Stuttafords Department Stores Ltd v Southern African Clothing and Textile Workers Union (CA2/00) [2000] ZALAC 22 (2 November 2000)

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[2000] ZALAC 22
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Stuttafords Department Stores Ltd v Southern African Clothing and Textile Workers Union (CA2/00) [2000] ZALAC 22; [2001] 1 BLLR 46 (LAC); (2001) 22 ILJ 414 (LAC) (2 November 2000)

IN
THE LABOUR APPEAL COURT OF SOUTH AFRICA
Held
in Cape Town
Case
No: CA 2/00
In the
matter between:
STUTTAFORDS
DEPARTMENT STORES LTD
Appellant
and
SOUTHERN
AFRICAN CLOTHING AND TEXTILE
WORKERS
UNION
Respondent
JUDGEMENT
ZONDO
JP
Introduction
[1] The
appellant appeals against part of a judgment given by the Labour
Court (per G. O. van Niekerk AJ) in a dispute between itself
and the
respondent. The dispute between the parties was about whether or not
a lock-out which the appellant had subjected the
respondent’s
members employed by itself to was a protected one and, whether, in
so far as the appellant may have taken temporary
replacement labour
into its employment during that lock-out, such conduct on its part
had been lawful. In this regard the respondent
sought a declarator
that the lock-out was not protected and an award of compensation to
its members who had been locked-out.
[2] The
Court a quo found the lock-out to have been protected but found that
the appellant’s employment of temporary replacement
labour to
perform the work of the locked-out employees was unlawful and awarded
certain compensation to the respondent’s members.
This appeal is
against that order. Some of the respondent’s members who were
awarded compensation were from a store of the appellant
which is
operated from the Musgrave Centre in Durban. The appellant does not
appeal against the order of compensation made by the
court a quo in
favour of those members of the respondent who were based in that
store.
The
facts
[3] The
appellant is a well known department store which operates a number of
stores in various parts of the country. Some of its
stores are at the
Victoria and Alfred Waterfront in Cape Town (
“the Waterfront
store”
), at the Tyger Valley Shopping Centre in Bellville (
“the
Tygerberg store”
), at the Cavendish Square Shopping Centre in
Cape Town (
“the Cavendish store”
) and at the Musgrave
Centre in Durban (
“the Musgrave Store”
). The respondent is
a well known trade union which is mainly involved in the clothing and
textile industry. The respondent is recognised
by the appellant as
the collective bargaining agent of its members who are employed by
the appellant in the stores mentioned above,.
[4] In
May 1998 the parties started their annual wage negotiations. When the
parties could not reach agreement, a dispute arose. The
dispute was
referred to the Commission for Conciliation, Mediation and
Arbitration (
“the CCMA”
) for conciliation. Conciliation
failed to produce an agreement. The thirty days period calculated
from the date of the referral of
the dispute to the CCMA expired on
the 6
th
August 1998.
[5] On
the 17
th
August the appellant gave notice to lock-out the
respondent’s members. This was in terms of s64(1)(c) of the Labour
Relations Act,
1995 (Act No 66 of 1995) (
“the Act”
). The
notice was later extended in order to ensure that it was not for a
shorter period than the 48 hours required by s64(1)(c).
The purpose
of the lock-out intended by the appellant was to compel the
respondent and its members employed by the appellant to accept
the
appellant’s final wage offer. On the 20
th
August the
appellant instituted a lock-out against the respondent’s members in
the stores referred to earlier in this judgment.
In accordance with
the definition of a lock-out in s213 of the Act, that the
respondent’s members were locked - out means that
the appellant
excluded them from their respective work places for the purpose of
compelling them to accept its final offer on wages
and other terms
and conditions of employment.
[6] The
respondent alleged that the appellant employed temporary replacement
labour. Part of the alleged temporary replacement labour
was drawn
from a pool of casual employees that the appellant had kept over a
long period. Those casual employees worked from time
to time for the
appellant. Apparently none of the casual employees worked for longer
than three days in any week. There were also
students as well as
fixed term contract employees who performed some duties at the store
during the period of the lock-out or part
thereof. On the 28
th
August the respondent’s members started a protected strike to
compel the appellant to agree to the union’s wage demands. The
lock-out was only lifted on the 9
th
September 1998 when
agreement was reached between the parties on the wage dispute.
