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[2013] ZALAC 25
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National Union of Metalworkers of South Africa (Numsa) and Others v CBI Electric African Cables (JA 51/11) [2013] ZALAC 25; [2014] 1 BLLR 31 (LAC); (2014) 35 ILJ 642 (LAC) (11 October 2013)
REPUBLIC OF SOUTH AFRICA
IN THE LABOUR APPEAL
COURT OF SOUTH AFRICA
HELD AT JOHANNESBURG
LC CASE NO.: JS695/07
LAC CASE NO.: JA51/11
In the matter between:-
NATIONAL UNION OF
METALWORKERS OF
SOUTH AFRICA (NUMSA)
.................................................................................
First
Appellant
MOFOKENG J.R & 45
OTHERS
.................................................
Second to
Further Appellants
and
CBI ELECTRIC AFRICAN
CABLES
......................................................................
Respondent
Heard
: 27
November 2012
Delivered
: 11
October 2013
Flynote
: Strike
related dismissal – unprotected strike – when does duty
to consult with Union arise – sufficiency and
propriety of
ultimatum. Strike – unprotected strike – employer acting
on perceived reasons for the strike – failure
to establish
reasons for the strike.
Night shift employees
abandoning their work places and leaving premises in solidarity with
day shift employees who similarly left
the premises before the end of
the shift.
Whether the employer was
consistent in applying discipline.
Remedy –
Compensation to be awarded, must be fair and equitable in all the
circumstances of the case.
CORAM : WAGLAY DJP,
ZONDI AND MUSI AJJA
JUDGMENT
ZONDI,
AJA
Introduction
[1] This appeal, which is
with leave of this Court, is against the whole of the judgment and
order handed down by Van Niekerk J
on 23 March 2011, in which the
learned Judge found that the dismissals of the individual appellants
were only procedurally unfair
and ordered the respondent to pay each
of the individual appellants an amount equivalent to two weeks’
remuneration, calculated
at the rate of remuneration of each of them
at the date of dismissal as well as 50% of the appellants’
costs.
The Facts
[2] For the sake of
convenience I shall refer to the first appellant as “the Union”
and to the second and further appellants
as “the employees”.
[3] The employees worked
for the respondent at its plant in Vereeniging / Vanderbijlpark. At
the time of their dismissal, on 26
June 2007some of them had been in
the respondent’s employ for almost forty (40) years.
[4] It is common cause
that in May 2007, following a process of protracted negotiations, the
respondent and the Union agreed to
introduce a continuous operation
at the respondent’s plant. It would seem that the new shift
system was unpopular among some,
if not the majority, of the
employees as they felt that it was onerous. In May 2007, the
respondent’s employees threatened
to embark on an unprotected
strike and this threat forced the respondent to approach the Court a
quo on 24 May 2007 for an interdict
preventing them from doing so.
Despite the interdict having been granted some of the employees
carried out their threat and embarked
on unprotected strike action.
The respondent dismissed those employees. The Union got involved and
negotiated with the respondent
for the reinstatement of the dismissed
workers. The respondent agreed to reinstate the dismissed employees
subject to their being
given final written warnings and with an
undertaking from each that they would work the new shift system
without further interruption
or unprotected strike action.
[5] On Monday, 25 June
2007, the first pay day after the introduction of the new shift
system, payslips were issued a day later
than the norm. The normal
practice was that the employees received their payslips at least a
day before the actual payday. Not
only were the pay slips late but
they were also wrong- they failed accurately to reflect time worked,
and reflected unexplained
deductions for short time. The result was
that the employees were paid less than they should have been. The
respondent was aware
of the problem and in an attempt to correct the
situation it made additional payments either directly into the bank
accounts of
the affected employees or to the employees themselves at
a later stage.
[6] The respondent’s
failure to pay them correctly coupled with the manner in which the
respondent attempted to resolve the
situation angered the employees.
In the result the day shift, scheduled to end at 18h00 on 25 June,
was disrupted when a number
of employees left their workstations
between 12h00 and 13h00, before the end of the shift. The night shift
commenced their shift
at 18h00 but abandoned their workstations at
22h00 and left the premises. Their shift was supposed to run from
18h00 to 24h00.
