TSI Holdings (Pty) Ltd and Others v National Union of Metal Workers of South Africa and Others (JA38/2004) [2006] ZALAC 1; [2006] 7 BLLR 631 (LAC); (2006) 27 ILJ 1483 (LAC) (8 March 2006)

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TSI Holdings (Pty) Ltd and Others v National Union of Metal Workers of South Africa and Others (JA38/2004) [2006] ZALAC 1; [2006] 7 BLLR 631 (LAC); (2006) 27 ILJ 1483 (LAC) (8 March 2006)

32
IN THE LABOUR
APPEAL COURT OF SOUTH AFRICA
HELD IN JOHANNESBURG
Case No: JA38/2004
In the matter between
TSI HOLDINGS (PTY) LTD 1
ST
APPELLANT
TSI
SCAFFOLDING (PTY) LTD 2
ND
APPELLANT
TSI
PAINTING (PTY) LTD 3
RD
APPELLANT
TSI
INSULATIONS (PTY) LTD 4
TH
APPELLANT
and
NATIONAL UNION OF METAL
WORKERS OF SOUTH AFRICA 1
ST
RESPONDENT
MAXWELL MASEKO & OTHERS 2
ND
AND FURTHER RESPONDENTS
___________________________________________________________
JUDGMENT
ZONDO JP
Introduction
[1] The first appellant is a registered company. The
second, third and fourth appellants are also registered companies.
They are subsidiary
companies of the first appellant. In the founding
affidavit the deponent refers to the second, third and fourth
appellants as divisions
of the first appellant. The appellants were
referred to collectively in the papers as the applicant. For
convenience, in this judgment
I shall refer to the appellants
collectively as
“the appellant”.
The
first respondent
(“the union”)
is
a registered trade union which has the majority of the appellant’s
employees as some of its members. The second and further respondents
(“the individual respondents”)
are the employees of the appellant and members of the union.
[2
]
The
appellant brought an application in the Labour Court for a rule nisi
calling upon the respondents to show cause why an order should
not be
granted declaring as unprotected a strike that the individual
respondents had embarked upon or were about to embark upon and
interdicting them from taking part in it. An interim interdict was
also sought. The matter came before Schoeman AJ who granted the
order
which, though intended as a rule nisi, was not couched in the
conventional terms of a rule nisi. The order read thus:
“1.
a Rule nisi is ordered-
1.1 declaring the strike embarked upon by the
respondent on 4 November 2003 illegal;
1.2
declaring the notice given by the respondents of their intention to
strike invalid.
2. The rule nisi is made returnable on the 11
November 2003.
The respondents are notified of their right to
anticipate the return day on 48 hours notice to the Applicant in
terms of the rules
of Court.
The costs of this application are reserved for the
determination on the return day.
The applicant is granted leave to supplement the
founding papers if necessary.”
[3]
It
would seem that Schoeman AJ did not grant any interim order. On the
return day the matter came before Fulton AJ. The respondents
opposed
the confirmation of the
“rule”
and sought a “
discharge”
thereof. Fulton AJ reserved judgment. Later she delivered a judgment
in terms of which she found that the strike was protected, discharged
the rule and ordered the applicants to pay the respondents’ costs
jointly and severally, the one paying, the others to be absolved.
With the leave of the Labour Court, the appellant now appeals to this
Court against Fulton AJ’s judgment and order. Before I consider
the
appeal, it is necessary to set out the relevant events and facts
which gave rise to the proceedings in the Labour Court.
The Facts
[4]
One
of the managers employed by the appellant was a Mr Attie Van Zyl. A
shopsteward employed by the appellant, a Mr Maxwell Maseko,
was given
a report by two of the union’s members, a Mr Elias Mayisela and a
Mr Albert Moholola, on the 19
th
June 2003 to the effect that Mr Van Zyl had used racist language
towards them. It was alleged that, when those members of the union
informed Mr Van Zyl that they needed a ladder to complete a task that
he had given them to do, he said to them:
“poes,
kaffirs, ek wil nie saam met julle praat nie.”
[5]
Mr
Maseko apparently lodged a grievance with the appellant against Mr
Van Zyl. The document that was used to lodge the grievance,
if it was
lodged in writing, was not included in the papers. On the 24
th
July 2003 a meeting took place in which Mr Henry Stopforth, the
appellant’s human resources manger, asked the complainants
concerned
to tell him what had happened. Messrs Elias Mayisela and
Albert Moholola, the two complainants, attended the meeting. The two
complainants
told their version in that meeting. Mr Nhlapo, the union
official who represented the union in its dealings with the
appellant, stated
in the union’s answering affidavit that at that
meeting Mr Stopforth told Mr Maseko to refer the matter to a Ms
Yvonne Barnard
who was the site manager in the boiler department of
the appellant.
