Diane D Karras t/a Floraline v South African Scooter and Transport Allied Workers Union and Others (JA78/99) [2000] ZALAC 21 (17 October 2000)

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[2000] ZALAC 21
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Karras t/a Floraline v South African Scooter and Transport Allied Workers Union and Others (JA78/99) [2000] ZALAC 21; [2001] 1 BLLR 1 (LAC); (2000) 21 ILJ 2612 (LAC) (17 October 2000)

IN
THE LABOUR APPEAL COURT OF SOUTH AFRICA
held
in Johannesburg
Case
No: JA 78/99
In
the matter between:
DIANE
D. KARRAS t/a FLORALINE
Appellant
and
SOUTH
AFRICAN SCOOTER AND TRANSPORT
ALLIED
WORKERS UNION AND 26 OTHERS
Respondents
JUDGEMENT
ZONDO
JUDGE PRESIDENT
Introduction
Application
for the dismissal of the appeal, application for Condonation of the
late delivery of : (I) the record of appeal, the
power of attorney
and the appellant’s heads of argument.
[1] Before
us are an application brought by the respondents in this
“appeal”
for
the dismissal of the appeal noted by the appellant, an application
by the appellant for the condonation of its late delivery
of the
record of appeal, its power of attorney and its heads of argument.
The facts and matters relevant to the application for the
dismissal
of the appeal overlap with those relevant to the application for
condonation. For that reason it is convenient to deal
with the two
applications simultaneously. In fact if the application for the
dismissal of the appeal fails, the application for
condonation for
the late delivery of the record must succeed and vice versa.
[2] The
matters relevant to the two applications are that:.
(a) rule
5(6) requires an appellant to deliver the record of appeal within 60
court days from the date when the Labour Court granted
leave to
appeal;
(b) in
this matter the Labour Court granted the appellant leave to appeal on
the 20
th
October 1999; this meant that the appellant had until the 18
th
January 2000 to deliver the record to the registrar of this court;
(c) as
a matter of fact the appellant delivered the appeal record on the
14
th
March 2000; this means that the period by which the appellant was out
of time with the delivery of the record is about eight weeks;
(d) in
terms of rule 5(17), if an appellant fails to deliver an appeal
record, he is deemed to have withdrawn the appeal unless he
approaches the respondent for consent to an extension of time for the
delivery thereof; should the respondent not grant consent to
such
extension, the appellant may approach the Judge President and request
him to extend the period within which the record may be
delivered; in
this case the appellant approached the respondents for their consent
but they withheld their consent; the appellant
did not approach the
Judge President for an extension; in fact the appellant did not even
launch an application for condonation of
its failure to deliver the
record within the time specified by the rules of this Court - which
should include an application to reinstate
the appeal - until the
respondents had filed an application for the dismissal of the appeal;
(e) on
the 15
th
November 1999 the appellant’s attorneys sent a letter to the
registrar and another one to Vic and Dup Transcription Enterprises
CC, the company which recorded the proceedings in the trial in the
court a quo; in the letter to Vic and Dup the appellant annexed
a
copy of the letter to the registrar; in the letter to the registrar,
the attorneys for the appellant requested the registrar to
“allow Vic and Dup Transcribers to transcribe the record”
in this matter; in the letter to Vic and Dup, the appellant’s
attorneys said they were enclosing a letter addressed to the
registrar
“requesting
that the record of the hearing under case number J886/97 be made
available in order to enable us to proceed with an
appeal in respect
of which an (sic) appeal has been granted.”
In the second and only other paragraph of the letter the appellants’
attorneys said to Vic and Dup:
“We
await your quotation as to the cost of the transcription and will
forward the deposit to you immediately upon receipt of your
quotation.”
;
(f) On
the 30
th
November 1999 Vic and Dup sent a letter to the appellant’s
attorneys in response to their letter of the 15
th
November; in that letter Vic and Dup gave a quotation estimating the
costs for the transcription (and, also, I assume, preparation,)
of
the record at +- R 18 000,00;
(g) On
the 1
st
December 1999 - which was the day following upon the one on which the
appellant’s attorneys had received Vic and Dup’s quotation,
the
appellant’s attorneys faxed a letter to the appellant requesting
payment of the amount required by Vic and Dup for the preparation
of
the record;
(h) the
appellant has stated in her affidavit that the letter of the 1
st
December 1999 from her attorneys did not reach her - she says she
believes that the reason why it did not reach her is the work
pressure
she worked under at the time;
(I) the
appellant says on the 10
th
December 1999 she went on holiday and did not return until about the
11
th
January 2000 - a period during which she was out of contact with her
attorneys; in the meantime her attorneys were trying in vain
to get
hold of her in connection with the payment to Vic and Dup of the
required deposit;
(j) when,
after she had returned from her holiday, the appellant learnt of the
need for the payment of the deposit, she immediately
paid the deposit
within 24 hours of her return;
(k) on
the 11
th
January 2000 the appellant’s attorneys sent a written request to
the first respondent (which is the trade union which was recognised
by the appellant at the time the dispute arose which is the subject
of this appeal) asking for the respondents’ consent to an extension
of time for the delivery of the record; in that letter the attorneys
said that as a result of the festive season, it was not going
to be
possible to deliver the record within the stipulated period; by way
of a letter dated the 13
th
January the union refused to grant the extension and gave no reasons
for its refusal;
(l) On
the 19
th
January the appellant’s attorneys sent the required cheque to Vic
and Dup and requested that the preparation of the record be given
urgent attention;
(m) during
the period from the end of January 2000 and the date of the delivery
of the record, some further correspondence was exchanged
between the
appellant and the respondents as well as between the appellants and
Vic and Dup in relation to the record;
(n) as
indicated earlier, the record was finally delivered to the registrar
on the 14
th
March 2000;
Period
of delay and the explanation therefor
[4] The
period of delay can be divided into two. The one is from soon after
the granting of leave to appeal upto about the 12
th
January 2000 when the appellant provided her attorneys with the
payment required by Vic and Dup. The respondents submitted that there
was no justification for the appellant’s attorneys’ failure to
have obtained the payment from their client sooner than they did.
They made this submission because the appellant’s attorneys’
explanation for the delay during this period is that they had not
obtained the necessary funds from the appellant and the appellant had
not become aware of the requirement for this payment until
around the
11
th
January. I am satisfied that the appellant has furnished a
satisfactory explanation on why there was a delay upto the 11
th
or so of January 2000. They had requested a quotation from Vic and
Dup reasonably early; within a day or two after Vic and Dup had
furnished its quotation, the appellant’s attorneys immediately sent
a fax to the appellant requesting payment of the amount required
by
Vic and Dup. The appellant had gone on holiday without being aware of
the fax from her attorneys; when she returned and learnt
of the
requirement, she promptly paid the required amount.
[5] The
other period of the delay begins around the 12
th
January 2000 when the appellant made funds available to her attorneys
to enable the record to be prepared. It then goes upto the
date of
the delivery of the record. After the appellant’s attorneys had
been placed in funds by the appellant, they made payment
to Vic and
Dup within seven days. The relevant letter is dated the 19
th
January. After the appellant’s attorneys had made this payment, the
delay which occurred thereafter was no longer due to anything
they
did or they might have done after the 19
th
January. The whole matter of the record was at that stage in the
hands of Vic and Dup. I cannot see why it took Vic and Dup two months
or so to prepare the record in this matter. Nevertheless, such fault
as there may be in this regard lies not with the appellant or
her
attorneys, but with Vic and Dup. In all the circumstances I consider
that good cause has been shown and that the late delivery
of the
record should be condoned. That also means that the application for
the dismissal of the appeal on account of the appellant’s
failure
to deliver the record timeously should be dismissed.
