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[2012] ZALAC 21
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National Union of Metal Workers of South Africa and Others v Abancedisi Labour Services CC (JA62/10) [2012] ZALAC 21; [2012] 11 BLLR 1123 (LAC); (2012) 33 ILJ 2824 (LAC) (20 July 2012)
REPUBLIC
OF SOUTH AFRICA
THE LABOUR APPEAL
COURT OF SOUTH AFRICA, JOHANNESBURG
Case No: JA62/10
Reportable
In the matter between:
NATIONAL UNION OF METAL WORKERS
OF SOUTH AFRICA
…......................................................................................
First
Appellant
A KETLHOILWE
& 44 OTHERS
…......................................................................
Second
to Further Appellants
and
ABANCEDISI LABOUR SERVICES CC
…...........................................................
Respondent
Heard: 15 November 2011
Delivered: 20 July 2012
Summary: Employees i.t.o. s198(2)
of LRA removed from work by client against the will of labour broker
who insists that employees
are still employed – Whether removal
of employees in such circumstances constituted dismissal i.t.o.
s186(1).
JUDGMENT
NDLOVU JA
Introduction
[1] The issue in this appeal was
whether a dismissal had occurred, as envisaged in section 186(1),
read with section 187, 188 or
189 of the Labour Relations Act
1
(the LRA) where employees in terms of section 198(2) of the LRA were
removed from the workplace by the client for whom they were
placed to
render their services and in circumstances where the labour broker,
as the employer, affirmed that the employees concerned
were,
nonetheless, not dismissed but still employed by it.
[2] The appeal is against the judgment
of the Labour Court (Molahlehi J) handed down on 25 March 2010 in
terms of which the respondent’s
point
in limine
was
upheld and the appellants’ claim dismissed with costs. The
appeal came before us with the leave of the Court
a quo
.
[3] The respondent, Abancedisi Labour
Services CC, is a close corporation in terms of the Close
Corporations Act
2
and carries on business as a temporary employment service or labour
broker
3
.
The second to further appellants (the employees) were formerly
employed by the respondent. The employees were members of the first
appellant, the National Union of Metal Workers Union or NUMSA (the
union) which, as the employees’ collective bargaining
agent,
facilitated the institution of this litigation in the interest of the
employees, as its members.
4
[4] The union sued the respondent in
the Court
a quo
seeking an order compensating each one of the
employees in the amount equivalent to 24 months’ remuneration,
which was based
on legal issues formulated in the statement of case,
as amended, in the following terms:
’
20.
The termination of the union members’ contracts of employment
at Kitsanker by the respondent, without a hearing, amounted
to a
dismissal in terms of the LRA.
21.
The dismissal was automatically unfair in that the reason for the
dismissal was that the union members sought to exercise a
right
protected by the LRA, namely the right to take advice from the union.
22.
Alternatively the dismissal, ostensibly predicated on the
respondent(’s) operational requirements and/or the operational
requirements of the respondent(’s) client Kitsanker, was
substantively unfair in that:
22.1
the dismissal was not for a fair reason as required by section
188(1)(a)(ii) of the LRA;
22.2
The union members were not selected for dismissal on the basis of
fair and objective selection criteria as required by section
189(7)
of the LRA.
22.3
The dismissal was procedurally unfair in that it was not preceded by
the consultative process required by section 189(2), (3),
(4) (5) and
(6) of the LRA, or any process at all.’
[5] The point
in
limine
raised
by the respondent was that the employees were never dismissed by the
respondent. As stated already, the Court
a
quo
upheld
the respondent’s technical defence and dismissed the
appellants’ claim with costs. Notwithstanding the 24 months’
compensation claimed in the amended statement of case, the
appellants’ counsel submitted that compensation in the amount
equivalent to 12 months’ salaries would be just and equitable -
apparently a similar concession also having been made in
the Court
a
quo
in
that regard
.
