Nugget and Others v H & M Casings Packaging and Others (JA55/00) [2002] ZALAC 32 (1 December 2002)

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[2002] ZALAC 32
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Nugget and Others v H & M Casings Packaging and Others (JA55/00) [2002] ZALAC 32 (1 December 2002)

IN
THE LABOUR APPEAL COURT OF SOUTH AFRICA
CASE
NO: JA55/00
In
the matter between:
THERESA
NUGGET & 3 OTHERS
Appellants
and
H
& M CASINGS PACKAGING
1
st
Respondent
THE
PRESIDENT OF THE INDUSTRIAL
COURT
OF SOUTH AFRICA
2
nd
Respondent
MR
EUGENE B.M. VAN ZUYDAM
3
rd
Respondent
JUDGMENT:
VAN
REENEN, AJA:
1] The
first respondent is a close corporation the members’ interests
wherein are held by Mr Carl Emile Herman Coetzee (Mr Herman
Coetzee), his wife and their son Mr Neill Coetzee.
2] The
first to fourth appellants were employed by the first respondent, in
a factory near Bloemfontein, in the production and packaging
of
casings made from the intestines of slaughtered animals.
3] It
is common cause that during the afternoon of Friday the 10
th
May 1996 (the 10
th
May), Mr Herman Coetzee advised the
appellants when they collected their pay that their employment with
the first respondent had
come to an end because he considered that
they had resigned earlier that day, and that he and Mr Neill Coetzee
at approximately 7h30
on Monday the 13
th
May 1996 (the
13
th
May), advised the appellants that their services with
the first respondent had come to an end and by refusing them access
to its
premises prevented them from tendering their services.
4] As
the appellants held the view that the first respondent’s conduct
constituted an unfair labour practice within the meaning
thereof in
section 1 of the Labour Relations Act, No. 28 of 1956 (the 1956
Act), they after a failed attempt at concilliation, timeously
referred the dispute between themselves and the first respondent to
the Industrial Court for determination.
5] The
hearing in the Industrial Court commenced on the 2
nd
February 1998, and was on the 3
rd
February 1998, postponed
to the 8
th
June 1998. On the last-mentioned date the
matter was struck from the roll as the appellants and their legal
representatives failed
to appear.
6] No
further steps were taken in the matter until the appellants’
representatives had it set down for hearing under the auspices
of the
Commission for Concilliation, Mediation and Arbitration on the 31
st
August 2000. In terms of the provisions of item 22 A of Schedule 7
to the Labour Relations Act, No 66 of 1995 (the 1995 Act), the
Minister of Labour had by then, by notice in the Government Gazette,
authorised thát body to perform the functions of the Industrial

Court.
7] On
the 31
st
August 2000 the proceedings were postponed to be
heard on the 16
th
and 17
th
October 2000, and by
agreement between the parties, commenced
de novo
before the
third respondent, who handed down a determination on the 31
st
October 2000, dismissing the appellants’ claims and made no order
as regards costs.
8] That
determination forms the subject-matter of this appeal.
9] Before
entering into the merits of the appeal there is a procedural aspect
that needs to be dealt with first.
10] The
appellants noted an appeal to this court within the prescribed
period, but failed to deliver to the respondents, and file
with the
registrar of this court, copies of the record of the proceedings
within the period of 60 days prescribed by this court’s
rules.
The appellants on the 6
th
November 2001, brought an application for the condonation of the late
delivery and filing thereof. The first respondent’s counsel,
Mr De
Vries, at the hearing of the appeal, signified an intention on the
part of the first respondent to oppose that application
and handed in
an affidavit attested to by his instructing attorney earlier that
day, in which the grounds on which the opposition
were based were set
out. When Mr Ponoane, who appeared for the appellants, intimated
that the appellants required an opportunity
to deal with the
averments in that affidavit, Mr De Vries withdrew his client’s
opposition but intimated that it did not accede
to the granting of
the relief sought.
11] This
court, in terms of the provisions of Labour Appeal Court Rule 12(1),
is empowered
“for sufficient cause shown”
to excuse any party from compliance with the provisions of its rules.