[6]
It
would appear that, when the matter was referred to Ms Barnard, she
refused to deal with it. Mr Maseko then took the matter to a
Mr Van
Rensburg who was the appellant’s manager in charge of the Secunda
branch of the appellant. On the 13
th
August a meeting was held that was chaired by a Mr Van Rensburg. Mr
Van Zyl was present. The complainants and Mr Maseko were also
present. Mr Nhlapo stated in the respondents’ answering affidavit –
and this is admitted in the appellant’s replying affidavit
- that
Mr Van Zyl told Mr Van Rensberg at this meeting that he did not swear
at the complainants in a personal manner. I am not
sure what this was
supposed to mean but, when regard is had to the summary of discussion
which was prepared by Mr Van Rensberg and
put up as the minutes of
that meeting, it would seem that that is what Mr Van Zyl said. In
this regard it needs to be pointed out
that, for a reason that does
not appear to be explained by the appellant anywhere in the
affidavits, Mr Van Rensberg allowed all
those attending the meeting
to remain in attendance while the complainants and Mr Maseko gave
their version of what had happened
but he asked them to leave the
room when he required Mr Van Zyl to give his version. He only called
them back to the room after Mr
Van Zyl and he had remained in the
room by themselves while Mr Van Zyl was giving his version of what
had happened. The “
minutes
”
of that meeting reveal this as well.
[7] The “
minutes
”
of the meeting chaired by Mr Van Rensberg reveal, if they are to be
relied upon as accurately reflecting the version that Mr Van
Zyl told
Mr Van Rensberg in the absence of the complainants and Mr Maseko,
that Mr Van Zyl inter alia told Mr Van Rensberg in Afrikaans:
“
Ek
se toe vir hulle dat hulle moet gaan kyk in die ‘fokken’ yard vir
‘fokken’ lere of scaffolding wat daar le en bou self
‘n
raamwerk. Dit het hulle toe gedoen. Anders as die ‘fokken’ word
het ek nie egter gevloek nie. Ek ontken dat ek hulle persoonlik
gevloek het of die woorde ‘poes kaffirs’ teen hulle gebruik het.
Derek Coetzer het gehoor wat ek vir hulle gese het.”
In
the “
minutes
” soon
after Mr Van Zyl’s version appears a heading indicating that what
followed thereunder was a statement by Mr Derek Coetzer.
[8] The “
minutes
”
also reveal that Mr Derek Coetzer gave his version or statement to Mr
Van Rensberg while the complainants and their representative
were out
of the meeting. In other words this happened before they were called
back into the meeting. The minutes reflect that they
were called back
into the meeting after Mr Coetzer had finished giving his version.
Apparently, when they rejoined the meeting, it
was “
put
”
to them that Mr Van Zyl was denying having “
sworn
at them personally
” and having used the
offensive words. In other words Mr Van Rensberg did not let Mr Van
Zyl repeat his version in the presence
of the complainants and their
representative but simply told them that Mr Van Zyl was denying that
he had sworn at them “
personally
”
and that he had used the offensive words they said he had used. The
meeting failed to resolve the complaint.
[9] Absent an explanation why Mr Van Rensberg asked the
complainants and Mr Maseko to temporarily leave the room while Mr Van
Zyl
gave his version of what had happened, it appears that he treated
the complainants differently from the way he treated Mr Van Zyl
in
that he wanted Mr Van Zyl to hear their version but did not want them
to hear his version. Why Mr Van Rensberg did this causes
me much
concern, particularly when he was chairing a meeting dealing with a
complaint of racism. I note that Mr Stopforth denies
in the
appellant’s replying affidavit that the complainants and Mr Maseko
were asked to temporarily leave the meeting room before
Mr Van Zyl
could give his version but I do not know why Mr Stopforth denies
something that is stated clearly in black and white in
the so-called
“
minutes
” of that
meeting which, he admits, were prepared by Mr Van Rensberg who
confirms this in a confirmatory affidavit. Mr Van Rensberg
also
confirms that what Mr Stopforth says in the replying affidavit that
relates to him is true and correct. By saying this in his
confirmatory affidavit, Mr Van Rensberg gives two conflicting
versions about whether the complainants and Mr Maseko were asked to
leave the meeting before Mr Van Zyl could tell him his version.
According to his “
minutes
”,
the complainants and Mr Maseko were specifically asked to leave. In
the second page of the minutes which, for some unknown reason,
is
marked “
page 3
”
parallel to the last paragraph of the page, Mr Van Rensberg
specifically wrote: “
Requested aggrieved and
representative to leave room to enable Mr Attie Van Zyl to present
his version of events
.”
[10] After the end of Mr Derek Coetzer’s version, Mr
Van Rensberg specifically wrote in the “
minutes
”:
“
All parties called into board room to
discuss matter further.”
And yet Mr
Stopforth saw fit to say in paragraph 50.5 of the appellant’s
replying affidavit – which Mr Van Rensberg confirmed
as true: “
I
deny that Mr Maseko or the complainants were told to leave the room
while Mr Van Zyl made his statement.”
In
support of this denial Mr Stopforth referred, and Mr Van Rensberg
agreed, to what clearly occurred after the complainants and Mr
Maseko
had been called back into the meeting. I find all of this very
strange.
[11] It would appear that another meeting was held on
the 19
th
August
2003 which was chaired by a Mr Swart, one of the appellant’s
directors, to try and resolve the complaints or the grievance.
Such
meeting also failed to resolve the matter.
