NUMSA v Lumex Clipsal (Pty) Ltd (JA51/2000) [2002] ZALAC 9 (19 April 2002)

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[2002] ZALAC 9
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NUMSA v Lumex Clipsal (Pty) Ltd (JA51/2000) [2002] ZALAC 9; [2002] 6 BLLR 511 (LAC) (19 April 2002)

IN
THE LABOUR APPEAL COURT OF SOUTH AFRICA
HELD
AT JOHANNESBURG
CASE NO: JA
51/2000
In
the matter between:
NUMSA
o.b.o its members
Appellant
and
LUMEX
CLIPSAL (PTY) LTD
Respondent
__________________________________________________________________________
JUDGMENT
__________________________________________________________________________
MOGOENG
JA
[1] The
Respondent is a company that manufactures electrical fittings and
accessories. The Appellant is a trade union and it represents
31
employees (“the employees”) whose task was to operate machines in
a division of the Respondent’s manufacturing operations
known as
the plastic shop. The employees were dismissed for having refused to
comply with an instruction requiring each of them
to operate two
machines. What follows are the events which culminated in their
dismissal.
[2] On
17
September
1997, the Respondent initiated a rationalisation programme. Two
aspects of that programme which affect the plastic shop
are set out
below:
“
THREE SHIFT
SYSTEM
the
introduction of an alternating three eight hour shift system in the
plastic shop, together with the option to work an additional
twelve
hour shift every third Saturday at normal overtime rates.
.
. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .
. . . . . . . . . . . . . . .
INTERNATIONAL
OPERATIONAL STANDARDS
the
introduction and phasing in of the international operational,
quality, safety and efficiency standards, which, amongst other
things,
allows for machine operators to attend to more than one
machine at a time and dictate the logical grouping together and
combining
of operational duties and functions to a larger degree than
what is currently the practice within the Companies.”
[3] On
20
October
1997 employees refused to operate more than one machine. According
to the Respondent, this was contrary to normal practice
at the time,
whenever there was absenteeism. This resulted in Mashamaite, one of
the plastic shop supervisors, compiling a report
for management. On
21
October
1997, the representatives of the employer and of the employees met to
discuss the abovementioned proposed rationalisation.
After that
meeting Mr
Phakwe,
a union representative, conducted an inspection at the plastic shop
to familiarise himself with the workings of the plastic
shop.
[4] The
Respondent circularised another communique dated 23
October
1997. It stated the following about the plastic shop:
“2.1)
Plastic
shop (410)
2.1.1)
Currently
one operator attends one machine even though
:
∙
The moulding
operation is automatic,
∙
machine
setting, adjustment and maintenance department.
It is commonly
acceptable for one operator to attend more than one machine at the
same time:
∙
Various
companies i.e. CLIPSAL in Australia use this system,
∙ In a recent labour crisis 4
staff members successfully operated 9 machines.
In future
,
15 machines will be run by 8 operators, staggering breaks.
2.1.2) Series
2000 moulds do not operate automatically and require a full time
operator. The cycle time of 0.37 minutes however allows
the operator
to perform a secondary operation like assembly of screws to grid
plates while the machine completes it’s cycle.
The sixteenth
machine will in theory be allocated to S2000 and run by one operator
who will also put screws in grid plates.
2.1.3) An
additional operator will be allocated to pack S2000 components in
bags and containers as well as attend the automatic rocker
printing
machine. When S2000 is not being produced, this operator will assist
the jumper in relieving moulding machine operators.
2.1.4) A
jumper will be appointed to ensure the continuous operation of all
moulding machines should operators leave to take a break.
The jumper
may be required to replace an absent operator.
2.1.5) A
three shift system will be implemented resulting in seven additional
positions being created.
The above
mentioned task allocation applies to all three shifts and shift
change over may not affect the continuity of the operations
.
2.1.6) The
seven operators required to fill three shifts will be :
2 Permanents
whose existing positions have been allocated to female operators who
can not be allocated to any other positions.
5 Fixed term
operators taken from the LIFO list.
These positions
require male operators because of heavy lifting.”
(My emphasis)
This
was followed by a meeting of 27 October 1997 between the
parties. At that meeting, the Appellant never challenged the above
position particularly in so far as it made the one-operator
two-machines task allocation an integral part of the three-shift
system.