Background Facts
[6] Prior to February 2001, the
employees were employed by Kitsanker (Pty) Ltd, a part of the mining
division of Reinforcing Steel
Holdings Group, carrying on the
business of manufacturing roof bolts for soft and hard rock and
situate in Rustenburg, having relocated
from Lichtenburg on or about
4 August 2000. For operational reasons, the management of Kitsanker
resolved to outsource the production
unit of its business to a labour
broker. Kitsanker then notified the workers of its decision and
offered them voluntary retrenchment
packages. After retrenchment, the
workers would immediately be employed by the labour broker in the
same positions that they previously
occupied at Kitsanker and on the
same salaries.
[7] Despite the
union’s emphatic opposition against Kitsanker’s idea of
outsourcing its production line, the employees
went ahead and
accepted their voluntary retrenchments with effect from 2 February
2001. In the meantime, Kitsanker concluded an
agreement with the
respondent, being the appointed labour broker, in terms of which the
employees became the employees of the respondent
with effect from 5
February 2001. The respondent, in turn, placed the workers back at
the disposal of Kitsanker. However, from
that stage onwards Kitsanker
was no longer their employer but only acting in its capacity as the
respondent’s client.
5
[8] Each of the
employees concluded a ‘limited duration contract of assignment’
with the
respondent, which embodied the general terms
of
the employment agreement
(the
contract) and an addendum to it known as ‘assignment agreement’
which specified,
amongst others, each worker’s placement, job category, rate of
pay
(schedule
‘A’). The material terms of the contract and schedule ‘A’
were as follows:
‘
Limited
Duration Contract of Assignment
1.2
The employee should understand that the employer, as a labour broker
is dependent for its income on the assignment of contracts
to it. The
award of assignments to the employee will therefore depend on the
availability of work, which is afforded to the company
by its
clients, the duration of those contracts and upon company’s
assessment of employees’ suitability to carry out
the available
assignments. There is accordingly no guarantee of work being given to
employee, but it is obviously in the interest
of the company to
ensure that the employee is given as much appropriate work as the
employee is able to reasonably perform.
1.3
In the event that a suitable assignment becomes available, the
company will furnish to the employee an assignment agreement,
substantially in the form of Schedule “A” to this
agreement. This assignment agreement will stipulate the assignment
position the employee will hold, the anticipated dates of the
assignment, the name and address of the client with which the
employee
will be placed as well as the grade and rate of pay per hour
the employee will receive for work done.
1.4
It is recorded that an assignment is available for the employee, to
commence on Monday, 5 February 2001 at the premises of Kitsanker
at
Rustenburg.
2.
Duration of agreement, position, pay hours of work and benefits
2.1
This contract shall commence on the commencement date the company has
with its client, Kitsanker and shall continue until the
completion of
the last assignment for which the employee is employed in accordance
with schedule “A”, unless terminated
earlier in
accordance with this agreement.
2.1
The employee should not have any expectation of continued employment
after the fixed period, even in the event that the employee
is
afforded various assignments from time to time. …
4.
Termination of employment
4.2
Notwithstanding any other provision in this agreement, the company
will be entitled to terminate this agreement and/or the employment
of
the employee summarily, if the employee:
4.2.4
disobeys any lawful order or direction of a superior or a manager of
a client of the company;
4.4
In addition, the company shall be entitled to terminate this
agreement in the event that the employee is unable to perform in
terms of this agreement, for example, when a client requires an
employee to be removed from site.
…
5.1
The employee acknowledges and agrees that the termination of the
employee’s employment at the expiry of the fixed period
shall
not constitute retrenchment and the employee will accordingly not be
entitled to any retrenchment procedures or benefits
at that time….’
‘
Assignment
Agreement (Schedule “A”)
The
company and the candidate agree as follows:
1.
The candidate will be placed as a
labour H
2.
The candidate will commence his assignment on
05/02/2001
. The
assignment will be until the client no longer requires the services
of the candidate for whatever reason.
3.
The candidate will be placed at the following client,
Kitsanker
.
