National Union of Metal Workers of South Africa and Others v Delta Motor Corporation (PA6/01) [2002] ZALAC 16 (11 July 2002)

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[2002] ZALAC 16
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National Union of Metal Workers of South Africa and Others v Delta Motor Corporation (PA6/01) [2002] ZALAC 16; [2002] 9 BLLR 817 (LAC) (11 July 2002)

IN THE LABOUR APPEAL COURT OF
SOUTH AFRICA
HELD AT JOHANNESBURG
Case No: PA6/01
In the matter between
NATIONAL UNION OF METAL WORKERS
OF
SOUTH AFRICA FIRST APPELLANT
EMPLOYEES
LISTED
IN
ANNEXURE “A” SECOND AND FURTHER APPELLANTS
and
DELTA MOTOR
CORPORATION RESPONDENT
_______________________________________________________________
JUDGMENT
______________________________________________________________
COMRIE
AJA:
On Thursday 1 July 1999, in the
morning, a work stoppage occurred at the respondent’s Kempston
Road, Port Elizabeth manufacturing
plant known as the TF production
line. This where Isuzu vehicles were assembled on a conveyor belt
system. Seven employees ( the
second to eighth appellants) were
suspended for failure to work, more specifically for failing to heed
an ultimatum from management
to resume work. In due course,
following upon disciplinary enquiries and appeals therefrom, they
were dismissed. Those dismissals
were challenged by them and by the
first appellant union in the Labour Court. The relief sought
,
as
amended, was reinstatement
on terms and conditions no less
favourable than prevailed at the time of dismissal, compensation and
costs. The bases for the challenge
were: (a) that the seven
appellants were entitled to stop work, and that their dismissals
were accordingly unfair and unlawful
(not argued on appeal);
alternatively, (b) inconsistency in punishment, in that other
employees who stopped work were not disciplined.
At the conclusion of the trial
Jammy AJ
made the following order:
“
1 The dismissal by the
Respondent of Mr M Langley, Mr B Van Wyk, Mr H Mantoor and Mr S
Tarentaal, was fair and justified and their
applications are
dismissed
2 The dismissal of Mr E.
Cedras, Mr M. Brainers (sic) and Mr. M. Padayachee was not warranted
and each of them is reinstated in his
employment with the Respondent.
By reason of their unlawful and unreasonable conduct to the point of
the resumption of their duties
however, that reinstatement is not
retrospective and is without compensation in any respect relating to
employment benefits lost
by them since their dismissal.”
With leave granted by the Court
a
quo:
the union and the seven employees appeal against the whole
of the above order; the respondent employer cross - appeals on the
basis
that the Court should have found that the dismissals of
Cedras, Bruiners and Padayachee were also fair and justified. The
parties
have reached an accord regarding the trial costs.
The judgment is reported as
NUMSA and Others v. Delta Motor Corporation (Pty) Ltd
[2001]
8 BLLR 941
(LC), where the evidence is summarised in detail. The
background to the matter is follows. The employees were paid weekly
in arrears.
They were entitled to receive their wages on a Friday,
there being no legal obligation on the employer to pay earlier. A
contrary
contention was not pursued on appeal. Wages were
transferred electronically into the bank accounts of employees.
Invariably this
was done at one minute after midnight (ie at 00h01)
on Thursday mornings. Employees came to rely on this. Some of them
would draw
on their accounts through automatic teller machines on
their way to work on Thursday mornings or on their arrival at work (
there
were ATM’s at the plant). On Wednesday 30 June 1999 the
electronic transfer system failed through no fault of the employer,
with
the consequence that wages were not transferred at the expected
time and were not available to employees first thing on Thursday
morning, 1July, but only become available at around 12 noon. This
caused disappointment to, and dissatisfaction among some of the
employees. There was talk of no pay, no work.
