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[2001] ZALAC 8
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Mzeku and others v Volkswagen SA (Pty) Ltd and others (PA3/01) [2001] ZALAC 8; 2001 (4) SA 1009 (LAC); [2001] 8 BLLR 857 (LAC); (2001) 22 ILJ 1575 (LAC) (22 June 2001)
59
IN
THE LABOUR APPEAL COURT OF SOUTH AFRICA
(HELD
AT PORT ELIZABETH)
In the matter between CASE
NO: PA3/01
MZEKU & OTHERS APPELLANTS
AND
VOLKSWAGEN S.A. (Pty) Ltd 1
st
RESPONDENT
and
COMMISSIONER FLOORS BRAND
N.O. 2
ND
RESPONDENT
and
COMMISSION
FOR CONCILIATION
MEDIATION AND ARBITRATION 3
RD
RESPONDENT
JUDGEMENT
THE FULL COURT
Introduction
[1] The appellants are former
employees of the first respondent. Over the period from the 20
th
January 2000 to the 3
rd
February 2000 certain employees
of the first respondent, including the appellants, embarked on
industrial action by collectively
withholding their
________________________________________________________________
(The
conduct constituted a strike in its dictionary meaning, but not
necessarily a strike as defined in sec 213 of the Labour Relations
Act, 66 of 1995 (
âthe Actâ
)). In this judgement the term
âstrikeâ
is used in its dictionary sense. Where
necessary, specific reference will be made to a
âstrikeâ
as defined in the Act.)
labour. Later on during that period
some of the employees returned to work . The appellants did not. The
first respondent dismissed
the appellants on the 3
rd
February 2000. This gave rise to a dispute between the appellants
and the first respondent about the fairness or otherwise of the
dismissal. The dispute was referred to the Commission for
Conciliation, Mediation and Arbitration, the third respondent, for
conciliation.
Attempts at conciliation were unsuccessful.
[2] Ordinarily the dispute would
have been required to be referred to the Labour Court for
adjudication after conciliation attempts
had failed. However, by
agreement between the appellants and the first respondent, the
dispute was referred to arbitration by the
third respondent in terms
of sec
141(1)
of the Labour Relations Act,
1995
(Act No 66 of 1995)
(
âthe Actâ)
.
Sec
141 (1)
of
the Act gives the third respondent, if all the parties consent, the
power to arbitrate a dispute that a party would otherwise
be
entitled to refer to the Labour Court for adjudication. The third
respondent appointed the second respondent, one of its
commissioners,
to arbitrate the dispute, hence the arbitration
proceedings which gave rise to the litigation in this matter. The
commissioner
found that the dismissal was substantively fair, but
procedurally unfair. He held that the appellants were not entitled
to any
compensation but ordered their reinstatement.
[3] The first respondent launched
review proceedings in the Labour Court in terms of sec 145 of the
Act. It sought the setting aside
of the finding that the dismissal
was procedurally unfair as well as the reinstatement order. The
appellants in turn brought
a counter review application to set
aside the commissionerâs finding that the dismissal was
substantively fair and his decision
not to order compensation or to
make the reinstatement order retrospective to the date of their
dismissal. The Labour Court, per
Landman J, granted the first
respondentâs application for review in part and dismissed it in
part. It dismissed the appellantsâ
counter-review application
altogether. The part of the first respondentâs review application
that was granted by the Court a
quo was its application to set aside
the commissionerâs order of reinstatement on the basis that he had
no power to order reinstatement
in a case where a dismissal was
unfair only because no fair procedure was followed by the employer.
The part that was dismissed
was the one in terms of which the first
respondent sought to set aside the commissionerâs finding that the
dismissal was procedurally
unfair.
The facts
[4] The facts relating to this
matter have been set out in detail in the award of the commissioner
as well as in the judgement of
the Labour Court. It is unnecessary
to repeat them in any detail. A brief summary of the essential facts
will suffice.
[5] At all relevant times
approximately 80% of the first respondentâs hourly-paid employees
were members of the National Union
of Metalworkers of South Africa
(
â the unionâ
). The first respondent and the union have a
recognition agreement which was concluded in 1990. For some years a
dispute internal
within the union concerning shop stewards at the
first respondentâs workplace developed within the ranks of the
members of the
union employed by the first respondent. The first
respondent tried to mediate, but to no avail. In 1999 the first
respondent to
approached the Labour Court to obtain an interdict
restraining the unionâs members in its employ from engaging in a
strike in
connection with the suspension of shop stewards by the
union. An interdict in those terms was granted by the Labour Court.
[6] In January 2000 the union
suspended thirteen shop stewards in the first respondentâs
workplace. On the 19
th
January 2000 the union sought an
interdict in the Labour Court restraining the suspended shop
stewards from acting as its representatives.
The shop stewards were
represented by Pagdens Attorneys. The matter was settled on the
basis that the shop stewards submitted to
their suspension pending
a disciplinary hearing which was to be conducted by the union.
Despite the settlement, on the 20
th
January 2000
employees of the first respondent who were supporters of the
suspended shop stewards embarked on a strike. They intended
to
strike until the union lifted the suspension of the suspended shop
stewards. At certain stages they also said that they wanted
the
first respondent to intervene in the dispute and ensure that the
union lifted the suspension. The strike gained momentum and
went on.
The first respondent informed the employees and the union that the
strike was illegal and unprocedural and called upon
the employees to
return to work.
20
th
January 2000
[7] On the 20
th
January
2000 (i.e. the first day of the strike) the first respondent
requested the union to intervene. The first respondent also
tried to
persuade the suspended shop stewards to attend a meeting to address
the issues. The suspended shop stewards referred the
first
respondent to the union, and added that they would in any event only
attend a meeting in the presence of their attorneys.
[8] An employee delegation of five
persons representing the striking employees held a meeting with the
first respondentâs management.
The explanation that they gave for
the strike was that the striking employees were dissatisfied with
the suspension of the shop
stewards by the union and wanted the
union to lift the suspension. They also said that the striking
employees wanted the first
respondent to get the union to lift the
suspension or to address their complaint. The first respondent told
the employee delegation
that the suspension of the shop stewards was
an internal issue within the union in which it could not intervene.
It advised that
the striking employees as union members should
resolve that issue with the union internally. The first respondentâs
representatives
at the meeting also told the employee delegation
that the strike was illegal and that those who continued to take
part in it faced
disciplinary action including dismissal. A
memorandum to this effect was handed to each member of the employee
delegation. The
employee delegation was asked to convey the contents
of the memorandum to the striking employees. The first respondent
issued notices
to employees entering the plant stating that the
strike was illegal and calling upon the employees to resume their
work. The first
respondentâs attorneys wrote a letter to Pagdens
Attorneys seeking to establish communication with the suspended shop
stewards.
The first respondent also wrote a letter to the Minister
of Labour and appealed for his intervention. Copies of the letter
were
sent to COSATU, the president of the union, the relevant MEC of
the Eastern Province and to the Deputy Director - General of the
Department of Labour.
21-24 January 2000
[9] The strike continued on the
21
st
January. On that day the first respondent closed the
plant and issued a notice to all employees leaving the plant. In the
notice
the employees were again informed that the strike was illegal
and they were called upon to resume work on the 24
th
January failing which they would face serious consequences which
might include dismissal. The union advised the first respondent
that
it had informed the employees through the electronic and print media
as well as through the distribution of pamphlets that
they should
discontinue the strike. Pagdens Attorneys wrote to the first
respondentâs attorneys to the effect that their clients
held the
view that it was for the union officials to call on the employees to
end the strike. According to the letter the suspended
shop stewards
said that they would deal directly with the union. The first
respondent wrote to the union requesting the union to
call on
workers to resume their work on 24 January failing which they would
face serious consequences including dismissal. The
first respondent
issued a press release to the same effect to all major newspapers
and to primary broadcasting stations. The 22
nd
and 23
rd
January were a Saturday and Sunday respectively.
