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[2014] ZALAC 83
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National Union of Mineworkers v Wanli Stone Belfast (Pty) Ltd (JA 85/13) [2014] ZALAC 83; [2015] 3 BLLR 286 (LAC); (2015) 36 ILJ 1261 (LAC) (12 December 2014)
REPUBLIC OF SOUTH
AFRICA
IN THE LABOUR
APPEAL COURT OF SOUTH AFRICA, JOHANNESBURG
JUDGMENT
Case no: JA 85/13
DATE: 12 DECEMBER
2014
Reportable
In
the matter between:
NATIONAL
UNION OF
MINEWORKERS
..........................................................................
Appellant
(Applicant in the
Court
a quo
)
And
WANLI
STONE BELFAST (Pty)
LTD
................................................................................
Respondent
(Respondent in
the Court
a quo
)
Heard:
22 September 2014
Delivered:
12 December 2014
Summary:
Dismissal of employees for participating in a strike action -
employer obtaining interdiction and restraint order against
employees
- employees not heeding to the court order and ultimatum issued by
employer – employer dismissing employees- employees
referring
automatically unfair dismissal dispute – Employer raising plea
of
res judicata
that dispute dispose of in the urgent
application - Labour Court upholding plea of
res judicata
and
finding that employees’ dismissal substantively and
procedurally fair. Appeal – Estoppel - strict requirements
of
res judicata
not applicable – in the urgent application
the illegal strike the cause of action - the unfair dismissal of the
employees
the cause of action in the second proceedings. Interdict
was sought in the former and reinstatement or compensation was sought
in the later proceedings. Consideration of equity and fairness in
determining whether a plea of issue estoppel should be upheld
or
rejected – evidence showing that rule
nisi
discharged
when employees already dismissed. Plea of
res judicata
could
not be upheld in term of fairness and equity.
Substantive
fairness of the dismissal- employees contending that dispute a wage
dispute- employer contending that dispute about
refusal to bargain
and employee ought to obtain advisory award in terms of section 64(2)
of the LRA- evidence showing dispute about
refusal to bargain. Strike
unprotected in the absence of an advisory award. Labour Court’s
judgment upheld. Appeal dismissed.
CORAM:
Waglay JP, Musi JA
et
Dlodlo AJA
JUDGMENT
MUSI
JA
[1]
This is an appeal against the judgment of the Labour Court, (Basson
J) wherein it found that the dismissal of the members of
the
appellant (the National Union of Mineworkers (NUM)) was substantively
and procedurally fair. The appeal is with the leave of
the court
a
quo
.
[2]
The respondent (the company) carries on business within the granite
industry and, in particular, processes granite into finished
consumer
products for the local and international markets. It commenced
business in 2006.
[3]
The company had a unionised workforce of about 30 employees. The
appellant began recruiting the respondent’s employees
in 2006,
with the result that in August 2007, it was the representative union
at the company. Although no formal recognition agreement
was
concluded between the union and the company, the company agreed to
grant the union right of access to its premises and it further
agreed
to deduct union dues on behalf of the union from the union’s
members.
[4]
On 2 February 2007, three employees of the company, who were members
of the union, wrote a letter to the company, on behalf
of the
employees, wherein they requested a meeting to be held on 6 February
2007 to discuss wage proposals. The letter did not
contain any wage
proposals or any proposals relating to substantive terms and
conditions of employment.
[5]
On 9 March 2007, the union sent a letter to the company wherein it
inter alia
set out wage proposals for 2007/2008. It demanded
“an actual basic wage rate of R2 500.00 (per) month and
(an) across
the board increase of 8,5%”. It further proposed
that the implementation date should be 1 March 2007.
[6]
A meeting was scheduled for and took place on 29 March 2007. Ms
Dyonne Modlin represented the company and Mr Sonnyboy Mnisi
represented the union. Mnisi referred to his letter dated 9 March
2007 and advised that the wage proposals are self-explanatory.