[7] The
respondent brought an application in the court a quo for an order
declaring the lock-out unprotected and awarding compensation
in
favour of its members. In par 13 of the founding affidavit, the
respondent made the following allegations:
“
13. The
lock-out and the conduct in furtherance of the lock-out is (sic)
unlawful because:
3.1 the
notice required by section 64(1)(b) was defective; and
3.2 the
taking into employment of persons to perform work of employees who
were locked out is in contravention of section 76".
[8]
In
paragraphs 14 and 15 the respondent went on and alleged:
“
14 The
lock-out and the conduct in furtherance of the lock-out, namely, the
use of replacement labour, is (sic)by virtue of the above
contraventions, unprotected.
15 As
a result of the unlawful conduct of the respondent, the employees who
were locked-out on 20 August 1998 have lost wages from
the
commencement of the lock-out to 28 August 1998 when the strike called
by the applicant commenced”
.
[9] In
par 16 of the founding affidavit the respondent,
“on behalf of
employees locked-out”
, prayed for (a) a declarator that the
lock-out was not a protected lock-out, and (b) an order
“requiring
[the appellant] to compensate every employee locked-out by [the
appellant]
(for an amount which was to be calculated on the
formula : Employees Monthly salary + 26 x 8, interest and costs).
[10] In
terms of the pre-trial minute the court a quo was required to decide:
(a) “
whether
the respondent has contravened section 76 of the LRA, and if so,
whether the respondent should forfeit the protection afforded
a
lock-out in terms of the LRA”
and
(b)
“whether
applicant’s members are entitled to compensation and, if so, the
amount of compensation that would be just and equitable
in the
circumstances having regard to all the facts”
.
[11] According
to par 74 of the judgment of the court a quo, the attorney, who
appeared for the respondent, informed the court a quo
that he was
confining the relief sought by the respondent to just and equitable
compensation in terms of section 68(1)(b) of the
Act. Sec 76(1)(b) of
the Act provides that an employer
“may not take into employment
any person-
(a) .
. .
(b) for
the purpose of performing the work of any employee who is locked-out,
unless the lock-out
is in response
to a strike”
.
The
judgment of the court a quo
[12] The
court a quo considered whether the notice to lock-out was defective
in that it did not comply with sec 64(1)(c) - which would
have
rendered the lock-out unprotected. It concluded that the lock-out
notice was valid, that the provisions of s64 had been complied
with
and that the lock-out was lawful (i.e. protected). It considered
that, having been locked-out for eight days, the concerned
employees
had lost eight days’ wages. The court a quo said that the employees
“would have been hard hit by the loss of eight days’ wages”
.
In the end the court a quo made an order against the appellant for
the payment of an amount of R 70 000,00 to the respondent. It
referred to this amount as compensation for the employees.
The
Appeal
[13] Prior
to the hearing of argument on appeal three features of s 68(1) caught
the attention of the court. These were that:-
(a) the
heading of the section was:
Strike or lock-out not in compliance
with this Act
- which suggested that the section dealt with
matters relating to strikes and lock-outs which did not comply with
the Act, namely,
unprotected strikes and lock-outs;
(b) the
opening part of ss(1) reads: “
In the case of a strike or
lock-out, or any conduct in contemplation or in furtherance of a
strike or lock-out,
that does not comply with the
provisions of this chapter, ...”
(Underlining supplied);
this seemed to suggest that the exclusive jurisdiction which
s68(1)(a) and (b) appeared to confer on the
Labour Court only applied
to cases of unprotected strikes and lock-outs and conduct in
contemplation or furtherance of such strikes
and lock-outs.
(c) par
(b) of ss(1) refers to
“loss attributable to the strike or
lock-out ...”
which appeared to suggest that the compensation
which the Labour Court is given exclusive jurisdiction by par (b) of
ss(1) to order
was limited to compensation for loss attributable to
strikes and lock-outs as opposed to loss attributable to conduct in
contemplation
of or in furtherance of strikes and lock-outs.
[14] In
the light of the above it appeared to the Court that the court a quo
might well have lacked jurisdiction to entertain the
respondent’s
claim for compensation once it had found that the lock-out was a
protected one. The Court asked Counsel, who appeared
for the
appellant, and, the attorney, who appeared for the respondent, to
address it on whether the court a quo had had jurisdiction
to
entertain the respondent’s claim once it had found the lock-out to
have been a protected one.