[6] There
was also the matter of the appellant’s failure to deliver her heads
of argument timeously. The heads of argument were
late by a period of
about 12 days. The explanation given by the appellant’s attorneys
for the failure to deliver the heads of argument
timeously was not
satisfactory. They said that they had learnt about the judgement of
this Court in
Modise
(which is referred to later in this judgement) which, they
understood, could be relevant to this appeal and they wanted to
obtain
a copy thereof and to study it first before they could deliver
the appellant’s heads of argument. I find this explanation
unsatisfactory.
I cannot understand why it would have taken about 12
days to get a copy of that judgement or why obtaining a copy of that
judgement
could have caused a delay of 12 days. In any event the
appellant could have delivered her heads of argument before studying
that
judgement and complied with the time limits and could have filed
supplementary heads of argument later. However, there was no
prejudice
to the respondents as a result of the late delivery of the
heads of argument because the matter was postponed on the 6
th
June 2000 to the 28
th
June 2000. Notwithstanding the unsatisfactory explanation for the
appellant’s delay in the delivery of her heads of argument, I
am of
the opinion that the failure should be condoned because no serious
prejudice was caused to the respondents. In respect of the
late
delivery of the power of attorney by the appellant, there was also no
serious prejudice caused to the respondents. That failure,
too,
should be condoned.
[7]
In the premises I make an order in the following terms:-
(a) the
respondents’ application for the dismissal of the appeal is
dismissed with no order as to costs.
(b) the
appellants’s application for condonation of the late delivery of
the record of appeal is hereby condoned with no
order
as to costs.
(c) the
appeal is hereby reinstated and enrolled.
(d) the
appellant’s failure to deliver her heads of argument and the power
of attorney timeously is hereby condoned.
I now
turn to consider the merits of the appeal.
The
Appeal
[8] This
is an appeal against a judgment of the Labour Court in a dispute
between the appellant and the respondents. The dispute was
whether
the dismissal of the second and further respondents by the appellant
was fair. The Labour Court gave a judgment to the effect
that the
dismissal was unfair and awarded the second and further respondents
compensation. No order on costs was made. With the leave
of the court
a quo, the appellant appeals to this court against the whole of that
judgment. Although the respondents had also noted
a cross-appeal,
such cross-appeal was later withdrawn for reasons that are not
relevant to this judgment. I set out below the facts
of this appeal.
The
facts
[9] The
appellant, an adult woman, runs the business of importing,
manufacturing, selling and distributing artificial silk flowers
under
the name Floraline. The first respondent is a registered trade union.
The second and further respondents are members of the
first
respondent and are former employees of the appellant who were
dismissed from the appellant’s employment on or about 1 September
1997.
[10] In
July or so of 1997 the appellant and the first respondent concluded a
recognition agreement in terms of which the appellant
agreed to
recognise the first respondent as the sole collective bargaining
agent of its members. On the afternoon of the 6
th
August 1997 the second and further respondents walked out of their
workplace before the normal knock-off time. This was at about
16h00.
They alleged that they had been threatened by one Mr Nkuna that they
would be killed. Apparently Mr Nkuna had a younger brother
who had
assumed duty as a temporary employee of the appellant that same
morning. Mr Nkuna was apparently a taxi driver. According
to the
respondents, the source of the problem between themselves and Mr
Nkuna was demanding that they should stop making all kinds
of demands
he understood them to be making on the appellant. Apparently he
threatened that he and other taxi-drivers would return
at 17h00 when
the respondents would be knocking off and shoot them dead; hence the
second and further respondents’ departure from
the workplace before
knock-off time. They did not report for duty for the rest of August.
[11] After
the second and further respondents had left their workplace, they
proceeded to the union office. The union office was apparently
closed
for the day when they arrived. They returned to the union office the
following morning. They reported what had occurred to
the general
secretary of the union, a Mr Sibiya. As a result of the report made
to Mr Sibiya by the second and further respondents,
the alleged
threat by Mr Nkuna was reported to the local police station. It
would appear that the report to the police also included
an
allegation of a pointing of a firearm by Mr Nkuna. Mr Sibiya also
wrote a letter to the applicant on the matter. In that letter,
which
was dated the 7
th
August 1997, Mr Sibiya stated in effect that the second and further
respondents had left the premises of the appellant before knock-off
time because they feared for their safety or lives after a threat had
been made that at 17h00 taxi-drivers would come and shoot them.
In
part he said the following in that letter:
“We
are unable to send them back to your premises until such time that
police (sic) and the relevant authorities including CCMA
are notified
and they have deliberated on this matter.”
After accusing the appellant of long having wanted to find a way to
rid itself of all union members, Mr Sibiya concluded his letter
by
suggesting that a meeting be held to find a
“speedy
resolution which will guarantee the safety of our members.”
[12]
The appellant testified that on the afternoon of the 7
th
August Mr Sibiya came to the gate of its premises and caused
“havoc.”
She testified that she was called to the gate where she found Mr
Sibiya. She testified that, when she heard that Mr Sibiya was at
the
gate, she thought that Mr Sibiya was there in order to discuss with
her the problem relating to the previous day. She testified
that she
welcomed what she thought was an opportunity to discuss the problem.
However, when she came to the gate, said the appellant,
Mr Sibiya
threatened her, called her a criminal, thief and liar and said that
she was going to be arrested and sent to jail. The
appellant said Mr
Sibiya was not open to discussion but demanded to see one of her
employees called Anna. Anna refused to come to
the gate and meet Mr
Sibiya. The appellant had to call in the security before Mr Sibiya
could leave. This evidence by the appellant
stands uncontradicted
because Mr Sibiya did not testify in the Court below.
[13] The
appellant responded to the union’s letter by way of a letter dated
the 8
th
August. In that letter the appellant stated that she had no knowledge
of the allegations contained in the union’s letter. The appellant
accused the union and the second and further respondents of
threatening management. She sought an
“urgent
written guarantee”
from the union and the second and further respondents
“concerning
the safety of non-union members, management and staff including Miss
D. Karras.”
That letter was on the letterheads of a certain advocate M. Beän who
appears to have acted as a legal adviser to the appellant on
labour
matters at the time.
[14] On
the 11
th
August the appellant decided to supplement its earlier reply to the
union’s letter of the 7
th
August. It did so by way of a letter dated 11
th
August. In that letter the appellant accused the union of distorting
facts in its letter of the 7
th
August in order to
“keep
your members away from work.”
The appellant said she had no objection to the police being present
on its premises in order to ensure everyone’s safety. The appellant
then said in the letter:
“We
wish to advise you that your members’ absence is illegal and
serious and you are requested to instruct them to return to the
premises under the protection of the police.”
It
also said:
“If
[the second and further respondents] fail to return we intend to
institute appropriate action.”
The appellant’s letter of the 11
th
August did not succeed in getting the second and further respondents
back at work. In the meantime the union had also referred the
matter
of the threats allegedly made to the second and further respondents
to the Commission for Conciliation, Mediation and Arbitration
(
“the
CCMA”
).