The reason advanced by the employees for prematurely
leaving their shift was that they were not prepared to work for an
employer
who “
was not paying
” them.
[7] In justifying the
fairness of the employees’ dismissal, Mr Grundling, the
respondent’s human resources manager at
the time, testified
that he had information from the factory floor that the employees
would walk out when they received their payslips
irrespective of the
correctness of payment; they were not happy with the new shift
system. In explaining why the respondent dismissed
the night shift
employees who ignored the ultimatum but not the morning shift
employees who walked off before 13h00 Grundling testified
that the
night shift employees received an ultimatum together with their
payslips.
[8] With regard to the
procedure followed by the respondent in dismissing the employees,
Grundling conceded that there was no pre-dismissal
hearing held but
stated that the respondent’s disciplinary code did not provide
for it in the context of an illegal industrial
action. But what he
did before dismissing the employees he prepared an ultimatum on 25
June at about 18h00. He telephoned the union
official who was
handling the matter but did not get hold of him. Hence he decided to
fax the ultimatum to the Union’s offices.
He made no attempt to
contact any other union official.
[9] The ultimatum
Grundling issued read as follows:
“
NOTICE
TO ALL EMPLOYEES
UNPROTECTED INDUSTRIAL
ACTION
Today, 25 June 2007,
between 12h00 and 13h00, employees clocked out and are therefore
illegally withholding their labour.
This action is despite
a court order compelling employees to work the new shift system.
Unless employees
follow the new shift system and report for duty on their next
scheduled shift, they will receive a letter of dismissal.
Please note that this
is the final ultimatum for the current shift, as well as for the
other two shifts.
I.P. Grundling
Human Resources
Manager
Monday, 25 June 2007”
[10] It emerged from
Grundling’s evidence that on 26 June 2007 at about 10h00 the
respondent’s representatives met with
the Union’s
representatives. Grundling testified that the discussion that took
place concerned the new shift system and the
nature of the
disciplinary action to be taken against the employees who ignored the
ultimatum and walked off the night shift. According
to Grundling’s
evidence the respondent’s representatives pointed out at the
meeting that the discussions on the new
shift system began in 2006
and an agreement was reached after approximately 30 meetings. It was
also noted that the respondent
obtained an interdict preventing some
of the employees, who were opposed to the new shift system, from
engaging in a strike action.
Those who ignored the interdict were
dismissed but their reinstatement was negotiated and they were taken
back.
[11] In the light of
these facts, the respondent took the view that the employees who took
part in an illegal industrial action
should be dismissed. The Union’s
response was that the industrial action had nothing to do with the
shift pattern; its cause
was the fact that the pay slips had not been
issued in time and contained deductions for which there was no
explanation. The respondent
rejected the Union’s contention and
decided that those employees who ignored the ultimatum and walked off
the night shift
should be dismissed. It prepared letters of dismissal
which were issued to each of the individual employees.
[12] All the letters were
similar and read as follows:
“
We
refer to our notice of the 23
rd
of
June 2007, posted on the notice boards and also sent to your Union
office.
Despite the Court
Order and various warnings as well as Yesterday’s ultimatum,
you still failed to comply.
You have elected to
ignore the ultimatum to follow the new shift system, absent yourself
or only partially tender your service.
You are therefore
dismissed and may appeal in writing within seven (7) days.
Yours faithfully
JA HALL
INDUSTRIAL RELATIONS
MANAGER
”
[13] The employees
appealed against the respondent’s decision to dismiss them
contending that they had not been afforded an
opportunity to be heard
before they were dismissed. Grundling chaired the appeal hearings.
According to Grundling’s evidence
none of the individual
employees advanced payslip irregularity as a reason for participating
in an illegal strike action. The appeal
was dismissed, four employees
were found not to have participated in the industrial action and
their dismissals were set aside.
