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[2011] ZALAC 7
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National Union of Mineworkers obo Employees and Others v Commission for Conciliation Mediation and Arbitration and Others (CA11/2007) [2011] ZALAC 7; [2012] 1 BLLR 22 (LAC); (2011) 32 ILJ 2104 (LAC) (1 April 2011)
IN THE LABOUR APPEAL COURT OF SOUTH
AFRICA
(HELD AT CAPE TOWN)
Reportable
APPEAL
CASE NO: CA 11/2007
In the matter between:
NATIONAL UNION OF MINEWORKERS
Obo
112 EMPLOYEES
Appellants
and
COMMISSION
FOR CONCILIATION MEDIATION AND ARBITRATION
First
Respondent
COMMISSIONER
C H BOTHA N.O.
Second
Respondent
SONOP DIAMOND MINING (PTY) LTD
(Formerly
t/a SONOP DELWERY)
Third
Respondent
Coram: Mlambo JP, Davis JA and
Landman AJA
JUDGMENT
DAVIS, JA
[1] This is an appeal against a
judgment of Nel AJ dated 27 June 2007 in which the learned Acting
Judge dismissed an application
to review and set aside an arbitration
award issued by second respondent on 5 May 2005.
The background facts
[2] Third respondent conducts mining
operations which take place throughout each day of the year on a 24
hour basis. Two weeks before
the public holidays on 9, 12 and 14
April 2004, the third respondent advised its employees that the plant
would be closed on Good
Friday 9 April 2004 and would only recommence
at 18h00 on Wednesday 14 April 2004. In terms of the notices which
were issued, employees
were advised that, if they did not work on the
nightshift of Thursday 08 April 2004 or commence to work on the
nightshift of 14
April 2004, they would not be paid for the Easter
weekend.
[3] A number of employees did not
report for the nightshift of 8 April 2004. In addition, a number of
employees did not work the
nightshift of 14 April 2004.
[4] On 21 and 24 April 2004 the
employees who did not report for duty on either of the two
nightshifts were not paid at all for
a specified number of days or
had deductions made from their wages. On 24 April 2004, certain
employees refused to return to their
work stations, until such time
as the monies, which had been deducted or had not been paid to them,
had been so paid. At approximately
11h45, Mr Kobus Viljoen, a senior
employee of the third respondent, requested the striking employees to
appoint four representatives
in order to discuss the problem of
deducted wages whilst the other workers return to their posts to
commence work. It appears that
there was a refusal to appoint
representatives, as all of the workers wished to engage with third
respondent.
[5] At approximately 12h00 Mr Viljoen
gave an ultimatum to the relevant workers informing them that, by so
refusing to work, the
employees were participating in an illegal
strike and that should they, save for their representatives, fail to
return to work
by 13h00, they would be suspended and charged with
participation in an illegal and unprotected strike.
[6] Contact was then made between the
human resources manager of third respondent, Mr De Villiers, and a
representative of appellant,
Mr Lekwane but by 13h15 the relevant
employees were still refusing to make available any representatives
or to commence work. At
this time Mr De Villiers spoke to the various
employees who informed him that they wanted to be paid immediately.
He replied that
it was not possible to effect payment immediately,
given that it was a Saturday afternoon and banking institutions were
closed
and, furthermore, that the employer did not have the requisite
amount of cash. Upon refusing to commence their duties, he then
verbally suspended the relevant employees although by then certain of
the group had decided that they would not participate in the
work
stoppage any further. Later that day a similar situation occurred
with the night shift where certain of these employees indicated
that
they wished to work but others refused. An ultimatum was also given
to workers who were due to commence working at 20h00 but
had refused
to do so. Those employees who refused to work were then suspended.
[7] Mr De Villiers testified that on
26 April 2004 he had been contacted by Mr Viljoen who informed him of
similar problems with
the morning shift on that day. At this stage it
appeared that the third respondent was of the view that it would
correct the necessary
payments although the actual payments would be
included only at the next payment date. The work shift of 26 April
2004 appeared
to have been divided. A number of employees decided to
work but the majority decided to continue with the work stoppage. The
employees,
who decided to continue with work stoppage, were issued
with suspension letters that they refused to accept.