Modlin
advised the union that the company was not prepared to enter into
wage and substantive conditions of employment negotiations
with the
union, because increases had already been finalised and implemented
for 2007.
[7]
On 30 March 2007, the union referred a dispute to the CCMA. On the
LRA form 7.11, the union categorised the dispute as a mutual
interest
dispute. It summarised the dispute as follows:
‘
The
refusal of the Company to negotiate wages with the representative
trade union.’
[8]
It indicated that the outcome which it sought was
‘
that
the company must negotiate with the representative trade union.’
[9]
The dispute was set down for conciliation/arbitration on 3 May 2007.
On 12 April 2007, the company lodged an objection against
the con/arb
process. The matter could not be dealt with on 3 May 2007
because the commissioner recused himself. The parties
agreed that the
conciliation would be postponed and that the 30 day period stipulated
in s135(2) of the Labour Relations Act 66
of 1995 (the Act) would be
extended for an additional 30 days.
[1]
[10]
There was a delay in rescheduling the conciliation process. On 23
July 2007, Mnisi wrote a letter to the CCMA in which he stated
the
following:
‘
We
hereby notify you that the company refused to negotiate with the
representatives from Trade Union (sic) at plant level, hence
an
application to the CCMA. Therefore we request you to supply us
with certificate (sic). Lastly the extended 30 days
(sic)
period expire (sic) on the 5 June 2007 (sic)…’
[11]
On the same day (23 July 2007), the CCMA issued a notice of set down
enrolling the matter for 1 August 2007.
[12]
Despite the aforementioned set down, the CCMA issued a certificate of
non-resolution on 31 July 2007. It classified the dispute
as a
“Matters of Mutual Interest s64(1), 134” dispute. Despite
the certificate, the parties met on 1 August 2007, under
the auspices
of the CCMA. They were advised that the CCMA was acting under section
150(2) of the Act because a certificate of outcome
had already been
issued.
[2]
The dispute could not
be resolved.
[13]
On 1 August 2007, the union delivered a strike notice to the company
wherein it stated that it would commence with a protected
strike on 6
August 2007. The strike commenced on 6 August 2007.
[14]
On 6 August 2007, the company sought and was granted an interim order
on an urgent basis, by the Labour Court, to the following
effect:
‘
IT
IS ORDERED THAT:
1. The Applicant’s
failure to comply with the forms and time periods set out in the
Rules of the Labour Court of South Africa
is hereby condoned, and
this matter shall be dealt with as one of urgency in terms of Rule 8
of the said Rules.
2. A Rule
Nisi
is hereby issued calling upon the First and Second to Further
Respondents (whose name appear in Annexure “B” to the
Notice of Motion) to show cause on the 28
th
day of August
2007 at 10h00, or so soon thereafter as the parties may be heard, why
an order should not be made in the following
terms;
2.1 It is determined
that:
2.1.1 The issue in
dispute between the parties (‘the dispute’) concerns a
refusal to bargain as contemplated in Section
64(2) of the Act;
2.1.2 No advisory
award, as contemplated in Section 135(3)(c) of the Act, has been made
in respect of the dispute; and
2.1.3 The strike
contemplated, in the ‘Notice to Resume (sic) Protected
Industrial Action’, delivered by the First Respondent
to the
Applicant on the 1
st
day of August 2007, (‘the
strike’) is not in compliance with the provisions of Chapter IV
of the Act.
2.2 That the First
and Second to Further Respondents are hereby interdicted and
restrained from:
2.2.1 Participating
in the strike; and
2.2.2 Engaging in
any conduct in contemplation of and/or in furtherance of the strike.
2.3 That paragraphs
2.2, 2.2.1 and 2.2.2 shall operate as an Interim Order, interdicting
and restraining the First and Second to
Further Respondents from
engaging in the conduct contemplated therein, pending a final Order
being made on the return date of the
Rule
Nisi
as aforesaid.