The question whether good or sufficient cause has been shown
to exist
is dependent on the exercise by a court of a judicial discretion on
the basis of all the circumstances of a particular case,
with a view
to achieving fairness between the parties (See:
Torwood
Properties (Pty) Ltd v South African Reserve Bank
1996(1) SA 215 (W) at 228 B). Considerations relevant to the
exercise of that discretion in the case of an appeal include a)
the
degree of non-compliance; b) the explanation for such failure; c)
the prospects of success in the intended appeal; d)
the importance
of the case e) the respondent’s interest in the finality of the
judgment; f) the convenience of the court;
and g) the avoidance
of delays in the administration of justice (See:
Federated
Employers Insurance Co Ltd and Another v McKenzie
1969(3) SA 360 (A) at 362 F – H).
The list is not
exhaustive. The fact that a respondent chooses not to oppose the
granting of the relief sought is a relevant but
by no means
overriding consideration (See:
Salojee
and Another NNO v Minister of Community Development
1965(2) SA 135 (A) at 138 E - F).
12] It
appears from the founding affidavit in the application for
condonation, that the appellants’ representative commenced liaising
with the registrar of the Industrial Court as early as the 14
th
December 2000, in order to locate the tapes on which the proceedings
before the third respondent were recorded, with a view to having
them
transcribed. Despite telephone calls and letters at regular
intervals, the tapes became available only on the 15
th
March 2001, and were handed to Snellers Recordings (Pty) Ltd on the
20
th
March 2001, who completed the transcribing thereof on the 1
st
May 2001. Although the appellants’ explanation for their failure
to have filed the record of the proceedings within the prescribed
60
day period was adequate, no explanation was provided why the record
of the proceedings was filed with the registrar of this court
only on
the 18
th
July 2001, and why, despite the fact that the appellant’s attorneys
had as early as the 6
th
August 2001 declined to consent to the late filing thereof, the
application for condonation was launched only on the 6
th
November 2001. As the strength of a single consideration or more,
may compensate for the weakness of others (See:
United Plant-Hire (Pty) Ltd v Hills
(supra) at 720 E – G), the mentioned deficiencies are clearly not
decisive of the outcome of the application for condonation.
13] It
is the practice of courts exercising appeal jurisdiction to consider
a condonation application at the same time as the appeal,
if the
availability of the record of the proceedings, the judgment of the
court
a quo
and the heads of argument, enable it to do so (See:
South African Allied Workers’ Union (in liquidation) and Others v
De Klerk NO and Another
1992(3) SA 1 (A) at 3 B). As all the material enabling it to do so
is before this court, the first respondent’s application for
condonation will be considered at the same time as the merits of the
appeal.
14] The
sole issue in this appeal is whether the appellants were dismissed by
the first respondent on the 13
th
May in circumstances that constituted an unfair labour practice, as
contended by the appellants, or whether they resigned on the
10
th
May, as contended by the first respondent.
15] The
facts on which the appellants base their contention that the first
respondent, by having refused them access to its premises
when they
tendered their services on the 13
th
May constituted a dismissal without notice, were not in issue. What
the first respondent set out to do was to avoid the legal
consequences
of such conduct by averring that the appellants had
resigned on the 10
th
of May, which is tantamount to a confession and avoidance.
Accordingly the first respondent carried the evidentiary burden to
adduce
evidence in support of its contention that the appellants
resigned.
16] It
is common cause that one of the first respondent’s employees, who
was referred to only by her first name Alina, suffered
injuries in an
altercation that took place during working hours in the first
respondents factory on Wednesday the 8
th
May 1996. According to Ms Theresa Nugget (the first appellant),
Alina insulted her and her co-workers on her return from the office.

When they required an explanation Alina approached Ms Theresa Nugget,
grabbed hold of and assaulted her. Ms Maria Kidama (the
third
appellant) intervened. A co-worker Mr Solomon Madudu Kenke (Mr
Kenke) testified that he saw Ms Theresa Nugget fighting with
Alina
whilst holding an object, that had the appearance of a knife, in her
hand and that Ms Dora Nugget, Ms Kidama and Ms Rebecca
Matlebe (the
fourth appellant) joined in the fight and kicked Alina in the face
resulting in a bloodied nose. The appellants disputed
Mr Kenke’s
version: they magnified Alina’s involvement in the fracas and
minimised their own. After the factory manager, Mr
Pat Ellis (Mr
Ellis) had restored order all workers, other than the appellants,
were allowed to return to their workstations. Mr
Ellis
telephonically reported the incident to Mr Herman Coetzee who was in
Johannesburg on business and was due to return prior to
the 10
th
May. Pending his arrival the appellants were allowed access to the
premises but were not permitted to resume their duties.