[
12
]
On
the 20
th
August
2003 Mr Tseane, a director of the appellant, addressed a letter/
memorandum to Messrs Elias Mayisela, Mr Albert Moholola and
Mr Attie
Van Zyl. In the memorandum Mr Tseane stated that the grievance had
reached the stage where it had been heard by Mr Swart
and
“no
conclusive evidence could be gained to enable further action against
a guilty party.”
Mr Tseane also informed the three that arrangements had
been made for a polygraph test to be conducted to test the veracity
or otherwise
of the statements of the three about what had happened.
He stated that the directors wished to see
“corrective
action as necessary as taken(sic).”
He
informed the three that the directors could see no other way of
testing the evidence other than through a polygraph test. The
test
was to be conducted on the 25
th
August 2003. He also informed them that each one of them would be
allowed to bring along one representative to the test.
[13]
On
the 21
st
August
2003 Mr Maseko wrote a letter to one of the appellant’s directors
about the grievance. In the letter Mr Maseko referred
to a step which
he did not specify which he said he understood the appellant sought
to take in order to deal with the grievance.
He stated that he did
not support such step and proposed that the grievance be referred to
arbitration. He indicated that to this
end the union was going to
assist with the referral of the matter to the Commission for
Conciliation, Mediation and Arbitration
(“the
CCMA”).
It would seem that this letter may
have been a reaction to Mr Tsaene’s letter of the 20
th
August which he had addressed to Messrs Van Zyl, Moholola and
Mayisela. If that is correct, the step that Mr Maseko must have been
referring to must be the polygraph test that the appellant had
indicated would be conducted on the 25
th
August 2003.
[14]
On
the same day, that is the 21
st
August 2003, the appellant responded to Mr Maseko’s letter. The
appellant did not agree to the proposal to have the matter referred
to arbitration. It stated that it was firmly of the view that the
best way to deal with the matter was through a polygraph test.
However, it stated that, since Mr Maseko had indicated that the union
did not support that proposal, it had cancelled the appointments
it
had made for Mr Mayisela and Mr Moholola to undergo a polygraph test
on the 25
th
August
2003. The appellant pointed out, however, that Mr Van Zyl would go
ahead and subject himself to the test. It appears that
Mr Van Zyl did
undergo the polygraph test and “
allegedly”
passed it. However, no information has been put up in connection with
that test. The grievance remained unresolved even after a number
of
meetings that had been held to try and resolve it. Various
suggestions as to how it was to be resolved had been made but either
parties did not agree or the one side thought that an agreement had
been reached but the other had reneged on the agreement.
[
15]
It
would appear that on the 19
th
September 2003 the union referred a certain dispute to the CCMA. It
described that dispute as follows in the column of the CCMA referral
form where it was required to summarise the facts of the dispute:
“
The company site manger have (sic) unfairly call
(sic) our members with names as POESS KAFFIRS.”
In a space in the referral form provided for the
specification of the result desired out of the conciliation process,
the union wrote:
“we demand the dismissal of
the racist manager.”
In a space provided
for the description of the nature of the dispute in the referral
form, the union categorised the nature of the
dispute as
“
victimisation.
”
Attempts at conciliation failed to produce a resolution of the
matter.
[16]
On
the 31
st
October
2003 the union gave the appellant a written strike notice. The notice
was to the effect that the union and its members employed
by the
appellant were
“hereby giving notice of 48
hours as from the date above in terms of section 64 of the Labour
Relations Act No 66 as updated 2002.”
The
strike was going to commence on the 4
th
November 2003 at 08h00. The strike would take the form of a total
withdrawal of labour. Part of the notice read thus:
“
BE
PLEASE NOTICE (SIC) THAT OUR DEMAND (SIC) ARE AS FOLLOWS
We demand that the manager Attie Van Zyl be total
(sic) dismissed from the company for calling our members with Poes
Kaffirs.”
The dismissal be with immediate (sic) effect.”
Thereafter the notice read:
“
Kindly note that the union NUMSA and its
Shopstewards will remain open for further engagement as attempt to
resolve the strike.”
[
17]
It
also appears from Mr Stopforth’s founding affidavit and Mr Nhlapo’s
answering affidavit that Mr Van Rensburg did speak to Mr
Nhlapo on
the 3
rd
November
2003 and requested the latter to agree to the suspension of the
strike pending a disciplinary inquiry for Mr Van Zyl that
would be
chaired by an independent chairman. Mr Nhlapo’s version is that he
did not agree to this immediately as he wanted to raise
the proposal
with the union members first. It seems that he subsequently did so
and the union members agreed to suspend the strike
pending an urgent
meeting between the parties to discuss the matter. It seems that that
meeting did not take place as planned and
Mr Nhlapo had to return to
his office.
[18] On the 3
rd
November 2003 the appellant suspended Mr Van Zyl from work with full
benefits. In its letter of suspension to him it stated that
this was
after the allegation that had been made against him regarding “
foul
language used against TSI staff.”
It also
stated that there had as yet not been any conclusion to the
investigation but that the suspension was being effected
“upon
pressure of industrial action against the company by the union and
members.”
It was stated that the suspension
was
“pending the outcome of negotiations and
legal proceedings to be held.”
