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[2004] ZALAC 2
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Early Bird Firm (Pty) Limited v Food & Allied Workers Union and Others (JA50/02) [2004] ZALAC 2; [2004] 7 BLLR 628 (LAC); (2004) 25 ILJ 2135 (LAC) (30 April 2004)
33
IN THE LABOUR
APPEAL COURT OF SOUTH AFRICA
HELD IN JOHANNESBURG
Case no: JA50/02
In
the matter between:-
Early Bird Farm (Pty) Limited APPELLANT
and
Food & Allied Workers
Union 1
st
RESPONDENT
Msiza Lucas and Others 2
nd
& FURTHER RESPONDENTS
_______________________________________________________________
JUDGMENT
________________________________________________________________
ZONDO JP AND JAFTA AJA
Introduction
[1] The appellant is Early Bird Farm
(Pty) Limited (â
the
appellant
â), a
company engaged in the chicken farming industry and owns farms where
chickens are reared. The appellant is also the owner
of abattoirs
where chickens from its farms are slaughtered and supplied to the
market. The first respondent is Food and Allied Workers
Union
(â
FAWU
â)
which is a well â known trade union whose members form part of the
appellantâs workforce. The second and further respondents
were
employees of the appellant. They are also members of FAWU.
[2] On
30 December 1998 the second and further respondents (to whom we shall
refer as the individual respondents) were dismissed from
work by the
appellant following their participation in a strike. A dispute then
arose between FAWU and the individual respondents,
on the one hand,
and, the appellant, on the other, about the fairness of that
dismissal. The respondents referred that dispute to
the Labour Court
for adjudication. The respondents contended that the individual
respondentsâ dismissal was automatically unfair
in that their
participation in the strike was lawful and the strike was a protected
strike. They further contended that, even if
the dismissal was not
automatically unfair, it was unfair for lack of a fair reason and was
also procedurally unfair. They sought
reinstatement and compensation.
[3] The
appellant maintained that the dismissal was not automatically unfair
nor was it unfair for lack of a fair reason or for any
failure on its
part to follow a fair procedure in dismissing the individual
respondents. It sought the dismissal of the respondentsâ
claim.
The Court a quo found that the dismissal was not automatically unfair
but was unfair for lack of a fair reason to dismiss
and also for a
failure on the part of the appellant to follow a fair procedure
before dismissing the individual respondents. It ordered
the
reinstatement of the individual respondents with a limited amount of
retrospectivity of the operation of that order and the payment
of a
certain amount of compensation. With the leave of the Court a quo,
the appellant now appeals against the whole of that judgement
and
order. Before we can deal with the issues on appeal it is necessary
to set out the facts relating to this matter.
The
facts
[4] The appellant is a supplier of chickens. It has a
number of farms in which the chickens are reared. It also has a
processing plant
at which the chickens are killed, cleaned and
packaged for distribution. The appellant has two plants. The one is
in Olifantsfontein,
the other in Standerton. There are farms in both
plants. The farm sections of the plants include what the appellant
calls farm services
which in turn include the operations of â
LBHâ
drivers which the second and further respondents were. In the
Olifantsfontein plant the appellant recognised two trade unions,
namely,
FAWU, the first respondent in this appeal, and, the National
Union of Food Beverage, Wine, Spirits and Allied Workers (NUFBWSAW).
The respondent was recognised in respect of the processing plant
whereas NUFBWSAW was recognised on the farms section. This matter
related to the farms section and the processing plant at
Olifantsfontein.
[5] The
appellant employed about 3700 employees. However, only about 435 of
these were employed in the farms section in Olifantsfontein.
NUFBWSAW
enjoyed about 59% membership on the farms section at Olifantsfontein.
This means that that union was the majority union
on the farms
section in Olifantsfontein. In the processing plant the majority
union was the first respondent which enjoyed about
70% membership.
[6] According to the evidence of Mr Tshabalala, the
appellantâs Human Resources Manager, from 1997 to 1998 the
appellant used to
negotiate wages and other terms and conditions of
employment with FAWU in respect of the processing plant and with
NUFBSWAW in respect
of the farms section. On his evidence once the
appellant and FAWU had concluded an agreement with regard to the
processing plant,
the agreed wage increase would be implemented to
all the employees in the processing plant including employees who
were not members
of FAWU. Once the appellant and NUFBSWAW had
concluded an agreement on wages and other terms and conditions of
employment in respect
of the farms section, such increase would be
implemented to all the employees on the farms section including the
second and further
respondents.
During
those years the two unions had not sought to negotiate with the
appellant on behalf of their respective members employed where
they
were not recognised.
[7] At the end of the annual wage negotiations of 1998
NUFBWSAW reached an agreement with the appellant on wages and other
terms and
conditions of employment in respect of the farms section.
The appellant extended the benefits of the agreement to employees who
were
not members of NUFBWSAW including the individual respondents.
[8]
On the
21
st
September
1998 FAWU addressed a letter to the appellant in regard to LBH
drivers. That letter reads thus:
â re LBH Drivers
This
serves to confirm with you that a meeting was held with our members
from this department.
They
have also mandated us to negotiate wages on their behalf because
they are employed at Olifantsfontein.
Should
you are (sic) welcome to forward your response in writing at least
before the 23. 09. 98.â
The appellant responded by way of an undated letter
in these terms:-
â LBH DRIVERS
In response to your letter dated the 21 September
1998 regarding negotiating wages on behalf of the drivers.
The LBS Drivers fall under the farms division.
Their wages has (sic) already been negotiated with
NUFBWSAWU which is the representative union on the Farms.
A wage settlement was reached through mediation on
the 24
th
August 1998.
The increase was backdated to the 1
st
July 1998.