The TF production line works on a
conveyor belt system and needs about 70 workers to operate it. The
shift was supposed to start
at 7.00am, but it did not function
properly because some of the employees withdrew their labour.
Towards 8.30am, after the intervention
of management and shop
stewards, another attempt was made to start the line, but the
outcome was the same. Management eventually
sent word to the
employees that a final attempt would be made to start the line at
10.30am; that if this failed the plant or line
would be closed for
the day; and (partly disputed in evidence) that employees who failed
or refused to resume their duties would
be subject to disciplinary
action. When the line was re - started at 10.30am the seven
appellant employees were absent from their
work stations. Bruiners
was the only one of the seven to claim in evidence that he ( and
Cedras and Padayachee) actually complied
with the ultimatum and
returned to work shortly before 10.30am. His version was rejected by
the trial Court, and with good reason.
The seven were orally
suspended by Phillips, a supervisor, who issued written suspension
notices to four of them. Phillips was
called away. Later in the day
he noticed that the other three appellants (Cedras, Bruiners and
Padayachee) had resumed work. He
issued them with notices and sent
them home. The plant was not closed; the remaining workforce on the
line was supplemented. The
evidence showed, however, that the work
stoppage from 7.00am led to a substantial loss in production.
The trial Court held that whoever
may have refused to work earlier, it was the seven appellant
employees, and only they, who at
10.30am persisted in a refusal to
work in the face of a threat of disciplinary action. This was an
unlawful work stoppage and the
appellants by their conduct had
participated in a strike which was unprotected. Only two of the
appellants testified, Langley and
Bruiners. I have dealt with the
latter. The thrust of Langley’s version was that he and some
others had misunderstood the management’s
message; that they
thought that the plant was to be closed at 10.30am; and that they
were preparing to clock - out when the deadline
expired. Their
failure to comply was, therefore, at that critical stage not
deliberate or wilful. I will deal with this version
later.
Jammy AJ
held further that
there was no inconsistency on the part of the employer in
disciplining only the seven appellants and not other
employees who
earlier that morning may have refused to work. The ultimatum had
intervened; the refusal of the appellants to return
to their posts
at 10.30 am “
was a studied and wilful one, not supported by
the balance of the assembly line workforce”.
The learned Judge
took the view, however, that there was a “
legitimate basis for
differentiation”
between the four appellants who did not
resume their duties at all (para.1 of the order) and the three
appellants who went back
to their posts after they were orally
suspended (para. 2 of the order).
Mr
Van der Riet
, who
appeared for the appellants on appeal, submitted that other
employees on the line, besides the seven, had refused to work
earlier that morning. This was so despite the evidence of Phillips
that there were only eight non - workers ( the seven plus
Boggenpoel).
Because this was a conveyor belt system, it was
difficult for management to determine who would or would not work.
When the line
was stopped, soon after 7.00am and again at about
8.30am, everything came to a halt; all 70 employees were affected.
Some of them,
according to the evidence, prepared their work ahead
of time. One of the reasons for the ultimatum was to achieve
certainty about
which employees refused to work. I am prepared to
accept on the evidence as a whole that substantially more employees
earlier withdrew
their labour ,even though their precise number and
identities cannot be fixed with certainty.
This brings me to the second
reason for the ultimatum which, it seems to me, was to put the
employees on terms. Time had been taken
up since 7.00am explaining
to the employees why the salaries had not been transferred at the
usual time, and why this did not entitle
them to stage a work
stoppage. Mr
Van der Riet
was critical of the fact that these
explanations were not commenced the previous day, in the late
afternoon or evening. I do not
think that would have helped much,
because the shift ended before Hattingh, the paymaster, learned that
the wages would not be
transferred on time. Be that as it may, the
explanation/advice stage in fact only commenced in the morning. The
employees were
afforded a reasonable opportunity to absorb and
consider those explanations and to decide, in consultation with
their shop stewards,
what they should do. It might have proved
precipitate to suspend employees prior to 10.30am. I do not regard
it as inconsistent,
in the circumstances, for the discipline to have
been limited to those employees who at 10.30am persisted in their
refusal to work.