24 January 2000
[10] On Monday the 24
th
January the first respondent handed to all employees entering the
plant notices requiring them to report to their workstations
or face
possible dismissal. The union issued a statement to the electronic
and print media calling on the workers to return to
work and warning
them of possible dismissal should they fail to do so. On both the
23
rd
and the 24
th
January a document
prepared by the ANC/COSATU/SACP alliance was distributed in the area
calling on employees to resume work. However,
the first respondent
still continued to experience substantial absenteeism. It then
addressed a letter to COSATU and the national
leadership of the
union again seeking their assistance. In the light of the failure of
the employees up to that stage to return
to work, the first
respondent decided to close down the plant in its entirety until
further notice and required an undertaking
from the employees to
resume work in accordance with their contracts of employment.
25-28 January 2000
[11] On the 25
th
January the local media carried reports of the call to resume work.
Executives of the first respondentâs parent company in Germany
arrived in South Africa and a meeting with the unionâs regional
structure was arranged. The union undertook to meet with its
members
the following day in an effort to end the strike. On the 26
th
January the German executives met with a number of influential
people. They also met with the union. The union officials informed
the first respondent that a meeting of the union members, which was
not well attended, had been held, and that those present had
resolved to return to work on the 28
th
January. The
first respondent also requested the suspended shop stewards to meet
with the German executives. The request was not
heeded. On the same
day a body called the Uitenhage Crisis Committee met. The committee
was formed in support of the strike. It
resolved to repeat the
demands relating to the reinstatement of the suspended shop
stewards.
[12] On the 27
th
and
28
th
January the first respondentâs management and
the German executives met with the union. The meetings culminated in
the conclusion
of an agreement between the first respondent and the
union. The parties agreed that the first respondent would re-open
the plant
on the 31
st
January and that, if employees
persisted in the strike, the first respondent would take
disciplinary action which
âwill include dismissalâ.
The
first respondent informed the union that, if employees did not
comply with the agreement, it would issue an ultimatum. The
agreement was widely published in notices, the electronic media,
radio and the print media. The 29
th
and the 30
th
January were a Saturday and a Sunday respectively.
31 January - 3 February
[13] On the 31
st
January
the first respondent still experienced a substantial level of
absenteeism. Notices giving the effect of the agreement
of the 28
th
January were again distributed in various languages through the
media and by dropping 50 000 copies in the area. In the notices
the
first respondent called on the employees to resume work on the 3
rd
February or face dismissal. At a meeting the union was informed of
the ultimatum. On the 3
rd
February a substantial number
of the striking employees returned to work but the appellants did
not. They were then dismissed by
the first respondent. As already
stated above a dispute then arose between the appellants and the
first respondent on whether the
dismissal was fair. This dispute was
arbitrated by the second respondent who gave the arbitration award
which is now the subject
of these proceedings.
The Appeal
SUBSTANTIVE FAIRNESS
[14] The appellants appeal against
the finding of the Court a quo that the commissionerâs finding
that the dismissal was substantively
fair could not be interfered
with on review. It is necessary to explain what is meant by the
phrase
âsubstantive fairnessâ
in the context of a
dismissal. Reasons to dismiss generally fall under three categories,
namely, conduct, operational requirements
and capacity. Conduct
refers to situations where the employee is alleged to be guilty of
unacceptable conduct. The phrase
âoperational requirementsâ
refers to the operational requirements of the employer and is
defined in sec 213 of the Act. Dismissal for incapacity refers to
dismissal on the basis that the employee is not able to perform his
duties either at all or properly.
[15] In a case such as this one
where employees are dismissed because they refuse to work, the
substantive fairness of the dismissal
means that the conduct for
which the employees are dismissed is unacceptable (or is conduct
which constitutes a material breach
of the employment contract) and
for which dismissal is a fair sanction. Where the conduct for which
the employees are dismissed
is unacceptable but the sanction of
dismissal is, in all the circumstances, not a fair sanction, the
dismissal cannot be said
to be substantively fair. Obviously, where
it is found that the conduct for which the employee has been
dismissed is unacceptable
conduct or where it is found that the
employee is not guilty of the unacceptable conduct for which he was
dismissed, the dismissal
cannot be said to be substantively fair.
[16] It is within the context of
that meaning of
âsubstantive
fairnessâ
that this part of the
appellantsâ appeal must be examined. It is common cause that the
appellants refused or failed to perform
their duties for a period of
over two weeks. Once this is common cause, the appellants must
provide an explanation for their conduct.
Their explanation can only
be that they wanted the union to lift the suspension of the shop
stewards or that they wanted the first
respondent to intervene in
what was clearly an internal dispute between the striking employees
and their union and to put pressure
on the union to lift the
suspension or in one way or another to get the union to deal with
their grievances. None of these explanations
provides an excuse for
the appellantsâ conduct against the first respondent.
[17] Once there is no acceptable
explanation for the appellantsâ conduct, then it has to be
accepted that the appellants were
guilty of unacceptable conduct
which was a serious breach of their contracts of employment with the
first respondent. In such a
case the only way in which the
appellantsâ dismissal can justifiably be said to be substantively
unfair is if it can be said
that dismissal was not an appropriate
sanction. In this case it must be borne in mind that the appellants
refused to work or failed
to perform work for over two weeks and, in
the process, caused the first respondent huge financial losses. In
our view there can
be no doubt that dismissal would be an
appropriate sanction if it is properly established that they were
guilty of such misconduct.
[18] The appellantsâ attack on
the finding by the commissioner that the dismissal was substantively
fair was in effect that in
this matter the commissioner failed to
apply the correct principles of our law. Although Mr Surju, who
appeared for the appellants,
presented the appellantsâ argument,
argument on this part of the appeal was presented by Mr Rubin on
behalf of the appellants.
[19] In the answering affidavit -
which is where the appellants set out the basis for their counter
review application - the appellantsâ
complaint is set out as being
that the commissioner
âfailed to take into account the
provisions of s5(1) of the Act in that we were exercising a right
(the right to strike) conferred
by the Act.â
The provisions of
sec (5)(1) of the Act read thus:
âNo person may discriminate
against an employee for exercising any right conferred by this Act.â
It is
necessary to immediately dispose of this complaint.
Assuming that, when the appellants refused to work as they did from
the 20
th
January to the 3
rd
February, they
were exercising a right conferred on them by the Act, the
appellantsâ complaint of discrimination would still
stand to be
rejected because there is simply no factual foundation for it in the
papers. The question must then be whether or not
the appellants were
exercising a right conferred by the Act
when they refused to work.
[20] Mr Rubinâs submission was
that what the appellants did was an exercise of their legal right to
strike. He made this submission
despite the fact - which is common
cause - that there was no compliance by the appellants with the
provisions of sec 64 of the
Act. Sec 64 provides that
â(e)very
employee has the right to strike ---ifâ
the conditions which
are there prescribed are met. In situations which are specified in
sec 64(3) a strike may be resorted to even
if the conditions set out
in sec 64(1) have not been met. None of the situations envisaged in
sec 64(3) is present in this matter.
[21] In support of his submission
that the appellants had a right to strike, Mr Rubin referred to
various provisions of the Constitution
of the Republic of South
Africa, 1996 (
âthe Constitutionâ
)with which we deal
shortly, as well as to certain ILO Conventions and other writings.
It is not necessary to refer to each one
of those.
[22] Sec 231(1) of the Constitution
provides that the negotiating and signing of all international
agreements is the responsibility
of the national executive. The
provisions of sec 231(2) and (3) are to the effect that an
international agreement binds the Republic
only after it has been
approved by resolution in both the National Assembly and the
National Council of Provinces, unless it is
an international
agreement of a technical, administrative or executive nature, or an
agreement which does not require either ratification
or accession,
entered into by the national executive. An agreement falling within
the exception binds the Republic without the
approval of the
National Assembly and the National Council of Provinces but such
an agreement must be tabled before
both Houses of Parliament within a reasonable time.