2.4
That the return date of the Rule
Nisi
may be anticipated by the First and Second to Further Respondents on
48 (forty eight) hours’ notice to the Applicant.’
[15]
The union did not oppose the interim interdict proceedings. It must
be noted that the declaratory relief sought in paragraph
2.1 of the
interim order did not, correctly so, operate as an interim interdict.
[16]
After obtaining the interdict, the company served the order on the
employees and the union. It requested the employees and
the union to
make representations and to return to work. When the employees failed
to return to their workplaces, it issued an
ultimatum that the
employees should return to work by 15h30 on 6 August 2007. The
employees paid no mind to the company’s
requests, pleas and
ultimatum.
[17]
On 6 August 2007, the company issued a final ultimatum notifying the
employees that should they not return to work by 08h00
on 7 August
2007, they would be dismissed. On 7 August 2007, the employees did
not return to work and continued with the industrial
action. During
the afternoon of 7 August 2007, the employees, who took part in the
strike, were dismissed.
[18]
On 28 August 2007, the company applied for the confirmation of the
rule
nisi
. The application was unopposed. It was indeed
granted on an unopposed basis.
[19]
The union referred an unfair dismissal dispute to the CCMA. The
dispute could not be resolved through conciliation. The dispute
was
therefore referred to the Labour Court because it concerned the
alleged unfair dismissal of the employees for participation
in strike
action, which constitutes an automatically unfair dismissal.
[3]
[20]
Numerous witnesses testified in the court
a quo
. The most
important being: Du Plooy and Modlin, on behalf of the company, and
Mnisi on behalf of the union. The court
a quo
rejected Mnisi’s
version and accepted the version of the company’s witnesses.
This credibility finding was not challenged
before us.
[21]
In the court
a quo
, the company raised a special plea of
res
iudicata
. The company alleged that the Labour Court under case
number J1804/07 confirmed the rule
nisi
meaning that the court
had therefore definitively ruled that:
(i)
The issue in dispute between the parties
concerned a refusal to bargain as contemplated in section 64(2) of
the Act;
(ii)
No advisory award, as contemplated in
section 135(3)(c) of the Act has been made in respect of the dispute;
and
(iii)
The strike was not in compliance with the
provisions of Chapter IV of the Act.
[22]
The court
a quo
upheld the special plea. Evidence was
thereafter led in order to ascertain whether the dismissal of the
employees was fair.
[23]
Mr Kennedy, on behalf of the union, argued before us that the court
a
quo
erred in upholding the special plea. He submitted that the special
plea ought to have been dismissed because the interim order
and the
final order were improperly granted. He submitted that the interim
order was wrongly granted because the dispute and therefore
the
strike fell within the ambit of section 64(1) rather than section
64(2) of the Act.
[4]
There was
therefore no need, so the argument went, for an advisory award. He
submitted that the interim order ought to have been
discharged on the
return day, because the employees were already dismissed and could
not participate in a strike.
[24]
Mr Basson, for the company, submitted that a proper case was made out
on the papers in the interdict application, which was
unopposed.
According to him, the judge properly granted the interim interdict
and that the subsequent confirmation of the interim
interdict was
also proper, because there was no opposition.
[25]
We only have to decide two issues in this matter. Firstly, whether
the plea of
res iudicata
or rather issue estoppel was
correctly upheld and secondly, whether the real dispute in this
matter was a wage dispute or a refusal
to bargain. Mr Kennedy
accepted that if we find that this matter concerned a refusal to
bargain then an advisory award ought to
have been sought. Absent
that, the strike would be unprotected.