The
address being:
3
Ferro Street
Rustenburg
.
The
candidate will report at
08h00
on
05/02/2001
at the
client’s premises.
4.
The candidate’s remuneration will be
R10.30
per hour, paid weekly in arrears
and the candidate shall work the usual hours of the client being a
total of 42 normal time hours
per week, on a rotating shift system.
5.
It is specifically agreed that the candidate will not be allowed to
offer to work for the client on any basis whatsoever other
than
through the company. Any contravention of this clause will constitute
an immediate breach of conduct between the company and
the candidate
and entitle the company to its usual placement fees, payable by the
candidate and/or client.
6.
It is also specifically agreed that the company will not be held
liable for any damages or breakages of any nature whatsoever
caused
by the candidate, due to negligence or any other reason, at the
premises of the client.
7
It is agreed that the limited duration contract of assignment should
be read with this agreement and that both agreements will
constitute
the agreement between the parties.’
[9] On or about 20 June 2001, the
employees signed grievance forms in which they demanded the immediate
dismissal of one Mr Koos
Mpopo, a former shop steward who was
employed by the respondent as the payroll clerk or site agent, but
whom the employees recognised
as their supervisor. The employees
listed a number of serious allegations of abuse and fraud against Mr
Mpopo, including that he
sometimes instructed the workers to work
overtime but refused to authorise their overtime payments; he
extorted money from certain
workers on threat of dismissal if they
did not pay and further that, in respect of one worker, he
fraudulently recorded overtime
(which was not worked) on the worker’s
behalf and then demanded from the worker to hand over to him the
overtime money. When
there was no prompt reaction from Kitsanker
management to their demand, the employees staged a two-hour work
stoppage, which happened
on an uncertain day between 21 June 2001 and
4 July 2001.
[10] In the meantime, Mr Mpopo was
suspended pending a misconduct enquiry scheduled for 5 July 2001.
However, he failed to attend
the enquiry. Instead, he submitted his
resignation from the respondent’s employ. That was how the
problem about Mr Mpopo
got itself resolved.
[11] As a result of the incidence of
the two-hour work stoppage on 20 June 2001, Kitsanker realised the
necessity to plan for the
future in terms of potential illegal or
unprotected industrial actions by its workers. In this regard,
Kitsanker drafted a code
of conduct which would regulate the future
conduct of all parties at Kitsanker. The draft was discussed with the
respondent and
was accepted by the respondent’s managing
member, Mr Etienne Van der Merscht. It was later presented to the
representatives
of the workers for their attention.
[12] It was then required, on 5 July
2001, that the code of conduct be signed by the representatives of
Kitsanker and the respondent,
as well as all workers individually. I
propose to refer to the code of conduct in its entirety:
‘
KITSANKER
CODE OF CONDUCT
The
Industrial Relations history at Kitsanker requires that a code of
conduct, which will govern all the parties, be implemented.
The
purpose of this code is to regulate the practice that will be
acceptable at Kitsanker and is applicable to Labour employed
by
Abancedisi, Abancedisi Labour Brokers and the Kitsanker Management.
The
conditions are as follows:
Labour
employed be Abancedisi
1.
Employees understand that Abancedisi employs them and that their
services are contracted out to Kitsanker.
2.
Employees will work according to their contract with Abancedisi and
will not deviate from this in any manner.
3.
Any problems/queries that the employees may have regarding their
conditions of employment will be addressed directly to Abancedisi.
4.
Problems/queries that employees may have with Abancedisi will not
impact on the contract conditions that Abancedisi agreed with
Kitsanker. These conditions are contained in the employees’
contract of employment.
5.
The employees will operate and handle disputes in accordance with the
Kitsanker Grievance Procedure and will not engage in illegal
industrial action, (i.e. go-slow, work stoppages and refusal to work
emergency overtime or normal overtime when requested).
6.
Will conduct them(selves) in a professional manner and will
contribute positively to the well-being of the company.
7.