Because
of the abovementioned reason negotiating on behalf of the LBH drivers
is therefore no (sic) practical.â
[9] FAWUâs response was to dispute the allegation that
the LBH drivers fell under the farms section. It asked the appellant
to provide
documentary proof that the individual respondents fell
under the farms section. FAWU said that it felt very strongly that
the LBH
drivers were its constituency and should, therefore, benefit
from its negotiations. During his evidence Mr Tshabalala initially
made
an attempt to say that during the wage negotiations FAWU
abandoned its stance of including the LBH drivers among those on
whose behalf
it was negotiating. However, it became clear during his
cross-examination as well as during the evidence of Mr Mashilwane,
the union
official who testified for the respondent, that there was
no basis for that suggestion.
[10] Soon after the appellant had completed its wage
negotiations with NUFBWSAW, it began wage negotiations with FAWU. In
its demands
FAWU included the second and further respondents as some
of its members on whose behalf it was sending its demands and on
whose behalf
it intended to negotiate with the appellant. This much
was admitted by Mr Tshabalala. FAWU and the appellant could not reach
an agreement
at their negotiations. According to the evidence of Mr
Mashilwane, during those negotiations FAWU persisted with its stance
that
it was also acting on behalf of the individual respondents. In
the correspondence exchanged between the parties, the appellant
insisted
that the individual respondents fell outside of the
bargaining unit in which FAWU was recognised. This was disputed by
the union
which pursued the negotiations on behalf of all its members
including the individual respondents.
[11] When the negotiations between
the parties failed, FAWU declared a dispute which was then referred
to the Commission for Conciliation,
Mediation and Arbitration (â
the
CCMA
â) for
conciliation but the matter could not be resolved. FAWU then
conducted a ballot among its members in order to determine whether
they were in favour of a strike. The individual respondents
participated in that ballot. The individual respondents participated
in the ballot. The question that those taking part in the ballot had
to answer was: do you agree to go on strike in support of a
R40,00
increase? The majority of FAWUâs members voted in favour of a
strike. On 3 December 1998 FAWU issued a notice informing
the
appellant that the union members would engage in a strike as from 7
December 1998. The appellant responded by issuing a notice
of a lock
â out which was to commence on the same day as the strike.
[12] All FAWU members in the
processing plant as well as on the farms section including the
individual respondents commenced a strike
on 7 December 1998. The
individual respondentsâ participation in the strike prompted the
appellant to issue letters to the individual
respondents calling upon
them to return to work on 14 December. The letters were issued on the
11
th
December.
In those letters the appellant
wrote that
â[The appellant] has observed
that,
despite your
salary increase being implemented in August this year and accepted by
you, you have elected to join the striking workers.â
The appellant also stated that the individual respondentsâ conduct
in refusing to work constituted a material breach of their contracts
of employment. It went on to say:
âWe hereby
wish to inform you that we consider your conduct as unlawful and
unprocedural in that no grievance exists between yourself
and the
company which prevents you from rendering your service or permits you
to join the striking workers.â
Lastly the
appellant called upon the individual respondents to return to work by
14 December 1998 and said it reserved its right to
institute
disciplinary action against them.
[13] On the 14
th
December 1998 FAWU responded to the appellantâs letters of the 11
th
December sent to the individual respondents and disputed the
appellantâs contention that the individual respondents were not
entitled
to participate in the strike. In the letter FAWU wrote in
part to the appellant:
â
You seem to want to disregard the LRA, the code of
Good Practice and the constitution of the country. All these acts
referred to recognises
(sic) the right of all employees and
supporters to engage in a strike action.
The Recognition Agreement also recognises that all
workers have a right to engage in a strike after following the
dispute procedure.
Given all this the union therefore challenges you to
withdraw your intended action for reasons stated above.
Should you disregard this the union will exercise its
rights in terms of the Act and the recognition agreement.â
[14] On the 14
th
December 1998 the individual respondents did not return to work. In
response to FAWUâs letter of the 14
th
December, the appellant sent FAWU a letter dated the 15
th
December 1998 in which it stated that the individual respondents were
part of the â
Farms
Bargaining Unit with NUFBWSAW as the sole negotiating agent
â,
that they were not part of the â
Processing
Plant Bargaining unitâ
and that, because of that, they could not participate in the strike.
The letter also contained an ultimatum in terms of which the
individual respondents were called upon to return to work on 17
December or face dismissal. They continued with the strike and did
not go back to work on the 17
th
December.
On the 29
th
December 1998 the appellant issued yet another ultimatum to the
individual respondents calling upon them to return to work by the
30
th
December 1998
failing which their services would be terminated. On the same day it
also sent a letter to the same effect to FAWU.
The individual
respondents did not return to work on the 30
th
December and were dismissed with effect from that date.
[15] The appellant did not hold any disciplinary enquiry
before it dismissed the individual respondents. However, it did
subsequently
invite the individual respondents to an
âappeal
hearingâ
where they were going to be given
an opportunity to deal with the question whether they had been guilty
of the aforesaid misconduct.
The individual respondents went to the
venue where the â
appeal hearingâ
was to be held. This was in January 1999. They brought to the hearing
an employee based at the processing plant to represent them.
The
chairman of the appeal hearing took the attitude that in terms of the
appellantâs policy their representative was supposed
to be an
employee from the farms section. He said that he could not allow them
to be represented by an employee from the processing
plant. The
individual respondents then withdrew from participating in the appeal
hearing. Subsequently the unfair dismissal dispute
that ensued was
referred to the Labour Court for adjudication.
Proceedings in the Labour Court
[16] In the Labour Court the appellant accepted that the
FAWUâs members employed in the processing plant were entitled to
participate
in the strike but maintained that the individual
respondents were not entitled to participate in that strike.
Accordingly, the appellantâs
position was that as far as FAWUâs
members employed in the processing plant were concerned, the strike
was a protected strike but,
as far as the individual respondents were
concerned, the strike was an unprotected strike. In our view the
correct way to approach
the matter is not to determine whether the
strike was protected or not because it certainly was a protected
strike. The proper way
to approach the issue is to determine whether
the individual respondents were entitled to participate in the
strike. If they were
entitled to participate in the strike, their
participation was protected and the appellantâs conduct in
dismissing them for such
participation would constitute a breach of
sec 187(1)(a) of the Act which makes a dismissal for such a reason
automatically unfair.