[26]
In
Prinsloo NO and Others v Goldex 15 (Pty) Ltd and Another
, a
judgment of the Supreme Court of Appeal, the meaning of
res
iudicata
was captured as follows:
‘
[10]
The expression “
res iudicata”
literally means that the matter has already been decided. The gist of
the plea is that the matter or question raised by the other
side had
been finally adjudicated upon in proceedings between the parties and
that it therefore cannot be raised again. According
to Voet 42.1.1,
the
exceptio
was available at common law if it were shown that the judgment in the
earlier case was given in a dispute between the same parties,
for the
same relief on the same ground or on the same cause (
idem
actor, idem res et eadem causa petendi
(see eg
National Sorghum Breweries Ltd
(t/a Vivo African Breweries) v International Liquor Distributors
(Pty) Ltd
[2000] ZASCA 159
;
2001 (2) SA 232
(SCA) at
239F-H and the cases there cited). In time, the requirements were,
however, relaxed in situations which give rise to what
became known
as issue estoppel. This is explained as follows by Scott JA in
Smith
v Porritt
2008 (6) SA 303
(SCA) para
10:
Following
the decision in
Boshoff
v Union Government
1932 TPD 345
the ambit of the
exceptio
res iudicata
has over the years been extended by the relaxation in appropriate
cases of the common law requirements that the relief claimed
and the
cause of action be the same (
eadem
res
and
eadem
petendi causa
)
in both the case in question and the earlier judgment. Where the
circumstances justify the relaxation of these requirements those
that
remain are that the parties must be the same (
idem
actor
)
and that the same issue (
eadem
quaestio
)
must arise. Broadly stated, the latter involves an inquiry whether an
issue of fact or law was an essential element of the judgment
on
which reliance is placed. Where the plea of
res
iudicata
is raised in the absence of a communality of cause of action and
relief claimed it has become commonplace to adopt the terminology
of
English law and to speak of issue estoppel. But, as was stressed by
Botha JA in
Kommissaris
van Binnelandse Inkomste v Absa Bank Bpk
1995 (1) SA 653
(A) at 669D, 667J-671B, this is not to be construed
as implying an abandonment of the principles of the common law in
favour of
those of English law; the defence remains one of
res
iudicata
.
The recognition of the defence in such cases will however require
careful scrutiny. Each case will depend on its own facts and
any
extension of the defence will be on a case-by-case basis (
Kommissaris
van Binnelandse Inkomste v Absa
(
supra
)
at 67E-F). Relevant considerations will include questions of equity
and fairness, not only to the parties themselves but also
to
others
…’
[5]
[27]
In this matter, the strict requirements of
res iudidata
are
not applicable, because the cause of action and the relief sought are
not the same. In the first matter, the illegal strike
was the cause
of action, whereas in these proceedings the unfair dismissal of the
employees is the cause of action. In the first
matter, an interdict
was sought, whereas in this matter reinstatement or compensation was
sought for the unfair dismissal of the
employees. The court
a quo
found that the respondent succeeded in establishing that
res
iudicata
in the form of issue estoppel prevented the appellants
from raising issues which were finally adjudicated upon in the
interdict
proceedings. The question, however, is whether it would be
fair to uphold the plea of issue estoppel on the facts of this
particular
case.
[28]
In
Prinsloo v Goldex
(
supra
), it was said that:
‘
[23]
In our common law the requirements for
res
iudicata
are threefold: (a) same
parties, (b) same cause of action, (c) same relief. The recognition
of what has become known as issue estoppel
did not dispense with this
threefold requirement. But our courts have come to realise that rigid
adherence to the requirements
referred to in (b) and (c) may result
in defeating the whole purpose of
res
iudicata
. That purpose, so it has been
stated, is to prevent the repetition of law suits between the same
parties, the harassment of a defendant
by a multiplicity of actions
and the possibility of conflicting decisions by different courts on
the same issue (see e.g.
Evins v Shield
Insurance Co Ltd
1980 (2) SA 815
(A) at
835G). Issue estoppel therefore allows a court to dispense with the
two requirements of same cause of action and same relief,
where the
same issue has been finally decided in previous litigation between
the same parties.
