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[2013] ZALAC 31
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Vector Logistics v Lencoane and Others (JA 26/11) [2013] ZALAC 31 (4 October 2013)
REPUBLIC OF
SOUTH AFRICA
THE LABOUR
APPEAL COURT OF SOUTH AFRICA, JOHANNESBURG
Reportable
Case no: JA 26/11
In the matter between:
VECTOR LOGISTICS
.......................................................................................
Appellant
and
MICHAEL LENCOANE AND 75 OTHERS
..................................................
Respondent
heard: 21 February 2013
Delivered: 04 October 2013
CORAM: WAGLAY, JP et TLALETSI,
adjpet COPPIN, aja
_________________________________________________________
__
________
JUDGMENT
TLALETSI JA
Introduction
[1] This is an appeal directed at the
judgment of the Labour Court (Nyman AJ) in which it dismissed the
appellant’s special
plea on 15 September 2010 as well asits
judgment and order which was handed down on 20 October 2010. The
judgment concerned an
alleged unfair dismissal of the respondentsby
their erstwhile employer, the appellant. The respondents had
approached the court
in that regard.
[2] The Labour Court ruled in favour
of the respondents by dismissing the special plea raised by the
appellantchallenging its jurisdiction
to deal with the dispute
regarding ten (10) of the respondents. In respect of the merits,the
Labour Court held that the dismissal
of all the respondents was both
substantively and procedurally unfair and made ordersin the following
terms:
‘
(a)
The applicants’ dismissal by the respondent is hereby declared
to have been unfair as contemplated by section 188(1) of
the Labour
Relations Act 66 of 1995.
(b)
The respondent is ordered to reinstate the 61 applicants to the
positions they held in its employment immediately before their
dismissal on 21 April 2005.
(c)
The order in (b) above is to operate with retrospective effect to 7
May 2010.
(d)
The respondent is ordered to reinstate the additional 9 applicants
numbered 65, 66, 67, 69, 70, 71, 72, 73, and 74 to the positions
they
held in its employment immediately before their dismissal on 20 April
2005.
(e)
The order in (d) above is to operate with retrospective effect to 8
May 2010.
(f)
The respondent is ordered to pay to the substituted applicants
numbered 4, 70, 68, 55, 48 and 6 an amount of compensation equivalent
to 12 months’ pay.
(g)
No order as to costs.’
[3] The appellant was granted leave to
appeal to this Court on petitionafter leave to appeal was refused by
the Labour Court.
Background
[4] The issues
presented in this appeal fall to be determined in the context of the
following background which is, unless otherwise
indicated, common
cause. The appellant transports frozen and fresh food to retail
outlets, restaurants and fast-food outlets. It
has four branches.
1
The present matter
concerns only its Roodepoort branch. The respondents were all
employed by the appellant either as drivers, or
van assistants. Their
engagement dates varied from the late 1960’s toabout 2003.
2
[5] During 2003 and
the subsequent year, the appellant sought to engage its employees
through their trade unions on its operational
need to change the
morning starting time from 06h45 to 05h45. It is important to note
that some of the employees had their starting
times stipulated in
their contracts of employment. Due to disputes about the
representation of the trade unions, the process was
stalled for long
periods, but came to a head in 2005.
3
[6] On 25 January
2005,Rin de Wet(“de Wet”), who was at the time employed
by the appellant as its General Manager –Inland
Operations,
issued an internal memorandum to all staff stating,
inter
alia,
that
the appellant would like to move forward with the consultation
process regarding the changes that were required by business
in the
delivery services trade. The memorandum stated that the appellant
needed to communicate with recognised employee’representatives
so that it could engage in effective communication and not with
individuals “who are not recognised as a result of disciplinary
outcomes”.
4
[7] On 14 February
2005, a further memorandum was issued to the staff regarding
representation. It recorded that a balloting process
that was to take
place to elect employee representatives to facilitate effective
communication process betweenmanagement and the
employees did not
take place, resulting in there being no formal communication links
with the employees. The memorandum concluded
that “[m]anagement
is therefore forced to implement any business changes without
consultation.”
5
[8] On 17 February
2005, the appellant issued another memorandum stating that attempts
to have employee representatives elected
had failed and that it was
obliged to change the starting time of the respondents from 06h45 to
05h45 with effect from 7 March
2005 due to challenges it faced in the
industry.
6
The
memorandum stated further that the employees who had difficulties
with coming to work earlier should discuss their problems
with their
union officials. The union officials were in turn requested to assist
the employees by collating reported problems and
to report them to
management within 10 days of the notice. Management would thereafter
consult with affected employees/union officials
and jointly explore
the possibility of overcoming any serious problem that existed.
[9] On 4 March
2005, a meeting was held between appellant and union representatives.
The minutes of this meeting were recorded by
Mr Franklin
Oosthuizen(“Oosthuizen”) who was the appellant’s
Human Resources Manager at the time. Among the issues
discussed at
this meeting was the new starting time. The minutes reflect
inter
alia
,
that the following was stated byMr Percy Maphumulo (“Maphumulo”)
and RinDe Wet:
‘
PM:
As we indicated to you guys, time is against us and we need to
implement this new starting time as soon as possible. What we
propose
is that wemeet next week Friday 11
th
March
2005 to sort out whatever issues are still outstanding with the
starting times. We will also discuss the implementation of
the new
starting times. You as the Union will have seven days from today to
come up with any outstanding issues with regard to
the starting
times. You can send your concerns to us during the week and we will
investigate, and it can then be addressed at our
meeting on the 11
th
March
2005.
MP:
With whom can we communicate to raise our concerns?
RD:
All your concerns can be directed to me personally.’
7
It is common cause that the trade
unions had concerns regarding the change in starting time. They also
presented suggestions for
consideration rather than changing starting
times. They indicated
inter alia
, that it would not help for
the trucks to arrive early when the retail stores, which were
toreceivethe goods, opened late; that
the introduction of appointment
deliveries be considered and that “routing” was a problem
in itself.