[23] Sec 231(4) provides that
â
(a)ny international agreement becomes law in the Republic when
it is enacted into law by national legislation, but a self-executing
provision of an agreement that has been approved by Parliament is
law in the Republic unless it is inconsistent with the constitution
or an Act of Parliament.â
Sec 231(5) provides that the
Republic is bound by international agreements which were binding on
the Republic when the Constitution
took effect. Sec 232 provides
that customary international law is law in the Republic unless it is
inconsistent with the Constitution
or an Act of Parliament. Sec 233
reads thus:
âWhen interpreting any legislation, every court
must prefer any reasonable interpretation of the legislation that is
consistent
with international law over any alternative
interpretation that is inconsistent with international law.â
Mr
Rubin also referred to sec 3 (c) of the Act. Sec 3(c) provides that
any person applying this Act must interpret its provisions
in
compliance with public international obligations of the Republic.
Although Mr Rubin did not refer to sec 3(a) and (b) of the Act,
for the sake of completeness, it is appropriate to bear the
provisions
thereof in mind. They are to the effect that any person
applying the Act must interpret its provisions to give effect to its
primary
objects and in compliance with the Constitution.
[24] Mr Rubin submitted that the
provisions of ILO Convention 87 on Freedom of Association and the
Right to Organise and ILO Convention
98 on the Right to Organise and
Collective Bargaining are part of our law. He submitted that this
was the effect of the
provisions of sec 231(5) and 233 of
the Constitution. He submitted that the result of those conventions
being part of our law is
that an employer has no right to dismiss
employees for participating in a strike of any nature - in other
words including what
the Act refers to as an unprotected strike. The
effect of this submission was that our law is that employees can go
on strike without
having to follow the procedures prescribed by the
Act and when they do that an employer has no right to dismiss them.
[25] Mr Rubin later qualified this
submission by contending that the employer would have no right to
dismiss striking employees
if they were engaging in a strike that
was legitimate. He was asked whether the distinction which the Act
drew between a protected
strike and an unprotected strike was not
the distinction between a legitimate strike and an illegitimate
strike. In this regard
Mr Rubin sought to argue that, except for
the requirement of a strike notice in the Act, the conditions which
the Act requires
to be met before a strike can be resorted to in
order for it to be a protected strike were not really necessary or
justified and,
by implication, could not therefore affect the
legitimacy or otherwise of a strike. In the end Mr Rubinâs
contention was that
the appellants were within their legal rights to
refuse to work as they did and the first respondent had no right to
dismiss them.
He submitted that the commissionerâs finding was
based on a misconstruction of the law.
[26] Mr Rubinâs submissions are
wholly without foundation. There is no provision in Conventions 87
and 98 to the effect that employees
can resort to a strike as and
when they please without following any procedures that may be laid
down by national law or that national
law falls foul of these
conventions if it prescribes procedures that must be followed before
there can be an exercise of the right
to strike. In its report
âFreedom of Association and Collective Bargaining: Report of the
Committee of Experts on the application
of Conventions and
Recommendations International Labour Conferenceâ (1994) the ILO
clearly acknowledged the validity of such
limitations on the right
to strike. In paragraph 170 of its Report, a requirement in national
legislation of approval by a certain
percentage of workers before a
strike can take place is found not to be contrary to the Convention
provided the method, quorum
and majority required are not such as to
make the exercise of the right to strike difficult or improbable. In
paragraph 171, there
is a recognition that the requirement that
conciliation and mediation procedures must be exhausted before a
strike can be called
is compatible with article 4 of Convention 98.
In paragraph 172, advance notice of a strike is found to be
compatible with the
Conventions. Paragraph 176-178 of the Report
also recognise that sanctions against strikers are not incompatible
with the Conventions
provided the sanctions are proportionate to the
seriousness of the violations.
[27] In our judgement it is a
misrepresentation of the position to suggest that the ILO
Conventions inevitably preclude national
legislation from
prescribing the type of conditions contained in the Act before there
can be an exercise of the right to strike.
Indeed, if Mr Rubinâs
submission was to be accepted, it would, in effect, destroy some of
the most important pillars of our strike
law and open the door to
industrial chaos rather than legitimate regulation of our labour
relations. Our Constitution envisages
a careful balance between the
right to strike and the regulation
thereof. Section 23(2)(c) of the Constitution provides that every
worker has the right to strike.
The right to strike must be seen as
part of the process of collective bargaining. Section 23(5) then
provides that national legislation
may be enacted to regulate
collective bargaining. It contemplates that such legislation may
limit the right to bargain collectively
but requires any such
limitation to comply with the provisions of section 36(1) of the
Constitution. There was no suggestion that
in so far as the
provisions of the Act which prescribe certain pre-strike procedures
may be said to be limitations on the right
to strike, they do not
comply with the requirements of sec 36(1) of the Constitution
[28] The Act prescribes conditions
which must be met before employees can exercise their right to
strike. Such conditions are, generally
speaking, justifiable in
order to regulate collective bargaining. In so far as they may be
said to be limitations of the right
to strike, no sound reason was
advanced by Mr Rubin why they cannot be said to fall within the
ambit of sec 36(1) of the Constitution.
Accordingly the position is
that the Act does not confer the right to strike unless the
conditions it prescribes have been met.
[29] Furthermore the Act makes a
clear distinction between a protected strike and an unprotected
strike. It sets out the effect
and implications of both types of
strikes in secs 67 and 68. In sec 67 it, among other things,
provides for immunity from civil
liability and from dismissal for
striking to anyone who engages in a protected strike or who engages
in conduct in contemplation
or in furtherance of a protected strike.
In sec 68 it provides that the Labour Court may grant not only an
interdict against an
unprotected strike and conduct
in contemplation or in furtherance
of an unprotected strike but it also gives the Labour Court power to
order payment of compensation
for any loss suffered as a result of
an unprotected strike or conduct resorted to in contemplation or in
furtherance of an unprotected
strike.
[30] There can be no doubt that the
Act is legislation which is contemplated by sec 23(5) of the
Constitution. That being the case,
it is constitutionally acceptable
that the Act should regulate the right to strike as an integral
part of collective bargaining
which it does by making various
provisions connected with collective bargaining. The Act regulates
the right to strike by making
the provisions that it makes in, among
others, sections 64,65,67 and 68. There is no doubt that, if the
conduct of the appellants
constituted a strike, it was an
unprotected strike. That means that the strike was illegitimate in
terms of the Act. In those
circumstances we are satisfied that the
commissionerâs finding that the dismissal was substantively fair
is not only justifiable
but correct. Accordingly the appellantsâ
appeal against the Court a quoâs finding in this regard falls to
be dismissed.
[31] On behalf of the appellants it
was also contended that another ground on which the commissionerâs
finding relating to substantive
fairness should be set aside was
that the commissioner had, in considering the matter, taken into
account a certain memorandum
prepared by Mr Andre Van Niekerk
without giving them an opportunity to respond to its contents. That
memorandum was delivered to
the commissioner by the first respondent
in order to deal with Mr Rubinâs contentions relating to the ILO
conventions. It was
common cause that, after the commissioner had
received the
memorandum, he had not invited the
appellantsâ representatives to respond to its contents before he
completed his award and had
it issued. It was contended on behalf of
the appellants that, as a result of such omission on the part of the
commissioner, the
appellantsâ right to be heard had been violated.
Because of this, so the argument ran, the commissionerâs finding
that the
dismissal was substantively fair should be reviewed and set
aside.