[5] After
the above meeting, the parties continued to exchange ideas about the
proposed changes but could not reach agreement. On
26
November
1997 the Respondent invited any employee who was willing to work
according to the Respondent’s three-shift proposal, to
give a
written commitment to that effect by 28
November
1997 or else face retrenchment which would be effective from
12
December
1997. Those who would give the undertaking would begin to work in
terms of the new system with effect from 01
December
1997. None of the employees committed himself. Accordingly, they
were all retrenched.
[6] This
decision to retrench was subsequently withdrawn by agreement between
the parties’ attorneys. The crucial part of the agreement,
which
was concluded on 05
December
1997, states that:
“
Your client’s
members agree and undertake to work (under protest) in accordance
with the 6-day/3-shift system proposed by Lumex
Clipsal (Pty)
Limited, pending the outcome of any dispute which your client may
wish to refer to the Bargaining Council in regard
to that
6-day/3-shift system.”
[7] On
08
December
1997 the employees were instructed to, but refused to comply with the
one-operator two-machines requirement (hereinafter
also referred to
as “doubling-up”). As a result, the Respondent held a
‘collective disciplinary enquiry into the plastic shop
employees
collective, unprotected and unprocedural industrial action and their
collective refusal to adhere to the company’s new
operational
operator moulding machine ratio of two plastic moulding machines per
operator.’ The employees were all found guilty
and dismissed.
[8] The
substantive fairness of the dismissal was challenged in the Labour
Court. Jammy AJ found the dismissal to have been substantively
fair
and dismissed the Appellant’s claim with costs. The Appellant has
now appealed to this Court against the whole of that judgment.
[9] Mr
Bruinders, for the Appellant, based the Appellant’s case on two
main grounds. Firstly, that the undertaking to work the
six-day/three-shift system under protest was never intended to
incorporate the one-operator two-machines requirement. The question
of one-operator two-machines was completely abandoned earlier in the
negotiations since no agreement could be reached on it. That
is why
it is not mentioned at all in any of the correspondence which was
exchanged after the communique of 23
October
1997. Secondly, it had never been part of the employees’ job
description to operate two machines at any given time. Therefore,
so
submitted Mr
Bruinders,
the employees’ refusal to operate two machines did not amount to
refusing to work. They tendered their services to operate
one
machine, which was how they had always worked, and should not,
therefore, have been regarded as having been involved in an
unprotected
industrial action. Mr
Sutherland,
for the Respondent, submitted essentially that it was very clear to
the employees that a one-operator two-machines task
allocation was
central to the implementation of the three-shift system in a manner
that would be economically sound. Furthermore,
he submitted that the
pre-existing practice was for operators to run two machines whenever
there was absenteeism. Because of the
view I take of this matter,
the ensuing analysis will be confined to the issue identified below
as being the real issue.
[10] The
real issue, which is dispositive of this matter, is whether the
one-operator two-machines requirement is, and was known by
both
parties to be, an integral part of the six-day/three-shift system
which the employees undertook to comply with in the agreement
of
05
December
1997. This question is addressed below.
[11] The
proposals were scheduled to be discussed at the meeting of 21
September 1997. The Appellant’s contention that the one-operator
two-machines issue was not discussed is improbable. It is common
cause that on 20
October
1997 the employees refused to operate two machines when they were
requested to do so. (Whether they were supposed to do so
or not is
of course controversial). This incident was so fresh in the minds of
the parties and so relevant to the proposals in so
far as they
affected the plastic shop that it must have factored in the
discussions. It could not have been sheer coincidence that,
after
the abovementioned meeting, Phakwe went to inspect the plastic shop
with particular interest in the feasibility or practicality
of one
employee operating two machines. I am satisfied that the three-shift
system as well as doubling-up were discussed on 21
September
1997.
[12] Viewed
in isolation, the documentation dated 17 September 1997, which
initiated the rationalisation programme, seems to
suggest that the
three-shift system and the doubling-up are two separate issues
altogether. They are dealt with separately and there
is,
ex
facie
the document, nothing really to suggest that the latter is
necessarily part of the former. However, the motivation of
23 October
1997 clarifies the connection between the
six-day/three-shift system and the job or task allocation in terms of
which one operator
would be required to operate two machines during
one shift. Firstly, it is explained that 16 machines would be
running during a
shift and 10 operators, including a jumper, would
see to it that all those 16 machines are operative. These are the
same 16 machines
that have almost always been running during the
two-shift system. For everybody who is involved in the plastic shop
that explanation
coupled with constant reference to the ‘three-shift
continuous operations system’ must have sent a clear message that
the continuity
of the same volume of production that was achieved
during the two-shift/12 hour system, or much more, would have to be
maintained
during the three-shift/8 hour system. It also appears
from the motivation contained in the communique of 23 October
1997 that
the system in a broader sense is the three-shift system.