[10] On 11 March 2005, a further
follow-up meeting was held wherethe employee representatives tabled
five points for discussion
which impacted on the new starting time.
The issues raised were that one of the competitors had provided more
van assistants; that
an incentive be given to drivers who took out a
second delivery; that they wanted to know what would happen in the
event of a truck
not being ready to depart at the new starting time
due to loading problems; concerning the effectiveness of the Manual
for Road
Show procedures and that the employees encountered problems
in getting transport to work early in the morning. Management
responded
to each item raised by the employees. On the issue of
change of starting time, the minutes reflect the following:
‘
Regarding
communication of the new starting times, it was agreed that the shop
stewards would brief their members verbally on Monday
14 March 2005.
If any individuals had specific problems, the shop stewards were to
report to Mr de Wet. Management would confirm
the starting time
change in an official communiqué that would be placed on all
the notice boards on Tuesday 15 March 2005.
Implementation
of the new 05:45 starting time system was confirmed as Thursday 31
March 2005.
The
meeting then closed.’
It must be stated that there is some
disagreement about the accuracy of the above recording. Mmesi,who was
one of the employee representatives
at the meeting and who testified
on behalf of the respondents,disputed that the minutes were a correct
reflection of the meeting,
because there was never an agreement
reached on the new starting times.De Wet testified that agreement on
the new starting time
was reached on 4 March 2005.
However,Oosthuizen,on the other hand,testified that an agreement on
the new starting time was only
reached at the meeting of 11 March and
not at the previous meeting of 4 March 2005.
[11] On
8 April
2005
,the appellant addressed a letter to all drivers and van
assistants stating
inter alia
that:
‘
We
confirm that it was agreed that Drivers and Van assistants’
contracts of employment would change as from 31 March 2005,
to
accommodate the required new starting time of 05:45.
The
original date for implementation of the change was 7 March 2005,
however at the meeting on 4 March 2005 between the union officials,
management and workplace representatives, agreement was reached to
postpone the starting time until 31 March 2005.
On
31 March 2005
the drivers and Van
assistants failed to report for work at the agreed 05:45 start time.
Employees are advised that should the changed
starting time not be
effected from Wednesday 13 April 2004, disciplinary action will be
taken which could result in termination
of employees’ contracts
of employment.
The
union officials are requested to confirm by close of business of
Tuesday 12 April 2005
, that all affected employees will in fact be
working in accordance with changed terms and conditions of
employment.
Should the necessary written undertaking not be
received, we will take alternative measures to ensure that deliveries
are made
to our customers timeously.’
Copies of this letter were also sent
to the unions.
[12] It appears that,shortly
thereafter, or on the same day, the South African Food and Allied
Trade Union (SAFATU), which was one
of the recognised trade unionsat
the appellant, replied to the above letter of 8 April 2005. The
letter stated,
inter alia,
that,
‘
Meetings
between the parties did take place and proposals and inputs were
sought from labour to resolve the issues at hand. The
new starting
time was one of the items in the meetings. Labour responded with
constructive proposals in writing to the employer,
but has not
received any feed back from same, as this would have culminated in an
all inclusive agreement.
We
believe that the employer is disregarding the labour inputs and
hereby distance ourselves from the contents of your facsimile
as
there has never been an agreement between the parties.
However
we believe that the matter can only be resolved by the parties and
hereby propose an urgent meeting for the 14 April 2005
at 05:30 in
the company premises.’
It is not disputed that the appellant
did not respond to this letter.
[13] On 13 April 2005,the respondents
again failed to comply with the ultimatum and 65 of them were issued
with identical final
written warnings. The notice, “Disciplinary
Action Form” recorded the misconduct as “on-going refusal
to obey
lawful instructions to comply with the operational need for
transport staff to start work at 05:45, in order to meet our
customers’
demands for timeous delivery of their orders”.
The respondents were directed to leave the workplace and to either
report
the next day at 05:45 or face dismissal.
[14] The 65 employees responded by
lodging an appeal to the appellant against their “convictions”
on misconduct and
the final written warning against them. They also
complained that they were denied access to the premises by the
appellant. The
grounds of appeal against their alleged misconduct
conviction were,
inter alia
, that they were not served with
any notification for the disciplinary hearings against them; that
there was no agreement regarding
the new starting time;that the
actual disciplinary inquiries against them were not held; and that
they were not given an opportunity
to present their cases.
[15] On 13 April 2005, appellant’s
attorneys wrote to the trade unions (SAFATU and FAWU) calling upon
them to intervene and
to provide them with a written undertaking by
16h00 that day to the effectthat their members would, with effect
from 14 April 2005,
commence work “as agreed at 05h45”
failing which an urgent order would be sought from the Labour Court
to direct their
members to commence work “at the agreed
starting time of 05h45”and,further,that a punitive costs order
would be sought
against the unions and its members. The letter
concluded by stating that disciplinary action would also be
instituted and the policy
of “no work, no pay” would also
be applied.
[16] On 13 April
2005, the two unions replied to the appellant’s attorneys’
letters. They informed them that they were
unable to respond to the
issues raised in the letter as they still had to consult their
members first, which they were unable to
do under the circumstances.
They mentioned further that they had submitted proposals to the
appellant at the two meetingsthat they
had with its representatives
(concerning the starting time) and had not received any response. The
letter set out a detailed response
with reasons to the instruction
that they start work at 05h45. They further accused the appellant of
instituting a lockout by turning
the employees away from their
workplace.
8
They further
complained that the appellant hadunilaterally changed the working
conditions of the employees. The unions demanded
that the lockout be
discontinued and thatnegotiations with the employee representatives
be resumed. They further denied agreeing
to the new starting time.
[17] On 15 April
2005, the appellant served its application for urgent relief on the
respondents.The application was heard on 18
April 2005. The Labour
Court (per Revelas J) issued a
rule
nisi
returnable
on 5 May 2005. It is common cause that 10 of the respondents were not
cited as the respondents in the said application.