[17] The
basis upon which the appellant contended that the individual
respondents were not entitled to participate in the strike was
that,
since, as far as it was concerned, they were based at the farms
section where it had reached an agreement with NUFBWSAW â
which was
recognised in that section â and it had extended the benefits of
such agreement to them, they were bound by the wage
agreement between
itself and NUFBWSAW despite the fact that they were not members of
NUFBWSAW. FAWUâs contention was that the individual
respondents
were not based at the farms section but at the processing plant. FAWU
contended that, as its members, the individual
respondents were
entitled to participate in the strike together with other FAWU
members. In this regard FAWU highlighted the fact
that the individual
respondents were among the members who had mandated it to negotiate
wages with the appellant on their behalf
and that it had specifically
informed the appellant of this at the beginning of the wage
negotiations.
[18] Early after the commencement of the proceedings in
the Court a quo, the Learned Acting Judge in the Court a quo recorded
that
the appellant accepted that the individual respondents were not
members of NUFBWSAW and that there was no recognition agreement or
substantive wage agreement that, by satisfying the requirements of
sec 23(1)(d) of the Labour Relations Act, 1995 (Act 66 of 1995)(â
the
Act
â), became binding on the individual
respondents. The Court a quo then defined the issue before it thus:
âThe crisp issue for decision is whether
there can be circumstances other than those contemplated by section
23(1)(d) in which a
collective agreement can be binding on persons
who are not members of the union party to the agreement.â
Sec
23 deals with the legal effect of collective agreements. Sec 23(1)(d)
provides that a collective agreement binds:
â
(d) employees who are not members of the
registered trade union or trade unions party to the agreement if â
(i) the
employees are identified in the agreement;
(ii) the
agreement expressly binds the employees; and
(iii) that trade union or those trade unions have as
their members the majority of employees employed by the employer in
the workplace.â
[19] It appears that during the opening statements
before the leading of evidence, the Court a quo deemed it necessary
to order a
separation of issues to see to what extent it was possible
to determine the matter by, as the Court a quo put it,
âexceptionâ
.
It is clear from the record and the ruling of the Court in this
regard that the Court a quo sought to separate issues because the
appellantâs case was that the individual respondents were bound by
the wage agreement concluded between itself and NUFBWSAW. The
Court a
quo said in its ruling on the separation of issues:
â
Ultimately what Mr Hardie [the respondentâs
attorney] was constrained to argue was that there was by conduct a
variation of the
recognition agreement that was concluded on 23 July
1991, and that this variation by conduct occurred notwithstanding the
express
provisions of that agreement. It seems to me that that was
the only basis upon which he escapes the reach of section 23(1)(d).
Section
23(1)(d) requires of any agreement, whether recognition
agreement or wage agreement, that the category of non-members whom it
is
to govern must be expressly stated therein.
After
lunch Mr Hardie said that he had another point to make. This was that
the strike in which the applicants were participating
was a strike to
replace an agreement that had been concluded for a bargaining unit of
which they were not the members. That aspect
of the case requires
evidence.â
[20] It seems from
the ruling of the Court a quo on the separation of issues that the
Court a quo dealt with two points. The one point
was that, although
the recognition agreement between the appellant and NUFBSWAW provided
that NUFBSWAW was to negotiate on behalf
of its members and did not
purport to extend NUFBSWAWâs mandate beyond its members, there had
been a variation of the relevant
provisions of that agreement through
conduct and, as a result of such variation, NUFBWSAW negotiated on
behalf of non-members as
well in the farms section. The other point
on which the appellantâs case was based was that the strike in
which the individual
respondents participated was aimed at replacing
an agreement that had been concluded for a bargaining unit of which
they were not
members and that this rendered their striking
unprotected. The Court then made a ruling that any evidence to prove
the variation
of the agreement that the appellant sought to prove
would be inadmissible but that for the rest of the appellantâs case
evidence
could be led that was admissible.
[21] There
was a dispute between the parties in the Court a quo on whether the
individual respondents were based in the processing
plant or in the
farms section. FAWU contended that they were based in the processing
plant whereas the appellant contended that they
were based in the
farms section. During the hearing of oral evidence the appellantâs
case was simply directed at showing that the
individual respondents
were based on the farms section and not in the processing plant. It
was only during the cross-examination
of Mr Mashilwane, the union
official who had represented FAWU during the wage negotiations, that
an attempt was made on behalf of
the appellant to suggest another
point and that was that the individual respondents had participated
in the strike in support of
their own demands as opposed to the
demands in support of which the rest of the FAWU members
participating in the strike were striking.
This had not been
suggested to the individual respondent who had testified prior to Mr
Mashilwane testifying . It was never suggested
what those separate
demands were in support of which it was suggested that the individual
respondents had gone on strike. The Court
a quo found that the
individual respondents were based on the farms section and not in the
processing plant.
[22] The Court a quo also said that the representative
of the individual respondents who appeared for them in that Court â
who was
a union official - had accepted that the individual
respondents had been on strike in support of a wage increase for
themselves.
The Court a quo held that this concession was correctly
made. The Court a quo stated that the correctness of this concession
was
borne out by a letter that pertinently placed the individual
respondentsâ claims to an increase on the negotiating table. The
Learned
Acting Judge a quo then said:
âSince
the dispute referred by FAWU to the CCMA was over higher wages for
Olifantsfontein employees, a demand for better wages for
themselves
would fall outside its compass and a strike in pursuit of the demand,
not having been made the subject of an independent
referral to the
CCMA, would fail to satisfy the preconditions for a procedural strike
contained in sec 64.â
The Court a quo said
that the union official who represented the individual respondents at
the trial made no effort to argue that
the individual respondents had
gone on strike in support of their colleaguesâ demands in the
processing plant.
