen collective bargaining and to avoid dismissals which
can be avoided once the employer
hears arguments or representations
made by the union or representatives of the strikers. The no-audi
approach is likely to result
in dismissals which could have been
avoided.
[77.9] While in terms of the audi
approach an employer is unlikely to be prejudiced in anyway if he
gave the strikers or their union
an opportunity to state their case
or to make representations before the strikers can be dismissed, the
no-audi approach envisages
the strikers losing their jobs without
having been given an
opportunity to state their case
through their union or their other representatives on why they
should not be dismissed. This would
be seriously prejudicial to the
strikers..
[77.10] While the audi approach has
the effect of promoting the notion of the same law for all workers
which the new LRA also seeks
to do, the no-audi approach seeks to
promote different laws or rules for workers which runs contrary to
one of the goals of the
new LRA which with two or three exceptions,
seeks to bring all workers under the same LRA.
[78] One of the grounds that sec
188(1) of the Act says renders unfair a dismissal that is not
automatically unfair is the effecting
of a dismissal not in
accordance with a fair procedure. Sec 188(2) enjoins that provisions
of a Code of Good Practice be taken
into account when the fairness
of a dismissal is considered. Item 6 of the Code of Good Practice:
Dismissal deals with the dismissal
of employees participating in an
unprotected strike. Item 6(2) thereof provides as follows:-
“
Prior to dismissal, an
employer should, at the earliest opportunity, contact a trade union
official to discuss
the course of action it intends to adopt.
The
employer should issue an ultimatum in clear and unambiguous terms
that should state what is required of the employees and what
sanction will be imposed if they do not comply with the ultimatum.
The employees should be allowed sufficient time to reflect on
the
ultimatum and respond to it, either by complying with it or
rejecting it. If the employer cannot reasonably be expected to
extend these steps to the employees in question, the employer may
dispense with them.” (My underlining).
[79] It is clear from item 6(2) of
the Code that there are at least two steps that an employer, who is
faced with an unprotected
strike, is required to take before he can
dismiss the strikers. The first is that he must, at the earliest
opportunity, contact
the union to discuss the course of action he
intends taking. The second is that he should issue an ultimatum. In
my judgement the
discussion envisaged by item 6(2) between the
employer and the union constitutes an opportunity which the employer
is required
to give the strikers through their union to state their
case before the employer can decide whether to pursue
“the
course of action it intends to take”
referred to in item 6(2).
In my view that would meet the essential requirements of the audi
rule.
[80] The discussion contemplated by
item 6(2) is not, and could not have been, intended to be, a one-way
traffic where the employer
simply instructs or tells the union what
to do. It was intended to be an opportunity for the union to hear
what the employer has
to say about the strike and what he intends
doing about it so that the union has an opportunity to say whatever
it may have to
say about the strike and, more importantly, about the
course of action which the employer tells them he intends taking. It
is an
opportunity for the
union to persuade the employer not
to dismiss or not to issue an ultimatum which would result in the
dismissal of the strikers in
the event of non-compliance therewith
and/or depending on the
circumstances, to persuade the
strikers to resume work even before an ultimatum can be issued. (
see also
Grogan: Workplace Law, 4
th
ed
at 297-8).
[81] The employer would be obliged
to consider the union’s representations properly and in a bona
fide manner before it can decide
to pursue its intended course of
action, whatever it may be, including dismissal without an ultimatum
or the issuing of an ultimatum
which will result in the dismissal of
those strikers who fail to comply therewith. That does not mean that
the employer should
necessarily agree with the union’s
representations or views. But also the employer would not be
entitled to ignore such representations
and to simply go through the
motions pretending to be considering them when in fact he is not.
[82] Although item 6(2) of the Code
refers to a union official as the person whom the employer must
contact, I do not think that,
where there is no union, the employer
has no obligation to initiate a discussion such as the one
contemplated in item 6(2). I
think in such a case it is the leaders
or representatives of the strikers that he must contact and have the
discussion referred
to in item 6(2) of the code with.
[83] I note that, as I have said
above that the discussion contemplated in item 6(2) is a form of the
observance of the audi rule,
Conradie JA also concedes in his
judgement that such a discussion is a form of a hearing. That is one
point on which my Colleague
and I agree.
[84] Another point on which my
Colleague and I agree is that the principles embodied in the Code
were distilled from the jurisprudence
under the old Act. If that is
so, then, with respect, I am unable to see how my Colleague, can,
nevertheless, hold the view which
he expresses in the minority
judgement that there was no general obligation under the old Act and
its jurisprudence that strikers,
too, were entitled to be heard
before they could be dismissed. With respect it seems to me that my
Colleague’s approach confuses
the principle with the form which
compliance with that principle must take in a particular case.
[85] In so far as my Colleague
believes that I say that, where the Code applies, an employer is
generally obliged to give strikers
another hearing in addition to
the discussion contemplated in item 6(2), I want to make it clear
that I do not say so. But this
is a case in which the Code does not
apply because it occurred under the old Act. One refers to the Code
because one seeks to see
what principles of the jurisprudence of the
old Act have been taken over into the new dispensation.
[86] It further appears from my
Colleague’s discussion of the provisions of item 6(2) of the Code
that his disagreement with me
is that he does not believe that the
employer is required to intimate to the union that he is
contemplating the dismissal of the
strikers so that he can hear what
representations the union has to make to persuade him that he should
not follow that course of
action. I am unable to follow this
reasoning because item 6(2) is very clear about what the discussion
between the employer and
the union should be about. It says it must
be about
“the course of action”
that the employer intends
taking - obviously - in the light of the strike. If that does not
mean that, if the course of action
the employer intends taking is,
or, includes, a dismissal of the strikers either with or without a
prior ultimatum, then, quite
frankly, I do not know what the
discussion contemplated by item 6(2) is supposed to be about.
[87] In any event, even leaving
item 6(2) aside, I cannot see how it can be said that an employer
has given an employee whom he
contemplates dismissing a hearing
where he calls the employee in and talks to him about the weather
instead of talking to him about
his dissatisfaction with him and
that he faces possible dismissal.
[88] I have carefully considered my
Colleague’s judgement in order to determine where exactly he and I
differ and why. One possible
reason why-and I think this is an
important reason-is this one. We both refer to the ILO Convention on
Termination of Employment
NO 158 of 1982. We also both accept that
that convention was one of the sources which at a very early stage
the industrial court
relied upon to derive the requirement for a
hearing before dismissal. There were English cases, too, as well as
good practices
of the so-called enlightened employers which the
industrial court derived the audi rule from. But, whereas in article
7 of the
Convention I see a general rule requiring an opportunity to
be heard before dismissal with an exception-such exception being
that
the general rule need not be complied with if the employer
cannot reasonably be expected to give an opportunity to the worker
to
state his case, my Colleague seems to see a different general
rule. That is that an employer is not obliged sees them as saying
an employer is only obliged to give a hearing before dismissal if it
would be fair to do so. This seems to me to be quite vague
and not
borne out by the wording of article 7.
[89] My Colleague also refers to a
number of judgements of the industrial court in the nineties and
suggests that, because in those
cases dismissals of strikers were
held to be fair despite the fact that only ultimata were
given-without any hearing - those cases
support the proposition that
strikers were not entitled to an opportunity to be heard before they
could be dismissed. To this I
ask the question: On what basis could
the courts in those cases have considered the issue whether the
employers had been obliged
to observe the audi rule before they
could dismiss the strikers if the audi argument had not been raised?
The same can be asked
in respect of decisions of the previous Labour
Appeal Court and the Appellate Division in regard to those cases
where the audi
argument had not been raised and fell outside the
issue the Courts had to consider.
[90] In regard to decisions of the
previous Labour Appeal Court which my Colleague relies upon, it is
necessary to state that most
of those cases do not add anything new
to the reasons which had been relied upon in various decisions of
the industrial court.
I have dealt with the reasons relied upon in
those cases. At any rate in terms of the new Act this Court enjoys a
superior status
than that of the previous Labour Appeal Court.
With regard to decisions of the Appellate Division and the Supreme
Court of Appeal
which my Colleague relies upon, I have dealt with
them in this judgement and have either distinguished them or have
found that
what was said in them
relating to hearings was obiter.