The doubling-up is nothing more than a task allocation which is
subsumed
under the system. From the beginning of the motivation up
to subparagraph 2.1.4 the allocation of tasks and of machines to
operators
is discussed. Subparagraph 2.1.5 then clarifies the
position thus:
“2.1.5 A
three
shift system
will be
implemented resulting in seven additional positions being created.
The above
mentioned
task allocation
applies to all three shifts and
shift change over may not affect
the continuity of the
operations
.”
(My underlining)
[13] Having
inspected the plastic shop and seen how people worked there, and
having received the communique of 23
October
1997, Phakwe never complained about the feasibility of the plastic
shop restructuring proposals at the meeting of 27
October
1997 or even in subsequent correspondence. He did not question the
intended continuity of the operations throughout the shifts
and the
fact that the doubling-up was intended to be an integral part of the
three-shift system. His counter proposal, in a letter
dated
05
November
1997, was that the Respondent’s proposal of the introduction of the
three-shift system be changed to allow employees to
reduce their
hours of work during weekdays from forty four to forty per week,
without loss of pay and to pay these employees overtime
rates for
work carried out over weekends. At some stage there was also a
concern expressed about transportation and the security
of the
employees especially those who would be doing night shift. His
attitude about the one-operator two-machines task allocation
as
stated in his letter of 10
December
1997 was that employees were not opposed to it but that some job
evaluation would have to be done. These were the only issues.
[14] The
dispute which the employees referred for conciliation also shows that
the practicality of the implementation of the three-shift
continuous
operations system, which evidently incorporates the one-operator
two-machines requirement, was never an issue. The employees
asked
for improved wages as a reciprocal for the implementation of the
system precisely because they knew that they would each have
to
operate two machines, which would mean slightly more work for them on
a regular basis. Mr
Nkele,
one of the employees, conceded in evidence that the reason why they
refused to operate two machines was that they wanted to
be paid more.
[15] The
omission to mention the task allocation or the doubling-up in
subsequent correspondence is inconsequential. The system and
how it
was intended to work had already been thoroughly explained. There
was no need to keep on repeating the one-operator two-machines
task
allocation in the communiques that followed that of 23 October
1997. There can, therefore, be no doubt that when the Appellant’s
legal representatives gave an undertaking that the employees would
work the six-day/three-shift system under protest, they and their
clients knew exactly what that system entailed. To suggest, as the
employees do, that the system as referred to in the undertaking
of
05 December 1997 did not entail the aforegoing task allocation,
is to be rather too opportunistic as the Court
a
quo
found. Each employee was certainly under an obligation to operate
two machines. Their refusal to operate two machines constituted
a
repudiation of the undertaking of 05 December 1997.
[16] It
is not necessary for me to deal with the fairness or otherwise of the
employees’ dismissal. Their counsel conceded, correctly
in my
view, that, if this Court found that the employees were under an
obligation to comply with the instruction that they operate
two
machines each, the employer was entitled to dismiss them.
[17] Finally,
I did not understand any of the parties to be really pressing for
costs. I am also of the view that this is not an
appropriate matter
where an order for costs should be made against any party including
the individual employees. Accordingly no
order for costs will be
made.
[18] In
the circumstances, the following order is made:
“
(a) The
appeal is dismissed;
(b) There
will be no order as to costs.”
__________________
M.T.R.
MOGOENG
JUDGE
OF APPEAL
I
agree
_______________
R.M.M.
ZONDO
JUDGE
PRESIDENT
I
agree
________________
D.
VAN REENEN
ACTING
JUDGE OF APPEAL
Appearances
Appearing
for the Appellant : Mr T.J. Bruinders
Appearing
for the Respondent : Mr R. Sutherland S.C.
Date
of hearing : 22 November 2001
Date
of judgment : 19 April 2002