On 18 April 2005,
the appellant’s attorneys sent a letter to the unions and the
employees referring to the court order calling
on them to commence
work at 05h45 with immediate effect by 19 April 2005 failing which
they would face dismissal.
[18] On 19 April 2005, the respondents
(65 in number) were issued with notices to attend disciplinary
enquiries to be held on 20
April 2005. The respondents were charged
with the following misconduct allegations:
(1) Contempt of Court Order;
(2) Breach of individual contract of
employment;
(3) Contravention of the Labour
Relations Act; and
(4) Breach of various collective
agreements.
The respondents
were advised to elect five representatives who were to show cause at
the collective disciplinary enquiry why their
individual contracts of
employment should not be summarily terminated. They were further
informed that they were all on a final
written warning for not
starting work at 05h45.
9
[19] Indeed, a joint disciplinary
enquiry was held on 20 April 2005 for the 65 respondents as
scheduled. The employees were represented
by Mmesi, S Masengeni, R
Selowa, S Thinawe and V Mnisi. Mmesi denied all the charges preferred
against the employees and raised
the following as their defences.
19.1. that an improper application was
made to the Labour Court; there was no breach of employment
contracts; the [appellant]has
to prove the allegation that the LRA
has been contravened; that the agreement was null and void as it
could not bind members who
had already resigned their membership of
the two unions. They further challenged the process as being unfair
and submitted that
the individual employees should have been
consulted pending the finalisation of a recognition agreement with
SAIWU (South African
Intellectual Workers Union). Mmesi concluded by
asking why the appellant did not follow the provisions of section 24
of the LRA
if it had problems recognising the two unions.
19.2. After Mmesi’s address, the
chairperson of the inquiry (Hosken) had the following to say:
‘
Chairperson:
Okay, thank you
.
I suggest Mr De Wet and I caucus
,
guys are welcome to hang on here, or whatever. Just give us 15
minutes if that’s okay. The time is now quarter past. We
say we
meet again at half past.’(emphasis added)
19.3. After the adjournment the
chairperson thanked the employee representatives “for the
opportunity to caucus”.The
chairperson went on to state: “We
would just like to respond. I don’t know if Mr De Wet would
like to respond or shall
I”. De Wet responded by saying “very
well”.Thereafter the chairperson addressed the employee
representatives
by responding to the defences they raised against the
charges. He mentioned that three points have been addressed by the
Labour
Court itself by declaring that the employees have breached the
LRA. On the issue relating to the validity of the agreement, the
chairperson mentioned that “we have agreements that until they
are cancelled remain valid.” On the issue relating to
recognising the union, he stated that “we currently don’t
have problems with the unions.” On the issue relating
to
consulting the individual employees, the chairperson responded by
stating that the matter has been decided by the Labour Court
and they
made attempts in good faith to consult with the employees and the
union without success.
De Wet, upon enquiry by the
chairperson if he had missed anything, added that an opportunity to
appoint representatives through
a ballot process had also failed.
19.4. The chairperson concluded thus:
‘
We
have taken this, we’ve taken advice of course, not just legal
advice. We’ve taken advice from the Labour Court, and
we are
going to abide by their terms and conditions. We do have a Court
order which you people are in breach of, and accordingly
we are going
to now impose the sanction of dismissal, and we will write onto forms
for each and every individual who is affected.
They will be handed to
them, as well offered to them, that is also within their rights. So
if you will you’re going to have
to excuse us while we get this
sorted out, and we will revert to you this morning. It’s still
– ja, we can do it this
morning still. Thank you.
The
meeting is closing, the time is 08:40.’
19.5. On 20 April 2005, letters of
dismissal were handed to all the affected employees. The letters set
out the defences raised
by the employees and the responses made by
the chairperson and De Wet and concluded thus:
‘
In
the circumstances, we confirm that it has been found that employees
are:-
In
breach of their individual contracts of employment in that employees
refuse to commence work at 05:45;
Are
participating in unprotected industrial action in that they are
refusing to commence work at 05:45 and are demanding that
they be
retrenched and paid a severance package;
In
breach of the Recognition Agreement and other collective agreements
requiring employees to work flexible working hours;
In
contempt of the Court Order obtained in the Labour Court on 18 April
2005.
Employees
are, in the circumstances, advised that their contracts of employment
are summarily terminated. All monies due to employees
from the
company will be paid to them by the end of this current month, April
2005. The company will assist where possible in expediting
any
provident / retirement payments due from NBC.
As
repeatedly stated to employees, the Company can no longer tolerate
employees’ refusal to work in terms of the Company’s
operational requirements and the demands of its customers.
Unprotected industrial action cannot be tolerated.
Dismissal
is the last resort.’
[20] On 21 April 2005, the remaining
ten (10)respondents were issued with final written warnings requiring
them to comply by 22
April 2005 or face dismissal. A disciplinary
inquiry was convened on 21 April 2005 at 10h30 and was chaired by De
Wet who represented
the appellant at the previous inquiry of the
other respondents on 20 April 2005. De Wet recorded that the 10
employees wanted to
have their inquiry held that day as they were
aware of everything that had been happening at the appellant. The
charges were read
by De Wet and heasked the employees to provide
reasons why they should not be dismissed. Their response was that
they had no reasons
why they should not be dismissed and wanted to be
part of the other respondents who had been dismissed. They were then
dismissed.
It is significant to note that the charges preferred
against these employees were the same as those against their
colleagues except
that the ten(10 were not charged for breach of a
Court Order.
[21] On 5 May 2005, the rule
nisi
that was issued by Revelas J was discharged. On 26 April 2005, 66
respondents referred a dispute to the Commission for Conciliation,
Mediation and Arbitration (“CCMA”) and were given the
case number: GAJB 13488/05.After various delays, the parties
agreed
at a pre-trial conference held in July 2009, that the CCMA does not
have jurisdiction to determine the dispute.
[22] On 17 September 2009, the
respondents initiated proceedings in the Labour Court. The matter was
heard in September 2010, the
judgment was handed down on 20 October
2010.