[91] My Colleague seems to dismiss
the decisions of the Appellate Division in Zenzile, Zondi as well as
decisions of provincial
divisions of the High Courts in strike
dismissal cases in the public service which have been referred to
above (including Makoponele)
on the audi rule and the dismissal for
striking simply on the basis that Zenzile’s case concerned
temporary employees or that
the other cases were in the public
domain. I cannot see why the fact that technically the workers in
Zenzile’s case were perceived
by the Public Service Act of the
time as temporary employees (even when some of them had worked in
the public service for over
20 years) can serve as a basis for not
applying in the private sector the test decided in Zenzile when it
is accepted that the
dismissal of Zenzile and her co-employees was
for participation in a strike and where it is accepted that the audi
rule applied
to contracts of employment which were subject to the
LRA, even though there was no element of public power in the
relationship
between the employer and the employee.
[92] My Colleague also says in his
judgement that in administrative law the rule or principle is that a
decision-maker is obliged
to give an opportunity to be heard to an
affected person if it can reasonably be expected of him to do so. I
do not agree that
this is the correct formulation of the maxim in
our administrative law. The correct formulation of the maxim in our
administrative
law is to be found in Zenzile’s case at (1991) 12
ILJ 259 (A) at 271
D-F and in Administrator, Transvaal &
others v Traub & others 1989(4) SA 731
(A) at 748G
and the
decisions collected at 748E-F of the latter case.
[93] It is only in the field of
labour law in general and in judgements of the industrial court the
previous Labour Appeal Court
and the Appellate Division relating to
Labour Law in particular that one finds the reference to an employer
not being obliged to
give an opportunity to be heard if it cannot
reasonably be expected to give it. It would appear that the source
of that phrase
is the ILO convention that I have referred to and a
provision which was contained in the definition of an unfair labour
practice
in the notorious 1988 amendments to the old Act. I see
that the Code of Good Practice: Dismissal also contains a provision
to
that effect. That phrase is used in the Convention to indicate an
exception rather than a general rule. The position was the same
under the 1988 amendments. There is no reason why it should be
different under the new Act.
[94] Lastly my Colleague seems to
believe that I call for individual and personal circumstances of
strikers to be taken into account
as a general rule when strikers
are given an opportunity to be heard. That is not what I say. But I
do leave room that there
may be cases where individuals who may have
been intimidated into participating in the strike may have to be
heard separately.
[95] In the light of the above I am
of the opinion that the conclusion I have reached in this case is
consistent with the new Act
and the Code of Good Practice:
Dismissal. Also it is significant to note that the Code contemplates
that the discussion between
the employer and the union referred to
in item 6(2) is required to be before an ultimatum can be issued.
This is in line with the
inclination I have expressed above that the
observance of the audi rule should probably be prior to the issuing
of the ultimatum
rather than after.
[96] In the light of all the above
I have no hesitation in concluding that in our law an employer is
obliged to observe the
audi
rule when he contemplates
dismissing strikers. As is the case with all general rules, there
are exceptions to this general rule.
Some of these have been
discussed above. There may be others which I have not mentioned. The
form which the observance of the
audi
rule must take will
depend on the circumstances of each case including whether there are
any contractual or statutory provisions
which apply in a particular
case. In some cases a formal hearing may be called for. In others an
informal hearing will do. In some
cases it will suffice for the
employer to send a letter or memorandum to the strikers or their
union or their representatives inviting
them to make representations
by a given time why they should not be dismissed for participating
in an illegal strike. In the latter
case the strikers or their union
or their representatives can send written representations or they
can send representatives to
meet the employer and present their case
in a meeting. In some cases a collective hearing may be called for
whereas in others -
probably a few - individual hearings may be
needed for certain individuals. However, when all is said and done,
the audi rule
will have been observed if it can be said that the
strikers or their representatives or their union were given a fair
opportunity
to state their case. That is the case not only on why
they may not be said to be participating in an illegal strike but
also why
they should not be dismissed for participating in such
strike. (See Zenzile’s case at (1991) 12 ILJ 259 (A) at G-H.)
[97] It was also submitted on
behalf of the respondent that, if this Court found that there was an
obligation on the respondent
to have observed the
audi
rule,
it should, nevertheless, find that the respondent did discharge that
obligation because, after it had issued the ultimatum,
the strikers
had an opportunity to come forward and make representations why they
should not be dismissed if there were any grounds
on which they
believed that they should not be dismissed. It was submitted that,
as they did not do this, they could not be heard
to complain that
the
audi
rule had not been observed. For reasons given above
in regard to that approach, I am unable to uphold this submission. I
add to
those in the next paragraph.
[98] Before an employer can issue
an ultimatum;-
(a) he would have made a final
decision that the conduct of the workers is unacceptable;
(b) he would not be seeking to
engage in talks about whether the conduct of the strikers is or is
not acceptable; on that he would
already have made up his mind;
(c) he would not be seeking to
engage in discussions with the
strikers on whether or not he
should have issued the ultimatum and what should or should not be
the consequences of non-compliance
with the ultimatum; on all of
that he would have made up his mind in any event on the pleadings it
was
not the respondent’s case that it
had complied with the
audi
rule.
[99] Reverting to the case at hand,
I conclude, therefore, that the respondent was under an obligation
to observe the
audi
rule before it could dismiss the
appellants. It did not comply with this obligation. The need for the
respondent to hear the appellants
was arguably even stronger in this
case because this was a case where, to the knowledge of the
respondent, certain steps had been
taken by the union which were
obviously aimed at making the strike a legal strike. The respondent
should have realised that, because
such attempts had been made, the
strikers could well have been under the impression that the strike
was legal and, that, for that
reason, they might have believed that
they were entitled to go on strike and even to ignore any calls by
the respondent that they
return to work. Although the appellant’s
strike was illegal, they should not, in my judgement, be treated in
the same way as
strikers who simply flouted the Act and made no
attempts whatsoever to comply with it. They deserve some sympathy.
Workers must
be encouraged to comply with the law. To treat them as
if they fall into the same category as strikers who go on a strike
without
any attempt at all to make their strike legal would not be
right. It would not encourage unions and workers to make whatever
attempts
they can to ensure that their strikes are legal.
Accordingly I hold that in dismissing the appellants without having
observed
the audi rule the respondent committed an unfair labour
practice. In making a contrary finding the industrial curt erred
and its
decision in this regard falls to be set aside.
Relief
[100] The next question to consider
is what relief, if any, should be granted to the appellants. Does it
make a difference to the
relief that the basis for the finding that
the dismissal was unfair is procedural in nature? In this case I do
not think that it
does. In most of the cases where the dismissal of
strikers was found to have been unfair because the employer either
failed to
issue an ultimatum or because he issued an ultimatum which
was found not to be a reasonable and adequate one, our courts have
not
hesitated to grant reinstatement. Although the basis on which I
have found the dismissal in this case to have been unfair has
nothing
to do with an ultimatum, it, like an ultimatum, is a
procedural step. Indeed, it is one which, to my mind, is of far
greater significance
than the issuing of an ultimatum.
[101] At any rate, in this case,
the fact that the union and the strikers made serious efforts to
make their strike a legal one
is, in my view, a highly material
factor in considering whether or not reinstatement should be
granted. Not that if they had not
done so, they would necessarily
not be granted reinstatement. I think that their case for
reinstatement is stronger where they
have made the efforts that were
made in this case to make the strike legal. Also, although a long
period has lapsed since the appellants
were dismissed, this would
be no basis to deny them reinstatement because it is not the
respondent’s case that the appellants
were responsible in any way
for the passage of such a long time before the matter could be
completed in the court a quo. There
was not much of a delay in the
processing of this appeal. The appeal was noted early in 1999 and
the appeal was heard in November
of the same year.
