MM & G Engineering (Pty) Ltd v National Union of Metalworkers of South Africa and Others (JA12/03) [2005] ZALAC 4; (2005) 26 ILJ 1326 (LAC); [2005] 9 BLLR 918 (LAC) (31 May 2005)

About SAFLII
Databases
Search
Terms of Use
RSS Feeds
South Africa: Labour Appeal Court
SAFLII
>>
Databases
>>
South Africa: Labour Appeal Court
>>
2005
>>
[2005] ZALAC 4
|

|

MM & G Engineering (Pty) Ltd v National Union of Metalworkers of South Africa and Others (JA12/03) [2005] ZALAC 4; (2005) 26 ILJ 1326 (LAC); [2005] 9 BLLR 918 (LAC) (31 May 2005)

IN THE LABOUR
APPEAL COURT OF SOUTH AFRICA
HELD IN
JOHANNESBURG.
Case No.
JA12/03
In the matter between
MM & G
ENGINEEERING (PTY) LTD
Appellant
And
NATIONAL UNION OF
METAL WORKERS First Respondent
OF SOUTH AFRICA.
PHILLIP GODI AND 28
OTHERS Second and
further
Respondents.
JUDGMENT
DAVIS AJA
Introduction.
[1]
On 19 April 2000 the second and further respondents (“the
individual respondents”) were dismissed from their employment.
They
approached the Labour Court where they
contended that the
dismissals were procedurally and substantively unfair. They sought an
order of reinstatement together with payment
of past wages
retrospectively to the date of dismissal or such other financial
compensation as the Court deemed just and fair.
[2] The
Court a quo
upheld the respondents’ case, and declared that the dismissal of
the individual respondents constituted an ‘unfair labour practice’.
By the use of this term I assume that the learned Judge meant that
the dismissal was unfair. The Court ordered the appellant to
reinstate
the individual respondents on conditions of employment no
less favourable to them than those which applied to them at the time
of
their dismissal. The appellant was also ordered to pay wages due
to each of the individual respondents for a period of twelve months
calculated from the date of their dismissal. It is against this order
that the appellant has appealed, with the leave of this Court.
Condonation
Application
[3]
The
appellant applied for leave to appeal against the judgment of the
court
a quo,
which application was dismissed.
The appellant thereafter petitioned the Judge President for leave to
appeal which application was
duly granted on 8 August 2003. The
order was received by the parties on 11 August 2003. Had there been
compliance with the Rules
of this Court, the appellant would have
served and filed its notice of appeal by no later than 29 August
2003. The notice of appeal
was served on the offices of the
respondents’ attorneys of record on 12 November 2003, seventy five
ordinary days and 52 court
days out of time.
[4] The order of 8
August 2003 required that the record of appeal be delivered within
sixty court days from the date of receipt of
the order. The
appellant was obliged to deliver the record of appeal by no later
than 5 November 2003. The record in the correct
form was delivered on
3 December 2003, twenty eight ordinary days and 21 court days out of
time.
[5] The only reason
given by appellant for this lengthy delay was the incompetence of its
attorney, Mr Bruton, who explained that
-
‘Upon receipt of the order granting leave to appeal, I instructed a
candidate attorney in my firm, Mr Anthony Crane, to contact
counsel
and to instruct counsel to prepare the notice of appeal. For reasons
unknown to me, Mr Crane failed to carry out my instruction.
However,
I do not wish to put the blame on Mr Crane, since it was my sole
responsibility to monitor the progress of the matter.
I have
unfortunately failed to do so. All I can say in my defence for my
failure in this regard is that I was exceptionally busy
at the time
and the matter unfortunately did not received the attention it
deserved. I laboured under the impression that the matter
had been
dealt with’. Mr Bruton accepted full responsibility ‘for my
oversight and undertake to pay the cost of this application
de
bonis propriis
save for costs of opposition’.
[6] Mr Hiemstra, who appeared on behalf of the appellant, was unable
to advance any reason as to the cause of the two delays. He
was
also unable to explain why no affidavit from Mr Crane had been
provided which may have thrown some light upon the cause of the
delay.