[8] On the same day Mr De Villiers
sent a letter to appellant to informing it that the employees had
taken part in an unprotected
strike; that the dispute would be
discussed on 27 April 2004; and that disciplinary proceedings would
commence at 11am on 29 April
2004. A notice of the disciplinary
hearing was handed to Lekwane to represent the workers. On 28 April
2004, in terms of which,
those employees who had participated in the
work stoppage were charged with taking part in an illegal and
unprotected strike, intimidation/incitement
and disruptive behaviour.
Subsequently the second and third charges were dropped.
[9] The disciplinary hearing was
conducted where the employees were represented by union
representatives. A recommendation was made
that the affected
employees who had been found guilty be dismissed. This recommendation
was carried out on 10 May 2004.
The arbitration
[10] In arbitrating the dispute,
second respondent concluded that, as the various employees had not
followed the provisions of section
64 of the Labour Relations Act 66
of 1995 (‘LRA’) before they embarked on the strike, it
followed that they had taken
part in a procedural unprotected strike.
Hence the question arose as to the applicable sanction for their
unlawful conduct.
[11] Second respondent accepted that
the employees had been correct that third respondent had wrongly
deducted money that was due
to these employees for the public
holidays, Good Friday and Election Day of 2004. Accordingly, it was
stated that the employees
had every reason to be upset for the fact
that the employer deducted the monies that they were entitled to for
these days…
the employees were entitled to refuse to work on
public holidays. This, however, does not mean that the employees were
entitled
to go on a wild cat strike two weeks later when they
established that they did not receive the payment they were entitled
to for
the public holidays However, second respondent found that the
employees had acted in total disregard of the provisions of the LRA,
in that they had not been willing to negotiate with third respondent
when the latter requested that they appoint a representative.
It is
the second respondent’s finding that all of the affected
employees had been given sufficient time to reflect on an
ultimatum
and to respond thereto. Accordingly, second respondent concluded that
the dismissal of the employees for participating
in the strike action
had been both substantively and procedurally fair.
The strike
[12] The first question to be answered
is whether appellants had participated in a strike. In terms of
section 213 of the LRA a
strike means:
“
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 or employee.”
[13] Mr Cloete, who appeared on behalf
of the appellants, submitted that, as the employees had ceased work
not to address a general
grievance about a wage dispute or other
issues of mutual interest but lawfully to enquire about wages to
which they were entitled,
their action could not be classified as
that of a strike but rather as another form of withholding of work.
[14] In my view, this submission would
lead to the rather anomalous conclusion that where workers who had
refused to work in circumstances
where the dispute was not a matter
of mutual interest but of right, then the concerted refusal to work
in such circumstances would
not be classified as an unprotected
strike but would not be a strike at all. Manifestly, this conclusion
cannot be accepted.
[15] A strike, as defined, has three
key characteristics.
1. There must be a requisite act or
omission;
2. It must be concerted; and
3. It must be directed at the
achievement of a specified purpose.
See Brassey,
Commentary on the
Labour Relations Act
at
A9 - 32 and the cases collected at
footnote 1.
[16] In the present case, the affected
employees refused to engage in their normal employment duty, which
was to work on a particular
shift. By refusing to observe the rules
of the appellant and to carry out the instructions to continue to
work in terms of the
contract, they had refused to work. In this
case, the action was concerted, in that a number of employees had
participated in a
decision to withhold their labour. As to the third
requirement, there was a common purpose insofar as the employees were
concerned,
being to obtain redress for the third respondent’s
decision to withhold payment.
[17] Reference was
made to the decision made by Basson J in
Nkutha
and Others v Fuel Gas Installations (Pty) Ltd
,
1
where the learned
judge said:
“
In the
event, the refusal of employees to work in response to a failure on
the part of the employer to perform its obligations,
such as paying
the employees for services rendered, is a lawful refusal in that it
does not amount to a breach of contract under
common law. In other
words, the employees are legally entitled to refuse to carry out
their side of the employment contract. In
fact, it is the employer
who is breaching the employment contract by unlawfully failing to
perform its reciprocal obligation(s).