[23] The appellant’s special
plea,which was the subject of the ruling by the Court below,was
raised in the Reply to the Respondents’
Statement of Case. The
contention was that ten(10)of the employees listed in annexure A2 to
the statement of case,were not part
of the referral of the dispute
for conciliation to the CCMA. Their dispute, it was contended, was
therefore not referred either
timeously or at all for conciliation as
is requested in terms of
s 191(1)(a)
of the
Labour Relations Act
(“the Act”) and as such their dispute has not been
conciliated. The Labour Court, therefore, did not have jurisdiction
to adjudicate their alleged unfair dismissal dispute for lack of
referral to the CCMA for conciliation.
[24] In amplification of the point
in
limine,
the appellant contended that it only received the
referral under CCMA case number GAJB13488/05. This referral only
listed 66 employees
to the exclusion of the disputed ten(10). It was
further denied that the appellant received a referral under CCMA case
number GAJB12528/05
in respect of the thirteen(13)employees that
included the disputed ten(10) respondents. The appellant further
disputed the respondents’
contention that case number
GAJB13488/05 was “joined” with case number GAJB12528/05
in that no application for joinder
was brought by the respondents.
The appellant further relied on a letter sent by its former attorneys
of record dated 23 August
2005 to the SAIWU confirming that at the
conciliation meeting of 22 August 2005 the union’s
representative had indicated
that case number GAJB12528/05 had been
incorrectly allocated to the matter by the CCMA as a duplicate case
number.
[25] The respondents’ version of
the events was simply that there was a referral of the dispute to the
CCMA by the identified
13employees and that their contention is
supported by the CCMA’s electronic records, which show that
there were two separate
unfair dismissals disputes lodged against the
same appellant under the two case referral numbers referred to above.
The one referral
cited the referring party as SAIWU on behalf of
Selowa R and sixty-five(65) others and the other as Mesi and
seventy-eight(78)
others. “Mesi” is one of the thirteen
(13) disputed respondents. The two referrals were subsequently
combined under
one case number. However, before the two were combined
two separate conciliation proceedings were held and two certificates
of
non-resolution of the dispute were issued by a commissioner of the
CCMA.
[26] Ruling on the special plea, the
Labour Court found that the respondents had proved on a balance of
probabilities that the Court
had jurisdiction in respect of the
disputed employees. The Labour Court accepted the respondents’
argument that the certificate
of non-resolution constituted evidence
that it had jurisdiction in respect of the disputed employees; that
the two computer print-outs
verified information shown on the
certificate of non-resolution; that there were two separate referrals
with two separate case
numbers and that in both computer print-outs
the appellant is cited as the employer in respect of both cases.
[27] The court
a quo
held that
the letter from the attorneys referred to above confirmed the
respondents’ version that there was a duplication
of the two
referrals as opposed to casting any doubt on the validity of the
certificate of outcome. That it was common cause that
the appellant
received the certificate of non-resolution of the dispute on 28 June
2005 (and was represented at the conciliation
meeting). Furthermore,
SAIWU instituted a review application as evidenced by a letter dated
14 August 2006 prepared by the appellant’s
attorneys of record.
The Labour Court held further that the certificate of non-resolution
should unequivocally state that the two
referrals had been combined;
that the CCMA directive dated 23 August 2005 described the
respondents as “SAIWU obo 75 members”;
and finally, that
the appellant failed to institute proceedings to review the
certificate of outcome and elected to only raise
its objection to the
jurisdiction of the Labour Court five years later. Consequently, the
Labour Court ruled that it had jurisdiction
in respect of the
disputed employees and dismissed the special plea with no order as to
costs.
[28] The Labour Court analysed the
evidence regarding each and every misconduct charge preferred against
the employees and made
the following findings with regard to the
unfairness or otherwise of the dismissal of the employees which are
relevant to this
appeal:
28.1. that the documentary and oral
evidence point towards the fact that the dismissal of the respondents
was final and was not
effected to compel them to agree to the
starting time of 05h45. The dismissal of the respondent employees
does not fall within
the ambit of section 187(1)(c) of the Act and
therefore does not constitute an automatically unfair dismissal.
28.1.1. that the appellant bore the
onus
to show that the reason for the dismissal of the
respondent employees was fora fair reason related to their conduct or
incapacity
or based on the appellant’s operational requirements
and that the dismissal was effected in accordance with a fair
procedure.
28.2. thereasons for the dismissal of
the respondent employees as described in the notices of dismissal are
that they were:
28.2.1. in breach of their individual
contracts of employment in that they refused to commence work at
05h45;
28.2.2. participating in unprotected
industrial action in that they were refusing to commence work at
05h45 and are demanding that
they be retrenched and paid severance
packages; and
28.2.3. in breach of the Recognition
Agreement and other collective agreements requiring employees to work
flexible working hours.
28.3. the starting time
incasu
did not constitute a flexible working pattern but a permanent change
to a term of a condition of employment, since among others,
the
starting time is stipulated as a specific term in the contract of
employment.
28.4. the said term of a condition of
employment could only be changed through collective bargaining with
the trade unions since
a term of employment contract constitutes a
dispute of interest and not a dispute of right and would be the
subject matter for
collective bargaining.
28.5. there is no acceptable evidence
to show that the employees demanded to be paid severance packages.
They also did not participate
in unprotected industrial action. They
reported for duty at06h45 until their dismissal. It is rather the
appellant who had engaged
in an unprotected lock-out before the final
dismissal, in contravention of Section 64 of the Act.
28.6. the employees were not in breach
of any recognition agreement.
28.7. by failing to report for work at
05h45 the employees were indeed in breach of the Court order.
However, contempt of court
constitutes conduct in relation to the
Court and as such it is the Court and not the employer who may impose
a sanction for the
breach:
28.8. the reason for the dismissal of
the respondent employees was because of the appellant’s
operational requirements and
that save for the incomplete
consultations that took place, the requirements of s198A have not
been met.
28.9. the dismissal of the respondent
employees was substantively unfair.