[102] With regard to the
retrospectivity of such reinstatement order as may be made, it was
suggested on behalf of the appellants
that the retrospectivity of
the appellants’ reinstatement should not be for a period which is
less than six months. I propose
granting six months’
retrospectivity, as at the date of the decision of the industrial
court because, in my view, where this
Court, as a Court of Appeal,
concludes that the decision of a lower court taken at a certain time
was wrong, this Court must give
such decision as in its opinion
should have been given by the lower court at the time the lower
court gave the decision appealed
against. As the appellants were
dismissed in November 1994 and the judgement of the industrial court
was issued in March 1999,
even with the six months retrospectivity,
they still lose four years’ wages. But six months’
retrospectivity from the date
of judgement of the industrial court
is in accordance with the suggestion made on behalf of the
appellants. In the result the appeal
must succeed. With regard to
costs, the appellants were represented by a union official.
Accordingly the issue of costs does not
arise save in the form of
such disbursements as the appellants may have reasonably incurred in
pursuing this appeal. They are entitled
to those.
[103] In the premises I make the
following order :-
The appeal is upheld
with costs which are limited to disbursements reasonably incurred
by the appellants in pursuing this appeal.
The determination
made by the industrial court is set aside and replaced with the
following determination :-
“
(a) The respondent’s dismissal of the applicants named in
the Modise group of applicants constituted an unfair labour practice
and they are reinstated in the respondent’s employ with
retrospective effect to six (6) months from the date of this
determination.
(b) There is to be no order as to costs.”
In so far as it is
necessary to do so, it is recorded that the order in (2) above
applies only to those applicants in the Modise
group of applicants
in the industrial court who were appellants in this appeal.
The appellants must
report for duty on or before 27 March 2000 or such other date as
may be agreed upon between them or their
representatives and the
respondent.
______________________
R. M. M. ZONDO
Acting
Judge President
I
agree
_____________________
M.
T. R. Mogoeng
Acting
Judge of Appeal
CONRADIE
J A
[103] The
appellants are four individuals who, in the industrial court, sought
reinstatement after their dismissal from the respondent’s
employ
for participation in what the respondent regarded as an illegal
strike. In the case of Moloi & Others against Steve’s
Spar
Blackheath forty individual applicants who were members of the South
African Commercial Catering and Allied Workers’ Union
(‘Saccawu’)
also challenged the fairness of their dismissal for participating in
the strike. The two matters were consolidated
in the court
a
quo
. However, only the four appellants are before the court. In
the other matter notice has been given of an application for
condonation
of the late noting of the appeal. That is still to be
heard.
[104] There were numerous
procedural difficulties at the start of the appeal. To begin with,
the appeal had been noted late. The
explanation that there had been
late notification of the delivery of the judgment, aggravated by a
postal delay, was acceptable
in view of the fact that noting had
been no more than a few days late. Similarly, the late filing of the
record was condoned. Again,
the period for filing had been exceeded
by only a few days and the explanation for why this happened was
adequate.
The appellants’ involvement
in industrial action
[105] The case of the four
appellants is that none of them had Saccawu membership and that they
did not participate in the strike.
It was fear which kept them from
working. They did not fear reprisals from the strikers who never
conducted themselves other than
peacefully but from a group of
unknown and violent demonstrators from elsewhere who seemed to have
taken an interest in the employees’
affairs. In this way the four
sought to safeguard their own position while simultaneously not
compromising that of the forty applicants
in the other case. Their
version was rejected by the industrial court and, I consider, with
good reason. Not only did the excuse
for not tendering their
services border on the fanciful but acceptance of their version
depended on the assertions of the first
appellant who maintained
that she had, also on behalf of the other three, kept contact with
the respondent, assuring it that they
were willing to work and
receiving from it an undertaking that they would not be dismissed
for participation in the strike. The
curious feature of this
version is that there
were
six employees who fell within the
category of workers who felt themselves intimidated.
They
did
keep contact with the respondent.
They
did receive an
assurance that they would not be dismissed. Although they were, for
the sake of appearances, dismissed with the
other strikers, they
were shortly thereafter re-employed. The appellants, then, had to
persuade the court
a quo
that, although they were in an
identical position, the respondent had breached its faith towards
them while keeping its word with
the other six. Mr Steve Savvides
who testified for the respondent denied that any of the four had
made contact with him during
the strike and on the probabilities
this is undoubtedly the correct version.
[106] Late in the trial the four
appellants represented by Mr MD Maluleke of the National Entitled
Workers’ Union amended their
statement of case to claim, in the
alternative, that if it were to be found that they had been part of
the strike, the strike was
not illegal and that, even if it had
been, their dismissal was unfair for lack of an adequate ultimatum
and because six other employees,
who also participated in the
strike, had not been dismissed. This amendment put the case of the
four appellants on the same footing
as that of the other forty.
The invalidity of the ballot
[107] I agree with Zondo AJP that
there was no valid ballot. It was chaotically conducted. An
attendance register was produced at
the trial which contained the
names of 546 persons. The result of the ballot reflected that the
same number had voted. Unfortunately
for the appellants the
attendance register was also completed by Sophie Motshaba, one of
the appellants. Since this tended to show
that she was, contrary to
her denial, a Saccawu member, the testimony was tailored (so it
appears to me) by maintaining that a
portion of the attendance
register had been lost and that there were persons who had signed
the attendance register but were not
allowed to vote because they
were not union members in good standing. There was no list of
eligible voters. No record therefore
exists of the persons who
voted. They may or may not have been those reflected in the
attendance register and they may or may not
have been members of
good standing. It is unknown how it occurred that only 546 persons
voted if (as was maintained by one of the
witnesses) 1012 arrived to
take part in the ballot. There is also no way of ascertaining
whether a majority of the employees of
the respondent voted in
favour of the strike. The names of only eleven of the employees (out
of nearly fifty dismissed for their
strike participation) are to be
found in the attendance register. That the majority of the
respondent’s employees did not vote
in favour of the strike was,
in itself, fatal to its legality. The glaring irregularities in the
ballot made it impossible to
say that a majority of employees who
were union members in good standing had voted in favour of the
strike.
[108] The requirement of a proper
ballot was not under the Labour Relations Act 28 of 1956 (‘the
1956 Act’) simply a technicality.
(
National Union of
Metalworkers of SA & others v Jumbo Products CC
(1991) 12
ILJ 1048 (IC)) The requirements for a proper ballot before a strike
might legally be called were laid down by the labour
appeal court in
Sasol Industries (Pty) Ltd & another v SA Chemical Workers’
Union
(1990) 11 ILJ 1010 (LAC), later reinforced by the decision
of the same court in
Steel and Engineering Industries Federation
of South Africa v National Union of Metalworkers of South Africa
(2) (1992) 13 ILJ 1422 (T).
The functionality of the
strike
[109] It was the law under the old
dispensation and is the law under the new, that participation in an
illegal strike is not determinative
of whether a striker’s
employment should be terminated. (See, for example, Le Roux &
Van Niekerk, ‘The South African Law
of Unfair Dismissal’ p 304
et seq.; The
Labour Relations Act of 1995
, 2nd ed. Du Toit
et al
p 419-420; Cf Code of Good Practice: Dismissal under Act 66 of 1995
item 6 (‘the 1995 Act’)) The learned authors point out
that
participants in illegal strikes, provided these were functional,
were frequently given protection against dismissal by the
courts. It
depended on whether the strike was functional to collective
bargaining i.e.: whether it, despite its illegality, served
to
advance the cause of collective bargaining.
[110] In the present case, the
strike was, in my view, totally dysfunctional. The subject of the
strike was a demand by Saccawu
that Spar stores enter into regional
negotiations in a collective bargaining forum. The only connection
between Spar retailers
in the Gauteng region was their compulsory
membership of the Spar Guild, an association meant to co-ordinate
promotional activities
at store level and to regulate the activities
of Spar stores in certain limited respects. Saccawu, however,
maintained that the
Spar Guild was a collective bargaining forum
through which regional bargaining could take place.
[111] The Guild had never been a
collective bargaining forum. Its constitution did not permit it to
engage in negotiations on conditions
of service, something which
each store was free to arrange itself. Although 140 Spar and Kwik
Spar retailers belonged to the Guild
in the Johannesburg area, only
61 were affected by the regional strike. They were stores at which
Saccawu had organised employees.