[15] Both
Mr Cassim, who, together with Mr Kirk-Cohen, appeared for the
appellant, and, Mr Cheadle, who appeared for the respondent,
presented argument on the point raised by the Court. With regard to
the merits Mr Cassim indicated that he stood by his heads of
argument
and did not present oral argument. Mr Cheadle presented oral argument
on the merits of the matter as well. Subsequent to
the hearing, the
respondent sought leave to submit supplementary written argument on
the point raised by the Court. This request
was granted. The
appellant was also given an opportunity to respond to the
respondent’s written argument. In due course both parties
submitted
their respective supplementary argument.
[16] In
granting the parties the opportunity to deliver supplementary
argument, the court drew the parties’ attention to further
provisions of the Act which appeared to be relevant to the point
raised by the Court. The provisions were those of
s67(2),(3),(4),(5),(6),(9)
and (10) of the Act. Ss(1) may also be
relevant. It is convenient to quote these provisions: With the
heading, they read thus:.
“
67
strike or lock-out in compliance with this Act.
(1) In
this Chapter, ‘protected strike’ means a strike that complies
with the provisions of this Chapter and ‘protected lock-out’
means a lock-out that complies with the provisions of this Chapter.
(2) A
person does not commit a delict or a breach of contract by taking
part in -
(a) a
protected strike or a protected lock-out; or
(b) any
conduct in contemplation or in furtherance of a protected strike or a
protected lock-out.
(3) Despite
subsection(2), an employer is not obliged to remunerate an employee
for service that the employee does not render during
a protected
strike or a protected lock-out, however -
(a) if
the employee’s remuneration includes payment in kind in respect of
accommodation, the provision of food and other basic amenities
of
life, the employer, at the request of the employee, must not
discontinue payment in kind during the strike or lock-out; and
(b) after
the end of the strike or lock-out, the employer may recover the
monetary value of the payment in kind made at the request
of the
employee during the strike or lock-out from the employee by way of
civil proceedings instituted in the Labour Court.
(4) An
employer may not dismiss an employee for participating in a protected
strike or for any conduct in contemplation or in furtherance
of a
protected strike.
(5) Subsection
(4) does not preclude an employer from fairly dismissing an employee
in accordance with the provisions of Chapter VIII
for a reason
related to the employee’s conduct during the strike, or for a
reason based on the employer’s operational requirements.
(6) Civil
legal proceedings may not be instituted against any person for -
(a) participating
in a protected strike or a protected lock-out; or
(b) any
conduct in contemplation or in furtherance of a protected strike or a
protected lock-out.
(7) .....
(8) The
provisions of subsections (2) and(6) do not apply to any act in
contemplation or in furtherance of a strike or a lock-out,
if that
act is an offence.
(9) Any
act in contemplation or in furtherance of a protected strike or a
protected lock-out that is a contravention of the Basic
Conditions of
Employment Act or the Wage Act does not constitute an offence.”
(It
should be noted that the
heading to s67 is:
Strike or
lock-out in compliance with this Act)
[17] Mr
Cassim submitted that the prima facie view expressed by the Court
that the court a quo did not have jurisdiction to entertain
the
respondent’s claim once it had found the lock-out to have been a
protected one was correct and that, for that reason, this
Court
should uphold the appeal and set aside the order of the court a quo.
Mr Cheadle contended that the court a quo had had the
necessary
jurisdiction and made certain submissions in this regard.
[18] As
the respondent’s case was presented in the court a quo on the basis
that it was a claim for compensation in terms of s 68(1)(b),
it is
necessary to quote the provisions of s68(1) in full. S68(1) provides
as follows:-
“
68 Strike
or lock-out not in compliance with this Act
(I) In
the case of a strike or lock-out, or any conduct in contemplation or
in furtherance of a strike or lock-out, that does not
comply with the
provisions of this chapter, the Labour Court has exclusive
jurisdiction-
(a) to
grant an interdict or order to restrain-
(I)
any person from participating in a strike or any conduct in
contemplation or in furtherance of a strike; or
(ii) any
person from participating in a lock-out or any conduct in
contemplation or in furtherance of a lock-out;
(b) to
order the payment of just and equitable compensation for any loss
attributable to the strike or lock-out, having regard to-
(I)
whether
-
(aa) attempts
were made to comply with the provisions of this Chapter and the
extent of those attempts;
(bb) the
strike or lock-out was premeditated;
(cc) the
strike or lock-out was in response to unjustified conduct by another
party to the dispute; and
(dd) there
was compliance with an order granted in terms of paragraph (a);
(ii) the
interest of orderly collective bargaining;
(iii) the
duration of the strike or lock-out; and
(iv) the
financial position of the employer, trade union or employees
respectively”
.