Having regard to these legal
principles, such lawful entitlement of employees to refuse to work
must, in my judgment, be distinguished
from a strike where the
concerted refusal to work by employees amounts to an unlawful breach
of contract under common law.
In fact, a strike which amounts to
unlawful breach of contract (under common law) can be branded as
misconduct for the purposes
of the dismissal of the strikers
concerned.
In view of the foregoing, care
should, in my judgment, be taken to ascertain the circumstances or
facts which present themselves
in every case under investigation. The
question must be answered: Is the collective refusal to work in
response to the failure
of the employer to perform its reciprocal
obligations under the employment contract or is the purpose of the
collective refusal
to work to place pressure on the employer to
remedy a grievance or to resolve a dispute? Only in the
last-mentioned instance would
such concerted refusal constitute a
strike in terms of section 213 of the Act.
”
[18] I find it difficult to accept the
justification for this distinction between a collective refusal to
work in response to a
contractual breach by an employer and a
collective refusal to work to place pressure to resolve a dispute.
That is not in accordance
with the section. Section 213 provides that
“
[t]he 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… for the purpose of remedying a
grievance
” constitutes a strike. Whether affected employees
can decide to cancel the contract pursuant to a breach by the
employer
or sue for damages is beside the point. The key issue is to
classify whether, on its own, the refusal to work for whatever reason
in order to remedy a grievance falls within the scope of the Act’s
regulation of a strike. In my view, it manifestly does
so and
accordingly the
dictum
in
Nkutha
does not adequately
reflect the position as encompassed in section 213.
[19] In summary, I am of the view that
the refusal to work on both 24 and 26 April 2004 by the affected
employees constituted a
strike as defined and given that the
procedures set out in section 64 of the Act were not followed, the
strike stands to be classified
as an unprotected strike.
The fairness of the dismissals
[20] Employees who participate in an
unprotected strike can be dismissed in terms of section 68(5):
“
(5)
Participation in a strike that does not comply with the provisions of
the Chapter, or conduct in contemplation or in furtherance
of that
strike, may constitute a fair reason for dismissal. In determining
whether or not the dismissal is fair, the Code of Good
Practice:
Dismissal in Schedule 8 must be taken into account.”
[21] However, the unprotected nature
of this strike is not a license to dismiss without a careful
consideration of the surrounding
circumstances. In determining
whether those workers who participated in an unprotected strike
should be dismissed, a number of
considerations must be part of the
decision. Item 6(1) of the Code of Good Practice provides as follows:
“
(1)
Participation in a strike that does not comply with the provisions of
Chapter IV is misconduct. However, like any other act
of misconduct,
it does not always deserve dismissal. The substantive fairness of
dismissals in these circumstances must be determined
in the light of
the facts of the case, including –
the seriousness of the
contravention of this Act;
attempts made to comply with this
Act; and
whether or not the strike was in
response to unjustified conduct by the employer.”
[22] This provision
of the Code affirms earlier law where the illegality of the strike
did not automatically result in the dismissal
of unprotected
strikers. See, for example,
Betha
v BTR Samcol
(A
Division of BTR Dunlop (Ltd),
2
where the court
held that the employer had conducted itself in bad faith, which was
shown in its inflexibility to the reasonable
approach by the union to
the settlement of outstanding issues relating to a recognition
agreement .In particular, the court found
that the union was
motivated by the desire to rid itself of the union. All of these
factors were considered by the court to justify
the strike
sufficiently to entitle the dismissed employees to relief.
[23] The key
question therefore is whether, in this case, dismissal was justified.
The approach set out in
Sidumo
and Another v Rustenburg Platinum Mines Ltd and Others,
3
holds that to
review an arbitration award, the reviewing court has to come to an
conclusion that the award was one that a reasonable
decision maker
could not have reached in the circumstances. Accordingly, it is
necessary to return to the reasoning of the second
respondent.