[24] At the same
time, however, our courts have realised that relaxation of the strict
requirements of
res iudicata
in issue estoppel situations
creates the potential of causing inequity and unfairness that would
not arise upon application of
all three requirements. That potential
is explained by
Lord Reid in Carl-Zeiss-Stiftung v Rayner and
Keeler Ltd (No 2)
[1966] 2 All ER 536
(HL) at 554G-H when he
said:
“
The
difficulty which I see about issue estoppel is a practical one.
Suppose the first case is one of trifling importance but it
involves
for one party proof of facts which would be expensive and
troublesome; and that party can see the possibility that the
same
point may arise if his opponent later raises a much more important
claim. What is he to do? The second case may never be brought.
Must
he go to great trouble and expense to forestall a possible plea of
issue estoppel if the second case is brought?”
[6]
[29]
Whether considerations of fairness and equity militate against
upholding a plea of issue estoppel will always depend on the
facts
and circumstances of a particular case. In
Prinsloo v Goldex
,
it was stated that:
‘
[26]
Hence, our courts have been at pains to point out the potential
inequity of the application of issue estoppel in particular
circumstances. But the circumstances in which issue estoppel may
conceivably arise are so varied that its application cannot be
governed by fixed principles or even by guidelines. All this court
could therefore do was to repeatedly sound the warning that
the
application of issue estoppel should be considered on a case-by-case
basis and that deviation from the threefold requirements
of
res
iudicata
should not be allowed when it is likely to give rise to potentially
unfair consequences in the subsequent proceedings (see eg
Kommissaris
van Binnelandse Inkomste v Absa Bank Bpk
1995 (1) SA 653
(A) at 676B-E;
Smith
v Porritt supra
2008 (6) SA 303
(SCA) para 10. That, I believe, is also consistent
with the guarantee of a fair hearing in s 34 of our Constitution.”
[7]
[30]
A similar approach was adopted in
Holtzhausen
and Another v Gore NO and Others
[8]
where Thring J came to the following conclusion:
‘
It
seems to me, however, that if I were to do that and non-suit the
applicants I would be enabling the first and second respondents
to
shelter, so to speak, behind a decision of this Court which I regard
as wrong and insupportable. That weighs very heavily with
me in the
exercise of my discretion in deciding whether or not I should relax
the requirements. To me it seems clear that “overall
fairness
and equity' demand, in these circumstances, that I should exercise my
discretion against the first and second respondents
and decline to
relax the requirements, or I may be in danger of facilitating a
'palpable realit(y) of injustice…’
[9]
[31]
In this matter, the respondent contended that the issue of whether
the strike was protected had been definitively decided in
the
interdict proceedings. This issue was also up for consideration in
the unfair dismissal proceedings, because the dismissals
would be
automatically unfair if the strike was protected. This brings the
matter squarely within the ambit of issue estoppel.
[32]
As set out above, considerations of equity and fairness are decisive
in determining whether a plea of issue estoppel should
be upheld or
rejected. The Labour Court is a court of law and equity. See
section
151
of the
Labour Relations Act 66 of 1995
. The criterion of what
fairness and equity demand, which was applied by the courts in civil
litigation unrelated to labour law,
finds particular resonance in
unfair dismissal disputes. The question to consider is therefore
whether it was fair to uphold the
special plea of issue estoppel
under these circumstances.
[33]
Mr Kennedy submitted that the court
a quo
acted unfairly by
upholding the plea of issue estoppel, because, firstly, the interim
order should have been discharged and not
made final on the return
day and secondly, that the interim order was in any event wrongly
granted.
[34]
As stated above, the interim order was granted on 6 August 2007. The
employees were dismissed on 7 August 2007. The rule
nisi
was
confirmed on 28 August 2007.
[35]
It is therefore common cause that by the time the company applied for
the confirmation of the rule
nisi
and the order declaring the
strike illegal, the employees had already been dismissed and were
thus incapable of continuing with
the strike, protected or
unprotected.