But why, asked Mr
Van der
Riet
, punish only the seven for the whole of the work stoppage,
with its consequent loss of production and profit? It does not
appear
from the evidence that the financial consequences of the
whole
stoppage constituted the overwhelming factor in the
disciplinary process. Furthermore, the withdrawal by the seven
appellants of
their labour prior to 10.30am was sufficient to bring
production to a halt, even though the conduct of Boggenpoel and
others may
have had the same effect. I can discern no material
inconsistency in this regard, given the serious potential
consequences to production
of the appellants’ persistence.
It was also submitted by Mr
Van
der Riet
that confusion reigned from 7.00am onwards and that
employees could readily have misinterpreted the threat to close the
plant
( as Langley claimed). I would first observe that the
submission is in general terms overstated. It is apparent that the
position
was clarified to the employees with the result that all but
seven of them returned to their posts at 10.30am. Secondly, it is
quite
clear that a threat of disciplinary action was included in the
ultimatum. Both Bruiners and Bongani, another employee, testified
to
this effect. The contrary evidence of Dolly, a shop steward, cannot
in this respect be accepted. At best then individual employees
could
claim ( as did Langley) that they misunderstood the position and
that the disciplinary threat was not part of what was conveyed
to
them. Any such claim has to be assessed on its merits in relation to
the employees(s) concerned.
Langley was an unsatisfactory
witness and it is my impression that his version was not accepted by
the trial Court where it conflicted
with other evidence. On the
point now in issue, it is evident that he knew that employees (
including himself) had to be back at
their posts by 10.30am
otherwise the plant would be closed. He was unable to explain why he
and a few others so misunderstood that
message that they started the
process of clocking out several minutes earlier. To the extent that
this version was put to Phillips,
it was put belatedly ( in
“
further”
cross - examination); and it was at odds with
Phillips’ evidence, unchallenged in cross - examination, that he
warned the seven
and Boggenpoel of disciplinary action prior to
10.30am. The proper finding in my view is that all seven employees,
including Langley,
were made aware that a refusal to resume their
duties
would be visited with disciplinary
steps.
My conclusion thus far is that
the respondent did not act inconsistently in disciplining only the
seven appellants. The next question
is whether a distinction should
be drawn in favour of the employees who returned to work after their
oral suspensions. It will
be recalled that the respondent dismissed
all seven, and that the Court
a quo
reversed the dismissals
in respect of Cedras, Bruiners and Padayachee. This is the subject
matter of the respondent’s cross -
appeal.
Jammy AJ
reasoned as follows :
“
49 There does however
appear to me to be a legitimate basis for differentiation between the
sanctions imposed on the four Applicants
who did not resume their
duties at all, namely Messrs Langely, Van Wyk, Mantoor and Tarentaal,
and the three who subsequently went
back to their posts, Messrs
Cedras, Bruiners and Padayechee. As I have remarked earlier in this
judgment, whether those three did
so having considered the error of
their ways and the unreasonableness of their conduct, or to avoid the
disciplinary action of which
they had at that stage been given
informal notice, is immaterial. The fact is that they resumed their
duties and would presumably
have continued to perform them, had they
not been removed from the line as a consequence of their earlier
suspension”.
Later in his judgement (at para
51) the learned Judge said that of the appellants “
three at
least attempted to salvage their position”,
At para 52 he
concluded:
“
Whilst the remaining three
cannot, notwithstanding their apparent contrition, escape some form
of sanction for their post - ultimatum
conduct, their summary
withdrawal from the assembly line when they were found to be working,
constitutes to my mind an unreasonable
intransigence on the part of
management in the context of the suspensions which had been imposed
upon them. I am of the opinion,
in their specific cases, that for
those reasons they should not have been dismissed”.