Will not approach or expect from the company to extend or grant any
loans to Abancedisi staff.
Abancedisi
Labour Brokers
1.
Comply with the contract between Kitsanker and Abancedisi.
2.
Manage its employees to such an extent that they will not engage in
any action that will be detrimental to Kitsanker or its customers.
3.
Apply procedures that will manage requests and complaints
effective(ly) and speedily.
4.
Be available to resolve disputes.
5.
Provide employees that are willing to comply with the conditions
applicable at the particular site and that comply with their
contracts of employment.
6.
Communicate to its employees that management will no longer tolerate
the actions as set out in point 5 above.
Kitsanker
Management
1.
Will treat all employees with respect and dignity.
2.
Provide the employees with timeous notice of overtime to be worked or
any other action that may impact on their future employment.
3.
Will not abuse the flexible working condition in the contract.
4.
Will treat employees fairly.
5.
Will comply with all conditions as set out in the agreement between
the company and Abancedisi.
6.
Will not involve itself in any matters related to the relationship
between Abancedisi employees and Abancedisi Labour Brokers.
It
is further agreed:
That
should the employees again embark upon illegal work
stoppages/refusal to comply with contract conditions, the company
will
exercise its right to terminate the contract with immediate
effect.
That
should the contract be terminated, all Abancedisi employees will
immediately leave the premises and not move closer than
100 metres
to any entrance to the company.
The
parties will work towards establishing a long-term relationship that
will benefit all stakeholders.
All
the parties accept the conditions and conduct as set out and they
will advise their employees/colleagues accordingly.’
[13] Whilst some workers signed the
code of conduct, the employees refused to do so. The employees
alleged that they had asked for
seven days within which to obtain
advice from the union, which allegation was denied by the respondent.
In any event, the employees
were advised that on the following day,
which was Friday, 6 July 2001, only those workers who had signed the
code of conduct would
be allowed entry into the work premises.
Indeed, that is what happened. On 6 June 2001, those workers who had
signed the code of
conduct were allowed into the workplace but the
employees were refused entry.
[14] On Monday, 9 July 2001, the same
thing happened. The employees were refused entry to the site and they
stood outside the gate
until about 16:00 in the afternoon. On that
day, they noticed that there were new people who had been employed to
replace them.
They were told to go away from Kitsanker precincts and
that if they did not the police would be called to deal with them.
They
went to the union offices and reported what had happened.
[15] On 10 July 2001, the union’s
local organiser, Mr Tshoga, had a telephone discussion with Mr Van
der Merscht during which
the latter stated that he had tried to
persuade Kitsanker management to allow the employees back to work but
to no avail and further
that, in any event, all the employees were
still employed by the respondent and still on the respondent’s
payroll.
[16] Mr Tshoga
confirmed the telephone conversation in his letter dated 11 July 2001
to the respondent in which he, however, rejected
Mr Van der Merscht’s
contention that the employees were still employed by the respondent.
He felt that the employees had
been dismissed. As he put it in his
evidence, ‘[t]hey then realised that they are now dismissed. In
other words, it looks
(like) they are dismissed.’
6
Subsequent
communication between the union and the respondent could not resolve
the impasse.
[17] On 23 July 2001, the union
(acting on behalf of the employees) referred the dispute to the Metal
and Engineering Industries
Bargaining Council for conciliation. In
terms of the referral, the dispute was characterised as:
‘
Operational
Requirement – Failure of the Labour Broker Mr (??) the Company
to consult over Retrenchment as per the Requirement
of the Provisions
of LRA.’’
7
However, the conciliation process
failed and the certificate of outcome to that effect was issued on 31
August 2001, describing
the referred dispute as ‘alleged unfair
dismissal of A. Retlhoilwe and 44 others due to operational
requirements.’
8
As a result, the union referred the matter to the Labour Court for
adjudication.