[15] On
or about the 19
th
August the appellant lodged an urgent application in the Labour Court
for an interdict. The main complaint of the appellant in the
urgent
application was that the conduct of the second and further
respondents constituted an unprotected strike. Accordingly it sought,
among others, an order restraining them from continuing with their
strike. The appellant’s urgent application was heard by the
Labour
Court on the 29
th
August which was a Friday. A rule nisi with an interim interdict was
issued on that day. Mr Sibiya was present in court but the
second
and further respondents were not in court. The interim order
interdicted the second and further respondents from continuing
with
the alleged unprotected strike. Also the interim order was to the
effect that the second and further respondents should
“cease
forth with their conduct”
of
“refusing
to tender their services to the appellant.”
[16] On
the morning of Monday the 1
st
September 1997 the second and further respondents arrived at the gate
of the appellant’s premises just before their normal time
for
starting their work. The parties have divergent versions of what
occurred between them that morning. The appellant’s version
is that
the second and further respondents were rowdy, unruly and were
toy-toying outside the gate with no intention to tender their
services and that they were then dismissed. The second and further
respondents’ version is that they arrived at the gate pursuant
to
the order of court and were there to report for duty but that they
were dismissed despite this. What is common cause is that the
second
and further respondents were informed that morning that they were
dismissed. It is also common cause that the appellant did
not comply
with the
audi
alteram partem
rule before taking the decision to dismiss them. In terms of the pre-
trial minute agreed to between the parties, it is also common
cause
that the appellant did not issue any ultimatum before it decided to
dismiss the second and further respondents. It also did
not on the
1
st
September contact the union in any way before it could dismiss the
second and further respondents.
[17] The
appellant’s decision to dismiss was conveyed to the second and
further respondents by way of identical letters of dismissal.
Each
letter told each one of the second and further respondents that:
“Your
services are hereby terminated with immediate effect due to, amongst
others, your participation in an illegal/unprotected
strike.”
It also referred each one of the second and further respondents to a
notice which appears to have been attached to the letters marked:
“
Notice
for Floraline Employees.”
The contents of that notice read thus:-
“
1. On
Friday 29 August 1997, the Labour Court ruled that you are engaged in
an unprotected, and therefore illegal strike.
The
Labour Court further awarded an order of costs against you (each of
respondent 3 to 28) and the Union (SASTAWU) in respect of
the
application. The legal representatives of Floraline estimate that
these aforesaid costs that will have to be paid by you and
the
Union, to amount to approximately R30-000-00.
The
relationship between employer and employee is one of trust and
confidence, and there is a duty on both to conduct themselves
in a
manner not damaging this relationship.
Your
actions and replies in regard to the unprotected strike, and the
replies by your Union, were placed before the Labour Court.
Neither
you, nor the Union, denied these actions.
Your
misconduct, poor work performance and unprotected and therefore
illegal strike actions have therefore not been denied. The
actions
of your Union representative have also not been denied.
The
Appellate Division of the High Court/Supreme Court of South Africa
ruled in the case of CSIR v Fijen (1996) 17 ILJ 18 (A) that
if
employees make themselves guilty of conduct that is in breach of the
trust and confidence relationship which should exist between
employer and employee, the innocent party is entitled to cancel the
employment contracts.
In
view of the above, your contracts of employment have been cancelled
with immediate effect.
Your
dismissal notices will be handed to you outside the main gate of the
premises of Floraline.
Kindly
note also that further action may be brought against your
representative in the High Court/Supreme Court of South Africa.
WE
REQUEST YOU TO RESPECT THE LAWS OF THIS COUNTRY AND TO LEAVE THE
PREMISES OF FLORALINE AFTER YOU HAVE RECEIVED YOUR DISMISSAL NOTICES
IN A PEACEFUL AND ORDERLY FASHION.”
[18] On
the 23
rd
September the Labour Court discharged the rule nisi which it had
issued on the 29
th
August. It held, per Landman J, that the appellant had failed to show
that the conduct which the second and further respondents had
engaged
in constituted a strike. The appellant was ordered to pay the
respondents’ costs.
Consideration
of the merits of the appeal
[19] It
seems from the record that in the court a quo the appellant
experienced some difficulty in stating clearly and unequivocally
what
the reason for the dismissal of the second and further respondents
was. During argument before us its Counsel was called upon
to inform
the court what the reason for the dismissal was. In response he
submitted that the reason for dismissal was that the second
and
further respondents had repudiated their contracts of employment
which had entitled the appellant to cancel their contracts of
employment.
[20] During
argument our attention was drawn by the respondents’ representative
to the fact that the letters of dismissal which
informed the second
and further respondents of their dismissal bore the date of the 31
st
August and not the 1
st
September which is the date one would have expected them to bear if
the decision to dismiss was taken on the 1
st
September after the appellant concluded that the second and further
respondents were not reporting for duty that morning. It was
suggested on behalf of the respondents that the fact that the letters
of dismissal bore the date of the 31
st
August demonstrated that the decision to dismiss was taken by the
appellant on the 31
st
August and not on the 1
st
September as the appellant would have us believe. It was argued that,
if this were the position, then the dismissal of the second
and
further respondents could not have had anything to do with any
conduct that they may have engaged in on the morning of the 1
st
September.
[21] The
explanation which the appellant gave under cross-examination for the
fact that she had testified that the decision to dismiss
was taken on
the morning of the 1
st
September and yet the letters of dismissal bore the date of the 31
st
August was: It was purely coincidental, purely that it was at the end
of the date (sic) at the end of the month. The appellant rejected
the
suggestion that the decision to dismiss was taken before the 1
st
September. In continuing with her explanation she said:
“I
actually had [the letters of dismissal] typed out on the morning of
the 1
st
[September] and took it to the fax shop, the copy shop to make copies
of it, I have a piece of paper, it was on 1 September that
I made the
copies out for their dismissal.”
She also said that she was nervous that day and
“it
was impossible to control anything.”
That was the appellant’s evidence under cross-examination.
[22] In
her evidence in chief the appellant’s explanation was:-
“Well
all notices, it was purely coincidental, are given at the end of a
month. It was purely coincidental. I had that printed on
the morning
of the 1
st
.”
In my view that explanation is not very convincing, more so because
it is at variance with the explanation which the appellant’s
original Counsel (Mr Eliott) had told the court the appellant would
give in evidence. That was in an opening statement that was given
at
the beginning of the trial before Maserumule AJ who later recused
himself because it appeared that the parties had a dispute about
part
of what had taken place before him when he dealt with the appellant’s
urgent application on the 29
th
August.
[23] In
his opening statement before Maserumule AJ, Mr Eliott is recorded as
having informed the court that the appellant’s evidence
was going
to be that the letter of dismissal and copies thereof had been
prepared on the 31
st
August in anticipation of the second and further respondents
returning on the 1
st
September but continuing with what the appellant thought would be the
same unacceptable behaviour which they had allegedly indulged
in in
the past. It was said that this had been done in order to avoid a
situation where the appellant would have to run around making
copies
in the morning if that eventuality materialised. If the appellant had
given this explanation in her evidence, I would have
found it more
convincing than the one she gave. In the light of the view I take of
this matter I do not consider it necessary to
decide whether the
decision to dismiss was taken on the 31
st
August or only on the 1
st
September.