28.10. the dismissal of the
sixty-five( 65) employees was procedurally unfair because Hosken(the
chairperson of the enquiry) and
de Wet, (the respondent’s
witness) had a caucus after the evidence was led at the disciplinary
enquiry to consider the verdict.
28.11. the dismissal of the ten(10)
remaining respondents was procedurally unfair because their dismissal
was a forgone conclusion
and the appellant was only going through the
motions of conducting a disciplinary enquiry.
28.12. that none of the circumstances
set out in s193(2) of the Act that would disentitle the respondent
employees to their reinstatement
were present. The evidence that
other employees had been employed in the positions of the applicants
does not constitute acceptable
evidence that reinstatement is not
reasonably practicable.
28.13. that in order to ameliorate the
burden of retrospective reinstatement on the appellant, it would be
fair and equitable to
limit the retrospective period of the order to
a period of 6 months from the date of judgment.
The Appeal
[29] The notice of appeal filed by the
appellant does set out the grounds of appeal upon which the ruling
and judgment of the Court
below are challenged. However, in the
petition for leave to appeal, the following are what the appellant
regards as essential grounds,
which were also pursued in argument in
this Court. These are that the Court below erred in finding that:
29.1. The hours of work were
stipulated as a specific term in the individual contracts of
employment. It is contended that the Labour
Court should have found
that a change in work times was a change in work practice (which
falls within the prerogative of the employer)
and not a change in the
essential nature of the job. The new starting time was not a material
term or condition of employment;
29.2. The starting time was not
changed by agreement;
29.3. The appellant was entitled to
rely on the court order as the basis for its instruction since the
respondents were obliged
to comply with a court order stating the
starting time in the interim;
29.4. The respondents had discharged
the
onus
to prove that the Labour Court had jurisdiction over
the thirteen (13) disputed respondent employees;
29.5 The reinstatement of the
employees was appropriate where there had been a delay which cannot
be attributed to the appellant:
and that the, respondents who were in
breach of the order approached that court with “unclean hands”.
[30] Mr Watt-Pringle SC, who appeared
on behalf of the appellant, made the following submissions:
30.1. The respondents were in fact
dismissed for their repeated failure to heed a lawful instruction by
management to commence work
an hour earlier than had previously been
the case for operational reasons;
30.2. At the time of their dismissal,
the respondents were on final written warnings for this transgression
and all but ten10 of
them had been ordered by the Labour Court to
comply with these instructions which they nevertheless persisted to
ignore.
[31] Counsel contended further that
the respondents agreed through their representative to the change in
work practice; that it
in any event lay within the prerogative of
management to alter a work practice of commencement of working hours.
It was contended
further that the interim court order in any event
determined the legal position between the employer and employees and
for as long
as the order stood the respondents, who were subject to
the order, were obliged to comply with the court order.
[32] With regard to procedural
fairness, counsel for the appellant contended that the undisputed
evidence relating to the disciplinary
inquiry of sixty-five (65) of
the respondents was that the chairperson and the witness enjoyed a
“smoke break” together
and not for purpose of discussing
the merits of the case. As regards the second disciplinary inquiry,
it was contended that the
respondents failed to mount any form of
defence and invited management to dismiss them just as the other
respondents had been dismissed.
[33] As to sanction, counsel contended
that reinstatement was impracticable and inappropriate because of the
breakdown in the trust
relationship between the parties, the lengthy
delay between the date of dismissal and the date of the reinstatement
order, and
the wanton disregard by the majority of the respondents
for the court order with the result that they approached the Court
with
“unclean hands.”
The point
in
limine
.
[34] Section 191(1)
of the Act prescribes that a dispute of an alleged unfair dismissalbe
referred to the CCMA or the relevant council,
as the case may be, for
conciliation. The dispute can only be referred to arbitration or the
Labour Court, as the case may be,
after the commissioner or the
council has certified that the dispute remains unresolved, or a
period of 30 days has expired since
the CCMA or the council received
the referral of the dispute. Therefore, in the absence of a referral
to conciliation, or of a
certificate to the effect that conciliation
has failed, or the expiry of a period of 30 days since the matter had
been referred
to conciliation, the Labour court has no jurisdiction
to adjudicate the dispute.
10
[35] In my view, the court below
cannot be faulted for concluding that the respondents had
successfully discharged the
onus
of showing that the court had
jurisdiction. The court
a quo
did the best it could under the
circumstances. It considered both the documentary as well as the oral
evidence placed before it,
as shown above, and provided detailed
reasons for its conclusion which require no repetition. It is evident
that there were indeed
two referrals of the disputeagainst the
appellant on the same set of facts and incident. Both referrals were
conciliated at the
CCMA and certificates to the effect that the
disputes that were referred could not be conciliated were issued. It
is the very dispute
that the court
a quo
dealt with in this
matter. The appellant contended that although there was evidence of a
second CCMA referral, there was no evidence,
or proofthat it related
to a referral on behalf of the disputed respondents. It is surprising
that the appellant accepts the fact
that there were two case
referrals, but still contends that it does not have any record of
receiving the other referral. There
was no evidence presented to
suggest that there was another dispute different from the one
adjudicated by the court below that
existed between the parties. In
the absence of evidence to the contrary, it is, in my view, not
unreasonable to conclude, in the
circumstances, that it was the same
dispute that was referred. Furthermore, the two referrals cover the
number of the respondents
and Mmesi, who testified on behalf of the
respondents, appears in the list of the disputed respondents.The
appeal on the point
in limine
should therefore, in my view,
not succeed.I now proceed to consider the appeal on the merits of the
dispute.
[36] The common law
position with regard to change in terms and conditions of employment
is that an employer may not unilaterally
change the terms and
conditions of an employee. Such unilateral change is unlawful and the
affected employee has an election to
either resile from the contract
or to sue for damages in terms of the contract. The Act treats
unilateral variations of the terms
and conditions of employment as a
subject for collective bargaining. However, the employees are not
deprived of any remedy other
than strike actionwhere the employer has
unilaterally changed the employment contract.