[32] It appears to us that this
complaint was not included in the appellantsâ answering affidavit
- which is the affidavit in
which the appellants set out the grounds
of their counter review application. The result of this would be
that it is not open to
the appellants to rely on such ground to seek
to set aside the commissionerâs finding. In any event there is no
merit in the
argument. The position, as we understood it during
argument, was that, when the matter was argued before the
commissioner, the
first respondentâs Counsel requested an
opportunity to later on supplement his replying argument to the
appellantsâ contentions
relating to the ILO conventions in
writing. Such request was granted and the memorandum was
subsequently delivered to the commissioner.
The contents of the
memorandum were not evidence but part of legal argument in reply to
arguments presented on behalf of the appellants.
If the appellantsâ
legal representative so wished, they could have asked the
commissioner to give them an opportunity to respond
to the
memorandum. They could have asked this during argument or soon after
they had been served with the memorandum. They did
not do so. In
those circumstances the commissioner must have justifiably concluded
that the appellants did not seek to reply to
the memorandum. This is
not a case where
the appellants were represented by
co-employees or shop stewards - people who might justifiably not
have known what to do or what
the procedure was if they wanted to
reply or who may not have appreciated that they had a right of reply
if they wanted to reply.
These were an attorney and an advocate -
the latter being apparently also a present or past professor of
law. They only have themselves
to blame. Accordingly the appellantsâ
contention in this regard cannot be upheld.
DID THE FIRST RESPONDENT COMPLY
WITH THE AUDI RULE BEFORE IT DISMISSED THE APPELLANTS?
[33] The commissioner held that the
first respondent was obliged to have given the appellants an
opportunity to state their case
before it could dismiss them. For
this he relied on the judgement of this Court in
Modise &
others v Steveâs Spar Blackheath (2000) 21 ILJ 519 (LAC)
;
2001
(2) SA 406
(LAC)
. He held further that in this case the first
respondent had failed to observe this obligation which rendered the
dismissal procedurally
unfair.
[34] Before us Mr Wallis, who,
together with Mr Redding, appeared for the first respondent,
indicated that he did not seek
a departure from the judgement of
this Court in Modise. He submitted that the first respondent
had observed the audi rule
before it dismissed the appellants. He
attacked the commissionerâs finding as being
egregious
as that term is used in
Toyota
SA Motors (Pty)Ltd v Redebe & others (2000) 21 ILJ 340 (LAC)
at 355 A-D
which
amounts
to a gross irregularity.
He also submitted that the
commissioner
misconceived the whole inquiry in
respect
of the audi rule and misconstrued the evidence that was before him.
He submitted that, in any event, the commissionerâs
finding was
irrational and not justifiable in terms of the reasons given for it.
[35] In the majority judgement in
Modise this Court held that an employer is obliged to afford
strikers an opportunity to state
their case before it can dismiss
them. It held that such an opportunity would have been afforded to
the strikers if the employer
gave the strikersâ union or the
strikersâ representatives such opportunity. It held further that
there were recognised exceptions
to this general requirement. It
pointed out that the form which the giving of such an opportunity
takes will depend on the circumstances
of each case (see par 96 of
the Modise judgement). This Court affirmed this position in the
majority decision in
Karras t/a Floraline v S.A. Scooter &
Transport Allied Workers Union & Others (2000) 21 ILJ 2612
(LAC).
In this matter, too, this Court reiterates this general
requirement, which, as was stated in Modise, is subject to
recognised
exceptions.
[36] The question which arises is
whether the first respondent complied with the audi rule in this
case. If it did not, then the
commissionerâs finding will stand
and the cross-appeal will have to be dismissed. If we find that the
first respondent did comply
with the audi rule, that will not mark
the end of the inquiry in regard to this part of the appeal. In that
case the next question
will be whether or not the commissionerâs
finding that the first respondent did not comply with the audi rule
falls foul of
any of the grounds of review advanced by the first
respondent.
[37] The question whether or not
the first respondent complied with the audi rule before it dismissed
the appellants must be considered
in the context of the meeting
which the first respondent had with the employee delegation on the
20
th
January, the meetings which the first respondent had
with the union and the correspondence exchanged between the first
respondent,
on the one hand, and, the union, the employees and the
suspended shop stewards, on the other. We now turn to consider
these.
THE MEETING OF THE 20
TH
JANUARY BETWEEN THE FIRST RESPONDENT AND THE EMPLOYEE DELEGATION AND
THE AUDI RULE.
[38] As already stated, a meeting
took place between the first respondent and an employee delegation
representing the striking
employees on the 20
th
January.
That delegation consisted of Messrs Mzeku, Swarts, Jacobs, Ralo and
Mokmosi. The first respondent was represented in that
meeting by
Messrs B.K, Smith, PJ. Smith and Kasika. A summary of what
transpired at that meeting was provided by the first respondent.
That summary reflects that at the commencement of the meeting Mr
B.K. Smith asked the employee delegation
â to identify who they
represented and to outline the reasons for the current illegal
strike action which started this morning.â
[39] What is important about this
is that it reflects that the first respondent invited the employee
delegation to explain the conduct
of the striking employees. The
employee delegation informed the first respondent that they were not
the leaders of the employees
but that the leaders of the employees
were the suspended shop stewards. However, they said that they had
been mandated by the striking
employees to communicate the
employeesâ demands to the first respondent. The explanation for
the conduct of the employees which
the employee delegation gave to
the first respondent was that the union had suspended the shop
stewards and the striking employees
wanted the union to lift the
suspension. The employee delegation also said that the employees
wanted the first respondent to ensure
the reversal of the suspension
of the shop stewards.
[40] Mr Smith informed the employee
delegation that the strike was illegal and unprocedural. He also
pointed out that the strike
was in contravention of a court order
which had been granted by the Labour Court in favour of the first
respondent in July 1999
over the same issue and asked the delegation
if they were aware of this. The employee delegation responded that
they were aware
of that court order and its implications but said
that the employees were angry at the way the union had handled the
matter. Mr.
B.K. Smith warned the employee delegation of the
consequences of the strike action including that it was threatening
the first
respondentâs Golf 4 export order and thousands of jobs.
He emphasised that the first respondent required the employees to
return
to work and resume their duties immediately and that, if they
continued with the strike, they would face disciplinary action which
would include dismissal.
[41] When the first respondent
said that, if the employees continued with their strike, they would
face disciplinary action which
would include dismissal, the employee
delegation had an opportunity to tell the first respondent it could
not dismiss the employees
if they continued with the strike for
whatever reason. The employee delegation did not do so but instead
they said that they would
communicate the first respondentâs
position to the employees. If they wanted to ask the first
respondent to give them another
opportunity at a later stage, they
could have asked for such an opportunity but they did not. This
suggests that they themselves
had nothing further to say to the
first respondent about, among others, its statement that the strike
was illegal and unprocedural
and that, if the employees continued
with it, disciplinary action, which would include dismissal, would
be taken against them.
[42] The first respondent gave each
one of the members of the employee delegation a copy of a letter
which set out its position.
It did this in order to avoid any
possible misunderstanding as to its position. The first respondent
made it clear to the employees
in that letter, among others, that:
â[i]f employees refuse to, among others, resume their duties
without any further delay the [first respondent] will take whatever
steps are necessary to ensure that its legitimate requirements are
met. This will include the dismissal of employees who persist
in
their refusal to resume normal work immediately.â
In the
letter the first respondent urged the delegation to convey the first
respondentâs position to the employees and to take
all steps to
persuade them to resume their duties.
[43] There can be no doubt that the
first respondentâs position in this regard was conveyed to the
employees. To the extent that
Mr Mzeku may have sought in his
evidence to suggest otherwise, his evidence falls to be rejected as
highly improbable if not outright
false. However, even if the
employee delegation did not convey this, the
employees would have their own
delegation, and not the first respondent, to blame for that. After
learning of the first respondentâs
position, the employees could
have conveyed to the first respondent whatever representations they
wished to make to say that the
first respondent had no right to, or
should not, dismiss them for their conduct even if they were not
prepared to resume work.