[36]
Neither Mr Kennedy nor Mr Basson could shed any light on whether the
court was informed, on the return day, that the employees
were
already dismissed and that the strike was effectively over. In my
view, it would not be farfetched or unreasonable to infer
that the
court was not informed about the changed circumstances when
application was made for the confirmation of the rule
nisi
. I
say this because the court would not have confirmed the rule
nisi
if it was fully apprised of the changed circumstances. The court
would, in all likelihood, have discharged the rule
nisi
.
[37]
It seems to me that the company’s counsel at the time, who was
not Mr Basson, did not bring the relevant facts under
the court’s
attention.
[38]
The ethical duty of legal representatives to disclose relevant
information to the court cannot be overemphasised. Where a legal
representative knowingly withholds relevant information from the
court and as result thereof an order that would otherwise not
have
been granted is granted, it cannot be fair to hold the other party to
the consequences of such an order. Such order is clearly
sought by
deceit or misrepresentation. There is, in my view, scant difference
for purposes of issue estoppel between a wrong order
and one obtained
by deceit or misrepresentation.
[39]
Judges should, as a general rule, on the return date also ask the
legal representative who applies for the confirmation of
a rule
nisi
whether he/she is aware of any changed circumstances between the
granting of the interim order and the confirmation thereof. In
this
way one can at least avoid a misrepresentation by omission.
[40]
In my view, the court
a quo
should have found that to uphold
the plea of issue estoppel, under these circumstances, would be
contrary to the requirements of
fairness and equity. It should
therefore have dismissed the special plea of issue estoppel.
[41]
The second question to consider is whether the strike was protected.
The appellants contended that the strike was one which
fell within
the ambit of
section 64(1)
and not 64(2) of the Act. The appellant
submitted that the strike was about wages rather than bargaining and
thus the employees
did not require the issuing of an advisory award
to render the strike protected.
[42]
The company on the other hand contended that the dispute concerned a
refusal to bargain and that the employees were required
to obtain an
advisory award in order to embark on a protected strike.
[43]
In
Coin
Security Group (Pty) Ltd v J Adams and 37 Others
[10]
it was said that:
‘
It
is the court's duty to ascertain the true or real issue .in dispute:
Ceramic
Industries Ltd t/a Betta Sanitaryware v National Construction
Building & Allied Workers Union & others
(2)
(1997) 18 ILJ 671
(LAC);
Fidelity
Guards Holdings (Pty) Ltd v Professional Transport Workers Union &
others
(1) (1998) 19 ILJ 260 (LAC).
In conducting that enquiry a court looks at the substance of.
the dispute and not at the form in which it is presented (
Fidelity
at 269G-H;
Ceramic
at 678C). The characterization of a dispute by a party is .not
necessarily conclusive (
Ceramic
at
677H-I; 678A-C). There is in my .view no difference in the
approach of these decisions. In each case the court was concerned
to
establish the substance of the dispute. The importance of doing
this lies in s 65 of the Act which provides that no person
may take
part in a strike if ‘the issue in dispute is one that a party
has the right to refer to arbitration or to the Labour
Court in terms
of this Act…’. The phrase ‘issue in dispute’
is, in relation to a strike, defines
as ‘the demand, the
grievance, or dispute that forms the subject matter of the
strike”
[11]
[44] A refusal to
bargain is defined in section 64(2) of the Act as
‘
(2)
If the issue in dispute concerns a refusal to bargain, an advisory
award must have been made in terms of section 135(3)(c) before
notice
is given in terms of subsection (1)(b) or (c). A refusal to bargain
includes-
‘
(a)
a refusal-
(i) to recognise a
trade union as a collective bargaining agent; or
(ii) to agree to
establish a bargaining council;
(b) a withdrawal of
recognition of a collective bargaining agent;
(c) a resignation of
a party from a bargaining council;
(d) a dispute about-
(i)
appropriate bargaining units;
(ii)
appropriate bargaining levels; or
(iii)
bargaining subjects.’