[19] Ss
(2) and (3) are not relevant for present purposes. S68(4) makes the
provisions of ss(2) and (3) inapplicable to an employer
or employee
who is engaged in an essential service or a maintenance service. Ss 5
provides:
” Participation in a strike that does not comply with
the provisions of this Chapter, or conduct in contemplation or in
furtherance
of that strike, may constitute a fair reason for
dismissal. In determining whether or not the dismissal is fair, the
Code of Good
Practice: Dismissal in Schedule 8 must be taken into
account”.
[20] During
the hearing Mr Cheadle submitted that a contravention of s76(1)(b)
rendered an otherwise protected lock-out unprotected
and that,
therefore, a claim for compensation under s68(1)(b) would be
available to employees subjected to such a lock-out. However,
in his
written argument submitted after the hearing, Mr Cheadle indicated
that he was no longer persisting in this line of argument.
He
conceded, quite wisely in my view, that the employment of temporary
replacement labour in contravention of s76(1)(b) by an employer
in
the course of a protected lock-out did not affect the legality of
such a lock-out.
[21] In
his supplementary written argument submitted after the hearing, Mr
Cheadle presented his argument under three headings in
regard to the
jurisdictional point raised by the Court. These were that:-
(A) the
provisions of s68, properly construed, gave the Labour Court
jurisdiction to order compensation in the case of a contravention
of
s76 by an employer;
(B) alternatively
to (A) above, the Labour Court had jurisdiction to order compensation
or damages under the provisions of s157(1)
read with s158(1)(a)(v)
and (vi).
(C) the
Labour Court had power to make a declaratory order and
“to this
extent at least”,
the court a quo had had jurisdiction to make
the order that he said it had made in paragraph 76.1 of the judgment.
Does
s68 give the Labour Court jurisdiction to award compensation in the
case of a contravention of sec 76?
[22] Mr
Cheadle submitted that the provisions of s68(1)(b) are capable of
being read in two ways. He submitted that the one way is
that the
jurisdiction of the Labour Court to award compensation is limited to
compensation for loss attributable to unprotected strikes
and
lock-outs and does not include compensation for loss attributable to
unlawful conduct in contemplation of or in furtherance of
a strike or
lock-out whether protected or not. The other way of reading
s68(1)(b), submitted Mr Cheadle, was to say that the
“loss
attributable to a strike or lock-out”
in s68(1)(b) is a
reference to a yardstick for determining compensation rather than a
limit on jurisdiction. He submitted that the
correct construction of
s68(1)(b) was the latter construction.
[23] Mr
Cheadle submitted that, in a case such as the present one, the
compensation claimed is for loss attributable to the lock-out
and not
loss independently attributable to the conduct in furtherance of the
lock-out itself. This submission can simply not be correct.
It is
contrary to the very purpose of strikes and lock-outs. If it were
true, it would undermine the very essence of strikes and
lock-outs
and the process of collective bargaining.
[24] The
very reason why employees resort to strikes is to inflict economic
harm on their employer so that the latter can accede to
their
demands. A strike is meant to subject an employer to such economic
harm that he would consider that he would rather agree to
the
workers’ demands than have his business harmed further by the
strike. The essence of a lock-out is that the employer denies
the
locked-out employees the opportunity to earn their wages, thereby
causing financial harm to the locked-out employees, in the
hope that,
after a certain point, there would be so much financial harm or pain
on the employees that they would consider that they
would rather
agree to the employer’s demands than continue to be subjected to
the lock-out and lose more wages.
[25] The
Act seeks to make collective bargaining the preferred means for the
resolution of disputes. However, it seeks to promote
conciliation of
disputes before there can be a resort to strikes and lock-outs. The
Act seeks to provide extensive immunity to an
employer who resorts to
a protected lock-out and unions and employees who resort to a
protected strike. The protection is not limited
to the strike or
lock-out itself but is also extended to conduct in contemplation or
in furtherance of such a (protected) strike
or lock-out, hence the
provisions of s67(2), (4), (6), (8) and (9) which have already been
quoted above.