[23] The Court a quo referred to an argument presented
on behalf of the individual respondents to the effect that, even if
the Court
a quo found that they were based on the farms section, they
were entitled to participate in the strike as they were members of
FAWU
as well and they were on strike over the same demands as the
rest of the employees, namely, the employees which the appellant
admitted
were based at the processing plant and whose participation
in the strike the appellant accepted to be lawful. The Court a quo
said
that in support of this submission reliance had been placed on
the decision of this Court in
Chemical Workers
Industrial Union v Plascon Decorative (Inland). (Pty)Ltd (1999) 20
ILJ 321 (LAC).
[24] The Court a quo concluded that the individual
respondentsâ strike was unprocedural in the sense that it failed to
satisfy the
conditions upon which the conferment of the right to
strike is made to depend. The Court made this finding on the basis
that the
individual respondentsâ demand was for their own wage
increase which, the Court a quo said, had not been referred to
conciliation
as required by sec 64. The Court a quo found, in the
light of this, that the dismissal was not automatically unfair. The
Learned
Acting Judge held that the fact that he had found that the
strike by the individual respondents was unprocedural because the
preconditions
of sec 64 had not been met did not mean that it was
prohibited and thus unlawful. The Learned Acting Judge explained the
latter point
by saying that â
(p)rohibitions
on striking focus on the strike itselfâ
and
that â(
s)ec 64 contains no such prohibitions
and they can be enforced by interdict proceedings and ultimately by
state sanctions such as
committal for contempt of Court
.â
On this basis the Learned Acting Judge expressed the view that
strikes fall into three categories, namely, those that are protected,
those that are prohibited and those that are neither. He then
referred to the appellantâs contention that the individual
respondentsâ
strike constituted a breach of the provisions of scc
65(1)(b) or (c) of the Act which, according to the Court a quo, â
in
effect prohibit striking if the issue in dispute is one of rightâ.
This was based on the assertion that the individual respondents were
bound by the wage agreement concluded with NUFBWSAW. The Court
dismissed this latter contention and the one to the effect that the
strike was a breach of sec 65(1)(b) or (c) then fell away. The
Court
a quo dismissed this contention simply on the basis that the
recognition agreement between the appellant and NUFBWSAW itself
provided that NUFBWSAW represented its members and that, as the
individual respondents were not members of NUFBWSAW and sec 23(1)(d)
had not been complied with, the individual respondents were not bound
by the NUFBWSAW agreement.
[25] The
Court a quo nevertheless found that there was no fair reason to
dismiss the individual respondents because dismissal as a
sanction
was too harsh since they could have easily turned their strike into a
protected strike and because they had genuinely believed
that they
were based at the processing plant whose employeesâ participation
in the strike was protected. The Court a quo also found
that the
dismissal was procedurally unfair on the basis that the appellant did
not give the individual respondents a hearing before
it dismissed
them. The appellant was ordered to reinstate the individual
respondents and to pay them compensation equal to 12 months
remuneration. The Learned Acting Judge was not prepared to order the
payment of compensation for the whole period. In this regard
he took
into account, and, disapproved of, the fact that the individual
respondents had rejected a with prejudice offer that the
appellant
had made to them at some stage. He thought that even though the offer
was not one that the individual respondents could
be expected to
accept, they could have made a counter offer to return to work at the
lower grade pending the final resolution of
the dismissal dispute.
Save for wasted costs of a certain opposed application for a
postponement heard on 30 May 2002 which the respondents
were ordered
to pay, the appellant was ordered to pay the costs.
The appeal
[26] Before dealing with other aspects of the appeal, we
think it is necessary to immediately dispose of the suggestion made
in the
Court below by the appellant that the fact, if it be a fact,
that the individual respondents were based in the farms section and
not in the processing plant meant that they had no right to
participate in the strike. That fact on its own is irrelevant to the
issue of whether or not the individual respondents were entitled to
participate in the strike. It would only become relevant if it
were
coupled with another factor such as that the issue in dispute was
whether or not the appellant should increase the wages of
employees
based at the processing plant and even then only if the individual
respondentsâ participation in the strike was in support
of a wage
increase to themselves and a dispute on the latter had not been
referred to conciliation. With regard to the finding of
the Court a
quo that the individual respondents were based at the farms section,
we shall approach this appeal on the assumption
â without deciding
â that such finding is correct, although, as we have said, we take
the view that on the facts of this case
that finding makes no
difference in this appeal.
[27] There
are three broad questions for determination in this appeal. They are:
(a) whether the Court a quoâs decision that the
individual respondentsâ dismissal was not automatically unfair was
correct;
(b) whether,
if the answer to (a) above is that that the Court a quoâs decision
on that issue was correct, its decision that the
dismissal was,
nonetheless, unfair for lack of a fair reason, was correct;
(c) whether,
if the Court a quoâs decision referred to in (b) above was correct,
its decision that the dismissal was procedurally
unfair was also
correct.
An answer to the first of the above questions to the
effect that the dismissal was automatically unfair may make it
unnecessary to
deal with the other two questions. However, such an
answer will raise the question of what the appropriate relief is that
should
be granted to the individual respondents since there was no
cross-appeal against the limited nature of the relief that the Court
a quo granted to the individual respondents.
Was the dismissal
automatically unfair?
[28] The
first question for determination is whether or not the individual
respondentsâ dismissal was automatically unfair. As already
indicated above, the Court a quo answered this question in the
negative. The answer to that question depends on whether or not the
individual respondents were entitled to participate in the strike
because, if they were entitled to participate in the strike, then
the
appellant acted in breach of sec 67(4) of the Act in dismissing them
for participating in the strike and in terms of sec 187(1)(a)
of the
Act such dismissal would be automatically unfair. Sec 67(4) provides
that:
â(a)n employer may not dismiss an
employee for participating in a protected strike or for any conduct
in contemplation or in furtherance
of a protected strike.â
Such a dismissal would be automatically unfair because sec 187(1)(a)
of the Act provides that â
(a) dismissal is
automatically unfair, ⦠if the reason for the dismissal is â¦
that the employee participated in or supported, or,
indicated an intention to participate in or support, a strike or
protest action
that complies with the provisions of Chapter VI.â
In the light of the above, the first question that must
be determined is whether the individual respondents had a right to
participate
in the strike. That question must be answered with
reference to the Constitution and the Act.