Instead of the employees sending the
employee delegation back to the first respondent if they had
anything further to say to the
first respondent about its
contemplated action, they dissolved this delegation. They failed to
utilise that opportunity and can,
therefore, not be heard to
complain that they were not afforded such an opportunity.
[44] The employee delegation seems
to have taken the attitude that the fact that the employees were
unhappy with the suspension
of the shop stewards from their
positions as shop stewards by the union and the manner in which the
union had handled the matter
gave the employees the right to refuse
to work. Of course that attitude was simply wrong and without any
basis in law. The position
was that, if the employees were unhappy
with the decision of the union to suspend the shop stewards, they,
as members of the union,
were not only entitled to but were obliged,
if they wanted to raise their concerns, to follow internal channels
within the union.
They were not entitled to withhold their labour
against the first respondent. This is also the attitude that was
adopted consistently
by the first respondent. The first respondent
was correct in adopting this attitude. In our view even the dealings
which the first
respondent had with the employee delegation on the
20
th
January so sufficiently shows that the first
respondent afforded the employees an opportunity to state their case
through the delegation
before it could
dismiss them that we find the
commissionerâs finding to the contrary inexplicable.
COMPLIANCE WITH THE AUDI RULE:
THE SUSPENDED SHOP STEWARDS.
[45] When the employee delegation
met with the first respondent on the 20
th
January, it
informed the first respondent that the leaders of the employees were
the suspended shop stewards. There was a suggestion
that the first
respondent should have dealt with the suspended shop stewards in
order to give the employees an opportunity to state
their case. The
position is that the first respondentâs attorney wrote a letter on
the 20
th
January to the attorneys representing the
suspended shop stewards. In the letter he invited the suspended
shop stewards to meet
with the first respondent to discuss the basis
upon which the suspended shop stewards
âmay communicate with
their supporters in order to avoid any further prolongationâ
of
the strike.
[46] The suspended shop stewards
responded to that letter by way of a letter from their attorneys to
the first respondentâs attorneys
dated the 21
st
January. In the letter the suspended shop stewards took the attitude
that:-
(a) the strike engaged in by the
employees was illegal;
(b) they would only meet with the
first respondent in the presence of their attorney as they wished
âto abide by the Court order granted in the Labour Court on 19
January 2000";
(c) as the first respondent had a
recognition agreement with the union, it should adhere to the
recognition agreement which they
said meant that
âif there
should be a way of resolving the dispute, NUMSAâs officials should
be called to address their membersâ
;
(d) they had already done
everything in their power until the previous day
âto prevent
the current strike action from taking place and if your client had
also confronted the NUMSA officials about dealing
with the matter,
the current difficulties would not have arisenâ;
(e) they noted the first
respondentâs
âinvitation to meetâ
but said that
â
a committee has been appointed by the employees to discuss the basis
upon which they may communicate with their general workforce
at [the
first respondent].â
[47] In the last paragraph of that
letter the suspended shop stewards reverted to the first
respondentâs invitation to them to
meet with it. They said that
such invitation was
ânot acceptable for the reasons stated
above, there being a recognition agreement between NUMSAâs
officials and your client
to deal with the current difficulties and
also there being a committee elected by the employees to communicate
with [the first
respondent].â
It is clear, therefore, that the
suspended shop stewards informed the first respondent not to deal
with them but to deal with the
union and the committee. As already
indicated above, the first respondent had met the committee on the
20
th
January and had heard the employeesâ side on why
the employees had decided to engage in the conduct they were
engaging in. It
had conveyed to the committee what action it
contemplated taking if the employees did not return to work. In that
way it allowed
an opportunity for the committee and the employees to
make representations if they believed that it should not proceed
with its
contemplated action. As the suspended shop stewards
themselves declined the first respondentâs invitation on the
basis, inter
alia, that it should deal with the union, the
appellants cannot blame the first respondent for not dealing with
them through the
suspended shop stewards as their leaders in terms
of giving them an opportunity to be heard.
COMPLIANCE WITH THE AUDI
RULE: INTERACTION
BETWEEN THE FIRST RESPONDENT
AND THE UNION.
[48] In dealing with the first
respondent in regard to the strike, the union adopted a clear stand
from the beginning about the
legality of the strike. It said that
the strike was illegal and unprocedural. On this it and the first
respondent as well as the
suspended shop stewards were agreed. As
to whether the employees should have continued with the strike, the
union also made it
clear that the employees should stop the strike
and resume their duties. On this it and the first respondent were
also agreed.
The unionâs attitude was conveyed to the first
respondent as early as the 21
st
January in a letter from
the unionâs Port Elizabeth regional office to the Human Resources
Director of the first respondent.
In subsequent interactions the
union maintained the stance that the strike was illegal and
unprocedural and that the employees
should resume their duties.
[49] The first respondent conveyed
to the union its contemplation of the dismissal of those employees
who would fail or refuse to
resume their duties. The unionâs
attitude in this regard was, understandably, not one of seeking to
make representations to the
first respondent that such employees
were not guilty of misconduct. Its attitude was to protect all
employeesâ interests by negotiating
a reasonable time within
which it could secure the employeesâ return to work. That was,
without any doubt, the most sensible
and practical way to avoid the
dismissal of the striking employees and also to avoid the possible
loss of the Golf 4 export contract
which would have resulted in the
loss of jobs by even other employees who were not on strike.
[50] There can be no doubt that the
union had no representations to advance to the first respondent to
justify the conduct of employees
who refused to return to work even
after all reasonable efforts had been exhausted to get them to
return to work. This is not surprising
because the union accepted
that the strike was illegal and unjustified and itself saw no reason
why the strike should be continued
with at such great risk to the
jobs of thousands of employees in the plant and in the region. In
any event, if the union had any
further representations to make, it
had ample opportunity to make them but failed to do so. The
representations it made to the
first respondent to avoid the
dismissal of the striking employees, were the only representations
available to it, namely, to persuade
the first respondent to be
tolerant of the employeesâ unlawful and unacceptable conduct for
more than two weeks while it made
all efforts to get the workers
back at work so that they would not be dismissed. In the light of
the above the finding by the commissioner
that there was no
invitation by the first respondent to the union
â to
explain whyâ
the
employeesâ conduct should be tolerated or why an ultimatum should
not be issued and why they should not be dismissed is difficult
to
understand.
[51] This is so because the union
had conveyed to the first respondent from a very early stage of the
strike that it regarded the
strike as illegal, unprocedural and was
unjustified. The union had taken the attitude that the employees
should stop the strike
without any delay. It had indicated that it
would not be held responsible for the dismissal of employees who
failed to return to
work. It had succeeded in getting the first
respondent to delay taking the decision to dismiss for over two
weeks. How could the
first respondent then say to the union:
âNow
defend your members actions!â
The union had already said such
action was unjustified. The union agreed in the agreement of the
28
th
January that employees who failed to resume duties
on initially the 31
st
January - which was later moved to
the 3
rd
February at the request of the union- would be
dismissed. How could the first respondent, after the union had
agreed to this, turn
to the union and say:
âTell us why we
should not dismiss the employees who have failed to resume dutiesâ
?
There would be no logic in this approach.
[52] In these circumstances we are
satisfied that the commissioner misconstrued the nature of the
inquiry in relation to the audi
rule as well as the evidence before
him. There is clear evidence that, before the first respondent
dismissed the appellants,
it afforded them not only through their
union but also via the employee delegation that met the first
respondentâs management
on the 20
th
January 2000 and
the suspended shop stewards an opportunity to
state their case on why they
engaged in the conduct they engaged in and why they should not be
dismissed. Indeed this evidence is
so overwhelming that the
commissionerâs finding to the contrary is completely inexplicable.
We are therefore of the view that,
to say the least, that finding is
wholly unjustifiable in relation to reasons given for it and falls
to be set aside. The Court
a quo erred in coming to the conclusion
that there was no basis to interfere on review with the
commissionerâs finding in this
regard. The first respondentâs
cross appeal must therefore succeed.