[26] The
Act requires a party which wishes to resort to a protected strike or
lock-out to take much trouble. However, once the requirements
of the
Act for such strike or lock-out to be protected have been complied
with, the Act protects that lock-out or strike and, generally
speaking, protects the party responsible for it, too, against any
judicial interference. The policy is that courts should stay away
from the collective bargaining arena so that they cannot intervene
when one of the parties feels the pinch. When one of the parties
cannot bear the pain in the fight, it can do one of three things:
(I) it
can conclude a compromise agreement with the other party in
settlement of the dispute and ensure its survival;
(ii) it
can capitulate and accede to the other party’s demands;
(iii) it
can continue with the fight and risk destruction or annihilation.
Such a
party cannot be allowed to seek the intervention of the courts to
escape the consequences of a protected lock-out or strike.
[27] In
inflicting economic harm on its adversary, a party to collective
bargaining is not limited to a strike or lock-out. In addition
to a
strike or lock-out, such a party is entitled to resort to conduct in
contemplation or in furtherance of a strike or lock-out.
Provided
such conduct does not constitute a criminal offence, such conduct is
protected and the party responsible for it is also
protected. (See s
67(2), (3), (4), (5), (6), (8) and (9)). This means that such conduct
cannot provide a cause of action nor can
the party have civil
proceedings instituted against the other party for such conduct.
[28] In
this case there can be no doubt that the loss that the respondent’s
members suffered for which compensation was sought in
the court a quo
was the loss of wages suffered during the lock-out for the period
20
th
up to the 28
th
August 1998. The
allegations in the founding affidavit reveal this quite clearly. Also
the respondent’s claim does not extend into
the period after its
members had embarked on their strike. If the loss was not that of
wages, then I cannot see why the respondent’s
claim for
compensation would have been limited to the period upto when the
respondent’s members began with their strike. If the
claim was for
wages, the claim could not cover that period because the workers were
not tendering their services once they had embarked
on the strike.
[29] In
so far as the respondent may try to give the claim the label of a
claim for compensation as opposed to a claim for lost wages,
it
cannot, in my view, change the true character of its claim by giving
it a wrong label. This case must be determined simply on
the basis
that the respondent’s true claim is a claim for lost wages. I do
not say that lost wages cannot fall within the ambit
of s68(1)(b).
What I do say is that the fact that the claim is in fact a claim for
lost wages is singularly important where the loss
occurred during a
protected lock-out because, when employees are subjected to a
protected lock-out, they are supposed to suffer a
loss of wages
anyway.
[30] As
I have already indicated above, Mr Cheadle submitted that the
respondent’s claim is one for compensation for loss not
attributable
to the appellant’s conduct in furtherance of the
lock-out but for loss attributable to the lock-out itself. The
question that this
submission raises in the context of this matter
is: Does the Labour Court have jurisdiction in terms of s68(1)(b) to
entertain a
claim for compensation for lost wages suffered by
employees during a protected lock-out when such loss is attributable
to such protected
lock-out?
[31] In
my judgement the submission is fatal to the respondent’s claim. The
Labour Court does not have jurisdiction under s68(1)(b)
to entertain
a claim for compensation for loss attributable to a protected
lock-out suffered by employees subjected to a protected
lock-out.
S68(1)(b) confers exclusive jurisdiction on the Labour Court to
award
“just and equitable compensation for any loss attributable
to the strike or lock-out ...”
The reference to a lock-out in
s68(1)(b) is a reference to an unprotected lock-out. This is so
because the use of the article
“the”
just before the words
“strike or lock-out”
is an indiction that the strike or
lock-out referred to is the one already referred to before. The
strike or lock-out which has been
referred to prior to s68(1)(b) is
the one referred to at the opening part of ss(1) of s68. There it is
stated: “
In the case of any strike or lock-out,
or
any conduct in contemplation or in furtherance of a strike or
lock-out,
that does not comply with the provisions of this
Chapter ...”
Par (6) of ss(1) is part of the first
sentence of s68(1). Furthermore, the heading to s68 refers to
“strike
or lock-out not in compliance with this Act.”
[32] The
heading to s67, the section preceding the section in question, reads:
“Strike or lock-out in compliance with this Act.“
In other
words the one section has a heading which refers to strikes and
lock-outs which comply with the Act whereas the other one
has a
heading referring to strikes and lock-outs which do not comply with
the Act - in other words protected and unprotected strikes
and
lock-outs.