Were the individual respondents entitled to
participate in the strike?
[29] Sec 23(1)(c) of the Constitution provides that
â(e)very worker has a right to strike.â
Like all fundamental rights contained in the Bill of Rights in our
Constitution, the right to strike can be limited by a law of general
application provided that the requirements of sec 36 of the
Constitution are met. The Act is an Act of general application.
[
30
]
Sec
64(1) of the Act confers on every employee â
the
right to strike ⦠ifâ
certain conditions
prescribed therein have been met. It is not necessary for purposes of
this judgement to set out all of those conditions.
It is sufficient
to say that the first condition is that the issue in dispute - that
is the demand or grievance over which the strike
is called â must
have been referred either to a council with jurisdiction or the CCMA,
as the case may be, for conciliation and
either a certificate must
have been issued to the effect that the dispute remains unresolved or
a period of 30 days must have lapsed
from the date of the referral of
the dispute for conciliation.
[31] Sec
64(3) sets out the circumstances in which a person may participate in
a strike even though the conditions prescribed by sec
64(1) have not
been met. In this matter there are no such circumstances. It is also
necessary to say that the appellant accepts that
all the conditions
prescribed by sec 64 were met but says only in respect of the FAWU
members based in the processing plant. Sec
65 of the Act sets out
limitations to the right to strike. It seems that what sec 65 refers
to as limitations to the right to strike
is what the Court a quo
referred to as prohibitions against striking. Sec 65(1) sets out
situations where no person has a right to
strike. Sec 65(3) sets out
further situations in which no person may take part in a strike. It
is not necessary to enumerate all
those situations. It suffices, for
purposes of this matter, to refer to two. These are provided for in
sec 65(1)(b) and (c). Sec
65(1)(b) and (c) have been mentioned
already earlier in this judgment in the context of the Court a quo
dealing with an argument
that was presented to it which was based on
sec 65(1)(b) and (c). Sec 65(1)(b) and (c) read thus:-
â
(1) No person may take part in a strike or
lock-out or in any conduct in contemplation or furtherance of a
strike or lock-out if â¦.
that person is bound by an agreement that requires
that issue in dispute to be referred to arbitration;
the issue in dispute is one that a party has the
right to refer to arbitration or to the Labour Court in terms of
this Act;â
[32] Before
us Counsel for the appellant submitted that the issue in dispute over
which the individual respondents went on strike
had not been referred
to conciliation as required by sec 64(1) of the Act and that that
rendered their strike unprotected. He submitted
that the issue in
dispute in support of which they had gone on strike was a wage
increase for themselves. In this regard he submitted
that the dispute
that was referred by FAWU to conciliation related to wages and terms
and conditions of employment for the FAWU members
employed in the
processing plant and, thus continued the argument, that did not cover
a wage increase for the individual respondents
because the latter did
not fall under the processing plant but fell under the farms section.
Since the Court a quo also made a finding
about what the issue in
dispute was that the individual respondents sought to support by
their participation in the strike, it is
necessary to determine what
the demands were for which the individual respondents participated in
the strike.
[33] The Court a quo found that the individual
respondents went on strike for their own separate demands as opposed
to the demands
in support of which the other FAWU members
participated in the strike. In this regard the Court a quo was
upholding a submission
that had been made on behalf of the appellant.
The Court a quo did not specify in its judgement what the individual
respondentsâ
separate demands were nor does it appear that the
appellantâs attorney did before the Court a quo. In fact it was not
even put
to Mr Msiza, the individual respondent who testified on
behalf of the respondents, that the individual respondents had
participated
in the strike in support of their own separate demands
as opposed to the demands of the rest of the FAWU members who took
part in
the strike. During Mr Msizaâs evidence all parties dealt
with the matter on the basis that the wage increase which the
appellant
was being demanded to agree to would be paid to the
individual respondents as well. That is the basis upon which the
evidence of
Mr Tshabalala had been led as well. However, during his
cross-examination, Mr Mashilwane was asked whether he agreed that the
individual
respondents were part of the â
principal
strike to advance their own cause
â and he
answered in the affirmative. A little earlier he had been asked by
the attorney who appeared for the appellant in the Court
below
whether the individual respondents had been â
going
out in respect of their wages and conditions of employment
â
and he had answered: â
yes
â.
It appears that Mr Mashilwaneâs answers to these questions led to a
submission on the appellantâs behalf, and, a finding
by the Court a
quo, that their participation in the strike was in support of their
own separate demands.
[34] It
seems quite clear that, to the extent that it can be said that the
individual respondentsâ participation in the strike was
in support
of their own demands, such demands could only be demands for an
increase to their own wages and other terms and conditions
of
employment. What is also clearly established in the evidence and was
never disputed by the appellant is that the individual respondents
gave FAWU a mandate at a certain meeting to negotiate on their behalf
with the appellant. Furthermore, it is common cause that FAWU
then
wrote the letter of the 26
th
September 1998 to the appellant informing it of precisely this. Mr
Mashilwaneâs evidence that during the negotiations FAWU included
the individual respondents in its proposals was never challenged.
Even Mr Tshabalala was not able under cross-examination to say
that
FAWU accepted that the individual respondents should no longer be
part of the proposed agreement.
[35] On
the facts of this case to say that the individual respondents
participated in the strike in support of their own demands makes
no
difference. This is because, if the position is that they were
pursuing their own demands, those demands would have been part
and
parcel of the demands put forward by FAWU for the other FAWU members
as well. The real question is whether the demands which
they sought
to support by participating in the strike formed part of the issue in
dispute as contemplated in sec 64(1)(a) of the
Act and whether that
issue in dispute was referred to conciliation as required by sec
64(1) and is not hit by any of the limitations
in sec 65 of the Act.