[112] The demand was not one which
could have been realised by the sixty-one stores which were chosen
as strike action targets acting
in concert, let alone by the
respondent on its own. Even regionally, the sixty-one stores,
assuming them to have all capitulated
to Saccawu’s demands, could
not have carried the day. The demand to create a regional bargaining
forum, or to transform the Guild
into a bargaining forum needed the
consent of all 500 stores belonging to the guild. The respondent
was therefore powerless to
bring the strike of its employees to an
end by acceding to Saccawu’s demand.
[113] A strike in support of a
demand which is unattainable (or wholly unreasonable?) is not one
which is functional to collective
bargaining. In
Barlows
Manufacturing Company Ltd v Metal and Allied Workers’ Union
&
Others
1990 (2) SA 315
(W) at 322 D – H Goldstone J held
that a strike did not fall within the definition in the Act unless
the demand with which it
intended to enforce compliance could
reasonably be achieved. This may be putting the test somewhat high.
It is not necessary to
debate the question now. The situation which
we have here is exactly that which confronted the court in
SA
Commercial Catering and Allied Workers’ Union & others v
Transkei Sun International Ltd t/a Wild Coast Sun Hotel, Casino
and
Country Club
(1993) 14 ILJ 867 (TkA) at 874 D – 875 G. The
court held that the appellant’s demand for centralised bargaining
was unattainable.
The respondent could not, whatever it did, create
the necessary forum. I am of the view that we should be guided by
this decision.
[114] The strike was dysfunctional
for another reason. No warning of it had been given to the
respondent. Savvides said that he
learnt of the demand after the
strike had started. This is probably due to the fact that there was,
sporadic, communication with
the Guild which was thought somehow to
represent store owners.
[115] The strike was also
dysfunctional for not having been peaceful. The evidence of Savvides
was that the presence of the police
was repeatedly required to
prevent interference with customers as well as the intimidation of
temporary workers and the disruption
of supplies. Since it is common
cause that the police were on the scene, it seems more probable that
they were summoned by reason
of the strikers’ conduct than (as
the appellants would suggest) that they were unnecessarily called in
by Savvides. None of the
appellants’ witnesses could see what was
happening behind the store where supplies were delivered.
[116] On Friday 11 November 1994
Saccawu notified the respondent that the strike would be called off
on Monday 14 November. The
move was prompted by an application to
court (by one of the other targeted Spar stores in the region)
casting doubt upon the lawfulness
of the strike ballot. By Saturday
afternoon Saccawu had, at the insistence of its members, decided to
nevertheless persist with
the strike. It sent a telefacsimile to the
respondent announcing that ‘the situation has changed’ and that
‘the workers would
pursue every legitimate means to ensure that
their demands are properly addressed.’ It is evident that Saccawu
had decided to
run the risk of being found to have kept its members
out on an illegal strike.
[117] Another opportunity to debate
and reflect on the legality of the strike was offered to Saccawu
when, on 14 November, the respondent’s
attorneys communicated to
it their views in regard to the strike’s legality and disclosed
that the respondent intended seeking
relief from the court. The
letter was ignored. There was similarly no response to the rule
nisi
which had been granted pursuant to the application to court. Two of
Saccawu’s officials were on the strike scene shortly after
the
ultimatum and the accompanying court order had been distributed to
strikers, but they failed, as they should have done, to
advise their
members of the declaration of illegality embodied in the rule
nisi
and that they had been interdicted from participating in the strike.
They made no effort to discuss the issue with the respondent.
[118] The strikers’ conduct is
mitigated by the fact that, according to Savvides, they abided by
the terms of the interdict prohibiting
picketing within a defined
distance of the trading premises, but they did not, despite the
interdict, stop striking. Even if the
strikers felt disinclined to
comply with the ultimatum, they should have obeyed the court order
and immediately resumed their work.
[119] It is becoming distressingly
obvious that court orders are, by employers and employees alike, not
invariably treated with
the respect they ought to command. It is a
worrying tendency, one which can only be effectively combated by the
courts’ displaying
a marked reluctance to condone non-compliance.
Obedience to a court order is foundational to a state based on the
rule of law.
The courts should by a strict approach ensure that it
remains that way. I do not perceive any good reason why the
appellants should
not be penalised for their non-compliance. They
cannot plead ignorance. Their union was closely involved. As we have
seen, a Saccawu
official was on the scene that very morning, and
although his testimony was that the strikers had already been
dismissed when he
arrived, that evidence, as I shall presently show,
falls to be rejected. There is little, then, that can be said in
favour of exercising
a discretion in favour of the appellants and I
do not consider that they are, taking the above factors together,
entitled to this
court’s assistance.
The ultimatum
[120] Next, Mr Maluleke relied on
the alleged inadequacy of the ultimatum. The evidence for the
respondent was that Savvides had
at about a quarter past eight on
16 November 1994 distributed to the assembled strikers copies of
the interim court order which
had been granted the previous day
together with an ultimatum to them to return to work by ten o’clock
that morning. Savvides
testified that he consulted with the strikers
at about ten o’clock. They were not prepared to return to work. He
then extended
the ultimatum to eleven o’clock. When, at eleven
o’clock, their attitude had not changed, he extended the ultimatum
to the
start of work the next morning. It is common cause that no
strikers came to the shop the next morning.
[121] The respondent then prepared
a letter dated 18 November 1994 in which it recorded that the
employees had not complied with
the ultimatum and that they had
therefore been dismissed with effect from 17 November 1994. The
appellants, however, contend that
the respondent dismissed the
strikers the morning of the ultimatum. Two union officials, Mdakane
and Mothiba were, so it was asserted,
called to the respondent’s
premises at about half past eight on 16 November. When they arrived
an hour later, they found that
the strikers had already been
dismissed.
[122] This version relies for its
acceptance on an assumption that Savvides summoned the two union
officials only to dismiss the
strikers before they arrived (which
would have been at half past ten, before the expiry of the original
ultimatum) and then falsified
the dismissal letter which recorded a
dismissal effective from 17 November. Assuming that he had had
second thoughts about the
validity of the ultimatum issued on the
sixteenth, Savvides could simply have delivered another. He had
nothing to gain by being
dishonest and, this being so, it is
unlikely that he would have written a dismissal notice containing
false information. It is
noteworthy that the appellants alleged in
their statement of case that the date on which the unfair dismissal
of the applicants
occurred was 17 November 1994. This allegation
deals a serious blow to the acceptability of the appellants’
version.
Administrative Law and Labour
Law
[123] Mr Maluleke on behalf of the
appellants strenuously argued that the respondent was not entitled
to dismiss the strikers (including
the appellants) without having
given them a hearing. Since my views on this topic differ from those
of Zondo AJP I shall have to
deal with the divergence quite
extensively.
[124] Procedural fairness is a
dominant theme in both administrative and labour law. In the
administrative law a decision-maker
must give an affected person an
opportunity of being heard if it can reasonably be expected of him
or her to do so. If it is not
unreasonable to do so, the decision
may be taken without input from the person prejudicially affected.
What a fair procedure would
be, would depend on the circumstances.
The only general principle that I can discern, in both
administrative and labour law, is
that a hearing should be accorded
if it is in the circumstances fair to give one. Usually the
circumstances are such that it is
fair to give a hearing. It is only
in this sense that there may be said to be an obligation on an
employer: if he encounters circumstances
where it is fair to do so,
he must give a hearing.
[125] The uncertainty inherent in a
notion as diffuse as fairness, prompted the legislature in the 1995
Act to lay down precepts
and guidelines for procedural fairness
which have, to a large degree, been distilled from the practice of
the previous fifteen
years. The 1995 Act requires a dismissal for
misconduct, incapacity or operational requirements to be effected in
accordance with
a ‘fair procedure’ (s 188). The Code of Good
Practice (schedule 8 item 4) says that to follow a fair procedure an
employer
should
normally
conduct an investigation to
determine whether there are grounds for dismissal. Where it cannot
reasonably be expected to conduct
such an investigation, the
employer need not do so.