17] It
was not in dispute that Mr Herman Coetzee returned from Johannesburg
during the afternoon of the 9
th
May, and that he in a telephone conversation with Mr Ellis early on
the 10
th
May arranged a meeting for 10h00 at the First Respondent’s
premises. Mr Herman Coetzee instructed his secretary to prepare
handwritten
first warnings that contained the names and identity
numbers of all the appellants as his computer was out of order.
18] It
is common cause that a meeting at which Mr Herman Coetzee, Mr Neill
Coetzee, Mr Ellis, Mr Kenke and the appellants were present
took
place at approximately 10h00 on the 10
th
May in an office in the factory. Mr Kenke’s intended function at
the meeting was that of an interpreter as Mr Herman Coetzee was
Afrikaans speaking, a language which the appellants, save for Ms Dora
Nugget did not understand.
19] The
appellants, except Ms Matlebe, testified at the hearing. In the case
of Ms Matlebe certain facts that she would have testified
about were
recorded as having been admitted. Mr Herman Coetzee and Mr Kenke
testified on behalf of the first respondent. The parties’
respective versions differ as regards what transpired at the
above-mentioned meeting and immediately thereafter; the
circumstances
relating to the handing over by the appellants of their
overalls and gumboots; and whether the appellants were present
outside the
first respondent’s premises late during the afternoon
of the 10
th
May as well as their behaviour at the time.
20] The
appellants’ version of what took place at the meeting on the 10
th
May was that Mr Herman Coetzee had a piece of paper in his possession
that he said had been obtained from
“Manpower”
(the Department of Labour) and wanted them to sign once he had read
it out aloud and Mr Kenke had translated it. Ms Dora Nugget
demanded
to be allowed to read the document. Mr Coetzee denied her the
opportunity to do so and told the appellants that they had
nothing to
fear because it was from the Department of Labour and recorded that
they had to do whatever their employer required them
to do even if it
entailed having to go outside and pick up papers or stones. Mr
Herman Coetzee then placed the document on the table
for signature.
When Ms Dora Nugget refused to sign it he said that the appellants
were at liberty to go to the Department of Labour
and ask for a
similar document so that they could read it. The appellants then
proceeded to the offices of the Department of Labour
and spoke to a
person called Jasper who disavowed any knowledge of papers that had
been handed to Mr Herman Coetzee for the appellants’
signatures.
When it was put to Ms Dora Nugget that she and the appellants left
because they were unhappy about the fact that they
were being issued
with a warning, she replied:
“I never knew it was a warning
letter”.
When it was further
put to her that the document Mr Herman Coetzee required the
appellants to sign was a first warning her response
was:
“If
he did that I would ask him what have I done?”
When the cross-examiner put it to Ms Dora Nugget that the appellants
had refused to take the document with them, left the office
and
“then you yelled out in very uncertain terms that you’re
quitting your job and that you will come back for your pay
”,
she replied
“It is not like it is said, I said he must give
me the paper, he refused, he said I will get the paper if I go to
manpower
.” The appellants
then proceeded to the offices of The Food and Allied Workers Union
(FAWU) where an organiser called Juliet
advised them to return to
work.
21] When
the appellants arrived back at the factory Mr Neill Coetzee advised
them not to resume work but to await the arrival of Mr
Herman
Coetzee. When he arrived they were called into the office one at a
time and presented with two envelopes, the one containing
their wages
and the other their leave pay. The leave pay was offered to them
because Mr Herman Coetzee alleged that they had resigned
earlier that
day. The appellants accepted their wages but refused to accept the
envelopes containing their leave pay. Mr Herman
Coetzee then
instructed Mr Neill Coetzee to take possession of the appellants’
overalls and gumboots. When Mr Neill Coetzee refused
to do so Mr
Herman Coetzee removed them by force from Ms Theresa Nugget,
whereafter the others placed their overalls and gumboots
outside the
office. The appellants then returned to the offices of FAWU where
they were advised that they had not been dismissed
and should return
to work. The appellants denied having gathered outside the first
respondent’s premises in a threatening mood
and that Ms Theresa
Nugget had scratched the kombi in which other employers had been
transported.