[45]
Ms Modlin testified that the company was approximately one year old
at the time. It had not negotiated wages with the union
at any stage.
The wage increase at the company ran from January to December,
meaning that the increase is implemented during January
each year.
During 2007, a wage increase was granted and implemented in January
without bargaining with the union. It was unilaterally
implemented.
There was no collective agreement between the parties.
[46]
When the company received the letter from the union, the wage
increase was already implemented. During the meeting held on
29 March
2007, Mnisi was told that the company is not prepared to negotiate
with the union. Modlin told Mnisi that the company
refuses to
negotiate with the union, because the period to negotiate wages for
that year had already closed. During the conciliation
process, Mnisi
repeatedly asked the company to bargain with it, but the company
repeatedly told him that it is not prepared to
do so.
[47]
Mr Kennedy argued that the true dispute between the parties was a
wage dispute and not a refusal to bargain dispute. I disagree.
[48]
Although the union’s categorisation of the dispute is not
determinative of the issue, it is important. The union understood
and
labelled the dispute as a refusal to bargain dispute. It wanted, as a
desired outcome, the company to bargain with it.
[49]
Mnisi conceded in his testimony in the court
a quo
that the
dispute was about the company’s refusal to bargain with it.
[50]
Modlin’s testimony was also clear that the company refused to
bargain with the union for the calendar year 2007.
[51]
Mr Kennedy submitted that it is quite apparent that the company was
not refusing to bargain with the union
per se
, but was not
willing to bargain over terms and conditions for the calendar year of
2007. He submitted that this is an indication
that the strike was
about wages.
[52]
In my view, it matters not whether the refusal to bargain was for a
calendar year or permanent. The mere fact that the company
was
unwilling to negotiate with the union is a refusal to bargain. It
must be remembered that the company unilaterally implemented
the
wages increase without negotiating with the union. This is also a
clear indication that the company did not recognise the union
as a
bargaining agent of its workers.
[53]
Mr Kennedy submitted that despite the terminology used in the
referral form, Mnisi was clear that the issue between the parties
was
about wages and that an acceptable wage offer would have brought the
strike to an end. He further submitted that Modlin could
not dispute
this because the company never ascertained from the union what
exactly the strikers’ demand was.
[54]
The demands of the union were well-known to Modlin. In fact, during
the meeting of 29 March 2007, Mnisi said that the demands
in his
letter are self-explanatory. Modlin told him at that stage already
that the company is not prepared to negotiate with the
union.
Modlin’s testimony on this issue is very clear. She said the
following during questions by the court:
‘
Yes.
It was put to you that a wage offer and correct me if I am putting
words in your mouth or putting words in the mouth
of counsel, it was
put to you that a wage offer would have ended the strike. Did
you understand it at the time of the strike?
Was that your
understanding?
--- M’Lady, my
understanding was that we had refused to negotiate and if I am
refusing to negotiate with the union or with
a group of employees,
then I am not going to make a wage offer…’
[55] During
cross-examination she said the following:
‘
Mr
Orr: My instructions are that the strike, what would have resolved
the strike was a wage offer. Can you comment on that?
--- Well,
we had refused to bargain, so I have commented on that earlier.
We were not bargaining so…
But the view of the
workers was that the issue that was at stake, was wages. Do you
want to comment on that? --- I have commented
on it, we were refusing
to negotiate wages.’
[56]
The above extracts from the record clearly show that Mr Kennedy’s
submissions are incorrect. It is clear that the company
did not want
to negotiate with the union. Before wages could be negotiated, the
company first had to agree to bargain with the
union. It did not want
to bargain on the issue of wages, although it is the genesis of the
dispute, is not what the dispute was
all about. The dispute was
certainly about the company’s refusal to negotiate with the
union. The evidence established conclusively
that the company
consistently refused to bargain with the union.
[57]
This matter seems to be similar to the
Food
& General Workers Union and Others v Minister of Safety &
Security and Others
matter.