The Proceedings in the Labour Court
[18] In his opening address in the
Court
a quo,
Mr Orr, who appeared for the union and the
employees, made it quite clear what the appellants’ case was,
when he stated, in
part, as follows:
‘
[O]n
a proper construction of the contract between the individual
applicants and the respondent and as a matter of principle, as
a
matter of law, we will be arguing that the dismissal occurs the
moment the individuals are removed from the premises of the labour
broker’s clients. … That is the legal issue that Your
Lordship will have to decide.’
[19] Indeed, at one stage during the
cross examination of the appellants’ witness, Mr
Orr
interjected and once again reaffirmed the appellants’ case. The
following exchange appears from the record:
‘
Q.
… as I understand your case is that, well then the labour
broker must place them elsewhere --- M’Lord Kitsanker,
there
was still an employment … [intervenes].
MR
ORR
: No that is not our case, our case is that the moment the
employees were removed from Kitsanker there was a dismissal and that
is very clearly our pleaded case. The issue of a labour broker
placing people elsewhere goes to issues of mitigation of damages
and
our case as pleaded is, the moment these people were removed from
Kitsanker and are not allowed to return to Kitsanker, there
was a
dismissal.’
[20] Mr Orr called Mr Tshoga to
testify on the existence of the alleged dismissal. Indeed, the
essence of Mr Tshoga’s evidence
9
was that the dismissal occurred the moment the employees were removed
from Kitsanker’s premises. This contention was based
on the
appellants’ interpretation of clause 2.1 of the contract. It
was submitted on behalf of the appellants that the proper
interpretation of clause 2.1 was that the contract would be
terminated once Kitsanker no longer required the services of the
employees.
[21] In analysing the evidence and the
interpretation of the contract, read with schedule ‘A’
above, the learned Judge
in the Court
a quo
had, in part, the
following to say:
‘
26.
However, the applicants contend that the respondent had delegated its
power to dismiss its employees to Kitsanker and that the
dismissal of
its members occurred as a result of the exercise of that power. The
applicant based its contention on its interpretation
of the contract
of employment (and) … relies mainly on the provisions of
paragraph 2 of schedule ‘A’ …
which provides that
the assignment would be until the client, being Kitsanker in this
instance, no longer requires the services
of the employees. I do not
agree with this interpretation because it is based on one aspect of
the contract and does not take into
account other provisions of the
contract including those of schedule ‘A’ to the contract.
27.
The reading of clauses 1.2 and 1.3 of the contract clearly envisaged
the continuation of the relationship between the parties
even after
the conclusion of the assignment at Kitsanker. It is also clear from
the reading of clause 1.3 that if a new assignment
was secured such
assignment would be regulated by terms very similar to those in
schedule ‘A’.’
[22] The Court
a quo
accordingly found that the appellants failed to discharge the onus of
proving the existence of their alleged dismissal. Consequently,
the
appellants’ claim was dismissed with costs.
The Appeal
[23] The appellants relied on two
grounds of appeal, namely:
That the Court
a quo
erred in
finding that the expulsion of the employees from the Kitsanker
premises, by Kitsanker, did not result in a termination
of the
employment contracts between the employees and the respondent.
Based on the totality of the oral and documentary evidence,
the
Court a quo ought to have found that the expulsion terminated the
contracts.
23.2 That the Court
a quo
erred
in finding that the contractual relationships
which existed between the employees
and the respondent, after the expulsion of the employees by
Kitsanker, amounted to employment
contracts, given that no wages were
paid to the employees, no attempts were made by the respondent to
place the employees at other
assignments and the totality of the
relationship between the respondent and the employees was that the
employees remained ‘on
the books’ of the respondent.
[24] Mr Eiujen, for
the appellants, submitted that on the basis of the objective facts
and the circumstances, taken in their entirety,
no other conclusion
could be reached than that the employees were dismissed from work on
6 July 2001. The assertion that they were
not dismissed was merely
the
say
so
of
Mr Van der Merscht which was not supported by objective facts. There
was no evidence of any attempts by the respondent to re-place
the
employees somewhere else. The employees tendered their services to
the respondent when they reported for work on 6 and 10 July
2001.