In my opinion it was entirely
fortuitous that Phillips was called away, to attend unsurprisingly
to problems on the production line,
midway through the suspension
process. All seven appellants had been orally suspended. Four had
been issued with written notification
when Phillips was interrupted.
The remaining three took advantage of this break to return to their
posts, notwithstanding their
oral suspensions. There is no evidence
to suggest that they acted out of contrition ( the only witness on
the point, Bruiners,
falsely claimed that he complied with
ultimatum).The inference is that Cedras, Bruiners and Padayachee
realised at that stage that
management really was taking the matter
seriously and was intent upon disciplinary prosecution. In the hope
of avoiding that fate,
or of ameliorating it, they stole back to
their posts without the knowledge or consent of Phillips. To
characterise this conduct
as a “
legitimate basis for
differentiation”
seems to me with respect to be putting form
before substance, and to be attaching unwarranted effect to the
chance difference between
oral and written suspension. The fact of
the matter is that the seven appellants were the only employees who
at 10.30am persisted
in a refusal to work, well aware that they
faced disciplinary action for such refusal. They were all suspended
for the same “
offence”
pending disciplinary enquiry.
Mr
Van der Riet
submitted
that Cedras, Bruiners and Padayachee were not intransigent
post
suspension; they returned to their posts, where they worked for
several hours, and the production line operated. Dismissal in their
cases, it was submitted, would be very harsh and we should
accordingly defer to the view taken by the learned trial Judge. It

appears to me, however, that there is substance in the respondent’s
counter - argument, namely that to differentiate between the
appellants in the present circumstances would itself amount to
inconsistency. There would be no basis for the distinction if the
three had been issued with written notices of suspension and then
gone back to work without permission. That their suspensions
were
only oral was, as I have pointed out , a chance event and affords no
valid basis for differentiation in regard to the appropriate
sanction. See generally.
South African Commercial Catering and
Allied Workers Union and others v Irvin & Johnson Ltd
2002(3)
SA 250 (LAC) from par 29. In my opinion, therefore, the trial Court
erred on this part for the case and the cross - appeal
should
succeed.
The costs. We were informed by
counsel that the respondent has waived its entitlement to the costs
order made in its favour, and
against the first appellant, by the
Court
a quo
. As to the costs of appeal it seems to me that
they should follow the result notwithstanding the ongoing
relationship between
the first appellant union and the respondent.
Mr
Acker SC
, who led for the respondent on appeal, asked for
the costs of two counsel. The respondent was represented at first
instance by
Mr
Wade
, who also drew the respondent’s heads
of argument on appeal. The appellants were represented on appeal by
Mr
Van der Riet SC
alone. It may well be that the appearance
of senior counsel for the appellants prompted the respondent to
engage senior counsel
as well for the hearing of the appeal. I would
not say that the matter does not merit senior counsel. I would say
the that the
facts and the law are not of sufficient intricacy or
difficulty as to merit two counsel. Mr
Acker’s
request must
therefore be declined.
The order is as follows:
The appeal is dismissed and the
cross-appeal is upheld, the first appellant to pay the costs.
The order granted by the Court
a
quo
is replaced by the following:
“The dismissal by the Respondent of the
Second to Eighth Applicants was fair and justified and their
applications are dismissed.”
________________
R.G.
COMRIE
Acting
Judge of Appeal
I agree.
__________________
C.R.
NICHOLSON
Judge of
Appeal
I agree.
___________________
M.T.R.
MOGOENG
Judge of
Appeal
Appearances:
For the
appellants: Adv J G Van der Reit SC
Instructed
by: Ruth Edmonds Attorneys, Johannesburg
For the
respondent: Adv. B. Acker SC and Adv R. Wade
Instructed
by: Chris Baker & Associates, Port Elizabeth
Date of
Hearing: 28 May 2002
Date of
Judgement: 11 July 2002