The letter
also informed Mr Van Zyl that he would be informed shortly of
“a
date for the proceedings, once this has been set.”
[19] On the 3
rd
November 2003 the appellant’s attorneys addressed a letter to the
union in which they advised that the appellant would seek to
have the
certificate of outcome issued by the CCMA in regard to the grievance
rescinded. In that letter the attorneys also dealt
with the union’s
demand that the appellant dismiss Mr Van Zyl. In this regard they
wrote:
“
Regarding your demand that the manager, Mr Attie
Van Zyl, be dismissed, our client cannot comply with your request.
It was previously
indicated to yourself that our client is prepared
to appoint a neutral attorney or advocate alternatively any other
person the parties
may agree upon, to do the disciplinary hearing of
Mr Van Zyl. Our client previously also indicated that there is
conflicted evidence
(sic) in the matter of Mr Van Zyl and should he
be unfair (sic) dismissed, our client may face another CCMA hearing.”
[20] On the 4
th
November 2003 most of the appellant’s employees commenced a strike.
This was pursuant to the strike notice issued earlier by the
union.
On the morning of the 4
th
November 2003 Mr Nhlapo consulted with the individual respondents
about the proposal earlier made by the appellant that the strike
be
suspended. According to Mr Nhlapo the individual respondents, who
were already on strike on the morning of the 4
th
November when Mr Nhlapo arrived in the appellant’s premises, agreed
to suspend the strike pending a meeting that the appellant
had agreed
should be held at about 13h00 on that day. On that day, too, the
appellant brought the urgent application referred to
earlier in the
Labour Court. It was on that day that Schoeman AJ granted the order
referred to earlier.
[
21]
On
the 4
th
November
2003 the appellant’s Mr Stopforth addressed a letter to the union
which he marked for the attention of Mr Nhlapo. In the
letter he
purported to confirm a telephone conversation that seems to have
taken place that day between Mr Van Rensburg and Mr Nhlapo.
It would
seem that, according to Mr Stopforth, in that telephone conversation
Mr Van Rensburg and Mr Nhlapo had agreed that Mr Van
Zyl be suspended
with immediate effect pending the outcome of legal proceedings
against him and that the union would in turn call
the strike off. Mr
Nhlapo’s version is that he did not conclude any agreement at that
stage but he had undertaken to consult with
the union members on the
possibility of the suspension of the strike and revert.
Judgement of the Labour Court
[22] On the return day of the “
rule
nisi
” that was issued by Schoeman AJ, the
matter came before Fulton AJ in the Labour Court. Fulton AJ found
that the demand for Mr Van
Zyl’s dismissal was not necessarily a
demand that he be dismissed unfairly or without a hearing. For that
reason she held that
it could not be said that the demand was one
that required the appellant to act unlawfully in the sense of
breaching provisions of
the Labour Relations Act, 1995 (Act 66 of
1995)
(“the Act
”).
Accordingly, she held that the strike was a protected strike and
discharged the “
rule
”
with costs.
The appeal
[23] On appeal the appellant persisted in its contention
that the strike was unprotected and that the Court a quo erred in
concluding
otherwise. In support of his contention Counsel for the
appellant submitted that the demand for Mr Van Zyl’s dismissal was
an
unlawful demand and a strike that was made up of a concerted
refusal to work in support of an unlawful demand could not be a
protected
strike. Counsel for the respondents conceded that he could
not think of any basis on which it could be argued that such a strike
would be a protected strike. However, he submitted that the strike in
this case did not have as one of its elements an unlawful demand.
He
submitted that the purpose of the strike was to get the appellant to
have Mr Van Zyl subjected to a fair disciplinary process.
He
submitted that the respondents were prepared to accept whatever
outcome was reached as a result of such a process.
[24] Counsel for the appellant drew our attention to the
fact that, when the appellant suspended Mr Van Zyl and asked the
union to
also suspend the strike, it refused to do so. He submitted
that, if the union sought Mr Van Zyl to be subjected to a fair
disciplinary
process that could result either in his dismissal or
retention as an employee, it would have agreed to that suggestion. He
submitted
that the reason why the union did not agree to that
suggestion was that it wanted Mr Van Zyl to be dismissed without any
fair procedure
and was not prepared to accept anything short of his
dismissal as the ultimate result. Counsel for the respondents drew
our attention
to the fact that at some stage the union had proposed
that the grievance be referred to arbitration but the appellant had
rejected
the proposal. He submitted that the fact that the
respondents had made that proposal was indicative of the respondents’
attitude
that they wanted Mr Van Zyl to be subjected to a fair
process and that they would have accepted whatever result flowed from
such
a process. It is therefore necessary to determine from the
outset what the purpose of the concerted refusal to work was or what
the
demand was the rejection of which led the respondents to resort
to a concerted refusal to work.
[25] In their argument Counsel for both parties referred
either to the strike in support of a demand or to the purpose of the
strike.