Having found that the individual respondentsâ strike was a primary
strike to secure better wages for themselves,
the Court a quo said
that in order for the individual respondents to obtain the protection
of the statute, such a dispute should
have been made the subject of a
separate referral to the CCMA under sec 64.
[36] To
the extent that the individual respondentsâ participation in the
strike was in support of their own demands for a wage increase,
we do
not agree with the finding of the Court a quo that such dispute had
not been referred to the CCMA for conciliation in terms
of sec 64. In
our view it most definitely was. The demand was for a wage increase
for members of FAWU which included LBH drivers.
The individual
respondents were LBH drivers. Even if they were based on the farms
section, once FAWU had included a demand for a
wage increase to be
effected on their wages, and had referred that dispute to
conciliation, the fact that they may have been based
on the farms
section when the other FAWU members were based in the processing
plant became irrelevant. Such a demand was discussed
in the wage
negotiations between FAWU and the appellant. FAWU did not at any
stage prior to the strike withdraw its inclusion of
the individual
respondents from among those for whom it was making demands. Whether
FAWU was doing so in the mistaken belief that
they were based in the
processing plant or not is irrelevant. The fact of the matter is that
it specifically included them. The appellant
was never left in any
doubt that FAWU was also demanding that the individual respondents be
paid an increase. When no agreement was
reached, FAWU referred the
issue in dispute or the dispute that arose when the negotiations
reached deadlock to the CCMA for conciliation.
Those negotiations
included FAWUâs demands for a wage increase for, among others, the
individual respondents. A strike ballot was
conducted. The undisputed
evidence of both Mr Mzila and Mr Mashilwane was that the individual
respondents took part in the ballot.
The question in the ballot paper
was whether the person voting in the ballot was prepared to go on
strike in support of a wage increase
of R40, 00. It did not refer to
a wage increase for FAWU members based at the processing plant only.
It was wide enough to include
an increase for the individual
respondents as well. So the individual respondents sought a wage
increase of R40, 00 which was the
same wage increase that the other
FAWU members from the processing plant also wanted. The dispute about
a demand for a R40, 00 wage
increase for the 1998/1999 year was
referred to the CCMA for conciliation on behalf of all those
employees on whose behalf FAWU had
been negotiating. Accordingly, the
conditions prescribed by sec 64 were met in respect of the issue in
dispute over which the individual
respondents went on strike.
[37] In any event we do not think that it was
permissible for the Court a quo to decide the matter on the basis
that the dispute between
the individual respondents and the appellant
about â
better wages for themselves
â,
as it put it, had not been referred to conciliation because that was
never the appellantâs case in the Court a quo and was
never at any
stage put to any of the respondentsâ witnesses during
cross-examination to enable them to deal with it. What was put
to the
union official who testified â and even then at the end of his
evidence under cross-examination and was never put to Mr
Msiza who
was one of the individual respondents â was that the second and
further respondentsâ participation was in support of
their own
separate demands â whatever that meant. But even when it was put to
the union official the nature of those demands was
never put to him.
That the dispute about their alleged
âseparate
demandsâ
was never referred to conciliation
was never at any stage put to the respondentsâ witnesses to give
them an opportunity to deal
with that issue. That is not surprising
because that was never the appellantâs case. We have no doubt that,
if it had been put
to them, they would probably have said that the
wage increase that the individual respondents wanted had been put to
the appellant
in wage negotiations and had been referred to the CCMA
for conciliation because they wanted the same thing as the rest of
the strikers
that the appellant was happy to acknowledge were
entitled to participate in the strike. In the light of this we cannot
uphold the
Court a quoâs finding that the individual respondentsâ
participation in the strike was unprotected. Indeed, they were fully
entitled
to participate in that strike. Accordingly, their dismissal
by the appellant for their participation in the strike was a breach
of
sec 187(1)(a) of the Act and was automatically unfair. So far we
have dealt with the matter on the assumption that the individual
respondentsâ participation in the strike was in support of an
increase to their own wages and not in support of an increase to
the
wages of the FAWU members based in the processing plant. What if they
were doing so in support of a wage increase for the FAWU
members at
the processing plant? This is the question we now turn to deal with.
[38] As already indicated above, although the appellant
maintained that the individual respondents were not entitled to
participate
in the strike, it accepted that FAWUâs members employed
in the processing plant were entitled to participate in the strike.
The
appellant argued that there had been no dispute between it and
the individual respondents because the agreement it had concluded
with NUFBWSAW had been extended to them and they had accepted it. The
appellant further argued that their strike constituted a breach
of s
65(1)(b) or (c) of the Act which prohibits employees from striking
if the issue in dispute is one which they are bound by a
collective
agreement to refer to arbitration or which they have a right in terms
of the Act to refer to arbitration or to the Labour
Court for
adjudication. The appellant argued that the wage increase for the
individual respondents had been settled, and that, therefore,
any
dispute arising from that settlement could only be resolved through
conciliation or arbitration and not through a strike.
[39] Mr Watt â Pringle, who appeared for the
appellant, argued that the Court quo was wrong in drawing the
distinctions that it
drew between an unprotected strike and a
prohibited strike and finding that, although the individual
respondentsâ strike was unprotected,
it was not unlawful. Once the
respondents fell outside the protection afforded by s 187(1)(a), so
the argument went, they were in
the same position as employees who
engaged in an unprotected strike. It was submitted that the decision
of the Labour Court denied
the appellant as the employer the right to
dismiss workers who were engaged in an unprotected strike. It was
argued further that,
by engaging in a strike in which they were not
entitled to participate, the respondents had subverted the entire
process of collective
bargaining because they had already received a
wage increase negotiated in the bargaining unit under which they fell
but now participated
in a strike relating to a bargaining unit of
which they were not part.