[53] As an alternative to his
finding that the dealings which the first respondent had with the
union did not constitute giving
the union an opportunity to state
the appellantsâ case, the commissioner found in effect that any
attempt by the first respondent
to give the appellants an
opportunity to state their case by giving such opportunity to the
union as the appellantâs representatives
would not have
constituted compliance with the audi rule. He gave as the reason for
this the fact that there was a rift between
the union and the
striking employees including the appellants which was well-known to
the first respondent. The effect of this
reasoning is that, because
there was a rift between the union and the appellants, the union was
not entitled to represent the appellants
in its dealings with the
first respondent and the first respondent was no longer entitled to
regard the union as the representative
of the appellants and deal
with it on that basis.
[54] We do not agree. In our
judgement this finding is without any legal basis and is contrary to
provisions of the Act. The reasoning
underlying the finding is
untenable. On the reasoning of the
commissioner, whenever an employee
who is a member of a union is dissatisfied with the union about
something and the employer is
aware thereof such obligation as the
employer may normally have to deal with such employeeâs union as
the latterâs representative
ceases and such employer is obliged to
then deal with the employee himself or with such other
representative as such employee may
appoint or choose. One question
that arises is whether any measure of dissatisfaction has this
result or whether it is only dissatisfaction
of a certain degree
that has such a result. It can reasonably be expected that, as in
any organisation, there would at any one
time be a number of
employees in any workplace who may not be happy with their union for
one reason or another. That a member of
a union may be unhappy with
his or her union at any one time does not necessarily mean that such
member no longer wants to continue
as a member of the union nor does
it necessarily mean that the member no longer wants the union to
continue to be his or her representative.
[55] It seems to us that, until an
employee has resigned as a member of a trade union and such
resignation has taken effect and
the employer is aware of it, the
employer is, generally speaking, entitled, and obliged, to regard
the union as the representative
of the employee and to deal with it
on that basis.
We say
generally
speaking because there are situations
where, even if an employee has resigned as a member of a union, such
union remains entitled
to in effect represent such employee and the
employer remains obliged to deal with such union as representing,
among others, such
employee. The latter situation will occur, for
example, where the union is a representative union that enjoys
majority status in
a workplace or in a sector because in such a case
such union may conclude a collective agreement with the employer,
or, employers,
in the case of a sector, which binds even those
employees who are not its members and those who may have been its
members but have
since resigned as well as those employees who will
be employed by the employer or employers during the currency of such
collective
agreement. (For example see sec 23(1)(d); sec 25 (agency
shop agreement); sec 26 (closed shop agreements); sec 32( extension
of
collective agreements). That this is the case is because
majoritarianism is the system that the legislature has preferred in
a
number of areas in our labour relations system.
[56] In
Baloyi v M & P
Manufacturing
[2001] 4 BLLR 389
(LAC
) an employee who was a
member of the union with which the employer consulted in respect of
the retrenchment of certain employees
including the appellant was
unhappy about his retrenchment. It also seems that he was unhappy
with the consultation that the employer
had had with his union. He
challenged his retrenchment on the basis that, apart from consulting
his union, the employer should
have consulted him, too. This Court,
per Davis AJA, with Zondo JP and Goldstein AJA concurring, rejected
that argument holding
that the employerâs obligation was to
consult with the employeeâs union and that there was no obligation
to consult in addition
with the member of the union.
[57] To take this issue further,
one can have regard to other provisions of the Act with which the
finding of the commissioner is
completely inconsistent. In this
regard sec 200(1) reads thus:-
â
A registered trade union ...
may act in any one or more of the following capacities in any
dispute to which any of its
members is a party -
(a) in its own interest;
(b) on behalf of any of its
members;
(c) in the interest of any of
its members.â
It is clear to us that the effect
of sec 200(1) is to give a union that is registered - as opposed to
one that is not registered-
a statutory right to represent any of
its members in anyone or more of the three capacities there set out.
This, therefore, means
that in this matter the union was entitled to
act on behalf of the appellants in dealing with the first
respondent about the conduct
of the appellants which threatened not
only their own employment but also the employment of many of its
other members who were
not on strike. If the union was entitled to
act on behalf of the appellants, the first respondent had to
respect that right. The
way to respect that right was to deal with
the union on the basis that it was acting on behalf of its members.
For the commissioner
to have found, as he did, that the first
respondent was not entitled to deal with the union as a
representative of the appellants
was to make a finding that is
contrary to the express provisions of the Act.
[58] Sec 202(1) provides:
âIf
a registered trade union ... acts on behalf of any of its members in
a dispute, service on that trade union ... of any document
directed
at those members in connection
with that dispute will be
sufficient service on those members for the purposes of the Act.â
It
is, therefore, clear also that sec 200(1) gives a registered union
the right to act on behalf of its members when there is a
dispute
involving anyone or more of its members and that sec 202(1) takes
this further and provides that, once a registered trade
union acts,
as it is entitled to, on behalf of its members, the
employer has a right not to serve
documents on the individual members themselves but to serve them on
the union. It provides that
such service on the union is as good as
service on the members of the union themselves. If this is so, the
position must be that
even with regard to the giving of the
opportunity to be heard, the employer is entitled to deal with the
union.
[59] By virtue of the provisions of
sec 210 of the Act the commissioner could not apply provisions of
any law that could be in conflict
with the provisions of the Act on
whether the first respondent was entitled to deal with the union as
the representative or agent
of the appellants. Sec 210 provides that
in the event of a conflict between provisions of any law and
provisions of the Act,
the provisions of the Act prevail over
the provisions of any other law except the Constitution or an Act
expressly amending the
Act. In the result we are of the view that
the commissionerâs finding that the first respondent was not
entitled to deal with
the matter on the basis that the union was a
representative of the appellants is contrary to the provisions of
the Act which clearly
entitled the union to represent the appellants
as its members as well as its other members who were not on strike.
[60] In this matter there was
clearly a dispute between the appellants and the first respondent on
whether they were entitled to
strike. The first respondent
maintained that they were not but they seem to have taken the
attitude that they were. The union engaged
in discussions with the
first respondent representing its members or acting in their
interests. Quite clearly the first respondent
was entitled to deal
with the union as the appellantâs representative. It seems to us
that the commissionerâs finding that
the first respondent should
not have dealt with the union as a representative of the appellants
is one that required the first
respondent to act in breach of its
statutory obligation. In those circumstances we are satisfied that
the commissionerâs finding
in this regard is, to say the least,
unjustifiable in terms of the reasons given for it, is bad in law
and should be set aside.
THE AGREEMENT OF THE 28
TH
JANUARY AND THE AUDI
RULE
[61] As already indicated above,
the union and the first respondent held a meeting on the 28
th
January. That meeting led to the conclusion of an agreement between
the union and the first respondent. Owing to the importance
of that
agreement, we consider it warranted to quote it in full. It reads
thus:
â
AGREEMENT BETWEEN NUMSA AND
VWSA
The parties strongly condemn the
illegal strike action taken by VWSA employees over the issue of the
suspension by NUMSA of the
13 NUMSA Shop Stewards
The
parties agree to the urgent need to establish long term labour
stability at VWSA, so as to safeguard export contracts and
thus
protect jobs in the local auto industry.
Should
NUMSA members continue to participate in illegal strike action over
this issue, the National Union reserves its rights
to take strong
disciplinary action against these individuals.
Before
they tender their services at he end of the strike, all employees
will be required to sign an individual undertaking as
follows:
âThat both now and in the future, I will work normally in terms of
my employment contract, which includes observing all collective
agreements binding on me â
5. The Company has identified a number of employees who, during
this process, were involved in serious misconduct or illegal actions
and at the end of the strike, these employees will be suspended
pending a fair disciplinary process. NUMSA reserves its rights
to
represent its members in these hearings. Should employees persist
with this illegal strike action, Management will take further
disciplinary action which will include dismissal.