[14] Mr Molefe, the only
witness for the appellants, testified that prior to the commencement
of his shift he became aware of a
problem with his pay. He confirmed
that this was the first pay in terms of the new shift system. Molefe
went to the respondent’s
factory to find out why his pay was
incorrect. He spoke to a shop steward who informed him that pay slips
had not been issued and
that workers had decided to leave the factory
at noon. He then went to his bank to obtain a bank statement to
ascertain if his
correct salary had been paid into his bank account.
On perusing the bank statement he noticed that he had been short-paid
[15] When he reported for
his shift, shortly before 18h00, he saw some of the individual
employees gathered together and were being
addressed by Motsau.
Following this address by Motsau the employees took a decision to
leave at 22h00 before the conclusion of
their shift at 24h00 in
solidarity with the day shift. At 22h00 Molefe together with some of
the employees left their workplaces.
He blamed the walk out on the
respondent’s failure to explain why their payslips were wrong
and what it was that the respondent
was doing to rectify the
incorrect payments. According to Molefe the employees expected
“
somebody to come… clarify
” to them so that
they could understand. Molefe contented that the dismissals would
have been avoided if they had received
a proper explanation from the
respondent regarding the inadequate payment of their wages. Molefe
confirmed that he received and
read the ultimatum, but claimed to
have misunderstood its content. His understanding was that the
ultimatum required of him and
other employees to report for work at
06h00 the following morning. When he reported for work at 06h00 in
accordance with his interpretation
of the ultimatum he was denied
access. He later received a letter informing him that he had been
dismissed.
Proceedings in the
Court
a quo
[16] The Court
a quo
rejected the employees’ contention that their dismissals were
substantively unfair. Although it found that “
the
respondent’s conduct on 25 June, viewed from the perspective of
good industrial relations was nothing less than woeful
”, it
was, however, not persuaded that the incompetence of the respondent’s
human resources management in failing to
ensure a proper run of the
payroll necessarily led to the conclusion that the dismissal of the
employees was substantively unfair.
The basis for its finding is that
the individual employees “
consciously elected, before the
commencement of the night shift, to walk off at 22h00 before they had
read or heard about any ultimatum,
that the pay slip error had been
addressed by the supervisory staff, and that they were told that they
would be at risk of dismissal
if they embarked on any action
”.
The Court
a quo
further found that before the commencement of
their shift, the night shift employees had been warned that should
they not commence
and complete the shift, they would be disciplined
and that the dismissal was on the cards. They did not react to the
ultimatum
by pursuing any enquiries or grievances about the payslips,
nor did they demand that a representative from the human resources
department attend at the factory in the absence of an acceptable
explanation from the operational management.
[17] In relation to the
procedural fairness the Court
a quo
rejected as disingenuous
Molefe’s claim that the ultimatum required of the night shift
employees to report for work only
on the next day and that they could
leave the shift early with impunity. In my view the Court
a quo’s
rejection of Molefe’s claim is correct having regard to the
fact that the ultimatum was presented to the night shift workers
at
the commencement of their shift, and after the day shift employees,
to the knowledge of the nightshift employees, had left their
shift.
[18] Secondly, the Court
a quo
found that the obligation to provide an opportunity to
be heard after the expiry of the ultimatum was discharged when the
respondent’s
representatives met with the Union officials on 26
June 2007 before the respondent took the decision to dismiss the
employees.
[19] Thirdly, the Court
a
quo
found that the respondent’s failure to engage with the
Union before issuing the ultimatum rendered the dismissals
procedurally
unfair on a limited basis.
Parties’
Submissions
[20] For the appellants
Mr
Niehaus
contended that the Court
a quo
erred by
finding firstly, that the dismissal of the employees was
substantively fair and secondly, the limited basis on which a
finding
of procedural unfairness was predicated and the concomitant limited
compensation awarded to the employees.
[21] In developing his
argument on substantive unfairness of the dismissal,
Mr Niehaus
argued that the strike action was justified as it was in response to
the utterly incompetent and grossly irresponsible manner in
which the
respondent dealt with the salary issue. Secondly, he argued that the
respondent was not consistent in the manner in which
it disciplined
the employees who participated in the unprotected strike action. The
day shift employees were issued with a final
written warning whilst
the night shift employees were dismissed.