[126] Although administrative law,
being informed by the same spirit of equity, in appropriate
circumstances puts similar obligations
on a decision – maker, the
employer’s obligations were not under the 1956 Act derived from
administrative law but from international
law and practice and in
particular standards proposed by the International Labour
Organisation. Our courts, looking for guidance
in that quarter, and
looking at the way in which enlightened employers locally dealt with
their employees, then, using the open-ended
fair labour practice
concept of the 1956 Act, on a case by case basis, worked out what
could, in the South African context, be
considered to be fair labour
practices. It is these practices one should look at to determine
whether an employer has followed
a fair procedure, not the
guidelines laid down by the courts for public authorities in other
situations. (See Wallis,
Labour and Employment Law
Chapter 1
on the Sources of Employment Law)
[127] I do not consider that there
is any assistance to be derived from a case like
Administrator,
Natal & Another v Sibiya & Another
[1992] ZASCA 115
;
1992 (4) SA 532
(A).
(applied in
Minister of Water Affairs v Mangena & Others
(1993) 14 ILJ 1205 (A)) The fact that it was considered necessary
for a public authority in the exercise of its public power to
accord
a hearing to employees who were dismissed following the termination
of contracts terminable on notice, does not assist in
determining
whether strikers should or should not be given a hearing before
dismissal, and, more pertinently, whether the strikers
in this case
should have received a hearing prior to dismissal. These were both
cases concerning temporary employees. Another such
case was
Administrator, Transvaal and Others v Zenzile & Others
1991 (1) SA 21
(A). There temporary workers had been dismissed in
terms of contracts of service which provided that their services
could be summarily
terminated for misconduct. Had labour law
principles applied, they would before dismissal have been entitled
to a hearing on a
charge of absenteeism. The fact that the appellate
division found a way of coming to their aid by having recourse to
the administrative
law, is not of any assistance in deciding this
case.
Mayekiso v Minister of Health and Welfare and others
(1988)
9 ILJ 227 (W),
Mokwoena & others v Administrator of the
Transvaal
(1988) 9 ILJ 398 (W),
Mokopanele & Andere v
Administrateur Oranje Vrystaat en Andere
1989 (1) SA 434
(O),
Nkomo & Others v Administrator, Natal & Others
(1991)
12 ILJ 497 (A) are all cases from the public domain where it was
reasonably well established, even before the important appellate
division decisions in
Zenzile (supra)
and
Zondi &
others & Administrator, Natal & Others
(1991) 12 ILJ
497 (A)
that a public sector employer had to observe the
audi
alteram partem
principle when taking any decision prejudicially
affecting an employee including dismissal for participation in an
illegal strike.
Strike dismissals
distinguished
[128] There are two types of strike
dismissal. The first, and most common, is where employees are out on
strike; they are then given
an ultimatum to return to work or face
dismissal. There is a second, less common, type of strike dismissal
where employees, of
their own accord (not in response to an
ultimatum) return to work and are then disciplined for having
participated in an unlawful
strike just as they would be if they had
taken part in a work-stoppage or an illegal stay-away, or go-slow
industrial action. (Cf
National Union of Metalworkers of SA &
others v Lasher Tools (Pty) Ltd
(1994) 15 ILJ 169 (IC))
[129] The main distinguishing
feature is that when employees are on the premises, they are,
depending on whether or not the workplace
is in an uproar, amenable
to discipline. In this sort of situation the courts have, where it
could reasonably have been expected
of an employer to hold one,
required a hearing before dismissal. (Cf
Maluti Transport
Corporation Limited v Manufacturing, Retail, Transport and Allied
Workers’ Union & Others
[1999] 9 BLLR 887
(LAC)
; see
also HL&H Mining Timber v Paper Printing Wood and Allied
Workers’ Union
(1993) 14 ILJ 250 (ARB)
paras [30] &
[50]). In the second type of case hearings have, generally speaking,
been required. I have no quarrel with that.
The only question is
what fairness to both employer and employee demands. My disagreement
with my brother Zondo concerns the first
category of strike
dismissal where an ultimatum is the employer’s only practical
response and where, as I hope to show, it can
seldom if ever be fair
to hold a hearing, and our labour courts have never required it.
The decisions relied upon by
Zondo AJP as evidence of a practice to afford a hearing
[130]
Black Allied Workers’
Union & others v Palm Beach Hotel
(1988) 9 ILJ 1016 (IC)
was a s 43 application for interim reinstatement of strikers who,
the court found, had been over-hastily
dismissed. The ultimatum had
been too short. De Kock AM, in balancing the unfairness of the
employer’s conduct against that of
the employees also found that
the employer had acted unfairly in not holding a disciplinary
enquiry when neither the behaviour
nor the number of strikers
precluded a hearing. It was only one of several factors he took into
account in deciding on provisional
reinstatement.
Black Allied
Workers’ Union & others v Edward Hotel
(1989) 10 ILJ 357
(IC) is a case about a strike dismissal. The court held that
although the strike had been illegal, the employees
should not have
been dismissed. The dismissal was therefore substantively unfair.
Although this should have been the end of the
case, the court went
on to state,
obiter
, that the one hour ultimatum given to the
strikers had been too short and to express the further
obiter
view that individual strikers should have been given the opportunity
of addressing the employer on whether dismissal was the appropriate
sanction.
[131] The circumstances in
Shezi
and others v Republic Press
(1989) 10 ILJ (IC) were exceptional.
It was a case of selective dismissal: only those employees who had
willingly participated
in a strike were dismissed. As the court
noted, the employer separated the employees into goats and sheep.
Once a categorisation
of this kind had become a criterion for
dismissal, an enquiry to establish who belonged in which camp was
clearly indicated. The
case is no authority for the proposition that
there is a general duty on an employer to hold an enquiry before a
strike dismissal.
[132]
Black Electrical and
Electronic Workers’ Union & Others v MD Electrical
(1990)
11 ILJ 87 (IC) involved an illegal work stoppage in the form of a
stay-away, not a strike. Absenteeism is a disciplinary
offence.
Enquiries into the employees’ conduct were clearly indicated. None
was held. No ultimatum had been given to get the
employees back to
work.
[133]
Lebona and Others v
Trevenna
(1990) 11 ILJ 98 (IC) was also a case about a work
stoppage. The court found that the work stoppage had in the
circumstances not
been an unfair labour practice. The dismissals
were therefore unfair. It further opined that a disciplinary enquiry
into the causes
of the work stoppage should have been held.
Obiter
or not, the dictum is correct.
Matheus & others v Namibia
Sugar Packers
(1993) 14 ILJ 1514 (IC) was a case about a
stay-away in the face of an agreement by the employees not to engage
in political stay-aways.
It was held that the agreement could not be
construed as dispensing with the need to hold proper disciplinary
enquiries. Absenteeism
is a well-known disciplinary offence.
National Union of Mineworkers of South Africa & others v
Lasher Tools (Pty) Ltd
(1994) 15 ILJ 169 (IC) is another case
about a stay-away. Employees were dismissed following disciplinary
enquiries. It was held
that the employer had not approached the
enquiries with an open mind, and that they had in any event been
procedurally unfair.
[134] In
Food & Allied
Workers’ Union & others v Mnandi Meat Products Wholesalers CC
(1995) 16 ILJ 151 (IC) Grogan AM decided that a cessation of work,
which he found to be a ‘walkout’ rather than a strike, had
been
provoked by the employer. He considered that fairness demanded ‘the
issuing of a clear ultimatum before resort was had to
the drastic
expedient of dismissal’. In the absence of an ultimatum, the
employees should have been offered the opportunity to
state their
case. The decision is not authority for the proposition that both an
enquiry and an ultimatum are necessary.
[135] Of the cases cited in the
labour domain by Zondo AJP three dealt with strikes. They are
Bawu
v Palm Beach Hotel
(supra),
Bawu v Edward Hotel
(supra),
Shezi v Republic Press
(supra). They are decisions by the
same presiding member (De Koch AM) who opined in the first two
obiter
that enquiries prior to dismissal in a situation where
employees were out on strike would have been desirable. In
Shezi
v Republic Press
the special circumstances
cried out for
a pre-dismissal investigation. In two later decisions the same
member disapproved of enquiries in this type of situation:
Food &
Allied Workers’ Union v Willoton Oil and Cake Mills
(1990) 11
ILJ 131 (IC) at 134 F - H and 135 C – 136 D where he considered
that no more than a fair ultimatum was required. He
followed this up
two years later with a decision to the same effect in
Paper
Printing Wood & Allied Workers’ Union & others v Tongaat
Paper Co (Pty) Ltd
(1992) 13 ILJ 393 (IC) at 398 B – F.