22] The
appellants further testified that when they returned on the 13
th
May, at 07h30, Mr Herman Coetzee positioned himself at the entrance
to the premises; told them that their services were terminated;
and
refused them access to the premises.
23] Mr
H erman Coetzee’s evidence was that he instructed his secretary to
type letters containing a first warning for each of the
appellants.
Thereafter he, Mr Neil Coetzee and Mr Ellis went to the factory. He
brought Mr Kenke
“as a witness because he is a supervisor
in the factory”.
He said that
his idea was to give the appellants a warning and to tell them that
they had to stop with their fighting, with their
go-slow as well as
stirring up people in the factory. They then summoned the appellants.
He testified that he told the appellants
that he was giving them a
first warning. He said that he then read the warning out to them and
told them that, if they could not
understand it,
“we’ll
explain it to Solomon
[Mr
Kenke]
and when he couldn’t understand certain words I
explained it to him in certain terms and he understood that and he
transferred
it over to these people, to the ladies.”
According to the record of the proceedings Mr Herman Coetzee was at
that stage shown a document which he identified as
“a
letter demanding them or giving them a first warning then to
(indistinct) stirring up people in the factory
”
and having been asked to
“say it in Afrikaans”
seemingly,
reading from a document, said -
“van werksopdragte,
opstokery onder personeel, sloerstaking en baklei met personeel which
they understood very clearly”.
When he was asked the basis of his statement that the appellants
understood what was written in the document he said:
“because
that was transferred over to them from Solomon to them and I asked
them whether they understood and they said yes and then
I said take
the, there’s the letter I turned it around on the table and I said
look, and Dora came along and she read it and she
says I refuse to
sign then I said to her but if you don’t understand this letter and
go to the Department of Labour and let them
explain it to you, which
she refused to do - all of them refused.”
When Mr Herman Coetzee was asked what happened after the appellants
had refused to sign he said:
“They never gave me a chance
to explain to them why I’m giving this to them, Dora said in her
words ‘Ons maak klaar, ons loop’,
and they turn around and they
walked out of the office and on the outside of the office, but I
don’t understand their language,
is that Theresa and some of the
people in the factory heard her say ‘maak op ons pay’ and the
“f” word and she says we’re
leaving, we’re leaving the
company all of us.”
He
testified that he turned to Mr Kenke and Mr Ellis and confirmed that
they had heard
“what was going on there and they said yes.”
24] Thereafter
Mr Herman Coetzee took Mr Kenke to the Department of Labour where he
wanted him to sign a statement as to what had
happened earlier that
day. There a Mr Jasper Francois Bolieris took a statement from Mr
Kenke. He said that the statement was later
given to him. It
appears that a statement purporting to be such a statement, but not
part of the record on appeal, was shown to
Mr Herman Coetzee and
identified as the statement that Mr Kenke had made. He testified
further that, after the appellants had left
the office, he did not
know where they had gone to but instructed his accounts staff to make
up their pay and leave pay because,
on his version, they had said
that they were resigning.
25] Mr
Herman Coetzee testified that the appellants returned later that
afternoon to collect their wages. When their turn came he
told them
that as they had resigned they were entitled to their leave pay in
addition to their wages but that they refused to accept
any leave
pay. He then told Mr Neill Coetzee to take possession of the
appellants’ overalls; that he complied; and placed them
outside
the office. He further testified that after the appellants had
gone to the outside of the premises, Mr Kenke reported
that it seemed
that they were intent upon intimidating the other workers. After Mr
Herman Coetzee had satisfied himself that the
appellants were in an
unfriendly mood he gave instructions for the other workers to be
transported from the premises by means of
a kombi and a bakkie and
when those vehicles slowed down at the entrance to the premises Ms
Theresa Nugget scratched the side of
the kombi with a knife.
26] Mr
Herman Coetzee testified further that he, because of what had
happened on the afternoon of the 10
th
May, anticipated further upheavals on the 13th May, and for that
reason was present at the factory at 7h15. Mr Ellis, who was
stationed
at the door of the factory was instructed not to allow the
appellants in. Mr Herman Coetzee and his son, who had stationed
themselves
at the entrance to the premises, told the appellants that
as they had resigned the previous Friday, their employment with the
first
respondent had come to an end and denied them access to the
premises.
27] An
important feature of the evidence of Mr Kenke, who testified on
behalf of the first respondent, is that he failed to state
in his
evidence that Ms Dora Nugget made the statement that Mr Herman
Coetzee attributed to her, namely,
“ons maak klaar, ons
loop”.