6 NUMSA will, on an urgent basis, re-establish strong union
structures within the Uitenhage Plant. To this end, the Union will
organise
shop steward elections in terms of the Recognition
Agreement within two weeks of the opening of the Plant. Over the
next few weeks,
until this process is finalised, a NUMSA official
will be located at the Uitenhage Plant in order to facilitate this
process. VWSA
and NUMSA will take all steps to strengthen the
organisation capacity of the VWSA shop steward structures, this will
include allocation
of money and facilities for training.
Based on the undertakings given in this agreement, VWSA will open
the Plant on Monday, 31
st
January 2000, in
terms of a start-up plan which will be given to NUMSA today. The
parties will do everything possible to communicate
the contents of
this agreement in order to facilitate an effective start to
production
.
Signed at Port Elizabeth on the 28
th
January 2000"
[62] Certain features of this agreement deserve to be highlighted.
One is that in the first sentence the union condemned the conduct
of
the employees as illegal strike action. This had been the unionâs
stance from quite early in the strike and the first respondent
was
aware of it from an early stage in the strike. The significance of
the stance taken by the union and the fact that the first
respondent
was aware thereof is that the first respondent could not then invite
the union to make representations on why the conduct
of the
employees could not be said to be illegal or to constitute an
illegal or unprocedural strike. In other words the union
did not
seek to defend the conduct of the employees.
[63] As a representative of its members, the union was entitled to
decide how best to protect the interests of its members.
This was
a case where the first respondent, as the employer, was giving the
employees an opportunity to avoid dismissal for their
illegal
conduct by ending the strike and resuming their normal duties. The
union must have decided that in the circumstances of
this case the
most appropriate route for it to follow was to get the plant
re-opened and to try its best to get the employees to
resume their
normal duties. In other words the union âs attitude towards the
first respondent was in effect to say: You should
not dismiss our
members for engaging in the illegal strike if they resume their
duties on the re-opening of the plant on the 31
st
January.
[64] Another feature of the
agreement is to be found in clause 4 thereof. That clause dealt with
two categories of employees. The
one category was that of employees
who, on the information available to the first respondent, had
engaged
âin serious misconduct or illegal actionsâ
during
the strike. The other category was that of those employees who would
persist with the illegal strike action after the re-opening
of the
plant on the 31
st
January. In terms of clause 4 the
union and the first respondent agreed that there would be a fair
disciplinary process to be followed
in respect of the first
category. In this regard the union took the position that it
reserved its right to represent those union
members.
[65] In respect of the second
category, the parties agreed that the first respondent would â
take
further disciplinary action which will include dismissalâ
. In
this regard the use of the phrase
â will include dismissalâ
as opposed to
âmay include dismissalâ
is significant.
In regard to this category the parties did not see fit to make
provision for the following of any disciplinary process
at that
stage. It seems to us that this was an acknowledgement by both
parties that in respect of the one category, the union had
not made
any representations as yet and, was therefore, entitled to such an
opportunity but that, in respect of the other category,
the union
had made all the representations that it could make or wished to
make and that it had no further representations to make
and that the
first respondent would thereafter take disciplinary action which
which would include dismissal. In those circumstances
there can
simply be no doubt that the union was given every opportunity to be
heard and that it actually utilised such opportunity
in the manner
it considered to be in the best interests of all its members. The
evidence that reveals that the appellants were
given an opportunity
to state their case is so overwhelming that the inference that the
commissioner misconceived the entire inquiry
in relation to the audi
rule is irresistible.
[66] Furthermore, the agreement of
the 28
th
January was in our judgement, a collective
agreement as defined in sec 213 of the Act. A collective agreement
is defined in sec
213 as meaning:
âA written agreement
concerning terms and conditions of employment or any other matter of
mutual interest concluded by one or
more registered trade unions on
the one hand and, on the other hand-
(a) one or more employers;
(b) one or more employersâ
organisations; or
(c) one or more employers and
one or more registered employersâ organisations;â
It may, perhaps, be debatable
whether or not the agreement of the 28
th
January
concerned terms and conditions of employment. It dealt with the
basis on which the striking employees would be allowed
to resume
work. What is clear is that such agreement did concern a matter of
mutual interest between the union and the first respondent.
[67] Since the union is a
registered union there can be no doubt that it was entitled to
conclude a collective agreement with the
first
respondent to deal with a matter of
mutual interest. As the union was a representative union having
majority membership in the first
respondentâs workplace, it could
conclude a collective agreement that was binding even on employees
who were not its members.
That is a benefit which is enjoyed by a
registered trade union which has the majority of employees in a
workplace as its members.
(See sec 23(d) of the Act). If the union
in this case could go as far as that, it cannot, in our view, be
reasonably suggested
that it could not bind its own members (i.e the
appellants) by way of the collective agreement of the 28
th
January.
[68] In fact, as the collective
agreement of the 28
th
January was binding on the
appellants, it may well be that the only way that the dismissal of
the appellants could be challenged
was that it was not in accordance
with that collective agreement. In other words it may well be that,
once the first respondent
showed that the dismissal was in
accordance with that agreement, that should have been the end of the
appellantsâ case in the
arbitration. The result of this would be
that, if the appellants felt aggrieved in any way by not being able
to challenge their
dismissal on other grounds, they would have had
to raise that with their union but could not sue the first
respondent. However,
as this point was not argued, it does not merit
any further consideration by us in this judgement.
[69] In the light of all of this
it is clear that the commissionerâs finding that the first
respondent should not have dealt
with the union as a representative
of the appellants is not only unjustifiable in law but it is a
finding which flies in the face
of statutory provisions to the
contrary. In any event the first respondent had sought to deal with
the suspended shop stewards who
were said to be the leaders of the striking employees. They took the
attitude that the first respondent
should deal with the union. The
commissioner seems to have ignored this important aspect in
considering this issue. Furthermore
the first respondent had met
with the employee delegation on the 20
th
July and had
given them an opportunity to be heard. Once again the commissioner
seems to have completely overlooked this as compliance
with the audi
rule. Lastly the first respondent reached agreement with the union,
after extensive consultations, that it could
dismiss those
employees who failed to resume work on the 3
rd
February.
In respect of employees who did not resume work, the union and the
first respondent did not see the need to provide in
the agreement
that there would be a disciplinary process before such employees
could be dismissed whereas they did see the need
to make a provision
to that effect in respect of another category of employees. The
first respondent followed the provisions of
the agreement in
dismissing the appellants. In all of the circumstances we are more
than satisfied that the commissionerâs finding
is unjustifiable
and should be set aside.
IS REINSTATEMENT COMPETENT AS A
REMEDY FOR A DISMISSAL WHICH IS UNFAIR ONLY BECAUSE THE EMPLOYER
DID NOT FOLLOW A FAIR PROCEDURE?
[70] The appellants also appeal
against the finding of the Court a quo that the commissioner
exceeded his powers when he ordered
the first respondent to
reinstate the appellants. The Court a quoâs basis for this finding
was that reinstatement was not a competent
remedy where the only
reason the dismissal was unfair was that the employer did not follow
a fair procedure before it could dismiss
the employees. The
appellants contend that this finding by the Court a quo is wrong and
should be set aside by this Court. The
first respondent supports the
finding of the Court a quo and has urged us to uphold it.
[71] In support of its contention
that reinstatement is competent in a case such as this one, the
appellants relied heavily on the
provisions of sec 193(2) of the
Act. It is necessary to quote the provisions of sec
193. Sec 193
reads thus:-
â
193 Remedies for unfair
dismissal:-
(1) If the Labour Court or an
arbitrator appointed in terms of this Act finds that a dismissal is
unfair, the Court or the arbitrator
may -
(a) order the employer to
reinstate the employee from any date not earlier than the date of
dismissal;
(b) order the employer to
re-employ the employee, either in the work in which the employee was
employed before the dismissal or
in other reasonably suitable work
on any date not earlier than the date of dismissal; or
(c) order the employer to pay
compensation to the employee.