[24] One
of the grounds on which it was argued on behalf of the second and
further respondents that their dismissal was unfair is
that the
appellant had failed to observe the
audi
alteram partem
rule
before it could dismiss the second and further respondents. Reliance
was placed on the decision of this Court in
Modise
and Others v Steve’s Spar Balckheath
(2000) 21 ILJ 519 (LAC) in which this Court decided that, subject to
certain recognised exceptions, an employer has an obligation
to
observe the
audi
alteram partem
rule
when it contemplates the dismissal of strikers. It was said that the
form which the observance of the
audi
rule would take in any particular case would depend on the
circumstances of each case but, fundamentally, the strikers or their
union
representatives must be given an opportunity to be heard before
a decision to dismiss can be taken. (see par 96 of the
Modise
judgment at 551).
[25] Although
the
Modise
case dealt with a strike situation, this Court stated that the
employer’s obligation to observe the
audi
rule in the context of a strike dismissal was not a special
obligation which arises simply because the employees whose dismissal
is contemplated are on strike. This Court said that that obligation
is the same obligation which an employer has when it contemplates
that an employee’s job may be in jeopardy because he may have made
himself guilty of misconduct (see par 37 at 532 of
Modise
).
There can be no basis for an approach that, if an employee faces the
prospects of losing his job by reason of anything he has done
wrong,
he is entitled to be given an opportunity to state his case but where
what he has done wrong is going on strike, he has no
right to be
given an opportunity to state his case. (see par 39 at 532 of
Modise’s
case).
[26] I
also think that the provisions of sec 188(1)(b) support the view that
an employer is obliged to observe the
audi
alteram partem
rule
when it contemplates the dismissal of employees irrespective of what
the reason is for the contemplated dismissal; in other words
even if
the reason for dismissal is participation in a strike - including an
unprotected strike. Sec 188(1)(b) provides that a dismissal
that is
not automatically unfair as contemplated in sec 187 is unfair if the
employer fails to prove
“that
the dismissal was in accordance with a fair procedure.”
There can be no basis for any suggestion that, when the reason for
dismissal is conduct other than participation in a strike, the
requirement of a fair procedure in sec 188(1)(b) means the observance
of the
audi
rule but when the reason for participation in a strike, the same
provisions mean something different, namely, no observance of the
audi
rule at all - in whatever form. I would rather say sec 188(1)(b)
requires the observance of the
audi
rule but the form which that observance of the
audi
rule may take in a strike dismissal context need not be the same as
in the case of a single employee who is facing the prospect of
losing
his job because of individual misconduct.
[27] If
there be any doubt about how sec 188(1)(b) should be interpreted,
then the provisions of sec 3(c) should be resorted to. Sec
3(c)
provides that any person applying the Act must interpret its
provisions
“in
compliance with the public international law obligations of the
Republic.”
In this regard the provisions of article 7 of the ILO Convention on
Termination of Employment 158 of 1982 are relevant. (See them
and the
comment of this Court on them in par 30 of the
Modise
judgment at 530.). Finally sec 188(2) of the Act provides that any
person considering whether or not the reason for dismissal is
a fair
reason or whether or not the dismissal was effected in accordance
with a fair procedure must take into account any relevant
code of
good practice issued in terms of the Act. Item 6 of the Code of Good
Practice: Dismissal provides guidelines of what an employer
should do
when contemplating the dismissal of strikers. The first sentence of
item 6(2) says:
“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.”
In
Modise
this Court held that that provision contemplates a form of the
observance of the
audi
rule. (see paras 79-83 at 548 in
Modise’s
case). Conradie JA, who gave a dissenting judgement in Modise, also
held item 6(2) of the Code to contemplate a form of a hearing
(see
p.568A
of the Modise judgement).
[28] During
the hearing of argument the question arose whether this case can be
distinguished in any way from
Moside’s
case. The only basis which was advanced by the appellant’s Counsel
to distinguish this case from Modise is that
Modise’s
case
was governed by the old Act whereas this case is governed by the new
Act. In my view this is not a material basis to distinguish
the two
cases. In this regard I think the provisions of sec 188(1)(b), which
apply in this case, simply reflect a requirement which
also existed
under the dispensation of the old Act. Accordingly the contention
that this case can be distinguished from
Modise
on that basis has no merit.
[29] Counsel
for the appellant also submitted that it would be unfair to hold that
the appellant should have observed the
audi
rule before it could dismiss the second and further respondents. In
support of this submission Counsel relied on what, on the appellant’s
version, the second and further respondents had done, namely that:
(a) they
did not tender their services on the 1
st
September;
(b) they
had stayed away from work for over three weeks, and
(c)
they had blown whistles, danced and had been rowdy on the morning of
the 1
st
September when they were supposed to tender their services.
In my
view none of this constitutes justification for the appellant’s
failure to observe the
audi
rule before it could dismiss the second and further respondents.
[30] With
regard to the finding that the appellant was obliged to have observed
the audi rule, perhaps it may be asked what was there
for the
appellant to inquire into. This is an issue which this court
considered in Modise. (See par 52 at p 536 of Modise). In any
event
the need for the observance of the audi rule in this case was even
greater when regard is had to the fact that the appellant
included as
part of the reasons for the dismissal of the second and further
respondents alleged conduct on their part which remains
to this day
remains unspecified. It is not clear whether it is conduct of the 1
st
April only or also conduct prior to that upto the 6
th
August or also conduct before the 6
th
August.
[31] As
to what the second and further respondents did on the 1
st
September, the appellant could have easily suspended them from duty,
in so far as this may have been necessary, and told them to
come
back the following day to make representations why they should not be
dismissed for whatever conduct (which would have had to
be specified)
which the appellant found unacceptable. If the second and further
respondents did not make such representations, they
could not
complain that they had not been afforded an opportunity to be heard
if they were thereafter dismissed. In any event what
the second and
further respondents did or did not do should have been the subject of
the representations that the appellant should
have invited unless
what the second and further respondents did constituted a waiver of
their right to be heard or unless what they
did made it impractical
or impossible for the appellant to observe the
audi
rule. In those circumstances I am of the view that the appellant was
obliged to observe the
audi
rule before it could dismiss the second and further respondents. Its
failure to do so rendered the dismissal unfair.
[32] In
the minority judgement, which appears after this judgement, Nugent
AJA states that the second and further respondents did
not raise as
part of their case the complaint that the appellant had not observed
the audi rule before it could dismiss them. For
this he relies on the
absence of any reference to such complaint in the respondents
statement of claim as well as in the pre-trial
minute. However,
during the trial this issue was canvassed by the respondents’
representative and the appellant was cross-examined
on it. (See lines
3-17 p 206 vol 3 of the record.) The appellant did not object to the
complaint being canvassed at trial. Indeed,
during argument in the
court a quo the respondent’s representative included the point of
the audi rule in his argument. (See line
26 p.289 - line 3 p. 291 vol
4 of the record.)
[33] On
appeal, even prior to the respondents’ delivering their heads of
argument on the merits of the matter, it appears that the
appellant
already knew that the audi rule argument was part of the respondents’
case. I say this because, in the appellant’s
application for the
condonation of the late delivery of her heads of argument - which was
filed with the registrar before the respondents’
heads of argument
on the merit could be prepared, the appellant stated that the
delivery of her heads of argument was delayed because
her legal team
was trying to obtain a copy of a judgement handed down by this Court
“indicating
that, in the event that employees are on an illegal strike, a
dismissal can only follow after hearings were conducted
irrespective
of ultimatums being given.”
She
then says that, when a copy of the judgement was obtained, her legal
team found that the judgement related to the dismissal of
strikers
under the previous dispensation and was therefore
“not directly applicable to our case.”