[22] With regard to the
procedure, Mr
Niehaus
argued that the meeting of Tuesday, 26
June 2007 was held at the request of the Union. It was not convened
by the respondent for
the purposes of affording the Union and the
affected employees an opportunity to be heard before deciding on an
appropriate sanction.
He pointed out that Grundling, who represented
the respondent at the meeting, had been given a mandate by the
respondent’s
management to dismiss the night shift employees
prior to this meeting, which conduct, he argued, undermined the
audi
alterem partem
principle. In support of this proposition he
referred to a decision of the Supreme Court of Appeal in
Mamabolo
v Rustenburg Regional Local Council
[2000] ZASCA 133
;
2001 (1) SA 135
(SCA).
[23] To counter Mr
Niehaus
’ arguments Mr
Van As
submitted for the
respondent that the Court
a quo
did not err in finding that
the short payment did not constitute sufficient justification for the
employees to participate in an
unprotected strike on 25 June 2007. He
argued that the truth of the matter is that the employees took a
conscious decision to leave
at 22h00 on 25 June 2007 which decision
was motivated by their intention to show solidarity with the day
shift employees. This
submission rested upon the evidence of Molefe
that at the gathering which occurred shortly before 18h00 on 25 June
2007 the employees
took a decision to stand in solidarity with the
day shift.
[24] As to the procedural
fairness, Mr
Van As
submitted that the ultimatum was
sufficiently clear so as to warn the employees that they faced
disciplinary censure should they
not work the night shift on 25 June
2007. He also rejected the appellants’ contention that the
respondent failed to comply
with the
audi alterem partem
principle. He submitted that the respondent afforded the Union an
opportunity to make submissions on behalf of the employees as
to why
they should not be dismissed for participating in the unprotected
strike on 25 June 2007.
Discussion
[25] It is common cause
that the employees were dismissed for having engaged in an
unprotected strike. The question which arises
for determination is
whether in the circumstances of the case their dismissal was fair.
[26] Section 68 (5) of
the Labour Relations Act, 66 of 1995 (“the Act”) is a
statutory provision affording a right to
the employer to dismiss
employees who participate in a strike that fails to comply with the
provisions of the Act. In determining
the fairness of the dismissal
effected as a consequence of the employees’ participation in an
unprotected strike the Act
enjoins the judge who is called upon to
determine the fairness of the dismissal to have regard to the Code of
Good Practice: Dismissal
in Schedule 8 (“the Code”).
[27] Item 6 (1) and (2)
of the Code deals with the substantive fairness of strike dismissals
and provides as follows:
6.
Dismissal and
industrial action.
– (1) Participation in a strike that
does not comply with the provisions of Chapter IV is misconduct.
However, like any other
act of misconduct, it does not always deserve
dismissal. The substantive fairness of dismissal in these
circumstances must be determined
in the light of the facts of the
case, including –
(a) the seriousness of
the contravention of this Act;
(b) attempts made to
comply with this Act; and
(c) whether or not the
strike was in response to unjustified conduct by the employer.
(2) Prior to dismissal
the employer should, at the earliest opportunity, contact a trade
union official to discuss the course of
action it intends to adopt.
The employer should issue an ultimatum in clear and unambiguous terms
that should state what is required
of the employees and what sanction
will be imposed if they do not comply with the ultimatum. The
employees should be allowed sufficient
time to reflect on the
ultimatum and respond to it, either by complying with it or rejecting
it. If the employer cannot reasonably
be expected to extend these
steps to the employees in question, the employer may dispense with
them.”
[28] It is clear from the
provisions of section 68 (5) that participation in a strike that does
not comply with the provisions of
Chapter IV (strikes &
lock-outs) constitutes misconduct and that a judge who is called upon
to determine the fairness of the
dismissal effected on the ground of
employees’ participation in an illegal strike should consider
not only item 6 of the
Code but also item 7 which provides as
follows:
“
7.
Guidelines in cases of dismissal for misconduct.