(2) The Labour Court or the
arbitrator
must
require the employer to reinstate or
re-employ the employee unless-
(a) the employee does not wish
to be reinstated or re-employed;
(b) the circumstances
surrounding the dismissal are such that a continued employment
relationship would be intolerable;
(c) it is not reasonably
practicable for the employer to reinstate or re-employ the employee;
or
(d) the dismissal is unfair only
because the employer did not follow a fair procedure.
(3) If a dismissal is
automatically unfair or if a dismissal based on the employerâs
operational requirements is found to be unfair,
the Labour Court in
addition may make any other order that it considers appropriate in
the circumstances.â
[72] Subsection (1) sets out the
powers of the Labour Court or the arbitrator when it has found a
dismissal to be unfair. Those
powers are to order reinstatement,
re-employment or the payment of compensation. Ss (1) does not deal
with the circumstances under
which each one of those powers may be
exercised. That is dealt with in ss (2). Ss (2) uses the imperative
word â
mustâ
to place an obligation on the Labour Court
and the arbitrator, where it has found a dismissal to be unfair, to
order the reinstatement
or re-employment of the employee unless
anyone of paras (a),(b),(c) or (d) in that subsection finds
application.
[73] What ss(2) makes clear is that
reinstatement is the preferred remedy whenever a dismissal has been
found to be unfair. However,
what ss(2) also makes clear is the
legislative recognition that there are
certain situations where that
should not be the case. Those situations are set out in paras
(a),(b), (c) and (d). The question
which arises is whether, in
those situations, reinstatement remains a competent remedy even
though it may not be a preferred remedy.
As reinstatement is a very
important remedy, it is difficult to resist the initial inclination
that the legislature would have
been slow to deprive the Labour
Court and arbitrators completely of the power to grant
reinstatement even in circumstances where
they may consider it
appropriate to grant reinstatement. This approach would, therefore,
envisage three situations that must be
borne in mind. These are (a)
where, as a general rule, reinstatement is the preferred remedy, (b)
where reinstatement is not the
preferred remedy but it ranks
equally with other remedies such as compensation and may be granted
by the Labour Court or the arbitrator
in appropriate circumstances
or (c) where reinstatement may not be granted at all (i.e where it
is incompetent.) However, this
initial inclination does not survive
a careful examination of the provisions of the subsection.
[74] That this initial inclination
cannot be sustained becomes clear when one takes each one of the
first three paragraphs under
the subsection and asks the question:
why would the Labour Court or the arbitrator deem it appropriate
to order reinstatement
in a situation such as the one contemplated
by this paragraph? In the cases contemplated by each one of the
three paragraphs
there would appear to be no reason why the Labour
Court or an arbitrator could wish to order reinstatement. For
example, paragraph
(a) is a situation where the employee does not
wish to be reinstated or re-employed. In such a case the
Labour Court or
the arbitrator would be acting in a grossly
unreasonable manner if it ordered
reinstatement. There is,
accordingly, no reason to think that the legislature would have
intended to give the Labour Court or an
arbitrator a discretion to
order reinstatement in a case where the employee does not wish to be
reinstated. Accordingly the position
must be that in a par (a)
situation reinstatement is not competent.
[75] A similar conclusion is
reached in regard to par (b) of the subsection. This paragraph
refers to a situation where
âthe circumstances surrounding the
dismissal are such that a continued employment relationship would be
intolerable.â
Again the question arises: why would the Labour
Court or the arbitrator deem it appropriate to order the
reinstatement of an employee
in a case where
âa continued
employment relationship would be intolerableâ?
Quite
clearly, the answer must be that there is no way that the Labour
Court or an arbitrator could reasonably deem it appropriate
to order
reinstatement in such a case. Paragraph (c) deals with a situation
where
âit is not reasonably practicable for the employer to
reinstate or re-employ the employee.â
Again, in such a
situation there is no way that the Labour Court or an arbitrator can
reasonably deem it appropriate to order reinstatement
in such a
case.
[76] Par (d) appears to be
different. It deals with a situation where
âthe
dismissal is unfair only because the employer did not follow a
fair procedure.â
The reasoning that has
been used above in respect of the situations described in
paragraphs (a), (b) and (
c)
does not apply as forcefully to (d) as it does to those
paragraphs. If one asked the question as to why the Labour
Court or the arbitrator would reinstate an employee whose dismissal
is unfair only because the employer did not follow a fair
procedure,
the answer
may be that there is a
great need for compliance with fair
procedures because, if all employers were to comply with fair
procedures before they could dismiss
employees, this could
significantly reduce the number of disputes with which various
public institutions have to deal. Notwithstanding
this, we are of
the opinion that this does not justify the conclusion that par (d)
deserves to be treated differently to paras
(a),(b) and (c).
[77] In our view, what drives one
to the conclusion that paragraph (d) does not fall into a different
category to paras (a), (b)
and (c) is that it also is subject to the
same provisions at the beginning of the subsection that paragraphs
(a),(b) and (c) are
subject to. Those provisions state that the
Labour Court or the arbitrator
âmust require the employer to
reinstate or re-employ the employee unless ...â.
It cannot be
said that in respect of paragraphs (a), (b) and (c) those provisions
mean that the Labour Court and the arbitrator
have no power to grant
reinstatement but that, when used in relation to par (d), the same
provisions mean that the Labour Court
or the arbitrator has power to
order reinstatement. The
âorâ
which appears after the
colon in par (c) before par (d) does not, in our view, assist the
appellants.
[78] This conclusion is supported
by an analysis of par (d). The dismissal envisaged by par (d) is a
dismissal of an employee whom
the employer has a fair reason to
dismiss but in respect of whose dismissal the employer did not
follow a fair procedure.
Indeed par (d)
relates
to an employee
whose dismissal would have been
fair in every respect had the employer followed a fair procedure.
It seems
to us that, in such a
case, absent special
circumstances,
there is nothing unfair
if the employee is not
reinstated despite the dismissal
being procedurally unfair. In the light of this it seems
understandable that the Act may have treated
such a case in the same
way as those described in paras (a),(b) and (c) and said that in
each of such cases reinstatement and re-employment
were not
competent remedies. In order to ensure that employers will still
have a reason to comply with fair procedures, the Act
left the
remedy of compensation still available for that and other
situations.
[79] In the light of all the above
we conclude that under the Act the relief of reinstatement is not
competent in the case of a
dismissal that is unfair only because
the employer did not follow a fair procedure. Accordingly, the
commissioner exceeded his
powers in granting the relief of
reinstatement in this matter. On that ground alone his award was
susceptible to be reviewed and
set aside. The appellantsâ appeal
must, therefore, fail on this point as well.
[80] In the result we make the
following order:
The
appeal is dismissed with costs.
The
cross-appeal is upheld with costs.
The
order of the Court a quo is set aside and the following one is
substituted for it:
(a) The applicantâs application is granted with costs.
(b) The counter-review application is dismissed with costs.
(c) The finding by the commissioner that the dismissal in this
matter was procedurally unfair is reviewed and set aside.
(d) That part of the commissionerâs award that ordered the
applicant to reinstate the respondents is hereby
reviewed and set aside.
(e) There is no order as to costs.â
_____________ _____________ _______________
RMM Zondo D.M. DAVIS B.R. du Plessis
Judge President Acting Judge of Appeal Acting Judge of
Appeal
Appearances:
For the Appellants : Mr J Surju of J. Surju Attorneys (with Mr
Reuben)
For the First respondent : Mr M.J.D Wallis SC (with Mr A.I Redding)
Instructed by : Chris Baker and Associates
For the 2
nd
and 3
rd
respondent: No appearance
Date of Argument : 19 April 2001
Date of Judgement : 22 June 2001