He did not do so in
his evidence in chief, under cross-examination, when he was being
questioned by the commissioner or in re-examination.
It is strange
that the respondent’s representative did not direct any questions
to Mr Kenke aimed at obtaining corroboration for
Mr Herman Coetzee’s
version, especially because by the time he testified, Ms Dora Nugget
had already given her evidence and it
was known that she had denied
that she had made such a statement. The fact that Mr Kenke did not
corroborate Mr Coetzee’s version
on such a crucial aspect of the
respondent’s case, when it is common cause that he was present at
the meeting concerned, creates
serious doubt about the reliability of
Mr Herman Coetzee’s version thereanent. Mr Kenke, however, did
corroborate Mr Herman Coetzee’s
evidence that he offered the
document to the appellants and said that it was a warning. Part of
Mr Kenke’s evidence was that
“Mr Coetzee read the warning
to Dora and gave it to her and I also read the document for them,
that paper for them. Mr Coetzee
showed them where to sign and they
refused to sign. They said if that is the case they can go. Mr
Coetzee said you can go and go
to manpower. He said you can have the
paper and take the paper with you and they refused, They left the
letter behind and went
away”.
For them to have said that if that is the case, they would go, seems
to me to be more consistent with Mr Herman Coetzee having refused
them something than vice versa.
Mr
Kenke also confirmed that the appellants had gathered outside the
premises and exhibited such animosity that he requested Mr Herman
Coetzee to provide transport to the other employees and that when the
vehicles left the premises one of the appellants scratched
the kombi
with a knife.
28] The
third respondent made negative credibility findings against the
appellants who testified at the hearing on the bases that
they
contradicted themselves on numerous occasions and failed to
corroborate each other. Although the third respondent did not make
specific credibility findings in regard to Mr Herman Coetzee he
preferred his version of the events at the meeting during the morning
of the 10
th
May to that of the appellants as, in his view, it was corroborated by
Mr Kenke whom he found to have been an impressive witness.
The third
respondent, on the basis of the first respondent’s version, found
that the appellants had resigned on the 10
th
May and accordingly, dismissed their claims for reinstatement or
compensation.
29] I
am in disagreement with the third respondents conclusions that the
appellants who testified contradicted themselves on numerous
occasions; that they failed to corroborate each other; and that Mr
Herman Coetzee’s version was to be preferred to theirs. Not
only
is Mr Herman Coetzee’s evidence not beyond criticism in a number of
respects but there are material discrepancies between
his evidence
and that of Mr Kenke. However, as the central issue in this appeal,
namely, whether or not the appellants resigned
on the 10
th
May, can be decided on the first respondents version it is not
necessary to resolve the factual conflicts between the different
versions.
30] It
is not in dispute that Mr Herman Coetzee had formed the view that the
appellants had resigned when they left the meeting during
the morning
of the 10
th
May. That he had formed that view by then is apparent from the fact
that he had their pay and leave pay made up and told them that
they
had resigned when they returned the afternoon to collect their pay.
It accordingly, is unnecessary to have regard to subsequent
events in
order to determine whether the appellants had resigned or not.
31] With
regard to the test for resignation Farlam J (as he then was) in
Fijen v Council for
Scientific and Industrial Research
(1994) 15 ILJ 759 (LAC) who, at 772 C – D, said that an employee
has to
“either by words or conduct evince a clear and
unambiguous intention not to go on with his contract of employment”
and that to resign effectively has to
“act in such a way as
to lead a reasonable person to the conclusion that he did not intend
to fulfil his part of the contract
.”
That view received the imprimatur of this court in
CEPPWAWU
and Another v Glass Aluminium
2000 CC
[2002] 5 BLLR 399
at 406 F – G.
32] As
on the first respondent’s version none of the appellants explicitly
stated that they were resigning it must be determined
whether it
could be inferred from their utterances and conduct that they in fact
did so.