This
is the same argument which was advanced before us on behalf of the
appellant. The judgement she refers to must be the judgement
of this
court in Modise. In the light of this there can be no doubt that the
complaint that the dismissal occurred without the respondents
being
afforded an opportunity to state their case was the respondents’
case at the trial and on appeal.
[34] Nugent
AJA also says in the minority judgement :
“In my view, it is reasonable to infer from [the second and further
respondents’] conduct on 1 September,
in
the absence of explanation,
that
they were not genuinely intent upon returning to work but intended
instead to persist in their earlier conduct.”
I
am unable to see how an adverse inference can justifiably be drawn
against the respondents for
“the
absence of an explanation”
for their conduct on the 1
st
September when they were not afforded an opportunity to give such an
explanation before they could be dismissed. In my view this
demonstrates why such an opportunity should have been afforded to
them. When workers whom an employer has dismissed without giving
an
opportunity to explain their conduct complain that their dismissal is
unfair, it cannot, in my view, be open to such employer
to say: But
they gave no explanation for their conduct.
[35] Nugent
AJA also states that he does not see what purpose it would have
served to afford the respondents an opportunity to state
their case
before they could be dismissed. He says the respondents have not
themselves suggested any purpose which could have been
served by such
an opportunity. I have two or so observations to make with regard to
this. Firstly, it was never the appellant’s
case that such an
opportunity would not have served any purpose. Secondly, to say it
would have served no purpose to afford the respondents
such an
opportunity constitutes speculation. That is the same speculation
which occurs when the denial of an opportunity to be heard
is sought
to be justified on the basis that giving such an opportunity to a
person would not have made any difference in the end.
That is the
so-called
“no
difference rule
.
”
The
“ no difference”
approach has been rejected in our law.
(See
Administrator, Transvaal & others v Zenzile & others
1991 (1)
SA 21(A)
at 37C-F)
[36] The
court a quo found that the appellant ought to have issued an
ultimatum before it could have dismissed the second and further
respondents. That an employer should issue an ultimatum before it can
dismiss strikers has become a general requirement in our law
although
it is not an absolute requirement. It is not necessary to refer to
the numerous cases which have dealt with this requirement
in our
law. Also item 6(2) of the Code of Good Practice: Dismissal
reiterates the requirement of the issuing of an ultimatum before
strikers can be dismissed. Such an ultimatum is required to give the
strikers a sufficient opportunity to consider the matter and
consequences of non-compliance with the ultimatum as well as to
seek
advice before taking the decision to comply or not to comply with the
ultimatum. The appellant did not give the second and further
respondents anything of that kind. In my view the court a quo’s
finding in this regard cannot be faulted.
[37] After
the court a quo had found the dismissal unfair, it proceeded to
consider the issue of what relief should be granted to
the second and
further respondents. It decided that it would be inappropriate to
grant them reinstatement in the circumstances of
this case. However,
it awarded them compensation equivalent to 12 months’ remuneration.
Counsel for the appellant submitted that
the court a quo ought to
have declined to grant the second and further respondents any
compensation. He submitted that a reading
of the judgment of the
court a quo reveals that the court a quo did not consider the issue
whether or not the second and further
respondents should be awarded
any compensation in the first place. I do not think that there is
merit in this submission. That the
court a quo did not in its
judgement specifically refer to the question whether or not any
compensation should be awarded does not
necessarily mean that the
court did not consider that issue nor does it mean that the court a
quo took the view that, if it did not
grant reinstatement, it was
bound to grant compensation.
[38] In
any event it appears to me that, even if the court a quo had not
considered the issue referred to in the paragraph immediately
above
this one, this Court would in all probability have had to consider
that issue itself rather than refer it back to the court
a quo-and
therefore delay finality in the matter- and if this Court had to
consider the issue itself, in my view there would not
have been
sufficient grounds to deny the second and further respondents
compensation altogether. The likelihood is that this Court
would have
exercised its discretion in favour of awarding compensation to the
second and further respondents. If it awarded compensation,
I do not
think that this Court would have awarded a lesser amount of
compensation than the amount awarded by the court a quo.
[39]
In the light of all the above I would not interfere with the judgment
of the court a quo. With regard to costs, the respondents
were not
represented by attorneys. Accordingly it appears to me that there is
no warrant for any order of costs. In the premises
the appeal is
dismissed. No order as to costs is made.
R.
M. M. ZONDO
Judge
President
I
agree
C.R
NICHOLSON
Judge
of Appeal
NUGENT
AJA:
[40] I
have had the privilege of reading in draft form the judgment of the
Judge President. I agree with his conclusions relating
to the
procedural issues, but I am unable to agree with his conclusions
relating to the merits of the appeal, for the reasons which
follow.
[41] In
my view, the events that occurred on 1 September 1997 should not to
be viewed in isolation, but must be seen in the context
of the
relationship which existed between the appellant and the respondents
at that time.
[42] In
about February 1997 the South African Scooter and Transport Allied
Workers Union, represented by a certain Mr Sibiya, sought
recognition
from the appellant as the bargaining agent of the individual
respondents (whom I will refer to hereafter as “the respondents”).
The evidence does not disclose the nature of the initial
discussions (if any) that took place, but I think it is clear that
after
the initial approach there was no further direct contact
between Mr Sibiya and the appellant.
[43] The
appellant was thereafter subjected to repeated harassment and
disruption of her business. By 1 July 1997 Mr Sibiya had referred
alleged disputes to the Commission for Conciliation, Mediation and
Arbitration on three occasions, without once having raised or
discussed any of the alleged grievances with the appellant. On each
occasion the dispute was said to relate to a number of alleged
grievances, most of which were framed in broad and unspecific terms.
Simultaneously, according to the appellant, the respondents
embarked
upon a course of abusing and threatening her and members of the
office staff, and refusing to accept instructions. The
appellant
said that various of the respondents regularly threatened her and
members of her staff with physical harm, and it became
common for the
respondent to disrupt the orderly conduct of the business by singing,
toy-toying, blowing whistles, and jeering at
her. Warnings that
were issued by the appellant from time to time in consequence thereof
in due course constituted the basis of
more grievances that were
referred to the Commission. The appellant’s evidence on that issue
was largely unchallenged.
[44] On
7 July 1997 the appellant signed a written recognition agreement that
had been submitted to her by the union. On 31 July
1997 she attended
a meeting at the offices of the Commission, which had been called to
consider the various disputes which by then
had been referred to it
by Mr Sibiya. At that meeting the appellant and Mr Sibiya agreed to
meet again on 12 August 1997 to discuss
the alleged grievances
amongst themselves before calling upon the Commission to intervene.
[45] Shortly
thereafter, on 6 August 1997, an incident occurred at the appellant’s
premises, that is alleged to have constituted
the basis for the
respondents’ refusal to work thereafter. It is necessary to
examine the evidence in relation to that event in
some detail,
because in my view its significance to the respondents’ later
conduct has been materially exaggerated.
[46] It
is common cause that one of the respondents, Mr Evidence Mfamana, was
having difficulty coping with his work, and required
assistance. At
that time the appellant employed a certain Ms. Evelyn Moatshe in
domestic service. Ms Moatshe’s boyfriend was
a certain Mr Wilson
Nkuna, who was a taxi-driver, and he had a younger brother, Mr Daniel
Nkuna. The appellant decided to employ
Mr Daniel Nkuna in her
business temporarily, in order to assist Mr Mfamana.