Dismissals
for illegally striking – industrial court
[136] Industrial court cases in the
nineties have taken the view that it is (generally) fair to dismiss
workers striking illegally
upon non-compliance with an ultimatum:
Paper Printing Wood and Allied Workers’ Union & others v
Tongaat Paper Co (Pty) Ltd
(1992) 13 ILJ 393 (IC) (per De Koch
M);
Msengi & Others v Lupo International Clothing and
Sportswear (Pty) Ltd
[1994] 7 BLLR 94
(IC);
Fawu & others
v Mnandi Meat Products and Wholesalers CC
[1994] 9 BLLR 7
(IC)
at 16 E – F: ‘
¼
this is a
case in which fairness required the issuing of a clear ultimatum
¼
’,
Numsa v Rand Bright Steel
[1995] 6 BLLR 60
(IC) at 81 G –
H;
Sacaawu & others v Waverley Superstore CC t/a Waverly Spar
[1996] 7 BLLR 916
(IC);
FGWU & others v Letabakop Farms (Pty)
Ltd
[1995] 6 BLLR 23
(IC);
Numsa & others v Datco
Lighting (Pty) Ltd
[1995] 12 BLLR 42
(IC).
CWIU & others
v Mend-– a – Bath International
[1996] 6 BLLR 739
(IC) at
745 H- 746 A;
Metal & Allied Workers’ Union & others v
BTR Samcol – A division of BTR Dunlop Ltd
(1995) 16 ILJ 83
(IC) at 125 D – 126 B. In
National Union of Metalworkers of SA
& others v Boart MSA
(1995) 16 ILJ 1098 (IC) the requirement
of ‘a fair warning that dismissal is contemplated
¼
’
(at 1107 E – F) was emphasised. A fair ultimatum was given. That
was considered good enough.
Dismissals
for illegally striking – labour appeal court
[137] As might be expected, the
topic of strike dismissals also found its way into the labour appeal
court. The first decision to
which I draw attention is that in
N
ational Union of Mineworkers of SA v Haggie Rand Ltd
(1991)
12 ILJ 1022 (LAC). This case preceded that of
Allied Workers’
Union & others v Prestige Hotels CC t/a Blue Waters Hotel
(1993) 14 ILJ 963 (LAC) in which it was said
obiter
that
there might be merit in having a disciplinary enquiry prior to a
strike dismissal. In the
Haggie Rand
decision (supra)
Goldstein J at p 1028 G – 1029 A said this –
‘
I was pressed with the argument
that the dismissals ought to have been preceded by disciplinary
enquiries or hearings. There is
no merit in this argument.
Management acted fairly; moreover in my judgment ‘it could not
reasonably have been expected
¼
’
of management to hold ‘a hearing or enquiry’
¼
.If
one postulates a hearing in the present circumstances one
necessarily emasculates the ultimatum, for it would then have to

read that workers are to return to work or be dismissed but subject
to a disciplinary hearing. It must be remembered that the day-shift
was engaging in a power struggle with management which management
was entitled in fairness to combat – and the only effective
weapon, given the flagrance of the conduct of the day shift, was the
sword of dismissal. To expect management to emasculate the
ultimatum
by subjecting its threat of dismissal to a hearing is to demand of
it to sheathe the sword and render it ineffective,
or virtually so.
An that is not fair. There is also something quite artificial and
unacceptable in requiring an employer who is
directly affected by
the flagrant, unmistakable misbehaviour of an employee to conduct an
enquiry himself into such misbehaviour
after such employer has
himself deemed it necessary to issue a dismissal ultimatum as a
result thereof.’
[138] There are other labour appeal
court decisions approving the dismissal of striking employees after
(no more than) a fair ultimatum.
One such decision is
Plaschem
(Pty) Ltd v Chemical Workers’ Industrial Union
(1993) 14 ILJ
1000 (LAC) in which one finds the celebrated
dictum
about
both parties to the industrial dispute having to allow themselves
time to cool off ‘so that the effect of anger on their
decisions
is eliminated or limited’ (at 1000 H – I). Another, later,
decision is that in
Numsa v SA Wire Company (Pty) Ltd
[1996]
3 BLLR 271
(LAC).
[139] This decision was followed by
that of McCall J in
Majola & others v D&A Timbers (Pty)
Ltd
[1996] 9 BLLR 1091
(LAC). The learned judge found it
unnecessary to decide whether a hearing before dismissal for illegal
strike action was required.
There is nonetheless a valuable
discussion of the rules governing hearings at pp. 1102 B to 1104 A
which the same learned judge
put into effect in
Plascon Ink &
Packaging Coating (Pty) Ltd v Ngcobo
(1997) 18 ILJ 327 (LAC) at
339 E – H where it was held that whether a hearing would be fair
depended on the circumstances. In
Zondi & Others v The
President of the Industrial Court and another
[1997] 8 BLLR 984
(LAC) at 1001 H – 1002 D Myburgh JP rejected an argument that bus
drivers dismissed for striking were entitled to individual
hearings.
Dismissals
for illegally striking – supreme court of appeal
[140] The appellate division had as
long ago as 1994 in
Performing Arts Council of the Transvaal v
Paper, Printing, Wood & Allied Workers’ Union & Others
[1993] ZASCA 201
;
1994 (2) SA 204
(A) given its approval to the dismissal of strikers
on an illegal strike following failure to comply with a fair
ultimatum. Goldstone
JA who delivered the judgment for the court did
not suggest that any procedural step other than the giving of a fair
ultimatum
was required. He left open the question whether an
ultimatum would under all conceivable circumstances be the
appropriate response
to an illegal strike.
[141]
National Union of
Metalworkers of South Africa v GM Vincent Metal Sections (Pty) Ltd
1999 (4) SA 304
(SCA) is the latest decision of the supreme court of
appeal to hold that dismissal of strikers pursuant (only) to a
proper ultimatum
is fair (at 314 D -315 D).Reliance was placed on
National Union of Mineworkers v Black Mountain Mineral
Development Co (Pty) Ltd
1997 (4) SA 51
(SCA) where a dismissal
pursuant to an ultimatum was held to be fair (at 63 D – E ).
Dismissals
for unprocedural strikes – labour court
[142] The labour court has held in
Smcwu & others v Brano Industries (Pty) Ltd & others
[1999] 12 BLLR 1359
(LC) that item 6 of schedule B of the 1995 Act
(which it held to be largely a codification of the pre- 1995 labour
jurisprudence)
did not oblige the employer to give strikers a
hearing in addition to an ultimatum (1367 [60] – [61]). Shortly
before, it had
been held by the labour court in
Numsa &
others v Malcomess Toyota (A division of Malbak Consumer Products
(Pty) Ltd
[1999] 9 BLLR 979
(LC) at 995 C – E that –
‘
[119] In a strike situation,
particularly an unprotected strike, where employees are warned of
dismissal in an ultimatum, it would
hardly make sense to conduct a
hearing just before the dismissal is imposed. Apart from the fact
that it promises to be very impractical
to have hearings during an
unprotected strike about participation in the strike itself, a
requirement for disciplinary hearings
to be held prior to taking
action during an unprotected strike would also mean that the
employer’s endeavours to bring an end
to unprotected action is
seriously hampered.
[143] A requirement to have
hearings after the dismissal had already taken place, would be, in
my opinion, tantamount to the employer
second guessing its own
decision. Such a process could not serve in any meaningful way to
resolve the issues at hand.’
Marapula & others v Consteen
(Pty) Ltd
[1999] 8 BLLR 829
(LC) at 841 B – F also held that
the code of practice does not contemplate an enquiry. An ultimatum
suffices.
SA Scooter & Transport Allied Workers’ Union &
other v Karras t/a Floraline
(1999) 20 ILJ 2437 (LC) at 2449 E –
G is to the same effect.