33] Thát
enquiry must be preceded by an investigation into what it is that the
appellants are alleged to have said and done prior
to and whilst they
were leaving the meeting on the 10
th
May. The words attributed to Ms Theresa Nugget (see paragraph 23
above) constituted hearsay which, in the absence of compliance
with
any of the requirements of
Section 3(1)
of the
Law of Evidence
Amendment Act, No 45 of 1988
, is inadmissible (See:
S
v Ndhlovu and Others
2002(2) SACR 325 (SCA)). That leaves one with the evidence of Mr
Herman Coetzee that the
ipsissima
verba
used by or on
behalf of them were:
“Ons maak klaar ons loop”
(per Dora Nugget);
“… they just said I’m leaving, I’m
going”, “… ons maak klaar, we’re leaving, ons loop”, “…
look we’re leaving,
we’re leaving to-day”
and
the evidence of Mr Kenke that they said
: “… if that is
the case
(i.e. that they were
required to sign the documents presented to them)
they can
go
.” On the basis of Mr
Herman Coetzee’s aforementioned evidence it is not possible to
find, with any degree of confidence, what
the exact words were that
were used by or on behalf of the appellants - if on the facts the
existence of such authority can be
construed - before and whilst
they were leaving the meeting. Accordingly the high-water mark of
the first respondent’s case
is the evidence of Mr Kenke who
testified that they said they would go if they had to sign the
document that was being presented
to them for signature.
34] Whatever
the appellants said and did must, however, be considered against the
backdrop that there was disaffection because Alina
did not form part
of the meeting and Mr Herman Coetzee, on his own version, invited
them to take the document that he required them
to sign to the
Department of Labour so that the import thereof could be explained to
them. It is not in dispute that the appellants
in fact attended at
the offices of the Department of Labour and from there proceeded to
the offices of FAWU where they were advised
to return to their
employment. They did so and refused to accept leave pay when it was
tendered to them on the basis that they had
resigned earlier. The
appellants did not do anything after the morning meeting on the 10
th
May that was consistent with their having resigned. On the contrary
the fact that they endeavoured to report for work on the 13
th
May is clearly inconsistent therewith. The appellants aforementioned
conduct, in my view, is clearly irreconcilable with their having
resigned on the 10
th
May.
35] A
clear and unambiguous intention not to continue with their contracts
of employment with the first respondent, in my view, is
not the most
plausible of the possible inferences of which the appellants’
aforementioned words and conduct are susceptible. I
accordingly
incline to the view that the first respondent failed to discharge the
evidentiary burden of showing that the appellants
resigned on the
10
th
May and that the third respondent erred in concluding that they had
done so.
36] The
first respondent by having refused to allow the appellants access to
its premises on the 13
th
May and subsequently, in my view, evinced a clear intention of
terminating the contracts of employment between it and the appellants
in that it rendered their continued employment with the first
respondent impossible. Such conduct constituted a dismissal without
notice (See:
John
Grogan: Workplace Law,
6
th
Ed, at 104).
37] Did
the first respondent’s dismissal of the appellants constitute an
unfair labour practice within the meaning thereof in Section
1 of the
1956 Act?
38]
It
is trite that the question whether a labour practice is unfair or not
has to be determined with reference to all the facts and
circumstances of a particular case (See:
National Union of Metal
Workers of SA and Others v MacSteel (Pty) Ltd
(1992) 13 ILJ
826 (A) at 834 H).
39] The
finding that the appellants had not resigned on the 10
th
May leads to the conclusion that the first respondent had no
justification whatsoever for having summarily dismissed them on the
13
th
May. It is axiomatic that such dismissal would be
unfair both substantively and procedurally and would constitute an
unfair labour
practice.
40] In
terms of Section 17 (21A)(c) of the 1956 Act, read with item 22(2) of
Part E of Schedule 7 this court may make an order or
decision
according to the requirements of the law and fairness.
41] Which
of the remedies provided for in Section 46(9)(d) of the 1956 Act
should the appellant’s be awarded?
42] As
regards how a court should approach the exercise of its discretion in
respect of the remedies provided for by section 46(9)(a)
of the 1956
Act, Cameron J (as he then was), gave the following exposition in
National Construction Building and Allied Workers Union &
Another v MF: Woodcraft (Pty) Ltd
(1997) 18 1LJ 165 (LAC) at
171 J – 172 H:
“For some years the Industrial Court and the
Labour Appeal Court took the approach that, in the absence of special
circumstances,
an unfair dismissal should have as its consequence an
order for reinstatement. This approach was most notably expressed by
Goldstein
J in
Sentraal-Wes
Koöperatief Bpk v Food & Allied Workers Union & others
(1990) 11 ILJ 977 (LAC) at
994 E:
‘
Prima
facie, if an unfair dismissal occurs the inference is that fairness
demands reinstatement. And it is for the employer to raise
the
factors which displace such inference.’