[47] On
the morning of 6 August 1997 Mr Daniel Nkuna arrived at the
appellant’s premises to commence work. It is not disputed that
while the appellant was introducing him to the staff in the office,
one of the respondents, Ms. Johanna Mataboga, entered the office
and
told Mr Nkuna that if he worked for the appellant, he would be
assaulted by the other employees. The appellant reprimanded Ms
Mataboga for issuing the threat, but she merely repeated it. That
notwithstanding, Mr Nkuna commenced work assisting Mr Mfamana.
[48] Shortly
after the lunch break on that day, Mr Wilson Nkuna arrived at the
premises in his taxi. It is common cause that he had
a licensed
firearm at his side, which he habitually carried. The only direct
evidence of what then occurred was that of Mr Mfamana.
Mr Mfanana
said that when Mr Nkuna arrived at the gate in his taxi, he (Mr
Mfamana) opened the gate to admit him. He said that
Mr. Nkuna drove
onto the premises, alighted from the taxi, and approached him,
whereupon a verbal interchange occurred. He said
that Mr Nkuna asked
if Mr Mfamana knew him, to which Mr Mfamana replied in the negative.
Mr Nkuna insisted that he should be acknowledged
by Mr. Mfamana, and
then the following occurred:
“
He
forced that I know him and by his right hand touched his gun. I was
frightened but I informed him that I don’t know him. He
told me
that I must tell all the women who are working there to leave all
they’re in need of from their employer and they are going
to
collect other taxis from West (street) at about five they will be
there. As I can see that the yard is surrounded by an electric
fence
we won’t be able to escape.”
[49] That
is the full extent of Mr. Mfamana’s evidence of what was said. Mr
Nkuna then asked where the appellant was, and was
directed to her
office. The appellant was in her office with a customer when Mr
Nkuna arrived. He told her that he had come to
see his brother, and
then asked if he could look around the showroom as he had never been
there before, which he then did. The
appellant walked to the gate
with her customer, passing Mr Mfanana en route, and then returned to
her office. At the office she
again met up with Mr Nkuna, who said
that he was leaving, but would return to fetch his brother later that
afternoon, and he then
left. According to Mr Mfanana, the appellant
accompanied Mr Nkuna to the gate, but whether that is so is not
material.
[50] Shortly
after Mr Nkuna left, there was a commotion amongst the respondents.
Upon making enquiry, the appellant was told that
Mr Mfamana had
reported to the respondents that Mr Nkuna had threatened to return to
the premises at closing time that day, with
other taxi-drivers, in
order to harm the respondents. The respondents turned their fury
upon Mr Daniel Nkuna, who was at that time
in the offices, and the
appellant locked him into an office to prevent the respondents from
having access to him. Gradually the
respondents left the premises,
and went to the offices of the union. The union office was by then
closed, and they dispersed.
Those of the respondents who lived on
the appellant’s premises returned at about 17h00.
[51] At
about 18h00 Mr Wilson Nkuna returned to the premises to fetch his
brother. The appellant confronted him with the allegations
that had
been made, but he denied that he had issued any threats. She asked
him to explain this to those of the respondents who
were on the
premises and he went to do so but they declined to listen to him, and
Mr Nkuna and his brother left the premises.
[52] The
following morning none of the respondents reported for work, but they
all went to the offices of the union instead. In the
course of the
morning the appellant received a telefax from Mr Sibiya in the
following terms:
“
DEATH
THREATS AGAINST OUR MEMBERS BY YOUR EVIL FORCES
It
has been brought to our immediate attention that on 06 August at
about 15h00 a man wielding or branding a firearm entered your
premises accompanied by your maid Evelyn and threatened to shoot all
union members for having given you personal problems. This
man did
this in your presence and stated in your presence and that of the
affected employees that he and the taxi owners and drivers
from West
street branch will come at 17h00 (knocking off period) to do so.
As
a result of these threats our members left your premises at about
16h00 before the arrival of the taxi people. The taxi they were
using was identified by some of them and your maid left with the
taxi. We are unable to send them back to your premises until such
time that police and the relevant authorities including CCMA are
notified and they have deliberated on the matter.
It
has been your intention at all times to rid your company of these
unioned employees. This is not the way to do it. We await your
urgent written guarantee and suggest an urgent meeting to be held at
CCMA offices or alternative venue to discuss same and to find
a
speedy resolution which will guarantee the safety of our members,
whom are all women. We await to hear from you soon, by fax.”
[53] At the
suggestion of Mr Sibiya, Mr Mfamana also reported the incident to the
police that morning, and made a statement. After
relating how Mr
Nkuna had insisted that his identity should be acknowledged, the
material part of the statement which he made reads
as follows:
“
He
(Mr Nkuna) proceeded talking about demands which we are busy at work
negotiating with our employer, that we workers we must stop
demanding
from our employers saying all those words having the firearm in his
hands, as I felt that he was threatening us with fire-arm,
saying
that if we go on about our demand at work, he will be back and kill
us all.”
[54] Making
allowance for what might have been poor translation of the evidence
given by Mr Mfamana, and of the information he provided
to the
police, there are material differences between these three accounts
of the incident. Some of facts alleged in the letter
written by Mr
Sibiya were palpably untrue. Not only did Ms Evelyn Moatshe say that
she was not present, but Mr Mfamana acknowledged
as much in
cross-examination. Furthermore, on his own evidence the alleged
threats were not made in the presence of the appellant.
Indeed,
there is no evidence to suggest that the appellant had any connection
with the alleged conduct of Mr Nkuna. Moreover,
the statement made
by Mr Mfamana to the police does not support the allegation that Mr
Nkuna threatened to return with others at
17h00 that afternoon.
Indeed, it is most unlikely that the respondents had any genuine
belief that he might do so, for some of
them returned to the premises
at about that time with no apparent concern, and nor did they exhibit
any concern when Mr Nkuna arrived
at the premises later that day.
[55] On
the day following the incident, the appellant was talking to one of
the employees who lived on the premises, a certain Ms
Anna Mlambo,
who was apparently suffering from a psychological condition, when she
heard a noise emanating from the gate. She went
to investigate, and
found Mr Sibiya at the gate. Anticipating that he had come to
discuss the matter with her, she greeted him,
to which Mr Sibiya
responded by shouting at her that she was a criminal and he would see
to it that she was imprisoned, and he demanded
to see Ms Mlambo. Ms
Mlambo refused to see Mr Sibiya. It was only after the appellant had
summoned security officers that Mr Sibiya
departed.
[56] On
the following day the appellant’s legal representative responded to
Mr Sibiya’s earlier letter, refuting the allegations
that had been
made. On the same day Mr Sibiya sent a further telefax to the
appellant, in which the following was said:
“
As
we have stated on the 7 August 1997 our members are unable to set
their feet inside and/or near the parameters of the company premises
for fear of the alleged taxi-operators invited by Miss Diane Karras
and her maid Evelyn.
We
have suggested in the meantime they should gather in our offices
until such time that your organisation brings about a speedy
resolution
which will enable them to resume their normal duties
without fear.”
[57] In my view
the grounds which were advanced for the failure to return to work
were quite disingenuous, and there were no proper
ground for refusing
to return to work. I have already pointed out that the respondents
who resided on the premises returned shortly
after the incident
occurred, and showed no apparent concern when Mr Nkuna himself
returned to the premises. Furthermore, it is clear
from his letters
that Mr Sibiya exaggerated the incident, and in my view it is
probable that he did so in order to provide grounds
for what
followed. The respondents refused to return to work that day and for
some three weeks thereafter. Instead they gathered
at the union
offices each day, and Mr Sibiya appears to have gone about his other
business. Apart from referring the matter to the
Commission on 11
August 1997, Mr Sibiya made no further attempt to resolve the matter.