11
[37] There are
decisions that dealt with the question whether a change in shift
patterns and shift systems amounted to a change
in the terms and
conditions of employment or whether that merely amounted to a change
in work practice. In
AMauchle
(Pty) Ltd t/a PrecisionTools v NUMSA andOthers,
12
the
decision heavily relied upon by the appellant,the predecessor to this
Court, had to consider a situation where employees were
instructed to
operate two machines instead of one machine as has been the case all
the time. The then LAC held as follows:
‘
The
second question which must be decided is the broad one whether the
instruction to operate two machines was lawful. If that instruction
constituted a unilateral amendment to the terms of employment of the
applicant, the instruction would have been unlawful. The narrower
inquiry, consequently, is whether the instruction did constitute a
unilateral amendment to the terms of employment of the applicants.
The
evidence of what constitute the terms of employment of the applicants
was very vague. Most of the applicants did not sign letters
of
appointment. They were employed as operators in terms of oral
contracts and were trained on machines upon the commencement of
their
employment. The more recently employed applicants signed letters of
appointment in which it was specified that they were
appointed as
operators and required to perform any task that might reasonably be
expected of them.
On
those facts it was not a term of the contracts of employment that the
applicants would operate only one machine. A description
of the work
to be performed as that of ‘operator’ should not, in my
view, ‘be construed inflexibly provided that
the fundamental
nature of the work to be performed is not altered’(Wallis
Labour
and Emploment Law
para
45 at 7-19). I agree with the view expressed by the learned author at
7-23 n9 that employees do not have a vested right to
preserve their
working obligations completely unchanged as from the moment when they
first begin work. It is only[if the changes]
are so dramatic as to
amount to a requirement that the employee undertakes an entirely
different job that there is a right to refuse
to do the job in the
required manner…’
13
[38] A similar
approach was adopted by the Labour Court in
SA
Police Union v National Commissioner of SA Police Service,
14
where the court had
to consider an implementation of an eight hour shift system by SAPS
in the place of a prevailing 12 hour shift
system. The Labour court
held that:
‘
I
agree with Mr. Bruinders that clause 1 of agreement 5/2002 expressly
grants a right to work 8 hour or 12 hour shifts at the discretion
and
convenience of the Commissioner. There is no evidence before me, nor
has any argument to such effect been made, to support
a claim that a
tacit term exists conferring the right to work a 12 hour shift. Nor
do the regulations imply any such term into
the contract. In short,
it was not a term of the contract of employment that employees
working 12-hour shifts would always be entitled
to do so. Without
express, implied or tacit contractual rights to such effect, the
employees do not have a vested right to preserve
their working times
unchanged for all time. The alteration of shifts does not result in
the employees being required to perform
a different job thereby
entitling them to claim a material breach or alteration in the
supposition of the contract. The change
in timing does not amount to
a change in the nature of the job. The shift system was accordingly
merely a work practice not a term
of employment. That this is so is
borne out by the description of the shift system as such in an
earlier collective agreement.
Clause 3 of agreement 2/2000 provides:
“the employees who currently perform twelve-hour shifts will
continue with this
work
practice
”.
Hence, a change in that work practice was not per se a breach of
contract.’
[39] It is significant to note that
all these decisions emphasised the fact thatthere was no contractual
right, based either on
the employment contract or collective
agreement, providing a right to the employee, expressly, tacitly or
impliedly, against unilateral
change to working terms and
conditions.This means, therefore, that if the contracts of employment
or the collective agreements
provided otherwise, changing the shift
patterns or systems would not be regarded as a mere work practice,
but a term of employment
irrespective of what effect or difference
the unilateral change would have on the employee’s work.
[40] In
Air
Products (Pty) Ltd v CWIU andAnother
,
15
theemployee was
charged with insubordination and dismissed for his refusal to accept
a transfer from one plant to another, where
he would be required to
perform night shift which was not done in the first plant. His
position in the first plant had been declared
redundant on the
employer’s operational requirements. Myburg JP, who wrote for
the majority, and also the scribe in
A
Mauchle (Pty) Ltd
,
held
inter
alia
,
that the transfer of the employee did not constitute an amendment to
the contract of employment because it was not an express,
implied or
tacit term of the contract of employment that he would only work at
the one plant. He was employed as an operator and
he would do the
same work at the new plant, the only difference being that he would
be required to do night shift. The majority
held further that the
company never intended to retrench the employee but to alleviate the
pressure on the plant at which he worked.
Furthermore, the fact that
there was a moratorium on retrenchments placed by a collective
agreement would have precluded the employer
from retrenching the
employee. The majority concludedthat there was no obligation on the
employer to consult the employee for transferring
him. All that the
employer was required to do, as a matter of fairness and sound
industrial relations and peace, was to attempt
to persuade the
employee to co-operate and to accept the change in working
conditions, which the employer did unsuccessfully. The
majority
finally found the conduct of the employee to amount to gross
insubordination and that the employer had a valid reason
to dismiss
him.
[41] The view adopted by the minority
(Froneman DJP) was, in my view, with respect, correct, as well as
more sensible and reasonable
in circumstances of the case. Froneman
DJP differed with the majorityin three areas, namely, the different
emphasis on the significance
of certain facts, the majority’s
inconsistency in the application of their own view of the law to the
facts and the law.
Froneman DJP emphasised the fact that the employee
was dismissed for his refusal to obey an instruction from the
employer to move
to another department, after a decision was taken
that his post in his department had become redundant. Both decisions
to declare
his position redundant and to transfer him were taken
without consulting the employee. The employee was also going to work
night
shift which had not been the case at his former department.