In
Performing Art Council of
the Transvaal v Paper Printing Wood & Allied Workers Union &
Others
1994(2) SA 204 (A)
at 219 A – C (the PACT case); (1994) 15 ILJ 65 (A), Goldstone JA,
on behalf of the majority of the appellate
Division, rejected this
approach as ‘too widely stated’:
‘
No
reasons are furnished for those conclusions and, in my opinion, they
are far too widely stated. In every case the Industrial Court
must
make a reasonable determination. In some cases fairness and justice
may dictate that reinstatement is the proper relief.
In others
compensation or some other form of relief may be more appropriate.
Each case must depend on its own facts. A rule of
thumb, even if
applied on a prima facie basis, will tend to fetter the wide
discretion of the Industrial Court (or the Labour Appeal
Court).
That result is one to be avoided. In my opinion the correct approach
is to give due consideration to the relevant conduct
of the parties
and, in the light thereof, to decide upon the appropriate relief.’
Less than a year
after the PACT decision, however, the Appellate Division put a
further gloss on the test for reinstatement. In
National Union
of Metalworkers of SA & others v Henred Fruehauft Trailers
(Pty) Ltd
1995(4) SA 456 (A) at 462 H – I (1994) 15 ILJ 1257
(A)), the PACT approach, namely that the correct attitude was to give
due
consideration to the parties’ relevant conduct, and in the
light of that, to decide upon the appropriate relief, was reaffirmed.
However, Nicholas AJA, on behalf of the majority of the court, added
at 462 I – 463 A:
‘
Where
an employee is unfairly dismissed he suffers a wrong. Fairness and
justice require that such wrong should be redressed. The
Act
provides that the redress may consist of reinstatement, compensation
or otherwise. The fullest redress obtainable is provided
by the
restoration of the status quo ante. It follows that it is incumbent
on the court when deciding what remedy is appropriate
to consider
whether, in the light of all the proved circumstances, there is
reason to refuse reinstatement.’
This formulation
to my mind comes very close indeed to endorsing the original approach
by Goldstein J in the
Sentraal-Wes
case, to the effect that
it is an inference, at least prima facie, that an unfair dismissal
merits reinstatement. In the
Henred Fruehauf
formulation,
once there is an unfair dismissal, the inquiry is whether there is
reason to refuse reinstatement.”
43] Has
it been shown that there is reason to refuse the reinstatement of the
appellants?
44] The
only evidence placed before the Industrial Court by the first
respondent in order to show that a reinstatement order would
be
unreasonable as between it and the appellants, was that as a result
of the reduced production levels because of the importation
from
abroad of casings at prices lower than the first respondent’s
production costs, a number of its employees had to be retrenched
and
more retrenchments were anticipated in the future. Although a change
in staff structures may in a given case justify refusing
reinstatement (Cf:
Khumalo & Others v Millburg Painting
Contractors (Pty) Ltd
(1988) 9 ILJ 338 (IC) at 340 I) it, in my
view, does not justify refusing to restore the
status quo ante
in
the instant case.
If the appellants can no longer be employed
by reason of the first respondent’s changed staff requirements,
retrenchment procedures
could be implemented (See:
Provinsiale
Administrasie: Wes-Kaap v NEHAWU
[2000] 5 BLLR 566
(LAC) at
568 J – 569 A). The first respondent has only itself to blame for
not having placed other evidence before the Industrial
Court to show
that reasons exist for not restoring the
status quo ante
(Cf:
Chevron Engineering (Pty) Ltd v Nkambule & Others
[2001] 4 BLLR 395
(LAC) para 46).
45] The
only other aspect that, in my view, could possibly militate against
the retrospective reinstatement of the appellants is the
considerable
time-lapse since their dismissal. It appears to me to be axiomatic
that the lapse of time since a dismissal, per se,
cannot be a bar to
retrospective reinstatement: it is a factor only if to order it will
result in unreasonableness as between an
employer and an employee.