–
Any person who is
determining whether dismissal for misconduct is unfair should
consider –
Whether or not the
employee contravened a rule or standard regulating conduct in, or of
relevance to, the workplace; and
If a rule or standard
was contravened, whether or not –
the rule was a valid
or reasonable rule or standard;
the employee was
aware, or could reasonably be expected to have been aware, of the
rule or standard;
the rule or standard
has been consistently applied by the employer; and
dismissal was an
appropriate sanction for the contravention of the rule or standard.”
[29]
In my view the determination of substantive fairness of the
strike-related dismissal must take place in two stages, first under
item 6 when the strike related enquiry takes place and secondly,
under item 7 when the nature of the rule which an employee is
alleged
to have contravened, is considered. It follows that a strike-related
dismissal which passes muster under item 6 may nevertheless
fail to
pass substantive fairness requirements under item 7. This is so
because the illegality of the strike is not “
a
magic wand which when raised renders the dismissal of strikers fair
”
(
National
Union of Mineworkers of SA v VRN Steel
(1991)
12 ILJ 577 (LAC)). The employer still bears the
onus
to
prove that the dismissal is fair.
[30]
In his work Grogan
1
expresses
the view that item 6 of the Code is not, and does not purport to be,
exhaustive or rigid but merely identifies in general
terms some
factors that should be taken into account in evaluating the fairness
of a strike dismissal. He therefore opines that
in determining
substantive fairness regard should also be had to other factors
including the duration of the strike, the harm caused
by the strike,
the legitimacy of the strikers’ demands, the timing of the
strike, the conduct of the strikers and the parity
principle. I agree
with this view as the consideration of the further factors ensures
that the enquiry that is conducted to determine
the fairness of the
strike-related dismissal is much broader and is not confined to the
consideration of factors set out in item
6 of the Code.
[31]
As the evidence and the probabilities were overwhelmingly in favour
of the appellants’ version the Court
a
quo
found,
correctly in my view, that the issue of the payslips and the short
payment of wages, and not the introduction of the new
shift system,
was the cause of the strike on 25 June 2007. The introduction of the
new shift system, it would seem to me, ceased
to be an issue in May
2007 after the respondent had sought, and obtained, from the Court
a
quo
an
interdict against those employees who were still intent on opposing
it. Those employees who ignored the interdict were disciplined
and
dismissed and their reinstatement had to be negotiated by the Union.
Thereafter there was a realisation by the employees that
in order to
keep their jobs they had to accept and embrace the changes introduced
by the respondent through the new shift system.
That the introduction
of the new shift system was no longer an issue in June 2007 is borne
out by the fact that the employees worked
without any incident after
May 2007. In fact it was Pooe and Makube’s understanding that
the gist of the employees’
complaint was that they had not been
paid what they were supposed to get and it was for this reason that
they had to assure the
employees that the management was attending to
it.
[32] For these reasons, I
reject Grundling’s evidence in so far as it seeks to suggest
that the introduction of the new shift
system was the cause of the
strike of 25 June 2007. I find therefore that the issue of the
payslips and incorrect deductions from
the employees’ wages was
the cause of the strike on 25 June 2007.
[33] The question flowing
from this finding involves the consideration of the propriety and
adequacy of the approach adopted by
the respondent in dealing with
the unlawful strike action. A further question that is inherently
relevant to this enquiry is whether
in the light of this finding the
respondent’s decision to dismiss the employees can still remain
sustainable.
[34] It emerged from the
evidence that prior to issuing the ultimatum Grundling telephoned the
Union offices and asked for a specific
union official, Mr Maake. He
was told that he was not available. Grundling says he then faxed a
copy of the ultimatum to the Union
offices. This must have been after
18h00 on Monday, 25 June 2007 because according to him he prepared
the ultimatum shortly before
18h00 and issued it to the night shift
employees at 18h00. He thereafter held a meeting with the union
official on Tuesday, 26
June 2007 to discuss the employees’
behaviour. Prior to this meeting he had obtained a mandate from the
respondent to dismiss
those employees who had walked off at 22h00
because the management believed that “
after 30 meetings plus
the previous action, the relation is irreparable
”.