[7] The delay and
explanation are, therefore, clearly unacceptable. It showed a marked
disregard for the Rules of Court. Delays
of this nature should not
be lightly countenanced. For this reason, an order in terms of which
Mr Bruton must pay the costs of the
condonation application and its
opposition
de bonis propriis
will be made. However, the
application for condonation in this matter cannot be decided without
a consideration of the prospect
of success on the merits of the
dispute. Accordingly, I turn to deal with the merits.
The Merits.
[8] The material facts in this matter are largely common cause.
On 23 February 2000
the appellant issued letters advising all the individual respondents
that on 29 February 2000 they should not
report for work as there was
to be a stocktaking exercise. Within an hour of the announcement,
members of first respondent held
a meeting to discuss the matter and
resolved that it was unfair for them to be laid off because of a
stocktaking exercise. The appellant
then informed the shop stewards,
who had been mandated to represent the individual respondents that
there would be no payment for
the lay off and that the gates would be
locked on 29 February 2000 as no one was required to work. Only the
employees asked by appellant
to work on that day reported for work.
On 2 March 2000 the individual respondents assembled in a meeting to
discuss the appellant’s
action of 29 February 2000. The main
concern was the failure of the appellant to pay individual
respondents for the ‘stocktaking’
day when this had always been
the practice.
[9] On 6 March 2000 the
individual respondents gathered at their work station to discuss the
issue of the compulsory lay off on 29
February 2000, that is the day
of the stocktaking. The shop stewards were mandated to approach Mr
Tex Williams, the managing director
of the appellant, to convey their
dissatisfaction. Mr Williams confirmed that he was not prepared to
pay employees for 29 February
2000. The shop stewards informed
Williams that all employees would embark on industrial action in the
event that payment was not
made for that day.
[10] The individual
respondents employed in the ‘M Props’ section of the appellant’s
business refused to proceed with the execution
of their normal
duties. A meeting took place on 9 March between the shop stewards and
Mr Williams concerning possible payment as
well as the industrial
action. The appellant responded that it was not ‘prepared to accede
to the request for payment on this day’.
The respondents then
resumed their duties.
[11] On 13 March 2000 the individual respondents received letters
from the appellant that no payment would be made for 29 February
because the stocktaking was on a week-end, whereas in the past,
stocktaking had taken place on a working day.
[12] On 14 March 2000, at approximately 07h00, the individual
respondents came together to ask the shop stewards to accompany them
to the appellant to enquire as to the real reason why they had not
been paid for 29 February 2000. They arrived at the office block
where they discovered that all doors were locked. By 07h30 the shop
stewards had received a letter from the appellant requiring
employees
to return to work by 08h45.
[13] At 09h00 a letter
from Mr Williams was provided to ‘all employees participating in
unlawful industrial action’ in which
he stated:
“Your participation
in the industrial action is unlawful and unprotected.
Your participation in
the industrial action is contrary to the Labour Relations Act and
should you persist with this participation
you will be dismissed.
You are instructed
To return to your work stations and continue with your normal duties
required output levels before 12:45 on 14 March 2000
To fulfill all your duties and obligations in terms of your contract
of employment at all times.
To comply with all relevant Labour Legislation.
Should you fail to heed this ultimatum you will be dismissed.”
[14] Prior to the expiry of the ultimatum, a meeting took place
between the appellant and representatives of first respondent. The
meeting was chaired by Mr Gerhart van Rensburg. At this meeting the
issue of payment for 29 February 2000 was discussed. The appellant
refused to make any payment and reiterated that the final ultimatum
was effective the cut-off time being 12h45. It is common cause
that
the workers returned to work before the cut-off time.
[15] During oral
argument before this Court, Mr Hiemstra was asked why the present
dispute should not be disposed of in the same manner
as was done in
Administrator, Orange Free State v Mokopanele and Another
(1990)
11 ILJ 963 (A).
[16] In
Mokopanele
,
cleaners at a provincial hospital participated in an illegal work
stoppage. A representative of the employer who had been duly
authorized to negotiate with these employees informed them that if
they failed to return to work on a specific date they would be
dismissed. The employees responded positively to this ultimatum but
were subsequently dismissed for their participation in the work
stoppage.