Even after they were refused entry to the premises, they remained at
the gate until late in the afternoon.
[25] In further submission, Mr Eiujen
pointed out that the proper route which the respondent ought to have
taken in the circumstances
that it found itself was to have embarked
on the consultation process in terms of section 189 of the LRA with a
view to possible
retrenchment, which the respondent avoided doing.
[26] Mr West
,
for the respondent,
submitted that the appellants’ pleaded case was that the moment
that the employees were removed from the
Kitsanker premises the
dismissal had then taken place. That was the appellants’ case
which the respondent was asked to answer
in the Court
a
quo.
He
pointed out that it was apparent, however, from Mr Eiujen’s
submissions during
argument that the appellants’ case was then the one which
sought to ask the Court to take even factors
post 6 July 2001
cumulatively into consideration and then conclude that the appellants
were dismissed. Be that as it may, Mr West
submitted that there was
no evidence that the employees were dismissed by the respondent in
terms of the meaning of the word under
the LRA. At most, it could be
argued that they were placed on indefinite suspension.
Analysis and Evaluation
[27] It is trite that the appellants
bear the onus to prove the existence of their alleged dismissal.
10
In the present instance, the appellants’ pleaded case is that
the moment the employees were removed from the workplace at
Kitsanker
on 6 July 2001 they were thereby dismissed. It is common cause that
they were removed from the workplace not by their
employer, the
respondent, but by Kitsanker, their employer’s client.
[28] The Court
a
quo
was
required to determine whether, on the interpretation of the
employment contract and the evidence presented before the Court,
it
could be said that the appellants succeeded in demonstrating on a
balance of probabilities that the employees were dismissed
by the
respondent on 6 July 2001.
[29] Kitsanker
expelled the employees from its premises, upon the employees having
persistently refused to sign the code of conduct.
In order to hold
that, the respondent indeed dismissed the employees within the
meaning of section 186(1), there must be a
nexus
causa
between
the conduct of the respondent and the expulsion of the employees.
Indeed, it would be sufficient to constitute the
nexus
causa
where
a labour broker simply sits back and does nothing to protect the
interests of its employees who are unfairly treated or exploited
by
the labour broker’s client. In
Nape
v INTCS Corporate Solutions (Pty) Ltd
,
11
(
per
Van Niekerk J), the
Labour Court was concerned with the question of the right of a labour
broker to rely on section 189 of the LRA
to justify termination of an
employment relationship after the client, for unfair reasons,
insisted that an employee be removed
from its premises.
In
hoc casu
the
labour broker, in terms of its contractual relationship with the
client, was obliged to accede to the client’s demands.
The
Court held that such agreement, which provided the client with the
power to remove the employee from its premises for any reason
whatsoever, was against public policy and an unlawful breach of the
employee’s right to fair labour practices in terms of
the LRA.
The Court held further that the labour broker was not powerless. It
could resist the client’s unlawful demand by
undertaking the
following:
The labour broker is entitled to
approach a court to compel the client not to insist upon the
removal of an employee where no
fair grounds exist for that
employee to be removed.
The labour broker is also entitled
to resist any attempt by the client to enforce a contractual
provision which is against public
policy.
If the court were to reinstate an
employee into the employ of the labour broker, the labour broker
may enforce such an order
against the client to give effect to the
employee’s rights to fair labour practices.
The labour broker could in such a
case approach either the High Court or the Labour Court for
appropriate relief.
[30] It would therefore appear, on the
strength of the
Nape
decision, that a labour broker is
entitled to resist any arbitrary or unlawful demand by the client to
remove an employee from
the work premises. However, the facts in
Nape
are distinguished from those in the present case, the principal
distinction being that in the present instance the removal of the
employees was, objectively speaking, not for an unfair reason.
Kitsanker had learnt a lesson from the unprotected two-hour work
stoppage which some workers, including the employees, had staged when
they claimed that their demand for the immediate dismissal
of Mr
Mpopo was not taken seriously by the Kitsanker management. In my
view, that demand was, after all, not a reasonable demand.