[40] While it is true that the individual respondents
received an increase negotiated by the rival union that was
recognised in the
farms section under which they fell, the crucial
issue is whether the collective agreement between the appellant and
that union covered
the individual respondents and had a binding
effect upon them. Dealing with this issue the Court a quo found, upon
the interpretation
of the recognition agreement between the appellant
and NUFBWSAW, that that union was entitled to bargain only on behalf
of its members.
A perusal of that agreement reveals that this was
indeed the position. Clause 2.1 of the agreement states:
â
The company recognises the Unionâs right to
represent its members and to negotiate on behalf of such members
their demands in respect
of the collective conditions of service and
minimum wage rates being paid by the Company at the premisesâ.
[41] Although the appellant had previously extended
agreements reached at the different bargaining units to cover
employees in each
unit who were not members of the union with which
such agreements had been concluded and had in this case extended the
wage increase
agreed to between itself and NUFBWSAW to cover the
individual respondents, the Court a quo found that the extension was
a unilateral
act of the appellant with no binding effect on the
second and further respondents. In our view this finding was correct.
Furthermore,
the Court a quo found - in fact it seems to have been
common cause - that the conditions prescribed by sec 21(3)(d) of the
Act which
are necessary for a collective agreement to bind employees
who are not members of the union party to the collective agreement
were
not present. Sec 23(1)(d) requires, among other things, that
such employees be identified in the collective agreement. This had
not
been done in this matter. In the light of this there was
therefore no agreement on a wage increase that was binding on the
second
and further respondents. In the light of this finding the
appellantâs argument based on sec 65 (1) (b) and (c) falls away.
[42] In an attempt to persuade the
Court a quo to accept that their strike was protected, the individual
respondents also argued that,
since they belonged to the same trade
union with their colleagues who were based in the processing plant
whose strike the appellant
acknowledged as protected and they had
been striking in support of the same demands, they were entitled to
strike. For this argument
reliance was placed on the decision of
this Court in
Chemical
Workers Industrial Union v Plascon Decorative (Inland) (Pty) Ltd
(1999) 20 ILJ 321 (LAC).
To
that case must be added the judgement of the Labour Court in
Afrox
Ltd v SACWU & others (1)(1997) 18 ILJ 399 (LC)
where Zondo AJ, as he then was, established the principle, which was
subsequently approved by this Court in Plascon Decorative, that,
where members of a trade union employed in one branch of a company or
in one bargaining unit are entitled to strike in support of
a dispute
between themselves and their employer, their colleagues employed by
the same employer in another branch or in another bargaining
unit
also have a right to go on strike in respect of that dispute without
having to make a separate referral of the dispute to conciliation.
In Plascon Decorative Cameron JA, in whose judgement Myburg JP and
Froneman DJP concurred, had this to say in regard to that principle:
â
The issue in the present case
is whether non-bargaining unit employees, whose conditions of service
the strike demand did not directly
affect, could embark on an
otherwise protected strike. That parallels the question Zondo AJ
dealt with in Afrox Ltd v SA Chemical
Workers Union & others (1)
(supra), where workers employed by the same employer at different
plants embarked on strike action.
Zondo AJ concluded at 4031 that
âonce a dispute exists between an employer and a union and the
statutory requirements laid down
in the Act to make a strike a
protected strike have been complied with, the union acquires the
right to call all its members who
are employed by that employer out
on strike and its members so employed acquire that right to strike.â
It follows that in my view
this conclusion was correct.â
[43] The Court a quo took the view
that, unlike in
Plascon
Decorative
where
the workers falling outside the bargaining unit were on strike in
support of demands made by their co â employees within
the unit,
the individual respondents joined the strike in pursuit of their own
demands. The Court a quo expressed the view that the
strike by non â
bargaining unit employees in
Plascon
Decorative
was a
sympathy strike whereas in the present case the individual
respondents were involved in a primary strike because, in that
courtâs
view, they were pursuing their own demands that were
separate from the demands that were being pursued by the FAWU members
employed
at the processing plant. On that basis the Court a quo
distinguished the present case from
Plascon
Decorative
and
rejected the respondentsâ argument in the following terms at page 5
of the typed judgment:
â
Nothing in the judgment of Cameron JA, properly
considered, supports the proposition that participants in one primary
strike can
profit from the protections enjoyed by co â employees
who are participating in a second primary strike, and such a
conclusion would
be untenable. The object of s 64, which is to
encourage the resolution of disputes before recourse to collective
action, would be
frustrated if the proper referral of one dispute
legitimated the circumvention of the process by fellow union members
pursuing a
separate dispute against the same employer by reason only
of the fact that the terms of each demand are the sameâ.
[44] We
agree that there is no such suggestion in Cameron JAâs judgement
but, would also add, nor is there any such suggestion in
Zondo AJâs
judgement in Afrox. In Afrox the workers concerned did not go on
strike in support of demands different from the ones
in support of
which their colleagues in the other branch or depot had gone on
strike. There is no statement in that Afrox judgement
that can in any
way be construed to mean that a second group of employees can go on
strike in support of new demands and rely on
the referral of a
different dispute to conciliation by another group for statutory
protection.
[45] With regard to the statement by
the Court a quo that the individual respondents participated in the
strike in support of their
separate demands and not in support of the
demands of their colleagues based in the processing plant, we have
already said above
that the demands which FAWU put on the table for
negotiations with the appellant which were ultimately part of the
dispute that was
referred to conciliation were demands for the wage
increase of the employees based in the processing plant as well as of
the individual
respondents. However, to the extent that the
individual respondentsâ participation in the strike may be said to
have been in support
of wage demands for their colleagues who were
based in the processing plant, the Afrox judgement of the Labour
Court, the Plascon
Decorative judgement of this Court as well as
another judgement of this Court, namely,
SACTWU
v Free State and Northern Cape Clothing Manufacturerâs Association
[2002] 1 BLLR 27
(LAC)
are in point and this matter would not be distinguishable from them.
We have already stated what was decided in Afrox and that the
principle in Afrox was approved by this Court in Plascon Decorative.