To refer to the purpose of a strike or to a strike in support
of a demand is inaccurate in our law. This is because in terms of the
definition of a strike in sec 213 of the Act a strike is not a
refusal to work or an obstruction or retardation of work only but
it
is such refusal, obstruction or retardation when it is concerted and
is resorted to for a purpose contained in the definition
of the word
“
strike
” or, when
regard is had to the definition of “
issue in
dispute
” in sec 213, it can also be said
that it is such conduct when it is in support of a demand. A strike
is defined in sec 213 of the
Act as meaning:
“the partial or complete
concerted refusal to work, or the retardation or obstruction of work,
by persons who are or have been employed
by the same employer or by
different employers, for the purpose of remedying a grievance or
resolving a dispute in respect of any
matter of mutual interest
between employer and employee, and every reference to ‘work’ in
this definition includes overtime work,
whether it is voluntary or
compulsory;”
The definition of the phrase “
issue
in dispute
” in sec 213 of the Act is:
“
issue in dispute
in
relation to a strike or lock-out means
the
demand, the grievance, or the dispute that forms the subject matter
of the strike or lock-out.”
The
demand is linked up with the purpose – not of a strike – but of a
concerted refusal to work, or the retardation or obstruction
of work
contemplated in the definition of the word “
strike
”.
[26] In terms of the definition of the word “
strike
”
the purpose of a concerted refusal to work, retardation or
obstruction of work can be to remedy a grievance, or to resolve a
dispute
in respect of any matter of mutual interest between employer
and employee. Under the Labour Relations Act, 1956 (Act 28 of 1956)
(
“the old Act”)
the
definition of a strike did not include the purpose of remedying a
grievance or resolving a dispute. The purpose provided for in
the
definition of the word
“strike”
in
sec 1 of the old Act was the compulsion of the employer to agree to a
demand or request or proposal made by employees in regard
to terms
and conditions of employment or in regard to a matter of mutual
interest. This resulted in many cases where, if workers
had refused
to work or had engaged in a work stoppage without articulating any
demand to the employer, their conduct was held not
to constitute a
strike. Accordingly, what the definition of the word “
strike
”
does is to acknowledge that, even in a situation where workers stop
working or refuse to start work without articulating a demand
or
request or proposal to their employer, they have a grievance of one
kind or another which they want their employer to remedy and
their
conduct constitutes a strike. Other concerted refusals to work or
retardations or obstructions of work are those where disputes
exist
or a demand has been made to the employer but the employer has yet to
respond thereto. A dispute will exist where a demand
has been made on
the employer and he has rejected it or where there is disagreement
between the parties on a particular issue.
[27] A
concerted refusal to work or a concerted retardation or obstruction
of work which is resorted to for the purpose of resolving
a dispute
is the one where the union or employees have made a demand on the
employer and the employer has either rejected such demand
or has
neglected to comply with it. The reference to a demand, a grievance
or a dispute in relation to a strike or lock-out in the
definition of
the phrase “
issue
in dispute”
confirms the existence of three
categories of strikes, namely, those which have a demand, those where
there is no demand but there
is a grievance and those in which there
is a dispute. There can be no doubt that, where there is a concerted
refusal to work or a
concerted retardation or obstruction of work
which is accompanied by a demand, such a demand is the issue in
dispute. It is necessary
at this stage to determine whether the
purpose of the concerted refusal to work in this case, or the demand,
was that the appellant
dismiss Mr Van Zyl, as contended for by the
appellant, or, whether it was simply that the appellant subject Mr
Van Zyl to a fair
disciplinary process which could result in Mr Van
Zyl continuing in the appellant’s employment or in Mr Van Zyl being
dismissed,
as contended for by the respondents.
Purpose of the concerted refusal to work
[28] As already stated above, Counsel for the
respondents submitted that the purpose of the concerted refusal to
work was not to get
the appellant to dismiss Mr Van Zyl but to get it
to subject him to a disciplinary process which could have seen him
dismissed or
retained and given some other sanction or even found not
guilty. As I said earlier Counsel for the respondents drew our
attention
to the fact that the respondents had at some stage proposed
that the matter of the racist language allegedly used by Mr Van Zyl
be
referred to arbitration. In this regard he submitted that that was
an indication that all the respondents wanted was that Mr Van
Zyl be
subjected to a fair disciplinary process. He pointed out that it was
the appellant that had rejected that proposal. Another
matter that
Counsel could have referred to in support of his contention in this
regard is the fact that, according to the minutes
of the meeting held
on 13 August 2003 attended by, among others, Messrs Mayisela,
Moholola, Attie Van Zyl, when the representatives
of the employees
were asked what action they wanted to be taken against Mr Van Zyl,
they responded that Mr Van Zyl should be demoted.
They did not say
that they wanted him to be dismissed.
[29] The purpose of the concerted refusal to work must
be determined in the light of all the conduct of the respondents.
This includes
what the respondents wrote in the referral of the
dispute to conciliation and in the strike notice where these can shed
light on
such purpose. In the form used for the referral of the
dispute to conciliation there is a space where the form required the
respondents
to state what they desired as an outcome of the
conciliation process. In the referral used in this matter the
respondents wrote as
follows in that space: “
We
demand the dismissal of the racist manager.”
[30] One accepts that in a conciliation process a party
may make a demand which he is prepared to later moderate and that a
party
may sometimes put up a demand that it is aware the other party
will not agree to. But the respondents have not said anywhere in
their
affidavits that what they wrote there was not a true reflection
of what they wanted to happen. It would therefore be impermissible
to
assume that that was not what they really wanted to achieve.