[24] The second respondent noted that
which was common cause that third respondent had wrongfully deducted
the money that was due
to the employees and therefore had acted
illegally and in breach of contract. He, further, noted that they had
every reason to
be distressed with this illegal decision on the part
of the employer. Furthermore, he held that no evidence had been
presented
to the effect that the monies which had been deducted had
been the outcome of any disciplinary procedure, where the relevant
employees
had been given the opportunity to explain their conduct in
question. He further noted that the strike can be described as fairly
peaceful. He further accepted that the object of the strike was to
force the employer to pay back the money that had been unilaterally
deducted’. Furthermore, the absence of the employees had not
had a significant impact, so that only 3 x 12 hour shifts had
been
affected. No evidence was led that this had a major financial impact
on the employer’s overall operation. Indeed, it
appears that
the estimated loss to the third respondent was between R120 000 to
R180 000.
[25] In weighing up these factors in
favour of the dismissed employees, second respondent emphasised that
the employees had acted
in clear breach of the provisions of the LRA
in striking and that, while that they might have had a noble
objective, they also
had alternative remedies sourced in contract or
dialogue with representatives of third respondent. In addition, he
placed emphasis
on the fact that the various shop stewards could not
offer any acceptable explanation why they themselves did not make any
attempt
to contact the union officials when involved in a union
dispute. Furthermore, the third respondent had acknowledged its
mistake
and had offered to make redress at the next official payment.
In addition, clear and fair ultimatums had been given by third
respondent
to the employees.
[26] Mr Aggenbach, who appeared on
behalf of third respondent, submitted that second respondent had
constructed a fair and careful
award in which he had taken account of
all considerations in coming to the conclusion that dismissal was a
justified remedy in
the circumstances of this unprotected strike. The
applicable question, however, is whether second respondent reasonably
weighed
all of the factors in order to come to a reasoned decision.
In my view, he failed to do so. The reaction of the affected
employees
was directly attributable to a unilateral action on the
part of third respondent to withhold wages. The fact that third
respondent
might have offered to repay the amounts at some later date
did not remove the legitimate anger and concern of employees who,
given
their circumstances, were hardly likely to have the necessary
resources to sustain their basic standard of living when monies were
unilaterally deducted in this fashion. The employees did not respond
in a violent fashion. According to the findings of second
respondent,
their action did not last for very long; did not cause huge losses to
the operation of third respondent; and, even
second respondent, was
constrained to admit that they might have had a noble objective. Once
it is accepted that participation
in an unprotected strike is not
inevitably to be visited with dismissal, second respondent was bound
to consider all the factors
that were listed in the award both those
in favour of the employers decision to dismiss and those in favour of
the applicable employees.
[27] In my view, a reasonable decision
maker, who arrived at a conclusion which properly took account of all
of these factors, particularly
those in favour of the affected
employees and with knowledge of provisions of item 6(1) of the Code
of Good Practice and the case
law which underpins this provision to
the effect that, even in the case of an unprotected strike, dismissal
is not the automatic
default position, would have arrived at a
different result. A reasonable decision maker, given all of the
circumstances of this
case would have considered that an alternative
to dismissal was manifestly indicated and for this reason would have
decided that
the employees had been unfairly dismissed.
[28] In the result therefore, the
appeal succeeds with costs and the order of the court
a quo
of
27 June 2007 is set aside and replaced with the following order:
1. The arbitration award issued by
second respondent on 5 May 2005 is reviewed and set aside.
2. The individual applicants are
reinstated in the employ of third respondent as from the date of this
judgment, 27 June 2007.
3. Third respondent is ordered to pay
the applicants costs.
_______________
DAVIS JA
I agree,
_______________
MLAMBO JP
I agree
____________________
LANDMAN AJA
Date of Hearing:
17 March 2011
Date of Judgment:
Appearances for the Appellant:
Neville Cloete
Instructing Attorneys:
Neville
Cloete Attorneys Inc.
Appearances for the Respondent:
Morne Aggenbach
Instructing Attorneys:
De Klerk
& Van Gend Inc.
1
[2000]
2 BLLR 178
(LC) at paras69 - 72
2
(1998)
19 ILJ 459 (SCA)
3
(2007)
12 BLLR 1097
(CC)