[42] With regard to
the reliance of the majority view in
A
Mauchle (Pty) Ltd
,Froneman
DJP hadthe following to say:
‘
The
logical consequence of this approach is that it is futile exercise,
when determining fairness, to seek guidance from decided
cases on
matters of principle. For the reasons that I will later set out I do
not, with respect, agree that the approach apparent
from the excerpts
quoted above should still be followed. I am unsure, however, where
exactly the majority stands in this regard
, because the judgment
does refer to and rely on thedecisions in
Mauchle
(Pty) Ltd t/a Precision Tools
…
,
Atlantis
Diesel Engines v National Union of Metalworks of South Africa
(1994)
15 ILJ 1247(A). In terms of the
Vetsak
decision
these cases did not lay down binding legal principles, or even
guidelines. They cannot, therefore, be regarded as binding
authority.’
16
[43] In conclusion,Froneman DJP found
the decision taken to declare the employee’s position redundant
and to transfer him
without consulting him, as well as the
instruction to report for work at the other department, to have been
unfair and held that
the employee’s dismissal was consequently
unfair.
[44] The facts of this case are
distinguishable from the facts and circumstances of the cases
referred to above. In this case,some
of the contracts specified the
starting times of the employees. They are referred to as “The
Official Hours of Work”.
Furthermore, the employees have been
working these times for many years and changing them would without
doubt have an effect in
the manner in which they had structured their
lives for many years. It would, therefore, be not only unfair, but
also unreasonable
for the appellant to change the starting time
without a meaningfulengagement process with the affected employees
with a view to
reaching an agreement. It would be unfair to the
employees in their position to be compelled to change what has been a
term of
their contract, because of the employer’s operational
reasons, and comply with an instruction under threat of a
disciplinary
inquiry and subsequent dismissal.
[45] It is important to observe that
the appellant’s conduct at all times was consistent regarding
the starting times as a
term and condition of employment for the
employees. At no stage during the parties’ engagement was it
categorically stated
by the appellant that it did not regard the
starting times as a term and condition of employment. The employment
of these words
was used in the correspondence from the appellant and
in the minutes taken by its officials.Oosthuizen conceded, during
cross-examination,that
what the appellant wanted to achieve was to
change the terms and conditions of employment.For this Court to find
that even if the
starting times were indeed terms and conditions of
employment,they were nevertheless immaterial, would be to depart from
the terms
of the parties’ contract, and be tantamount to making
a new contract for the parties. It is, therefore, appropriate to
consider
the case that was actually presented by the appellant, which
had always been that there was an agreement on the change in the
starting
times and that the refusal by the respondents to comply with
the agreed starting times was unreasonable, warranting disciplinary
action.The fact that some of the contracts of employment did not
stipulate the starting times seems not to have been an issue during
the engagement between the parties. Neither was it an issue in the
court
a quo
. This may be the reason why there was no
distinction drawn in the court
a quo
between those employees
whose contracts stipulated stating times and those whose contracts
did not.
Was there agreement on the new
starting time?
[46] The question whether there was
agreement between the appellant and the respondents’
representative to the change in the
starting time is a factual
inquiry that must be determined on the facts presented to the Court.
The evidence on record does not
support the contention that there was
indeed an agreement. The decision to change the starting time was
taken by the appellant
unilaterally and itthereafter sought the
consentofthe respondents’ representatives to accept and
implement it. It is evident
from the memorandum of 14 February 2005
that no agreement is mentioned. The memorandum states in no uncertain
terms that management
is “forced to implement any business
changes without consultation.” This was after the ballot
process to elect the
employees’ representative did not take
place. This memorandum was followed by another one of 17 February
2005 wherein the
appellant indicated, among others, that it was
obliged to change the starting times of the respondents and offered a
process to
address the employees’ problems regarding its
decision.
[47] The minutes of 4 March 2005 only
show that the appellant’s management was pleading with the
respondents’ representatives
to accept the new starting time
and further offered to address the concerns of the employees
regarding implementation of the new
starting time at the subsequent
meeting of 11 March 2005. Furthermore, in the memorandum of 18 March
2005,the appellant’s
management was still attempting to
persuade the employees’ representative to accept the change and
threatened disciplinary
action for failure to comply. To show
disagreement, the employees refused to comply with the new starting
times and further wrote
back to management to confirm that there was
never an agreement. It is also surprising that the appellant’s
own witnesses
who testified gave two different dates on which the
agreement on the starting time was allegedly reached. Of importance
is the
concession made by De Wet that the change was unilaterally
implemented.
[48] In so far as it is the
appellant’s case that there was agreement on the starting time,
I am of the view that the court
a quo
was correct in finding
that therewas neversuch an agreement. It is also evident from the
record that this was at all relevant times
the basis on which the
appellant presented its case, namely, that the employees were
refusing to comply with an agreement changing
the starting times.
Absent such an agreement to change the starting times, the appellant
had to rely on another argument to justify
their finding of
misconduct on the part of the employees.
[49] One must not lose sight of the
fact that the respondents were dismissed for misconduct pursuant to
disciplinary enquiries held
against them by their employer. The
significance of this fact is that the employees had to answer
specific charges of misconduct
to avoid being dismissed.The decision
to dismiss the employees can therefore not be justified on grounds
that were never the basis
for the disciplinary inquiry.
[50] The appellant seems to have acted
under a mistaken belief that the interim order granted by Revelas J
in the Labour Courtvindicated
the appellant by confirming that the
respondents had to comply with the new starting times. Counsel for
the appellant also contended
that the order set out the interim
relationship between the parties, and in so far as the new starting
time was concerned,that
the employees were obliged to comply with the
order. This may be the correct legal position. However, upon a
careful reading of
that order,it is clear that the order was not made
operative until the return date. I have no doubt that the appellant
wanted to
have the order operational in the form of an interim
interdict, and that the respondents believed that it had that effect.
However,
that was not the case. Therefore,the conclusionthat the
respondents were in contempt of the order by failing to comply with
the
new starting time,was incorrect.
[51] The charges relating to the
“breach of the
Labour Relations Act” arevague
and not
supported by any evidence. The same applies to the charge relating to
breach of the recognition agreement and other collective
agreements.
The issue was adequately dealt with by the Labour Court and its
reasoning in that regard cannot be faulted.