In the
first place, Mr Mpopo was employed by the respondent and not
Kitsanker and, therefore, it was the responsibility of the
respondent
to discipline him. Then, when the workers submitted their grievances
(against Mr Mpopo) to Kitsanker management, the
latter was obliged to
transmit the grievances to the respondent for the necessary action.
[31] Indeed, there is evidence that
the respondent took immediate action against Mr Mpopo once the
respondent received the grievances
against him on or about 20 June
2001. It is not in dispute that Mr Mpopo was suspended pending a
misconduct enquiry against him,
scheduled for hearing on 5 July 2001.
There is even a letter written by him on 27 July 2001
12
in which, amongst other things, he said:
‘
I’ve
been told that I will get paid while on suspension, with a full
payment, automatically the very same payment is cut off.
No more
payment, why? I am still surprise (sic) about this.’
It was therefore, in my view,
disingenuous of Mr Mnisi, who testified on behalf of the employees in
the Court
a quo,
to claim that he was not aware that, as at 5
July 2001, Mr Mpopo was already on suspension. According to the
employees, Mr Mpopo
was their supervisor. There was simply no way
that he could be absent from work for some number of days without Mr
Mnisi, a shop
steward, being aware of such absence.
[32] Hence, the decision by Kitsanker
to introduce the idea of the code of conduct was fair and reasonable,
in the circumstances.
Further, objectively considered from the point
of view of the content thereof, the code of conduct was, in my view,
a reasonable
step to take in the interests of all parties. Mr Van der
Merscht also accepted that the code of conduct was fair and
reasonable.
As he put it, ‘I was of the opinion that there is
basically nothing in this agreement that was not part of normal good
practice’
13
and ‘I tried to explain to them that there was nothing really
in this agreement that would harm them …’.
14
It is clear, therefore, that had Mr Van der Merscht sought (on behalf
of the respondent) to invoke the
Nape
remedies he would have
done so against his own conscience and convictions. On this basis,
the respondent should, in my view, be
exonerated from any blame in
not coming to the defence of the employees against their removal by
Kitsanker from the work precincts.
[33] In terms of the contract, the
award of assignment to every employee would ‘depend on the
availability of work, which
is afforded to the company by its
clients,… there is accordingly no guarantee of work being
given to the employee.…’
15
Although the work at Kitsanker was not yet completed, it does appear,
on the basis of what I have alluded to above, that the employees
were
the principal contributors to their expulsion from Kitsanker before
the completion of their assignment. However, as the learned
Judge in
the Court
a quo
correctly found, the contract ‘envisaged
the continuation of the relationship between the parties even after
the conclusion
of the assignment at Kitsanker.’ and that ‘[i]t
is also clear … that if a new assignment was secured such
assignment
would be regulated by terms very similar to those in
schedule A’. This finding was in line with Mr Van der Merscht’s
testimony when he said:
‘
If
Kitsanker would not allow them to go back, I would have to find them
alternative employment and if I could not do that; then
the workers
had the option of resigning and then finding themselves work, or I
would have to retrench them.’
[34] Although it appeared to be common
cause that Mr Van der Merscht kept persuading Kitsanker to take the
employees back, it seems
clear to me, given that both the employees
and Kitsanker were apparently steadfast on their stance –
Kitsanker not being
prepared to allow the employees back without them
first signing the code of conduct, on the one hand, and the employees
not being
prepared to sign the code of conduct, on the other - that
the respondent was virtually left with only the two options, namely,
to find the employees other assignments elsewhere or, failing which,
engage the section 189 consultation process toward their
retrenchment.
Obviously, finding them alternative assignments would
not have been an overnight exercise. It would have naturally taken
some time,
particularly bearing in mind the large number of employees
involved and the fact that this whole scenario was a sudden
development
which had taken the respondent by surprise and
unprepared.