Dismissals for unprocedural
strikes – labour appeal court
[144] This court has not adopted
any different principle. In
Triple Anchor Motors (Pty) Ltd &
another v Buthelezi & others
[1999] 7 BLLR 641
(LAC) the
dismissal of striking employees on an ultimatum was approved. (655 F
– 656 H) This was also the case in
Allround Tooling (Pty) Ltd v
Nums
a
[1998] 8 BLLR 847
(LAC) at 854 G
et seq
.
[145] On the facts in
National
Union of Metalworkers of SA v Vetsak Co –operative Ltd &
others
(1996) 17 ILJ 455 (A) the majority found that there was
no duty on the respondent to afford each worker a separate hearing
before
dismissals were put into effect (at 468 F – G.) Collective
action, it was held, might be met by a collective response. It is

implicit in the judgment that the employees were entitled, but
failed, to make representations in response to the ultimatum. That
is no doubt why it was argued that
individual hearings should
have been given.
The
writers
[146] Some
writers on the topic of strike dismissals – and here I mean the
dismissal of employees who are out on strike – have,
as Zondo AJP
has indicated, favoured the view that hearings ought generally to be
held. This does not, as MSM Brassey has acknowledged
in an article
in Employment Law ‘Another Gulp for the Ulp’ (Vol 10 Part 5)
reflect the jurisprudence of the courts. He remarks
that ‘strike
cases
¼
are steadfastly treated
as an exception to the rule.’ Academic and other writings, however
influential the views of the author
might be, are not a source of
our labour law. Moreover, I do not believe that any of these authors
has investigated the purpose
(or practicality) of a hearing in
conjunction with an ultimatum in any depth. Nor do I think that the
learned authors have paid
sufficient regard to the fact that
provision for consultation has always been there in the form of
early involvement of the striking
employees’ union.
The
supremacy of fairness
[147] The
only general rule is that fairness in industrial relations should
prevail. There is really no other rule. I agree, with
respect, with
the
dicta
in
Numsa v GM Vincent Metal Sections (Pty) Ltd
(supra) where Melunsky AJA said:
‘
[18] The issue in this case,
therefore, is whether the dismissal of the striking employees for
failing to comply with the ultimatum
was an unfair labour practice.
To decide this issue it is necessary to have regard to what was fair
in all the circumstances and
to apply the concept of fairness in
accordance with the rules and norms that have evolved in the field
of labour jurisprudence.’
In my view the failure to look to
fairness as the lodestar is behind the misguided attempts in cases
like
National Union of Metalworkers v Elm Street Plastics
(supra)
to introduce common law concepts like repudiation or
abandonment or waiver into our labour law. They are unnecessary. If
strikers
are setting fire to their employer's offices, it is excused
from any pre-dismissal procedure, not because the arsonists by their
conduct evince an intention to repudiate their contracts of
employment or have, by their conduct, waived or abandoned their
right
to be heard. The employer is excused because it would not be
fair to expect him to invite representations before dismissal. It is
not necessary and, indeed, undesirable, to look for solutions beyond
the dictates of fairness to employer and employee. The labour
appeal
court in
National Union of Public Service Workers and others v
Alberton Old Age Home
(1990) 11 ILJ 494 (LAC) approved the
sentiments in
Elm Street Plastics
(supra) something which, in
my respectful view, it should not have done. Fairness comes in
different guises. What the courts –
and latterly the legislature –
have regarded as fair in a retrenchment dismissal, is not the same
as that which has been and
is regarded as fair in a misconduct
dismissal. What is fair in a misconduct dismissal is not fair in an
incapacity dismissal. A
strike dismissal has its own rules
predicated upon what is fair to employer and employee in that
situation; and, as we have seen,
strike dismissals are required to
conform to different norms based upon whether it is an
ex post
facto
dismissal or a dismissal of strikers out on strike.
Fairness to the employer
[148] My
point of departure in this discussion is that it is not fair to
expect an employer to do anything which is pointless. It
does not,
as I understand the judgment of Zondo AJP, appear that usefulness of
purpose is a criterion for inviting representations
on the question
of dismissal. He criticises
National Union of Metalworkers &
others v Elm Street Plastics t/a ADV Plastics
(1989) 10 ILJ 328
(IC) for having held that an employer would be excused from inviting
representations if to do so would be ‘pointless’
or ‘useless’.
I do not, with respect, find myself in agreement with this approach.
The guiding principle under the 1956 Act
and under the 1995 Act is
fairness. The ultimate question is always what it would be fair to
require an employer to do. If it
would not be fair to require it to
engage in a pointless exercise, then it cannot be penalised for not
affording strikers a hearing,
no matter how formal or informal. I am
unable to fault the approach of cases like
Media Workers’
Association & others v Perskor
(1989) 10 ILJ 441 (IC) at 455
D and
Food & Beverage Workers’ Union & others v
Hercules Cold Storage (Pty) Ltd
(1989) 10 ILJ 457 (IC) at 466 B
– D that it was not necessary to hold a hearing because it would
have served no purpose. An appeal
from the last decision was
dismissed (
Food & Beverage Workers’ Union & others v
Hercules Cold Storage (Pty) Ltd
(1990) 11 ILJ 47(LAC)), the
court of appeal finding that the employees had rejected offers to
negotiate before implementation of
the final ultimatum.
The
purpose of an ultimatum
[149] Participation in a strike
which does not comply with the provisions of Chapter VI of the 1995
Act is characterised as misconduct
(Schedule 8 - Code of Good
Practice item 6) The 1956 Act was silent about it, but under that
regime participation in an illegal
strike was judicially stigmatised
as ‘serious misconduct’ (Cf
Numsa v SA Wire Company (Pty) Ltd
(supra) at 275 G – J). It was, and is, however, misconduct of
a rather special kind. It was, and is, misconduct which can be
purged.
It can be purged by complying with an ultimatum by the
employer to resume work. Upon compliance, the striker may no longer
be dismissed.
(
Workers’ Union (in liquidation) & others v
De Klerk NO & another
(1992) 13 ILJ 1123 (A) at 1128 G – H
in which reliance was placed on
Administrator Orange Free State &
Others v Makopanele and Another
[1990] ZASCA 69
;
1990 (3) SA 780
(A) where it was
held that a contracting party who has once approbated cannot
thereafter reprobate (at 787 E – 788 H); See also
Numsa &
others v Dita Products (Pty) Ltd
[1995] 7 BLLR 65
(IC)) It is
hardly necessary to add that whether the employer is bound by an
election would depend on precisely what, in terms
of its ultimatum,
it elected to do. It may, for example, reserve the right to dismiss
for misconduct other than the illegal striking.
[150] An ultimatum is, unlike a
disciplinary enquiry, not directed at establishing the existence of
an offence and then imposing
a sanction. It is, in the first place,
a device for getting strikers back to work. It presupposes the
unlawfulness of the strike,
otherwise it could not be given but it
does not sanction the misconduct of the strikers. It is as much a
means of avoiding a dismissal
as a prerequisite to effecting one.
One is tempted to say that strikers are put in
mora.
The
point is that both under the 1956 regime and under the present one
the question of dismissing a striker can only logically
arise after
non-compliance with an ultimatum.
Pre-ultimatum
discussion
[151] Item 6(2) in the Code of Good
Practice (schedule 8 to the 1995 Act) illustrates my central thesis
that our labour law has
in the strike situation settled on a
different method of ensuring fairness. There is a form of hearing.
It is provided by the requirement
that discussions should be held
with the union. The union has an opportunity to put the strikers’
case. That, the legislature
has said, and in my view wisely, is
enough at least in all the usual situations. S 188(1)(b) provides
that a dismissal is unfair
if an employer fails to prove that it was
effected in accordance with a fair procedure. A ‘fair procedure’
will almost always
involve listening to the employee’s side of the
argument; but that is not to say that involvement and discussion
with the union
should, in a continuing strike situation, be
supplemented by another and discreet hearing of some kind or other.