[33] I
have referred to the headings to the two sections because I am of the
view that they are part of the material from which assistance
can be
derived in interpreting s68(1)(b). A contrasting of the headings to
these two sections reveals that the legislature must have
chosen the
two headings deliberately. The legislature must have had a reason for
such a choice. In my view the reason was to have
two separate
sections spelling out the effects or consequences of, on the one
hand, protected strikes and lock-outs and conduct in
contemplation or
in furtherance of such strikes and lock-outs and, on the other,
unprotected strikes and lock-outs and conduct in
contemplation or in
furtherance of such strikes and lock-outs.
[34] S67
sets out in great detail the effects, implications and consequences
of protected strikes and lock-outs as well as of conduct
in
contemplation or in furtherance of such strikes and lock-outs. A
reading of s68 reveals the same in respect of unprotected strikes
and
lock-outs and, to a rather limited extent, conduct in contemplation
or in furtherance of such strikes and lock-outs.
[35] The
scheme of chapter iv also reinforces the view I have expressed above
about s67 and s68. I say this because one starts in
s 67 and s68
which deal with the right to strike and the recourse to lock-out.
Ss(1) thereof sets out the procedure to be followed
before the right
to strike or the recourse to lock-out can be exercised. Then there is
ss(3) which spells out situations when compliance
with the procedure
set out in ss(1) is excused. There is then s65 which sets out
limitations to the right to strike and the recourse
to lock-out.
Thereafter there are then, apart from s66 which deals with secondary
strikes, sections 67 and 68 dealing with the effects,
implications
and consequences of protected strikes and lock-outs and unprotected
strikes and lock-outs respectively. Also whereas
the opening part of
s68(1) refers, as I have already indicated, to a strike or lock-out
that does not comply with the Act, the first
part of s67(1) opens
with a notice that the term
“protected lock-out”
means a
strike or lock-out that complies with the provisions of the Chapter
on strikes and lock-outs.
[36] Various
individual provisions of s67 reinforce me in my view that the Labour
Court has no jurisdiction under s 68 (1)(b) to order
compensation for
loss attributable to a protected lock-out. The effect of s67(2)(a) is
that, when an employer institutes a lock-out
against employees, it
does not commit a delict nor does it commit a breach of contract. The
rationale behind s67(2) is to deny employees
any possible cause of
action against the employer arising out of the employers conduct in
subjecting them to a protected lock-out.
[37] S67(3)
provides in part that an employer
” is not obliged to remunerate
an employee for services that the employee does not render during a
protected strike or a protected
lock-out ...”
This provision
makes it clear that an employee who has lost wages as a result of a
protected lock-out has no cause of action against
the employer. In
the light of this it is understandable that the Act should not
provide the Labour Court with jurisdiction to entertain
such a claim.
There is also s67(6). It provides:
“Civil legal proceedings may
not be instituted against any person for -
(a) participating
in a protected strike or lock-out, or
(b)
.....”
[38] In
my judgement the provisions of s67(6) precludes the institution of
civil proceedings by employees or their agents against
their employer
for having instituted a protected lock-out against them. This means
that they can neither bring interdict proceedings
nor can they bring
a claim for compensation for loss attributable to, or arising from, a
protected lock-out. In my view the legislature
could not have used
clearer language to oust the jurisdiction of courts in this regard.
[39] The
ousting of the jurisdiction of courts in respect of matters such as
the matter before us is not an innovation of the new
Act. Sec 79(1)
of the Labour Relations Act, 1956 (Act No 28 of 1956)(
“the old
Act”
) had provisions which were more or less to the same effect
as the present provisions of s67(6) of the Act.
[40] When
the Act was published in Bill form in 1995, it was accompanied by an
explanatory memorandum in which the drafters of the
then Bill
explained the thinking behind the main features of the Bill. The
explanatory memorandum appears in (1995) 16 ILJ 278 -
336. At 306 the
drafters wrote:”
An employer cannot take any other legal action
against employees or a trade union for their participation in a
strike.
Likewise employees cannot sue their employer for
wages during a lock-out in conformity with the draft Bill. Provision
is specifically
made that the employer is not obliged to remunerate
an employee during a protected lock-out.”
[41] The
last paragraph of the explanatory memorandum at 306 had the heading:
Consequence of non-compliance. In that paragraph the
drafters had
this to say: “
Strikes and lock-outs that are not in conformity
with the draft Bill attract various sanctions. The Labour Court has
jurisdiction
to interdict such strikes and to award compensation for
any loss attributable to such strikes or lock-outs. In view of the
very harsh
consequences arising out of our law of delict, damages
awards for strikes or lock-outs not in conformity with the draft Bill
are
tempered by a range of factors, namely, whether attempts were
made to act in conformity with the provisions ...”