[35] Therefore, for the union to have
referred the dispute on 23 July 2001, as it did, was, in the
circumstances, too soon and premature.
The respondent was not
afforded a reasonable time to explore the two options referred to
above. Indeed, it is strange that the
employees were so impatient and
could not afford to wait for the resolution of a dilemma of which
they were the main creators.
In any event, it seems to me that the
employees were at liberty to sue the respondent for unfair labour
practice based on their
apparent indefinite suspension or,
alternatively, they could resign and sue the respondent for
constructive dismissal in terms
of section 186(1)(f) of the LRA.
However, given the clear terms of the contract, including that the
availability of work was not
guaranteed, it is doubtful whether they
would succeed through that route.
[36] Accordingly, I am of the view, on
the facts of this case, that the removal of the employees, on 6 July
2001, from Kitsanker
premises, by Kitsanker management, did not
constitute a termination of the employees’ employment contract
with the respondent
and, therefore, did not constitute a dismissal of
the employees by the respondent within the meaning of section 186(1),
read with
section 187, 188 or 189 of the LRA. Indeed, notwithstanding
the provisions of clause 4.4 of the contract, which entitled the
respondent
to terminate the contract upon Kitsanker having required
an employee to be removed from site, the respondent did not do so in
this
particular instance. Therefore, the enquiry of whether or not
certain terms of the contract (including clause 4.4) were contrary
to
public policy or had the effect of infringing upon the organisational
rights of the employees, in that such terms might have
amounted to
the employees being required to contract themselves out of their
rights against unfair dismissal, becomes irrelevant.
16
To my mind, therefore, the appeal should not be allowed.
[37] Concerning the issue of costs, it
would appear to me, from the nature of this case, that the
appellants’ legal challenge
of their expulsion from the
workplace was not a frivolous and mischievous exercise on their part.
They were entitled to put up
the challenge against what they
apparently
bona fide
perceived to be a violation of their
organisational rights under the LRA and enshrined in the
Constitution. On this basis, notwithstanding
the respondent’s
success in the matter, the award of a costs order against the
appellants was unfair and not in the interests
of justice. In my
view, there should have been no order as to costs. The same should be
the case with respect to costs of the appeal.
The Order
[38] The following order is made:
The appeal is dismissed, save that
the order of the Court
a quo
on the question of costs is set
aside and substituted with the order that there shall be no order as
to costs.
There is no order as to costs of the
appeal.
______________________
NDLOVU, JA
Judge of the Labour Appeal Court
Tlaletsi JA and Landman AJA concur in
the judgment of Ndlovu JA
Appearances
:
For the appellants : Mr M Eiujen
Instructed by : Cheadle Thompson and
Haysom
For the respondent : Mr HP West
Instructed by : Lockette Attorneys
1
Act
66 of 1995.
2
Act
69 of 1984
3
Section
198(1) of the LRA
4
Section
200 of the LRA. See also
National Union
of Mineworkers v Hermic Exploration (Pty) Ltd
(2003)
ILJ 787 (LAC) at paras 37-- 41;
Amalgamated
Engineering Union v Minister of Labour
1949
(4) SA 908
(A) at 910.
5
Section
198(2) of the LRA.
6
Record
Vol 2 at 147.
7
Record,
Vol 6 at 540.
8
Record,
Vol 6 at 553.
9
Record,
Vol 2 at 191 lines 8 to 13.
10
Section
192 of the LRA.
11
(2010)
31 ILJ 2120 (LC);
[2010] 8 BLLR 852
(LC) at para 77.
12
Record
Vol 6 at 548-552.
13
Record
Vol 3 at 263.
14
Record
Vol 3 at 265.
15
Clause
1.2 of the contract.
16
Compare
Barkhuizen v Napier
2007
[7] BCLR 691 (CC);
SA Post Office Ltd v
Mampuele
(2010) 31 ILJ 2051 (LAC);
Mahlamu v CCMA and Others
(2011) 32 ILJ 1122 (LC)