NUMSA and others v Fibre Flair CC T/A Kango Canopies (JA56/99) [2000] ZALAC 3 (17 March 2000)

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[2000] ZALAC 3
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NUMSA and others v Fibre Flair CC T/A Kango Canopies (JA56/99) [2000] ZALAC 3; [2000] 6 BLLR 631 (LAC); (2000) 21 ILJ 1079 (LAC) (17 March 2000)

IN THE
LABOUR APPEAL COURT OF SOUTH AFRICA
HELD AT
JOHANNESBURG
Case No. JA56/99
In the
matter between:
NUMSA
First Appellant
BENEDICT
PHIHLELA AND OTHERS
Second to
Ninth Appellants
and
FIBRE
FLAIR CC T/A
KANGO CANOPIES
Respondent
___________________________________________________________________________
JUDGEMENT
___________________________________________________________________________
WILLIS
JA.:
This is an appeal against the decision of the Labour Court not to
order that the reinstatement of the second to ninth appellants
( “the
appellants”) should operate retrospectively from the date of their
dismissal. The Court
a quo
granted leave to appeal to this
court.
The decision of the Court
a quo
has been reported. (
National Union of Metalworkers of SA & Others v Fibre Flair CC
t/a Kango Canopies
(1999) 20 ILJ 1859 (LC).)
The respondent ( “the employer”) manufactures glass fibre
canopies. It is a small business employing approximately thirteen
employees.
It is common cause that the appellants participated in an unlawful
work stoppage on 19
th
February, 1997. This work stoppage
was in protest against the introduction of “short time” by the
employer with effect from
19
th
February, 1997. The
introduction of this system was announced by the employer on 17
th
February,1997. According to the employer , the need to introduce
this system arose from the declining productivity of its employees
and the resulting poor performance of the employer in the market.
For this conduct the appellants received final written warnings.
On 4
th
March, 1997, the employer was advised that its
employees would take part in a one hour protest the following day.
In response,
the employer issued a notice to all staff advising that
such action would be illegal and unprocedural and, drawing attention
to
the final written warnings, warned of the possibility of “severe
disciplinary action” if employees went ahead with the protest.
A short protest, in the form of a march through the surrounding
industrial area, and lasting for approximately thirty-five minutes
did take place the following day. It seems clear that warnings and
appeals by the employer contributed to the short duration of
the
work stoppage.
On 7
th
March,1997, the employer dismissed nine of its
employees, who had previously received final written warnings,
including the appellants.
It relied on the previous final written
warnings. The employer did not hold any disciplinary enquiry before
deciding to dismiss
these employees.
On 11
th
March, 1997, the first appellant (“the union”)
advised the employer that it wished to lodge an appeal against the
dismissals.
The employer refused to hear any appeal. It relied on
the expiry of the forty-eight hour period provided for in the
disciplinary
code.
The employer then offered re-employment to the dismissed employees.
The wages in the new contract were substantially lower than
those
which had been paid prior to the dismissals. Only one of those
dismissed accepted the offer of re-employment. The remaining
eight
invoked the provisions of section 77 of the Labour Relations Act No.
66 of 1995 (‘the LRA”), relating to protest action
to promote or
defend the socio-economic interests of employees, to refer their
dispute to the court
a quo.
There was no dispute that the employees were guilty of misconduct
and that they had acted in breach of a reasonable and valid rule
of
which they were aware.
The Court
a quo
found that there was procedural unfairness in
the dismissal of the employees. It also found, in the light of the
totality of the
evidence, that “ the dismissal is substantively
unfair”.
The Court
a quo
exercised its discretion against
ordering retrospective reinstatement as a mark of its disapproval of
the misconduct of the appellants.
Judgement was given on 11
th
March, 1999 and reinstatement ordered with effect from 1
st
April,1999.
The appellants contend that this court is in as good a position as
the court
a quo
to exercise the relevant discretion to order
the fully retrospective reinstatement of the employees and should do
so,
alternatively,
that the decision of the court
a quo
was based upon a wrong principle or was not based on substantial
reasons.
Section 193 (1)(a) of the LRA provides that if the Labour Court
finds that a dismissal is unfair, it “may order the employer
to
reinstate the employee
from any date not earlier than the date of
the dismissal
.” ( my emphasis). These words clearly confer a
discretion upon the Labour Court to order reinstatement which is
not fully retrospective..
The appellants agree that this is so.
In
Media Workers Association of SA v Press Corporation of SA Ltd
[1992] ZASCA 149
;
1992 (4) SA 791
(A) at 800 the following is said at 800D-E :
“
Henning ‘ Diskresie-uitoefening’
in
1968 THRHR 155
at
158 quotes the following observation concerning discretionary
powers:
“ ‘ “
(A) truly
discretionary power is characterised by the fact that a number of
courses are available to the repository of the power
” (
Rubinstein
Jurisdiction
and Illegality
(1956)
at 16).’
The essence of a discretion in this narrower sense is that, if
the repository of the power follows any one of the available
courses,
he would be acting within his powers, and the exercise of
power could not be set aside merely because a court would have
preferred
him to have followed a different course among those
available to him.”
Clearly, section 193 (1 )(a) of the LRA gives the Labour Court the
power to follow any one of a number of available courses. It
may
select as the date for reinstatement
any
date not earlier
than the date of dismissal. It seems to me to be clear that section
193 (1)(a) confers upon the Labour Court a
true discretion.
In any event in the
Media Workers
case (
supra
) it is
said at 800H:
“
(E)ven where a discretion is not discretionary in the narrow
sense considered above, there may be features in the nature of the