In the latter case employers argued that the union members who
fell
out of the jurisdiction of a bargaining council to which the dispute
had been referred for conciliation could only participate
in a strike
if they complied with s 64(1) by referring the dispute to the
bargaining council having jurisdiction over them. After
reviewing the
authorities
Zondo JP
rejected this argument and stated at para [32]:
â
[32] More importantly, the dispute which the
intended strike sought to bring to an end, had already been referred
to the bargaining
council with the requisite jurisdiction for
conciliation and such attempts had failed. All the statutory
requirements required to
be complied with before there could be a
strike over that dispute had been complied with. The same dispute
could not be referred
to conciliation for the second time. The
requirement in section 64 that the issue in dispute be referred to
the Commission for Conciliation
Mediation and Arbitration or to a
bargaining council with jurisdiction for conciliation is a
requirement that the issue in dispute
be referred to a bargaining
council, where there is one with jurisdiction, which has
jurisdiction in respect of such issue in dispute.
A bargaining
council cannot conciliate a dispute in respect of which it has no
jurisdictionâ.
[46] The interpretation adopted in
Afrox
was endorsed and applied in
Plascon
Decorative.
In the
latter case,
Cameron
JA
cautioned
against reading into s 64(1) limitations upon the right to strike
which are not there. This interpretive approach is consistent
with
the approach set out in
Attorney
General v Moagi
1982 (2) Botswana LR 124
at 184
which
Kenridge AJ
repeated in
S
v Zuma
[1995] ZACC 1
;
1995 (2) SA 642
(CC) at 651 I (par 15)
,
with the concurrence of the rest of the members of the Constitutional
Court, where he said that
â(c)onstitutional
rights conferred without express limitation should not be cut down by
reading implicit restrictions into them,
so as to bring them into
line with the common law.â
[47] The principle established in
Afrox
and
other cases is that once a union has complied with the requirements
of s 64 by referring a dispute to conciliation, it is not
necessary
to refer the same dispute again to conciliation when other members of
the same union who are employed by the same employer
want to join the
strike in respect of the same dispute which is protected. They can
join the strike even if they are not directly
affected by the dispute
as long as the dispute was referred to conciliation. This is the
legal position as correctly pronounced in
Afrox,
Plascon
Decorative
and
Free State and Northern Cape Manufacturersâ Association.
[48] In
the light of the above we hold that, to the extent that the
individual respondentsâ participation in the strike was in support
of demands relating only to the FAWU members based in the processing
plant, such participation was lawful and protected. In such
a case,
too, the appellantsâ dismissal of the individual respondents for
participation in the strike was a breach of sec 187(1)(a)
of the Act
and constituted an automatically unfair dismissal. In the light of
this finding, it is not necessary for us to deal with
the other
submissions made by the appellant. Nor is it necessary to express any
view on the correctness of the Court a quo classification
of strikes
into three categories.
[49] With
regard to relief it is clear from the judgement of the Court quo
that, when it assessed compensation, it took into consideration
the
fact that, as far as it was concerned, their participation in the
strike was unprotected. As a result, the Court a quo attributed
fault
to them on the basis that they were involved in a strike which did
not comply with the procedural requirements of the Act.
We have found
that they were entitled to participate in the strike. The Court a quo
also took into account against them their having
rejected a certain
offer that had been made to them by the appellant on a with prejudice
basis. While we do not think that the individual
respondents should
be blamed for not accepting that offer in the light of the fact that
their participation in the strike was lawful
and protected, we cannot
do anything about the issue of relief since the respondents did not
note a cross â appeal against the
limited nature of the relief that
the Court a quo granted them.
[50] Before
concluding this judgment, there is one further matter that we wish to
deal with. In this appeal the respondentsâ attorney
was required
to file heads of argument succinctly setting out the points to be
argued at the hearing of the appeal. A document
purporting to be
heads of argument was timeously filed on behalf of the respondents.
However, it was of such poor quality that it
can hardly be described
as heads of argument. This Court could not derive any assistance
from that document nor was the attorney
helpful to the Court at the
hearing of the appeal. Properly prepared heads of argument play an
important role in the adjudication
of a matter- especially in an
appeal court. Useful heads of argument cannot be prepared unless the
person preparing them has taken
the trouble to study the record and
has done such research on the legal issues raised by the matter or
appeal as may be necessary.
Where heads of argument are drawn without
the necessary understanding of the facts or the evidence in the
record and/or without doing
the necessary research on the legal
issues that arise in the appeal, such heads - and it is very easy to
recognise this in heads
of argument - are bound to be of no
assistance to the Court hearing the appeal. That kind of conduct on
the part of a practitioner
is unacceptable. A practitioner should not
accept instructions or a brief in a matter if he does not have the
time to do justice
to a clientâs case. It is inexcusable for a
practitioner to file heads of argument the contents of which bear no
relation to the
issues raised.
[51] In this case the document
purporting to be heads of argument filed by the respondentsâ
attorney was totally unacceptable. The
fault lies solely with the
practitioner concerned and not with the respondents. In the light of
this we invited the respondentsâ
attorney to advance reasons why an
order should not be made precluding him from charging his clients any
fee in connection with his
â
heads
of argument
â and
for his appearance before this Court. He conceded that there was
justification for the making of such order in the present
matter.
Accordingly, as a mark of its disapproval for this type of conduct,
this Court will make an order precluding the respondents
attorney
from charging fees in connection with the heads of argument as well
as for his appearance in this Court.
[52] Accordingly,
the following order is made:
The appeal is dismissed with costs.
The respondentsâ attorney is ordered not to charge
any fees in connection with the heads of argument he filed in this
appeal and
for his appearance before this Court.
Zondo
JP Jafta AJA
I
agree.
Davis
AJA
Appearances:
For the Appellant : C E Watt-Pringle SC
Introduced
by : Stephen Hardie Attorney
For
the Respondents : J Surju
Date
of Judgment : 30 April 2004