Why he acted as he did has been left entirely
unexplained, for Mr
Sibiya did not give evidence.
[58] The
appellant’s legal representative wrote to Mr Sibiya on 11 August
1997, requesting him to advise the respondents to return
to work
under the protection of the police, but the letter elicited no
response. It will be recalled that the appellant and Mr Sibiya
had
agreed to meet on 12 August 1997 in order to discuss the matters that
had been the subject of the earlier referrals to the commission.
On
11 August 1997 Mr Sibiya wrote to the appellant’s legal
representative, advising that he would be “committed at the
industrial
court on another matter” on that day, and accordingly
the meeting did not take place.
[59] On
19 August 1997 the appellant launched an urgent application to the
Labour Court in an attempt to get the respondents to return
to work.
The application came before Maseremule AJ on Friday 29 August 1997.
Although the relief that was sought in the notice
of motion was
sweeping, to say the least, the appellant appears to have moved for
relief in more confined terms at the hearing.
Shortly before the
lunch adjournment, the learned judge granted an interim order in the
following terms:
“
1. Declaring
the conduct of the (respondents) in refusing to tender their services
to the applicant to constitute unprotected strike
action for
non-compliance with
section 64
of the
Labour Relations Act 66 of
1995
.
Directing
the (respondents) to cease forthwith with the conduct referred to in
1 above.”
[60] The
appellant returned to her premises, expecting that the respondents
would return to work that afternoon. The respondents,
in the
meantime, had gathered at the offices of the union, where the order
that had been made by the Labour Court was explained to
them by Mr
Sibiya. According to Mr Mfamana, by the time they had completed
discussing the matter, it was too late to return to work.
[61] What
occurred on Monday 1 September is in dispute. The appellant said
that she arrived at her premises at about 08h10. The
usual working
day commenced at 08h30. She said that towards 08h30 the respondents
arrived outside the premises, where they gathered
in an unruly
group, shouting, toy-toying and blowing whistles. She said that she
went to the gate and repeatedly pleaded with them
to desist from
their conduct and return to work in an orderly manner, to which they
responded by blowing whistles and jeering at
her. She said that she
was not willing to admit them to the premises in those circumstances,
bearing in mind the disruption they
had caused in the past. After
pleading with the respondents repeatedly, all to no avail, she said
that she returned to her office
where she telephoned her legal
representative and reported what had occurred. Her legal
representative advised her to appeal to
the respondents again, and if
they persisted she was entitled to dismiss them. She said that she
returned to the respondents and
again appealed to them to , but they
responded as before. She then summoned the police and her security
company, and when they arrived,
the security officer read and
translated a notice to the respondents (the content of which appears
from the main judgment) and then
handed standard-form notices of
dismissal to each of them.
[62] It
is clear from the content of the notice that was read to the
respondents that
it was drafted
with legal assistance, and it is quite probable that the appellant’s
legal representative also drafted the form of
the notices of
dismissal. Bearing in mind that the appellant’s legal
representative was not present on the morning in question,
it follows
that the documents must have been drafted some time earlier, but I do
not think that is necessarily significant. Matters
had been brought
to a head by the granting of the order, and in my view it would not
have been untoward for the appellant to have
made preparations to
dismiss the respondents if they persisted in their refusal to return
to work on Monday morning, bearing in mind
that they had not returned
to work immediately after the order was made, nor had they given any
indication of what they intended
doing the following week. There was
some suggestion in the course of cross examination that the appellant
had decided on the week-end
to dismiss the respondents, irrespective
of whether they were willing to return to work, which the appellant
denied. In my view
it is improbable that she did make such a
decision, for reasons which I will deal with presently. Before
doing so, there is one
further aspect of her evidence that I should
deal with briefly.
[63] The
Judge President has pointed out that the appellant said that the
notice of dismissal was typed on the morning of 1 September
and then
copied at a nearby shop, and she provided an explanation for it
bearing the date of the previous day. That evidence is
said to be in
variance with what was said by her previous counsel at the
commencement of an earlier hearing of this matter which
was
subsequently aborted. I do not think that is necessarily so. The
appellant’s counsel said on the occasion that because the
respondent’s conduct was anticipated, “the relevant notices were
prepared” and dated the previous day, but it is clear that
he was
referring to what he called “master copies” (in what form was not
stipulated) of the two notices. I do not think that
is inconsistent
with the appellant’s evidence, which was no more than that the
notice of dismissal in the form in which it was
given to the
respondents was typed and copied on 1 September, and nor, in my view,
is it inconsistent with her evidence as to the
reason for choosing
the date which was placed on the document. I have already indicated
that it is indeed probable that at least
a draft form of the notices
was prepared before the morning of 1 September, which is what her
former counsel was clearly referring
to, but that is not the issue
upon which the appellant was being questioned. I would in any event
be most hesitant to disbelieve
her evidence on this basis alone,
bearing in mind that the supposed conflict was not canvassed in the
evidence.
[64] Mr
Mfamana denied the appellant’s version of what occurred. He said
that he and other employees arrived at the premises at
about 08h10,
at which time the police and security officer were already present.
He said that at about 08h25 they went to the gate,
intending to work,
but they were stopped at the gate and handed notices of dismissal.
He denied that any rowdiness took place before
that.
[65] Although
the appellant’s evidence of what occurred on that morning was not
challenged in cross examination, I have not taken
that into account
in assessing the evidence, bearing in mind that the respondent’s
case was not conducted by a legal practitioner.
[66] The
learned judge in the court a quo held that the respondents had indeed
arrived at work singing and toy-toying as alleged by
the appellant,
and in my view that is indeed probable. If the respondents had
arrived for work in the normal course, as alleged
by Mr Mfamana, it
is improbable that they would not immediately have proceeded to the
gate for that purpose. What they were doing
from 08h10 to 08h25 has
been left unexplained. Furthermore, his evidence would suggest that
the appellant had indeed decided to
dismiss the respondents when they
arrived that morning, irrespective of whether they were genuinely
willing to return to work. In
my view it is also improbable that the
appellant would have gone to the trouble of launching court
proceedings that were clearly
aimed at getting the respondents to
return to work, only to dismiss them when that objective had been
achieved. No reason was suggested
to the appellant for why she
should have done so. Furthermore, it was not disputed that she
telephoned her legal representative
in the course of the morning in
order to obtain advice, which is inconsistent with such a decision
already having been made.
[67] I
might add that the learned judge also found it probable that the
police and the security officer were already present when
the
respondents arrived. The only basis for that finding was that it
would have been consistent with the state of the relationship
between
the parties at that time for the appellant to have summoned them
before the respondents arrived. In my view that does not
support the
contention that it probably occurred, but I do not think that issue
is really material.
[68] Accepting,
as he did, the evidence of the appellant as to the manner in which
the respondents arrived at the premises that morning,
the learned
judge nevertheless held that there was no justification for
dismissing them. I think it would be helpful to set out
his
reasoning in full:
“
In
casu the fact of the matter is that the individual applicants engaged
in conduct which prompted the Respondent to dismiss them.
It
therefore remains to be determined whether the Respondent was
justified in dismissing the individual applicants. The court has
already stated that there was no justification for the individual
applicants to stay away from work on the basis of the alleged threat
issued to Mfamana especially after 11 August 1997.