decision or the composition of the tribunal
a quo
which might call for restraint by a Court of appeal in the exercise
of its powers.
”
It is clear that given a particular set of facts, such as those here
present, a number of reasonable persons may have decided upon
a
number of different dates from which to order reinstatement. Policy
reasons, in particular the need for expeditious finality
in labour
disputes
,
militate against
the Labour Appeal Court
interfering with such decisions (i.e decisions made in terms of
section 193(1)(a) of the LRA ). The fact
that it may, in various
instances, have reached a somewhat different conclusion from the
Court
a quo
would not, in itself , justify a departure from
this general rule against interference in a discretion exercised in
terms of this
subsection.
The test for interference in a discretion exercised in terms of
subsection 193(1)(a) of the LRA is thus that formulated in
Ex
parte Neethling and Others
1951 (4) SA 331(A)
at 335E:
“
Can it be said in the present case that the Court
a
quo
has exercised its discretion capriciously or upon a
wrong principle, that it has not brought its unbiased judgement to
bear on
the question or has not acted for substantial reasons?
”
and, as put somewhat differently in
S v Kearney
1964 (2) SA
495
(A) at 504B-C:
“
When a court of first instance gives a decision on a matter
entrusted to its discretion, a Court of appeal can interfere only if
the decision is vitiated by misdirection or irregularity or is one
to which no court could reasonably have come- in other words
if a
judicial discretion was not exercised.
”
In
Camdons Realty (Pty)Ltd and Ano. v Hart
(1993) 14 ILJ 1008
(LAC) it was said at 1018F:
“
This court may intervene only if it is shown that the
Industrial Court has failed to exercise its discretion, or has
exercised its
discretion improperly or unfairly.
”
The Court
a quo
referred to the cases of
Performing Arts
Council of the Transvaal v Paper Printing Wood and Allied Workers
Union and Others
(1994) 15 ILJ 65 (A) and
NUMSA and Others v
Benicon Group
(1997) 18 ILJ 123 (LAC) as guiding its decision
not to award retrospective reinstatement by reason of the employees’
misconduct.
The appellants were unable to show that the Court
a quo
acted
capriciously, or upon a wrong principle, or in a biased manner, or
for insubstantial reasons, or committed a misdirection
or an
irregularity, or failed to exercise its discretion, or exercised its
discretion improperly or unfairly.
On the contrary, the record shows that the Court
a quo
in
exercising its discretion acted carefully and in a manner consistent
with established principle.
For these reasons, I should dismiss the appeal.
There are no considerations of fairness that require a departure
from the normal practice in this Court that costs should follow
the
result.
Accordingly, the following order is made:
The appeal is dismissed with costs.
DATED IN
JOHANNESBURG THIS DAY OF MARCH 2000
N.P.WILLIS
JUDGE
OF APPEAL
I agree.
R.M.M
ZONDO
ACTING
JUDGE PRESIDENT
I agree.
J.H.
CONRADIE
JUDGE
OF APPEAL
Counsel
for Appellant: Adv. P Buirski
Attorneys
for Appellant: Ruth Edmonds
Counsel
for Respondent: Adv. M.. J. Van As
Attorneys
for Respondent: Hofmeyr, Herbsteins Gihwala, Cluver Walker Inc.
Date
of hearing: 9
th
March, 2000
Date
of judgement: 17
th
March, 2000