[31] What is said in the strike notice is particularly
important because it will probably reflect the views of the union or
the strikers
at the time that they were notifying the employer of the
commencement of their strike. The respondents did not say in their
strike
notice that their demand was that Mr Van Zyl be charged with
misconduct in a disciplinary inquiry or that he be subjected to a
fair
disciplinary process. Instead, they wrote in the strike notice:
“
We demand that the manager Attie Van Zyl be total
(sic) dismissed from the company… the dismissal be with immediate
(sic) effect.”
If the purpose of the respondents’ concerted refusal
to work was as innocuous as it was suggested to us in argument, why
then did
the respondents choose to put in their strike notice a
demand that was not their true demand? It is also true that in the
strike
notice the respondents wrote that the union and shopstewards
would remain open “
for further engagement as
attempt to resolve the strike.”
However,
that does not change the fact that the demand in support of which
they sought to engage in a concerted refusal to work, retardation
or
obstruction of work was given in the referral form and the strike
notice as the immediate dismissal of Mr Van Zyl.
[32] If one has regard to the respondents’ case as set
out in its answering affidavits, there is no serious suggestion
anywhere
that the purpose of the respondents’ concerted refusal to
work was to get Mr Van Zyl to be subjected to a fair disciplinary
process
which did not need to result in his dismissal. If it had been
the respondents’ case at the time of the concerted refusal to work
that all they wanted was that Mr Van Zyl be subjected to a fair
disciplinary process, it is in their answering affidavits that one
would have expected them to say that this was the case. They do not
say so in the answering affidavits.
[33] In paragraph 10 of the founding affidavit Mr
Stopforth stated that Mr Nhlapo “
confirmed
the intention to strike based solely on the ground that Van Zyl be
dismissed with immediate effect.”
Mr
Nhlapo’s response thereto in paragraph 19 of the answering
affidavit does not in effect deny that allegation. Accordingly, it
can be taken to be admitted. Indeed, what Mr Nhlapo says in paragraph
19.2 of the answering affidavit is consistent with the proposition
that the concerted refusal to work had as its purpose the compulsion
of the appellant to dismiss Mr Van Zyl. In paragraph 19.2 of
the
answering affidavit, Mr Nhlapo says that, if Mr Van Zyl was
dismissed, the dismissal would not constitute an unfair labour
practice.
The question arises: why was Mr Nhlapo talking about Mr Van
Zyl’s dismissal that would not constitute an unfair labour
practice?
Why wasn’t he saying: Mr Van Zyl’s dismissal did not
arise as far as the respondents were concerned because the purpose of
their
concerted refusal to work was not Mr Van Zyl’s dismissal but
simply that he be subjected to a fair disciplinary process which
could
or could not result in his dismissal? It seems clear that the
reason Mr Nhlapo sought to defend the fairness of the dismissal
referred
to was that Mr Van Zyl’s dismissal was the purpose of the
respondents’ concerted refusal to work.
[34]
In
paragraphs 19 and 20 of the founding affidavit, Mr Stopforth stated
that Mr Van Rensburg had explained to Mr Nhlapo that “
to
dismiss an employee without proper grounds would result in the
(Appellants) contravening the Labour Relations
Act
.” He went on to say that this would
lead to the appellant having an (arbitration) award handed down
against it. Mr Stopforth said
that Mr Nhlapo refused to change his
stance on the intended strike. In the answering affidavit Mr Nhlapo
does not challenge these
statements at all or in any effective way.
[35] Furthermore, in paragraph 25 of the founding
affidavit Mr Stopforth stated that he was informed by Mr Nhlapo that
the respondents’
intention was, in Mr Stopforth’s words, to
“
persist with this action until such time as
Mr Van Zyl has been dismissed by the [appellant].”
In the respondents’ answering affidavit Mr Nhlapo did not in effect
deny this allegation. In the light of all the above I find
that the
purpose of the respondents’ concerted refusal to work was to get
the appellant to dismiss Mr Van Zyl and to do so immediately.
I
reject the submission that the purpose was that Mr Van Zyl be
subjected to a fair disciplinary process which did not need to result
in his dismissal. That submission is devoid of any evidential basis.
[36] I think that the fact that at some stage a proposal
had been made that the grievance be referred to arbitration and the
fact
that at some stage there was a suggestion that Mr Van Zyl be
demoted are not sufficient to justify a conclusion that the purpose
was that Mr Van Zyl be subjected to a fair disciplinary purpose.
These took place much earlier in the process. The suggestion of
the
demotion was made on the 13
th
August. The arbitration proposal was made in the letter of the 21
st
August. The referral of the dispute to the CCMA, and, the strike
notice, in which the respondents wrote that their demand was that
the
appellant dismiss Mr Van Zyl immediately, were on or about 19
September and 31 October 2003 respectively. The strike began on
the
4
th
November.
[37] There is no evidence which suggests that the
respondents’ attitude in October and early November was anything
other than that
they stood by their demand unequivocally stated in
the referral form and the strike notice, namely, that the appellant
dismiss Mr
Van Zyl immediately.