[35] In my view the
respondent did not follow a proper procedure in issuing the
ultimatum. In terms of the Code and the Labour Court
decision in
National Union of Mineworkers & Others v Billard Contractors
CC and Another
(2006) 27 ILJ 1686 (LC) it was incumbent on the
respondent to engage with the Union before issuing the ultimatum on
25 June 2007.
This, the respondent failed to do. Item 6 (2) of the
Code makes it clear that prior to dismissal the employer should, at
the earliest
opportunity, contact a trade union official to discuss
the course of action it intends to adopt. This is necessary for two
reasons.
Firstly, it affords the union an opportunity to persuade the
strikers to resume work and secondly, it provides a safeguard against
possible rash action by the employer. In the event that the employer
decides to issue an ultimatum, which should meet the requirements
of
the Code, the employer must ensure that it allows the employees
sufficient time to reflect on the ultimatum and to respond thereto.
In the present matter it is not the respondent’s case that its
failure to comply with these prescripts should be excused
because it
could not reasonably be expected to comply with these requirements.
[36] Contrary to the
Court
a quo’s
finding, I am not satisfied that the
respondent complied with its obligation to provide the employees with
an opportunity to be
heard before effecting the dismissals after the
expiry of the ultimatum. Prior to the pre-dismissal meeting held on
26 June 2007,
it is apparent that the respondent had already taken a
decision that the employees who took part in “
illegal
industrial action
” would be dismissed and that the day
shift employees who walked off at between 12h00 and 13h00 would
receive a final written
warning. Therefore no amount of persuasion by
the Union that the strike had nothing to do with the introduction of
the new shift
system but with the late and wrong payslips would have
convinced the respondent to change its preconceived stance because
the respondent
believed that “
after 30 meetings plus the
previous action, the relation [was] irreparable
”. There was
a duty on the respondent to afford the affected employees an
opportunity to be heard before a decision to dismiss
them was taken.
The respondent’s failure to do so rendered its decision to
dismiss the affected employees procedurally unfair.
(
Mamabolo v
Rustenburg Regional Local Council
supra
at 144 B –
C). For these reasons I hold that the employees’ dismissals
were procedurally unfair.
[37] In relation to the
substantive fairness of the dismissal the Court
a quo
correctly
found that when Grundling telefaxed the ultimatum to the Union he
laboured under the view that the reason for the strike
was
unhappiness about the new shift system. It also correctly found that
while there was obviously some connection between the
events of May
2007 and those of 25 June the catalyst for the strike on 25 June was
not directly the introduction of the new shift
system, but the issue
of the payslips and the short payment of wages which issue, in its
view, was not properly addressed by the
respondent’s human
resource management. It held, however, that it was not persuaded that
the incompetence of the respondent’s
human resources management
in failing to ensure a proper run of the payroll could necessarily
lead to the conclusion that the dismissal
of the employees was
substantively unfair. This conclusion was based on its finding that
the individual employees consciously elected,
before the commencement
of the night shift, to walk off at 22h00 before “
they had
read or heard about any ultimatum, that their pay slips error had
been addressed by the supervisory staff and that they
were told that
they would be at risk of dismissal if they embarked on strike
action
”.
[38] The Court
a quo’s
reasoning for its finding cannot be faulted. The night shift
employees’ decision to leave their workstations at 22h00 and
before the end of their shift constituted a misconduct for which they
were liable to be disciplined. While I accept that the respondent’s
failure to pay the employees correctly for the hours they had worked
triggered the employees’ response, I do not, however,
agree
that the means they employed justified the end they sought to
achieve. Abandoning their work stations and leaving the respondent’s
premises was not a conduct, which in all the circumstances of the
case, could be said to have been a reasonable means by which
to
respond to the respondent failure to comply with its contractual
obligations. Other less disruptive and non-belligerent ways
to
resolve the issue were available to the employees. There is no
evidence that their abandonment of their workstations was coupled
with any demand or grievance.