A fair procedure
involves discussion with the union as the
collective bargaining representative of the strikers on matters
relevant to the collective
action. Item 6(2) of schedule 8 provides
that an employer should, prior to dismissal, do two things. It
should ‘at the earliest
opportunity’ contact a trade union
official to discuss the course of action it intends to adopt. If it
decides to dismiss, ‘the
employer should issue an ultimatum in
clear and unambiguous terms that should state what is required of
the employees and what
sanction will be imposed if they do not
comply with the ultimatum.’ It was, also before the 1995 regime,
the law that an employer
faced by a strike should involve the union
as soon as possible. It was decided that involving the union was
good practice in
Black Allied Workers’ Union and others v Asoka
Hotel
(1989) 10 ILJ 167 (IC) at 179 B. The decision was followed
in
Food and Allied Workers’ Union & others v Willoton Oil &
Cake Mills
(supra) at 135A-C. It is not clear to me why the
employer’s duty should go further that this or, under the 1956
Act, ever went
further than this. If my learned colleague means to
say that there was, in addition to the need to involve the union, a
need to
invite representations on the specific issue of dismissal as
a sanction, I do not, with respect, agree. In my view the good
practice
advocated by the 1995 code, was good practice also under
the 1956 regime. Involvement with the union would inevitably, if
that
were a bone of contention, bring the legality of the strike to
the fore. It was implicit in the 1956 Act that, to make the
discussion
worthwhile, the employer would have to debate resolution
of the strike situation with the union. That requirement is now
explicit
in the 1995 Act. There would be no need to discuss it
again before an ultimatum is issued. It is important not to encumber
parties
with formalities that have no potential to contribute to the
resolution of Labour disputes.
The
pointlessness of a pre-ultimatum hearing
[152] The only reason why my
brother Zondo favours a pre-ultimatum hearing is that he envisages
the possibility of the strikers
making individual representations
(an exercise which would have to be conducted if circumstances
permitted) or their union (or
representatives) making individualised
representations on their behalf. I must confess that I am sceptical
of the utility (and
hence the fairness) of holding a pre-ultimatum
hearing of this kind.
[153] What can or should strikers
debate with their employer in a pre – ultimatum hearing? If, in
making representations, they
indicate that they will comply with any
ultimatum which may be given, there is really not much left to
discuss. Any discussion
on why they ought not to be dismissed if
they fail to comply would be premature and, given that all or some
of them might change
their minds, speculative. They might attempt to
persuade the employer that, despite the unlawfulness of the strike,
they should
not be dismissed if they ignore the ultimatum and
continue with the strike. I do not believe that such an attempt
could succeed.
It is one thing for strikers to say, after the event,
that, having regard to all the circumstances, their misconduct was
not so
serious that dismissal was the appropriate sanction. One
thinks here of cases on the functionality of illegal strikes such as
Bawu v Edward Hotel
(supra). It is, however, in my view,
quite another thing for strikers to say that although their strike
is admittedly unlawful,
they should be entitled to continue their
misconduct without fear of dismissal. That would be intolerable.
Persistent strike misconduct,
that is to say, in defiance of an
ultimatum, is not in this respect different from any other
misconduct. An employee may successfully
argue that one instance of
insubordination should not have led to dismissal; but he could never
argue that he might continue being
insubordinate without being
dismissed no matter what his employment record or his personal
circumstances are.
[154] It was, I would imagine,
because of the incongruities of a pre-ultimatum hearing that the
argument in
Numsa v GM Vincent Metal Sections
(supra) was
that a hearing should have been given before any dismissal pursuant
to an ultimatum. The court held that neither individual
hearings nor
a collective hearing would have had any point, and that the employer
need therefore not have afforded such a hearing.
I respectfully
agree that this is the correct approach.
[156] A post-ultimatum hearing
would not be of any greater use than a pre-ultimatum hearing. Those
employees who complied with the
ultimatum would be safe from
dismissal. Only those employees who do not comply with the
ultimatum (or the union on their behalf)
would be interested in
making representations. They would be able to urge the employer
either to withdraw the ultimatum on account
of the strike being
lawful, if that was their contention, or, it is said, to urge that
they should, by virtue of their excellent
employment records or
their family commitments or advanced age or their ignorance of the
lawfulness of the strike or their unwillingness
to participate in
it, be permitted to continue striking unlawfully. This, as I have
indicated, is unthinkable. But the principal
objection to a
post-ultimatum hearing is that it emasculates the ultimatum. It is
made subject to a resolutive condition sounding
something like this:
‘You are to return to work. If you do, nothing further will happen
to you. If you do not, and management
finds that you have good
reasons for continuing with your misconduct, nothing will happen to
you either.’
Individual
or individualised enquiry
[157] Individual
disciplinary enquiries are seldom pointless because even though the
commission of a disciplinary offence may be
beyond doubt, ‘there
is almost always something that can be said about sentence. And if
there is something that can be said about
it, there is something
that should be heard
¼
’ (per
Hoexter JA quoting Etienne Mureinik in
Zenzile (supra)
at 37
B – C.) The approach that an employer should be excused from
holding an enquiry which would supposedly not have made any
difference to an employee’s fate anyway has for this reason not
been well received. However, in the case of collective dismissals
the individual striker (or the union on his on her behalf) is not
entitled to put up to the employer individually motivated reasons
for wanting to escape dismissal. He or she is part of the collective
and is bound by what the collective decides. If it were otherwise,
an employer could, on the basis of individual representations,
decide to retain those individual strikers with unblemished
employment
records and dismiss those with tarnished records who
would most likely be those it did not particularly wish to keep.
This would
give rise to immense problems of selective dismissal.
(See, for example,
Metal and Allied Workers’ Union & others
v Siemens Ltd
(Supra) at 554 J to 556 F) and have the labour
unions in an uproar. Discussions with individual strikers on whether
they ought
to be dismissed would, moreover, severely undermine union
solidarity and would, for that reason, not be fair to the union.
[158] If one postulates
individually based representations by the strikers’ union, the
position is also untenable. Does the union
argue for the dismissal
of A and B but not, say, (because of their personal circumstances)
for the dismissal of C and D? In particular,
an investigation into
the
bona fides
of the strikers would be completely misplaced.
If
bona fide
belief in the lawfulness of a strike on the part
of an individual striker were to be a defence, union members would
escape dismissal
provided only that an (unscrupulous) union had
concealed the unlawfulness of the strike from them. Moreover, no
employer (on whom
the onus of proving a fair dismissal rests) could
reasonably be expected to prove that an individual employee
knew
a strike to be unlawful. If an employer could not issue an ultimatum
against a striker before having satisfied itself that it
had
persuaded the latter that the strike was unlawful, dismissal for
illegally (or unprocedurally) striking (although it is misconduct)
would be impossible. My learned colleague suggests (para [67]) that
individual employees may avoid dismissal by explaining that
they
were unwilling participants in the strike. There would, in every
strike, legal or illegal, almost certainly be reluctant

participants: for example, those who voted against the strike but
participate because they bow to the will of the majority. It would
in my judgment be grossly unfair to require an employer to hold an
enquiry into each striker’s enthusiasm for the cause before
being
able to issue an ultimatum against those, and only those, found to
be in favour of the strike. Even if the union acts as
representative, does it say to the employer ‘do not dismiss C or
D: they voted against the strike’? The absurd result of this
would
be that the ‘willing’ strikers would be dismissed, but that
those who make allegations of intimidation which the employer
is
unable to disprove may remain on strike unhindered.
The
respondent’s involvement of the union
[159] Saccawu
was involved from the beginning. The respondent’s attitude to the
strike was clearly set out in a letter from its
attorneys to
Saccawu. It followed this up by an application to court to have the
strike declared illegal and to interdict further
participation in it
by Saccawu and its members. It was an unmistakable invitation to
Saccawu to defend its own position. Saccawu
did nothing to oppose
the rule. It did not even oppose confirmation of the rule after the
strike ended. It was not expected of
the respondent to do more. In a
strike situation discussion (or attempted discussion) with a union
acquits an employer of his duty
to listen to the other side.
Denial
of relief
[160] The
four appellants took part in an illegal and dysfunctional strike.
They were given a fair ultimatum to which they did not
respond. In
my view they were properly dismissed. The appeal should fail with
costs.
J.H. CONRADIE
Judge of Appeal
Appearances
For the appellants : A union
official
For the respondent : Adv. P. Jammy
Instructed by : Miller, Ackerman
and Bronstein
Date of hearing : 9 November 1999
Date of judgement : 15 March 2000