[38] The question can also be approached on the basis of
determining what the issue in dispute was in relation to the strike.
The
definition of the phrase “
issue in
dispute
” contained in sec 213 of the Act
has been given above. However, it is convenient to also refer to it
in relation to the point now
under discussion. The phrase “
issue
in dispute
” is defined in 213 of the Act as
meaning “
in relation to a strike or lockout
the demand, the grievance or the dispute that
forms the subject matter of the strike or lock-out
.”
Reverting to the three categories of strikes that I have referred to
earlier, namely, a strike that has as one of its elements
a demand, a
strike that has no demand but has a grievance as well as a strike
that has a dispute as part of its elements, it must
then be clear
that the concerted refusal in this matter was one that had a demand.
That demand formed part of the dispute. It certainly
was not a strike
where no demand had been articulated. As it was a strike that had a
demand as its integral part, that demand was
the issue in dispute.
Accordingly, the issue in dispute was the respondents’ demand that
Mr Van Zyl be dismissed.
[39] Now that I have found that the purpose of the
respondents’ concerted refusal to work was to compel the appellant
to dismiss
Mr Van Zyl, the next question for determination is whether
or not such a demand was an unlawful one. I shall assume, without
deciding,
in favour of the respondents that it is permissible in our
law for employees to engage in a concerted refusal to work in support
of a demand that the employer dismiss an employee fairly. In this
regard I have in mind the case of an employee who has been charged
with, and found guilty of, misconduct that is sufficiently serious to
render his dismissal fair but whom the employer decides not
to
dismiss. Let us say that employees found guilty of fraud have
consistently been dismissed in a particular company for many years
but in one case the employer decides that in a particular case he
will not dismiss the employee because of some unacceptable reason
such as that he is white and the others who had been dismissed for
similar offences were black. Let us assume that the loss resulting
from such fraud for the employer is a million rand. It seems that in
such a case, if the employee was guilty of such serious misconduct
that would, quite clearly, be a fair reason for his dismissal. In
such a case it may well be that, if there was a disciplinary inquiry
and such employee was found guilty of such serious misconduct but was
not dismissed on such unacceptable grounds as racist grounds,
a
demand that the employer dismiss such employee cannot be said to be a
demand for the employer to act unfairly. It may well be that
in such
a case it is arguable – and I put it no higher than that – that
such a demand may form part of a protected strike.
[40] I did not understand Counsel for the respondent to
be arguing in the alternative that, if we found that the purpose of
the respondents’
concerted refusal to work was to get the appellant
to dismiss Mr Van Zyl, we should find that the purpose was that the
appellant
dismiss Mr Van Zyl fairly. However, I propose, nevertheless
to consider whether or not the respondents’ demand that Mr Van Zyl
be dismissed was an unlawful demand in the sense that it was a demand
that he be dismissed in violation of his right not to be unfairly
dismissed provided for in the Act.
[41] The statutory provisions that are relevant to the
respondents’ demand for Mr Van Zyl’s dismissal are those
contained in sections
185 (a) and 188 of the Act. Sec 185 of the Act
provides:
“185 Right not to be unfairly
dismissed or subjected to unfair labour practice. - Every employee
has the right not to be:
(a)
unfairly dismissed
.
”
Sec 188 provides:
“188. Other unfair
dismissals.
A
dismissal that is not automatically unfair, is unfair if the
employer fails to prove -
that the reason for dismissal is a fair reason
related to the employee’s conduct or capacity;
based on the employer’s operational requirements;
and
that the dismissal was effected in accordance with
a fair procedure.
Any person considering whether or not the reason for
dismissal is a fair reason or whether or not the dismissal was
effected in
accordance with a fair procedure must take into account
any relevant code of good practice issued in terms of this Act.”
[
42
]
Section
185(a) of the Act confers upon every employee, including Mr Van Zyl
the right not to be dismissed unfairly. The provisions
of sec
188(1)(a)(i) and (b) of the Act provide that a dismissal which is not
an automatically unfair dismissal is unfair if the employer
fails to
prove that the reason for dismissal is a fair reason related to, in a
case such as this one, the employee’s conduct, and,
that the
dismissal was effected in accordance with a fair procedure.
[43] If we were to conclude that Mr Van Zyl’s
dismissal, as demanded by the respondents, would have been a fair
dismissal and, therefore,
would not have violated his right not to be
dismissed unfairly, it would have been necessary that there be
sufficient evidence before
us that Mr Van Zyl was guilty of making
the racist remarks he is alleged to have made. On the evidence before
us we cannot make such
a finding because not only is there no
admissible evidence before us that Mr Van Zyl made those remarks but
also the respondents
have not in their papers approached this matter
on the basis of making out a case before the Court a quo, and,
therefore, before
us as well, that there is enough evidence to
suggest that Mr Van Zyl is guilty of making the offensive remarks.
[44] I say that there is no admissible evidence because
the people who were with Mr Van Zyl when he allegedly made the
offensive remarks
and who allegedly heard the remarks did not depose
to any affidavits in this matter. These are Messres Mayekiso and
Maholola. There
seems to be a suggestion that Mr Derek Coetzer was
also close enough to have heard. Of course, there was also Mr Van
Zyl. In the
record none of these persons deposed to any affidavit.