Despite
the lack of justification for the withdrawal of labour from 6 August
1997 the respondent elected to sit it out until it approached
the
court on 29 August 1997 for an urgent interdict. Having gone that
route the Respondent could only claim justification for dismissing
the individual applicants if they did not comply with the interim
interdict. Whilst it is correct that the individual applicants
did
not return to work in the afternoon of 29 August 1997 when the
interim interdict was granted there is no evidence of any
communication
between the parties that afternoon.
The
fact of the matter is that the individual applicants showed up at the
Respondent’s premises on 1 September 1997 after an absence
of three
weeks. There is no dispute that the only reason they turned up was
because of the interim interdict in particular clause
1.3 thereof
ordering them to cease their conduct of refusing to tender their
services. As already stated, the court accepts the
testimony by
Karras that they did not arrive quietly. According to Karras it is
this rowdy and unruly behaviour of the individual
applicants that
eventually prompted her to dismiss them.
Karras
testified that she did not allow the individual applicants to enter
her premises while they were behaving in an unruly and
rowdy fashion.
The fact that employees sing, toyi-toyi, shout and blow whistles, in
itself, does not lend justification to their
dismissal. This conduct
if accompanied by criminal conduct such as intimidation and violence
could lend justification to a decision
to dismiss. No evidence was
led in this court that the so-called unruly and rowdy conduct of the
employees was accompanied by criminal
conduct.
Unruly
and rowdy conduct could conceivable also justify a decision to
dismiss if it takes place inside the premises of the employer.
In
this case it is common cause that the singing, toyi-toying and
whistle blowing took place outside the premises of the respondent.

The court can therefore find no substantive justification for the
dismissal of the individual applicants based on their collective
absence and conduct on 1 September 1997. After all
section 17
of the
Bill of rights in the Constitution of the Republic of South Africa
Act No. 108 of 1996 guarantees the right to assemble and
demonstrate.
“
[69] Insofar
as the learned judge held that the respondents were dismissed merely
because they were unruly and rowdy, in my view he
misconstrued the
appellant’s evidence. In my view, it is clear from the
appellant’s evidence that the respondents were dismissed,
not for
their rowdiness per se, but because the appellant inferred from
their conduct that they had no genuine intention of resuming
their
obligations, but intended instead to persist in ignoring her
instructions and disrupting the workplace as they had done before.

The Judge President is of the view that the appellant had difficulty
in explaining why she had dismissed them, but I do not agree.
The
only apparent difficulty she had was in providing an answer to
questions which required her to choose from two possible explanations
for the dismissal which were put to her when, in truth, the
explanation was neither. The reason given by the appellant for the
dismissal,
consistently and repeatedly, was that she concluded from
the respondents’ conduct that they had no intention of fulfilling
their
obligations, albeit that they had presented themselves at work.
[70] In
my view, that was indeed a proper ground for dismissal. The
fundamental obligation of employees in the contract of employment
is
to properly undertake their work, which entails, at least, accepting
reasonable instructions and not disrupting the workplace.
For some
five months the respondents repeatedly breached that obligation, and
thereafter for three weeks they abandoned it completely.
In my view
it is reasonable to infer from their conduct on 1 September, in the
absence of explanation, that they were not genuinely
intent upon
returning to work, but intended instead to persist in their earlier
conduct. I do not think the appellant was required
to allow them on
the premises for that purpose, and in my view, their persistence in
refusing to properly perform their obligations
entitled the
appellant to dismiss them. If the respondents indeed had genuine
grievances, there were means available for them to
seek redress, but
in the meantime their obligations did not cease. The machinery
provided by the Labour Relations Act 1998 was clearly
introduced to
provide a means to redress grievances without disruption at the
workplace. If employees choose instead to embark
upon disruption,
as the respondents did in the present case, in my view they ought not
to expect that the court will protect them.
To do so would merely
undermine the objectives of the new industrial relations
dispensation.
[71] The court a
quo also held that the dismissal were procedurally unfair, in that
the respondents were not given an ultimatum before
they were
dismissed. No doubt it is generally sound practice, if employees
refuse to carry out their obligations, to issue a clear
ultimatum
before resorting to dismissal, but that ought not to be seen as an
arbitrary hurdle over which an employer must necessarily
leap. The
purpose of an ultimatum is to avoid precipitous decisions, which a
little circumspection might avoid. As pointed out in
Performing
Arts Council of the Transvaal v Paper Printing Wood & Allied
Workers’ Union
[1993] ZASCA 201
;
1994 (2) SA 204
(A) at 216E-F:
“
...
whether an illegal strike may fairly be met with an immediate
dismissal or whether fairness calls for an ultimatum or other
appropriate
action short of dismissal is an issue which can only be
determined on the facts of each case. An illegal strike constitutes
serious
and unacceptable misconduct by an employee. The present
enquiry is whether, on the facts of this case, it would have been
unfair
to dismiss the employees without giving them a reasonable
ultimatum - an opportunity to calm down and reflect upon the serious
consequences
for them of continuing to act in an illegal manner in
breach of their obligations to their employer.”
[72] What was in
issue in that case was an illegal strike, but in my view the
observations are equally applicable to a refusal to
work which does
not constitute a strike as defined in the Act, for it is the refusal
to work that gives rise to the right to dismiss,
not whether the
employees’ conduct constitutes a strike.
[73] In
the present case the respondents had ample time to reflect upon the
course which they decided to embark upon, and to take
advice. For
some three weeks they had refused to work at all, and had gathered at
the union’s office, where they were in a position
to make a
considered decision as to how they would proceed. Thereafter they
discussed the implications of the Labour Court’s order,
in the
presence of their chosen representative, and furthermore had the
week-end during which to reflect. The inference is inescapable
that
their conduct on Monday morning was not spontaneous, but reflected a
course they had deliberately chosen to take. I do not
think that
further opportunity for reflection was called for in the
circumstances. Nor, in my view, was it incumbent upon the appellant
to notify the union representative, whom the respondents had had
adequate opportunity to consult before acting as they did.
[74] The Judge
President is of the view that the appellant was obliged to afford the
respondents a hearing before resorting to dismissal,
relying in that
regard on the decision of this court in
Modise
& Others v Steve’s Spar Blackheath
(2000) 21 ILJ 519 (LAC). I do not understand it to have been held
in that case that a hearing will always be required before dismissing
employees who refuse to comply with their obligation to work, and nor
could that be so, bearing in mind that the question in each
case is
whether the dismissal was “unfair”, which must of necessity
depend upon the particular circumstances (
Performing
Arts Council
,
supra). In the present case I can see no purpose which would have
been served by a hearing, and nor have any of the respondents
suggested that any purpose would have been served. Furthermore,
whether the respondents ought to have been given a hearing was not
an
issue at the trial. The pre-trial minute records that the
respondents’ contention was that “no ultimatum or notice to the
(union) was issued to the employees or the union prior to dismissal,”
and there is no suggestion that the question of a hearing
was even in
issue. I do not think it is a matter that ought to be introduced on
appeal.
[75] I
would accordingly uphold the appeal and set aside the order of the
court a quo.
R.W. NUGENT
ACTING
JUDGE OF APPEAL
Appearances:
For
the Appellant : Adv. Leech
Instructed
by : Fluxman Rabinowitz Raphaely Weiner
For
the Respondent : The respondents were represented by a union official
Instructed
by :
Date
of hearing : 28 June 2000
Date
of judgement : 17 October 2000