[52] The criticism of the court
a
quo’s
finding that the dismissal of the respondents was
procedurally unfair, is without merit. It is clear from the record of
the proceedings
and the excerpts quoted above that the chairperson of
the inquiry adjourned the proceedings for, what he referred to as ‘to
have a caucus’ with the appellant’s representative about
the case and not to have or enjoy a smoke. Immediately after
the
caucus, he placed on record what they had agreed upon during the
caucus. He saw himself as part of the employer and could not
have
been impartial. His remarks bear testimony to this. The second
disciplinary inquiry was also a sham. One could not have expected
to
have a fair inquiry if the evidence presenter, on behalf of the
employer, in one inquiry, becomes the chairperson on the subsequent
inquiry on the same set of facts. It will be illogical to expect him
to find differently to the case that he had presented the
previous
day. He cannot be said not to have been biased. In any event, justice
must not only be done, but it must be seen to be
done. All that is
required for a recusal is a reasonable perception of bias. The
attitude of the respondents who appeared before
him shows that they
lacked confidence in the process for good reasons. This was, in my
view, one of the worst cases of procedural
unfairness.
[53] The next ground of appeal relates
to the reinstatement order as remedy in favour of the respondents.The
appellant contends
that there are two circumstances that militate
strongly against reinstatement, namely, the delay between the
dismissals and the
vindication of the respondents’ rights, and
the respondents’ disregard for the court order. In my view, it
would be
unfair to deny the respondents a primary remedy prescribed
by the Act for a delay which was not of their making. The court
a
quo
already granted the appellant some advantage by limiting the
retrospective effect of reinstatement. The second ground, which
according
to the appellant isits strongest ground, is not a valid
ground in view of my finding that the order pronounced by Revelas J
did
not have interim operative effect. Furthermore, I have already
found that there was no agreement on the starting time and as such
it
would not be fair, in my view, to punish respondents for something
that they rightly contested only because of the court order.
It must
be noted that the appellant’s case is that the appellant were
not dismissed for breaching the court order but that
the court order
set out the interim relationship between the parties. I am,
therefore, of the view that failure to report for duty
as instructed,
cannot, on the facts in this case, be a reason for a breakdown in the
trust relationship.
[54] In conclusion, the appeal must
fail. As regards costs, in my view, it would be in accordance with
the requirements of the law
and fairness that costs should follow the
result.
[55] In the result, the following
order is made:
1. The appeal is dismissed with costs.
__________________
Tlaletsi ADJP
Acting Deputy Judge President of the
Labour Appeal Court
Waglay JP and Coppin AJA concur in the
judgment of Tlaletsi ADJP.
APPEARANCES.
FOR THE APPELLANT: CE Watt-Pringle SC
assisted by KS Mclean.
Instructed byMacgregor-Erasmus
Attorneys.
FOR THE RESPONDENTS: N Voyi of
NdumisoVoyi Incorporated.
1
Central
collective bargaining took place at the Inland Bargaining Unit made
up of representatives from the Nelspruit, Polokwane,
Klerksdorp and
Roodepoort branched. The Wage Agreement that was in place at the
time of dismissal of the respondent was concluded
on 14 October 2004
and was in operation for the period 1 July 2004 to 30 June 2005.
2
Appellant
acquired the business of Irvin and Johnson through a section 197
transfer.
3
The
reasons provided by the respondents for the change in the starting
times were,
inter alia
, to reduce returns, Provincial
legislation and to enhance better customer service. The employee
representatives at the time made
proposals to address the returns to
management.
4
It
transpired during the trial that the appellant did not approve of
some of the employees representing the employees.
5
The
respondents claim that the employees held a meeting to elect
representatives that could negotiate with management. However
the
meeting was disrupted by management. The appellant also suggested
that a ballot be conducted so that employees could identify
representatives that would consult with management.
6
The
challenges that the appellant faced were inter alia that it was
operating in a fiercely competitive business environment and
had to
“stay ahead of the pack” to ensure survival; customers
were no
longer
prepared to accept late deliveries; its failure to respond to the
need for early deliveries was adding an estimated R1
million per
year to its running costs; it could not continue to carry on
absorbing these costs or upsetting its customers without
losing
customers and endangering employees’ job security.
7
PM
stands for Percy Maphumulo, MP for MolokoPhakedi and RD for Rin de
Wet.
8
They
reiterated that there was no agreement on the new starting time and
as such have not refused to “obey instructions”.
That
the starting time was not an operational need but a calculated
strategy by the appellant to strengthen its excuse to dismiss
permanent employees. They repeated problems they encountered with
the proposed starting time.
9
The
final written warnings referred to here are the one issued on 13
April 2005 which were contested by the respondents and against
which
they lodged appeals.
10
See
NUMSA v Driveline Technologies (Pty) Ltd and Another
[2007] ZALC 66
;
[2000] 1
BLLR 20
(LAC) at para 74. S191(5) of the Act.
11
See:Grogan:
“Workplace Law” Tenth Edition at 88;
Monyela and
Others v Bruce Jacobs T/A LV Construction
(1998)19 ILJ 75 (LC);
MITUSA and Others v Transnet Ltdand Others
(2002)23 ILJ 2213
(LAC) at para 107 -the LAC held that where unilateral amendment of
terms and conditions of employment also constitutes
conduct falling
under the definition of unfair labour practice, and that the
affected employees may choose between strike action
and referring
the matter to arbitration.
12
(1995)16
ILJ 349 (LAC).
13
Ibid
at 357C-I.
14
(2005)
26 ILJ 2403 (LC);
[2006] 1 BLLR 42
(LC)atpara84. See also
Johannesburg Metropolitan Bus Services (Pty) Ltd v SAMWU
andOthers
[2011] 3 BLLR 231
(LC) at paras 86 and 87.
NUMSA v
Lumex Clipsal (Pty) Ltd
[2001] 2 BLLR 220(LC)
at para 13.
15
[1998]
1 BLLR 1
(LAC) at 5.
16
Ibid
at 10.