In that event, the remedy of restoring the
status quo ante
should be so structured that such a result is avoided. The dispute
between the appellants and the first respondent was referred
to the
Industrial Court on the 8
th
August 1996. The trial
commenced on the 2
nd
February 1998 and continued until the
next day when it was postponed until the 8
th
of June 1998
and scheduled to continue for a further two days thereafter. As
neither the appellants nor their representatives, legal
or otherwise,
were present on the date to which the matter had been postponed it
was struck from the roll. After an absence of any
activity the
matter was by means of a notice dated the 10
th
August 2000
set down for hearing on the 31
st
August 2000. On that
date the matter was postponed to the 16
th
and 17
th
October 2000 and finalized. Of the appellants that testified in the
Industrial Court only Me Theresa Nugget was questioned about
the
delay, but the questioning was only in respect of the period 8 June
1998 to 31
st
August 2000. The gravamen of her responses
thereanent was that the appellants could not communicate with their
representative because
he/she “was staying far away” and that
FAWU undertook to appoint another representative and did so. As the
hearing before the
third respondent was completed within two days the
trial could have been finalized had the appellants and their
representative(s)
not failed to put in an appearance on the 8
th
of June 1998. There is no explanation for such failure and why they
did not pursue their claim between that date and August 2000.
The
appellants had failed to secure alternative employment and
accordingly the prosecution of their case against the first
respondent
could not have been unimportant even if allowance is made
for their lack of education and sophistication. Despite the
importance
of the matter to them the appellants failed to appear on
the 8
th
June 1998 and did not take any steps to advance
its conclusion until the 10
th
August 2000 and by their
remissness delayed the completion of the trial in the Industrial
Court by approximately 26 months. As it
in my view would be unfair
to the first respondent to allow the appellants to benefit from their
remissness by reinstating them until
the date of their dismissal, I
incline to the view that they should be reinstated retrospectively
but to a date approximately 26
months after their dismissal i.e. the
13
th
of July 1998.
46] In
the premises I am of the opinion that the appeal should succeed and
that the order of the third respondent dismissing the appellants’
claim should be set aside and substituted with an order that the
claim succeeds and that the appellants are reinstated with effect
from the 13
th
July 1998 on terms and conditions no less
favourable than those that governed their employment with the first
respondent as at the
time of their dismissal.
47] It
follows that I am of the view that the appellants have succeeded in
showing the existence of good cause and that the application
to
condone the late delivery and filing of the record of the proceedings
should be granted.
48] Mr
De Vries drew attention to the fact that the appellants in respect of
the proceedings in the Industrial Court were responsible
for wasted
costs having been incurred by the first respondent in respect of the
hearing scheduled to commence on 8
th
June 1998 and
requested that the appellants should be ordered to pay such costs
even if the appeal succeeds. On the facts before
us, fairness
dictates that the appellants should be ordered to pay the first
respondent the wasted costs incurred by it in respect
of the hearing
scheduled to commence on the 8
th
June 1998 despite the
fact that they have been substantially successful in the appeal.
49] As
far as the costs of the appeal are concerned Mr De Vries requested
the court to dismiss the appeal with costs. Mr Ponoane,
on the other
hand, requested that the appeal be upheld and that no order should be
made as regards costs. Mr Ponoane’s request
is acceded to and
accordingly no order is made as regards the costs of the appeal.
50] The
following orders are made:
The
appellants are ordered to pay the first respondent the wasted costs
incurred by it in respect of the hearing scheduled to commence
on
the 8
th
June 1998.
The
application for the condonation of the late delivery and
filing of the record of the proceedings is granted without any
order
as regards costs.
The
appeal succeeds and the order made by the third respondent in
Industrial Court in Case No FS18213 (ICF 11/2/0240) is set aside
and substituted with the following order:
“a) The application is granted and first,
second, third and fourth applicants are reinstated as from the 13
th
July 1998 on terms and conditions no less favourable than those that
governed their employment with the first respondent at the time
of
their dismissal;
b) No order is
made as regards costs.”
4] No
order is made as regards the costs of the appeal.
______________
D.
VAN REENEN
Acting
Judge of Appeal
I
agree.
_____________
R.M.M.
ZONDO
Judge
President
I
Agree.
________________
M.T.R.
MOGOENG
Judge of Appeal
Appearances:
For
the appellants:
Mr
M. Ponoane instructed by the Food and Allied Workers Union.
For
the first respondent:
Adv
J.D. de Vries instructed by Webbers
Date
of Hearing: 20 November 2001
Date
of Judgment:
11
December 2002