[17] The employee’s
version of the events leading up to the ultimatum, was set out by the
court at 968 A thus:
“Mr Rossouw stated
that, unless we return to work the following day, we would face
dismissal. In the light of this ultimatum I
and a large number of
fellow employees elected to return to work the following day. This I
did and I continued to work in accordance
with my duties until 17
September when the administration purportedly dismissed me.” This
version was accepted by the Court. at
968A
[18] In dealing with
the question of the legality of the dismissal,
Hoexter JA,
on
behalf of a unanimous court, applied the principle that… ‘a
contracting party who has once approbated cannot thereafter
reprobate’.
(At 968-969). Applying this principle to the facts of
the case, he concluded:- ‘In the light of what had happened at the
hospital
on 26 and 27 August 1987 the administration was not legally
entitled to change its mind as it sought to do when it purported to
dismiss
respondents on 17 September 1987. Moreover, such change of
mind involved a rank injustice to the respondents; and as they were
entitled
to do, they raised objection to it. Simple justice between
employer and employee demands that their objection should be
sustained.’
at 970
[19] In the present
case, the workers were dismissed for participation in what was
described as an ‘unprocedural strike action on
14 March 2000’.
This dismissal took place despite the fact that, after they had been
given an ultimatum to return to work by a
certain time failing which
they would be dismissed, they had returned to work before the expiry
of the ultimatum.
[20] The only basis
upon Mr Hiemstra sought to distinguish
Mokopanele
, from the
facts of the present case was to contend that the individual
respondents had embarked on a second procedural strike in
little more
than a week over the same issue and that they knew that they were on
final warnings for the same form of misconduct.
[21] In my view, this
submission ignores the fundamental difficulty which confronts
appellant. The ultimatum issued by the appellant
on 14 March 2000 was
issued in the full awareness of the events which had preceded the
stoppage. It stated clearly that ‘should
you fail to heed this
ultimatum you will be dismissed’. There is nothing in the text of
the ultimatum of 14 March 2000 which differs
from that issued by the
employer in
Mokopanele.
Had the appellant in
Mokopanele
wanted to reserve to itself the right to dismiss the workers,
even if they returned to work, it could have done so by an
appropriately
worded ultimatum. Similarly, in the present case, the
appellant could have reserved the right to dismiss the individual
respondents.
It could have warned them that, if they returned to
work by a given time, disciplinary charges would be brought against
them, which,
depending on the evidence led at the disciplinary
hearing, could result in warnings or in dismissals. The appellant
did not do so.
Its statement constituted a waiver of any right to
dismiss the individual respondent if they returned to work within the
required
time.
[22] There is, in my
view, no justifiable basis for a distinction to be drawn between
these two cases. Mr Hiemstra, correctly, did
not attempt to contend
that the principle upon which the
Mokopanele
judgment was
predicated was in any way incorrect. On the contrary, it is
manifestly correct.
[23] In this matter
both parties approached the dispute on the basis that the conduct in
which the individual respondents engaged
on 14 March 2000 was a
strike and an unprotected or illegal strike for that matter. In view
of the conclusion to which I have come,
it is not necessary to decide
upon the further question as to whether the individual respondents’
conduct constituted a strike
and, if it did, whether it was an
unprotected one.
[24] I conclude that
there are no reasonable prospect of success of the appeal. It would
therefore serve no purpose to grant condonation.
[25] For the reasons
given, the following order is made:
1. The application for
condonation is dismissed with costs.
2. Appellant’s attorney, Mr Bruton, is ordered to pay these costs
de bonis propriis
on an attorney and client basis.
______________
DAVIS AJA
I agree
____________
ZONDO JP
I agree
_____________
NKABINDE AJA
Appearances
For the appellant Adv J. Hiemstra
Instructed
by : STRB Attorneys
For the
respondent : Ms Ruth Edmonds
Instructed by : Ruth Edmonds Attorneys
Date of Judgment: 31 May 2005