I think the
content of this passage in the explanatory memorandum
relates
to sec 68 as it was in the Bill. It does not appear that any material
changes were effected to the particular provisions of
the Bill before
it became the Act. I think the explanatory memorandum also reinforces
the view I take on this issue.
[42] Another
submission made by Mr Cheadle is that the court a quo had
jurisdiction to issue a declarator that the appellant had
employed
replacement labour in contravention of s 76(1)(b) of the Act. He
conceded that there was no consequential relief that could
flow from
such a declarator if the court a quo did not have jurisdiction to
award the compensation sought by the respondent.
[43] The
only declarator that the respondent sought in the court a quo was one
to the effect that the appellant’s lock-out was unprotected.
It
never sought a declarator that the employment of replacement labour
was unlawful. The court a quo never made such a declarator
and no
cross-appeal has been noted by the respondent against the failure of
the court a quo to make such a declaratory order. In
any event the
issuing of a declarator is discretionary. I can see no basis why we
should make such an order in this case.
[44] In
the light of all the above I come to the conclusion that the court a
quo did not have jurisdiction to entertain the claim
for compensation
by the respondent for loss attributable to the protected lock-out
which the appellant instituted against the respondent’s
members.
This finding goes to the heart of Mr Cheadle’s entire argument
which was based on the premise that the loss for which
compensation
was sought was attributable to the protected lock-out. The finding
that the court a quo had no jurisdiction to entertain
a claim for
compensation for such loss makes it unnecessary for me to deal with
other arguments presented by Mr Cheadle as they were
all based on the
claim being one of compensation for loss attributable to a protected
lock-out. This finding also means that even
under s158 (1) the court
a quo could not have had jurisdiction to entertain the respondent’s
claim once it had found that the lock-out
was a protected one.
[45] There
are three observations I wish to make on the judgment of the court a
quo. The first one is that the court a quo does not
appear to have
considered what the effect of its finding that the lock-out was a
protected lock-out was in law on the respondent’s
claim. The second
is that it does not appear to have considered the submission which
was made on behalf of the respondent before
it (see par 11 of the
court a quo’s judgment) that the employment of replacement labour
by the appellant in contravention of s76(1)(b)
rendered the lock-out
unprotected.
[46] The
third is that the court a quo does not appear to have considered
whether there was any causal connection between whatever
loss the
respondent’s members may have suffered and the employment of
temporary replacement labour by the appellant in the light
of the
fact that during the period when the replacement labour was employed,
the appellant was entitled, through the use of a protected
lock-out,
to deny the respondent’s members an opportunity to work and earn
wages. It seems that, despite its correct finding that
the lock-out
was protected, once the court a quo had found that the appellant had
employed temporary replacement labour to perform
the work of the
locked-out employees it assumed, erroneously I think, that that would
entitle the employees to compensation.
[47] In
the premises the appeal must succeed. Mr Cassim sought that we should
also set aside the order made by the court a quo in
respect of the
Musgrave Store which the appellant had not appealed against. In my
judgement we cannot do so as that matter is not
before us. It is true
that the respondent may have difficulties in enforcing the order of
the court a quo once this judgement has
been handed down. However,
that is a bridge which the respondent is entitled to cross when it
comes to it and not earlier.
[48] With
regard to costs, Mr Cassim, very fairly, submitted that on appeal
each party should pay its own costs. In the premisses
the order I
make is that:-
The
appeal is upheld and each party is to pay its own costs of the
appeal.
Subject
to 3 below, the order of the court a quo is set aside.
The
orders in (2) above and (4) below do not apply to the order of the
court a quo in so far as it relates to the Musgrave Store
of the
appellant and to employees employed in that store.
The
order of the Court a quo is replaced with the following order:
“(a)
The
applicant’s application for an order declaring the lock-out
instituted by the respondent on the 20
th
August 1998, and, awarding compensation to the applicant, is
dismissed
(b) there
is to be no order as to costs.
”
RMM
Zondo
Judge
President
I
agree
M.T.R.
Mogoeng
Judge
of Appeal
I
agree
J.
Traverso
Acting
Judge of Appeal.
Date
of Judgment: 2 November 2000