That being the case, we cannot decide the matter on the basis that
there is
sufficient evidence that Mr Van Zyl had made the remarks or
that there was a fair reason for the appellant to dismiss Mr Van Zyl.
Indeed, we must approach the matter on the basis that there is no
evidence before us that, if the appellant had dismissed Mr Van
Zyl as
demanded by the respondents, it would have been able to prove that he
had made the remarks and that there was a fair reason
for his
dismissal based on his conduct. This leads inevitably to the
conclusion that the appellant would have dismissed Mr Van Zyl
unfairly if it had complied with the respondents’ demand. Such a
dismissal would have been a violation of Mr Van Zyl’s right
not to
be unfairly dismissed that is provided for in sec 185(a) of the Act
in that there would have been no fair reason for his dismissal.
[45] I should not be taken to be saying that Mr Van Zyl
did not as a matter of fact use the racist language that the
complainants
apparently said he used. He may well have. Indeed the
statements that he made to Mr Van Rensberg at the meeting of the 13
th
August 2003 that he did not swear at the complainants personally are
strange. However, all I am saying is that in the record before
us no
attempt was made to prove that he had used the racist language,
probably because it was thought that the determination of the
question whether or not he had used such language would be dealt with
in another forum. Racism continues to be a cancer in our society.
The
workplace is no exception to this. Employers, unions, employers’
organisations and employees should play their role in eradicating
it.
Of course, in this regard only lawful and fair means are acceptable.
This is no licence for people accused of racism to be treated
unfairly for they, too, are entitled to be dealt with fairly in the
determination of whether they are guilty or not of racist conduct
and
whether or not in a particular case they should be dismissed.
However, the situations which would render unfair the dismissal
of a
person guilty of racist conduct resorted to in the full knowledge
that it is racist or racially offensive must be very limited.
It is
hoped that, if the complainants’ complaint has not been resolved,
it can still be, and will be, subjected to an inquiry or
process
which would either result in an amicable resolution thereof or which
will result in a determination that will put finality
on whether or
not the complainants were subjected to the racist and offensive
language to which they accuse Mr Van Zyl of having
subjected them.
[46] In the light of the conclusion I have reached that
on the evidence before us Mr Van Zyl’s dismissal as demanded by the
respondents
would have been without a fair reason, it is unnecessary
for me to determine whether it would also have been procedurally
unfair.
[
47
]
Once
Mr Van Zyl was aware of the respondents demand to the appellant that
the latter dismiss him in breach of his rights provided
for in sec
185 read with sec 188 of the Act, he might well have been able to
approach a court or forum of competent jurisdiction
and sought either
a declarator that such dismissal, if effected, would be unfair and in
breach of sec 185 and sec 188 or he could
have sought an interdict
restraining the appellant from dismissing him. This is on the
assumption that other requirements for an
interdict could be met in
the case. In such a case the appellant would in all likelihood not
have opposed such proceedings. Indeed,
it may well have consented to
such order or interdict being granted.
Once
such an interdict had been granted against the appellant, not only
would the appellant definitely be entitled to refuse to comply
with
the respondents’ demand but also the respondents could not persist
with the demand at that stage as the demand would in effect
be
requiring the appellant to act in contempt of an order of Court and,
therefore, to commit the crime of contempt of court.
[48] The above scenario shows, in my view, beyond any
doubt that the demand such as the one made by the respondents to the
appellant
in this case falls outside the category of demands that can
be supported by a concerted refusal to work, retardation or
obstruction
of work envisaged in the definition of the word
“strike”
in sec 213 of the Act. (Compare with what was said in
Bader
Bop (Pty) Ltd v NUMSA & others (2002) 23 ILJ 104 (LAC) at
121B-123 I (paras 40-50.
That question did
not arise in
NUMSA & Others v Bader Bop
(Pty) Ltd & Another (2003) 24 ILJ 305 (cc) at 321
footnote19.) Accordingly, it seems to me that the purpose of the
concerted refusal to work or retardation or obstruction of work
contemplated in the definition of the word “
strike
”
in sec 213 of the Act cannot be conduct that would constitute a
violation of the right not to be dismissed unfairly provided for
in
sec 185 read with sec 188 of the Act.
[49] In these circumstances I am of the view that the
appeal should succeed. As to costs, there was a legitimate dispute
between
the parties which required to be decided by the courts. There
is also a continuing relationship between the parties. In these
circumstances
I am of the view that the requirements of law and
fairness dictate that no order as to costs should be made in this
matter.
[50] In the premises I make the following order:
1.
The appeal is upheld.
2. The order of the Court a quo is hereby set aside and
replaced with the following order:
“
(a)
The rule is confirmed.
(b)
No order as to costs is made”
ZONDO
JP
I agree.
NICHOLSON
JA
I agree.
McCall AJA
Appearances:
For the appellant : Adv. J.J Reyneke SC and Adv. APJ Du
Plessis
Instructed by : VRM Attorneys
For
the respondent : Adv J.G. van de Riet
Instructed
by : Ruth Edmonds Attorneys
Date
of judgment : 8 March 2006