[39] Their conduct was
deliberate and calculated. It undermined the process of collective
bargaining as a tool to resolve industrial
disputes. When they
reported for their shift they were appraised of the nature of the
problem regarding short payment of their
wages and were told that it
was being attended to by the respondent’s management. They were
told to report for their shift
and warned that if they failed to do
so they faced the risk of dismissal. They were given an ultimatum
which they ignored. They
decided to walk off at 22h00 to show
solidarity with the day shift. Their collective decision to walk off
at 22h00 was taken before
they filed any grievance. There was no
attempt at all on their part to comply with the provisions of the Act
regarding the handling
of grievances. The employees’ contention
that they were justified in leaving their shift early because of the
respondent’s
failure to pay them correctly, is according
rejected.
[40] The second ground on
which the employees contended that their dismissal was substantively
unfair was based on the allegation
that the respondent had
inconsistently applied discipline by dismissing them but not
dismissing the day shift employees who had
also abandoned their
workstations on 25 June 2007 because they had also been short paid.
[41] It is correct that
fairness generally requires that like cases should treated alike
(
Cape Town City Council v Masitho and Others
(2000) 21 ILJ
1957 (LAC) para 12). However, there may exist valid grounds in a
particular case to distinguish one employee from
another, albeit that
they have engaged in the same conduct, on the basis of material
factors.
[42] It is true that the
day shift employees who similarly walked off their workstations on 25
June 2007 were not dismissed. They
were each issued with a final
written warning valid for 12 months. But in my view there existed
valid reasons for differentiation.
The dayshift employees did not get
any ultimatum on 25 June 2007. When the ultimatum came to their
attention on 26 June 2007 they
heeded it and worked their shift. The
affected employees in the present matter received the ultimatum
before the resumption of
their shift but ignored it. Their conduct
was more reprehensible in that it was deliberate and calculated.
Remedy
[43] Section 194 (1) of
the Act
inter alia
concerns the compensation to be awarded to
an employee whose dismissal is found to have been procedurally
unfair. Such an employee
is entitled to be awarded compensation which
must be just and equitable in all the circumstances, but which may
not be more than
the equivalent of 12 months’ calculated at the
employees’ rate of remuneration on the date of dismissal.
[44] I have found in the
instant case that the employees’ dismissal was only
procedurally unfair. The relief to which they
are in terms of the Act
entitled is compensation but not reinstatement or re-employment. In
determining the amount of compensation
to be awarded I shall be
guided by the provisions of section 194 (1) and item 6 of the Code,
and in particular that the strike
was of short duration (it was a two
hour strike), was in response to the respondent’s failure to
pay the employees their
correct wages and the fact that the
respondent made no attempt to bring the ultimatum to the attention of
the Union when it was
clear to it that a union official directly
dealing with the matter was not immediately available and could not
be contacted. In
my view the probability is that the strike would
have been avoided had the respondent engaged with a union official
before issuing
an ultimatum Taking all of the above factors into
account I am of the view that 12 months’ compensation will be
just and
equitable in all the circumstances.
[45] As far as costs are
concerned the Court
a quo
ordered the respondent to pay 50% of
the appellants’ costs on the ground that the appellants were
partially successful. The
costs order was inappropriate. In the light
of the fact that the relationship between the Union and respondent
continues to exist,
in my view, in terms of the law and equity there
should be no order as to costs in the Court
a quo
and in this
appeal.
The Order
[46] In the result an
order in the following terms is made:
1. The appeal succeeds
and the judgment and orders of the Court
a quo
are set aside
and replaced with the following:
“
(a)
the dismissal of the further appellants (employees) was only
procedurally unfair;
(b) the respondent is
ordered to pay to each employee compensation equivalent to 12
(twelve) months’ remuneration calculated
at the rate of the
employee’s salary on the date of dismissal ;
(c) No order is made
as to costs”
2. Each party is ordered
to pay their own costs of the appeal.
_______________
ZONDI, AJA
WAGLAY DJP and MUSI
AJA concurred in the judgment of ZONDI AJA.
APPEARANCES
For the appellants :
Mr. Minnaar Niehaus
Instructed by :
Minnaar Niehaus Attorneys
Port Elizabeth
For the respondent :
Adv. M J Van As
Instructed by : H J
Van Rensburg Incorporated
Vanderbijlpark
1
Grogan:
Dismissal, Discrimination and Unfair Labour Practices (2005) (Juta)
at 451 – 454.