[12]
In that matter,
the learned judge said the following:
‘
[28]
While it is so that the dispute between the parties in this matter
was initiated by a standard demand for a wage increase and
improvement in certain conditions of service, this is not enough in
itself to categorize the ensuing dispute as one concerning
a mere
matter of mutual interest, as Mr Nduzulwana would have it. It is
recorded in the unchallenged answering affidavit of Mr
D Schnetler,
the fifth respondent's regional manager, that the first applicant had
been informed on a number of occasions, and
again after receiving the
demands, that the fifth respondent was not prepared to negotiate with
the first applicant I because it
was 'entirely unrepresentative' in
the Eastern Cape operations. In the form LRA 7.11 upon which the
dispute was filed with the
CCMA, the first applicant described the
dispute as being about (I quote verbatim) 'refusal of the company to
negotiate wage increment
and conditions of employment'. The desired
outcome was that the fifth respondent 'grant us organizational rights
and allow us to
negotiate wage increment and adjustments of
conditions of employment of our members'. Furthermore, under the
heading 'special features'
the first applicant proposed 'a meeting
with the company for wage negotiations'. The first applicant also
confirmed that 'the company's
response was that we don't have a
majority in the Eastern Cape region', and added: 'Our argument is
that we have the majority which
the LRA refers to at the workplace.'
Furthermore, in the founding affidavit to this application it is
stated:
'The company advised
the union verbally that it is refusing to negotiate wage increases
and adjustments of conditions of employment
with the union because
the union does not have a majority of its employees, employed in the
Eastern Cape region, but conceded that
in its Uitenhage shop the
union has [a] majority of its employees.'
[29]
The meaning of the phrase 'refusal to recognize a trade union as a
collective bargaining agent' has not yet received judicial
attention.
Mr Nduzulwana contended that the phrase should be restrictively
construed so as to embrace only disputes arising out
of the refusal
by an employer to enter into a formal recognition agreement with a
trade union. Although I am conscious that, insofar
as they curtail
the constitutional right to strike, restrictions imposed by the Act
on strike action should be narrowly interpreted
(see, for example,
Adams
& others v Coin Security Group (Pty) Ltd
Labour Court case no C163/97 dated 3 September 1998 unreported), in
my view the phrase 'refusal to recognize a trade union as a
collective bargaining agent' embraces situations, such as those
in
casu
,
in which the employer refuses to negotiate with a trade union over
wages and conditions of service.’
[13]
I
align myself with the sentiments and conclusion of the learned judge.
[58]
The dispute was, in my view, a refusal to bargain dispute. Although
the court
a quo
did not consider this issue because it had
upheld the issue estoppel plea, it is clear that the true dispute
between the parties
was a refusal to bargain and that the union was
supposed to obtain an advisory award as contemplated in section
135(3)(c) of the
Act. It is common cause that no such award was
issued by the CCMA. The strike was therefore unprotected.
[59]
The court
a quo
comprehensively dealt with the fairness of the
dismissals and correctly concluded that the dismissals were
substantively and procedurally
fair. This finding of the court
a
quo
and its reasons were not challenged before us. There is in
any event no reason to interfere with the court
a quo
’s
findings in this regard.
[60]
In my view the appeal ought to be dismissed.
[61]
I therefore make the following finding:
The
appeal is dismissed with costs.
Musi,
JA
I
agree
Waglay JP
I
agree
Dlodlo
AJA
APPEARANCES:
FOR THE
APPELLANT: Adv Kennedy
Instructed
by Cheadle Thompson & Haysom
FOR THE
RESPONDENT: Adv Basson
Instructed
by Kramer & Wesemann Attorneys
[1]
Section
135(1) and (2) of the Act reads as follows:
“
(1)
When a dispute has been referred to the Commission, the Commission
must appoint a commissioner to attempt to resolve it through
conciliation.
(2)
The appointed commissioner must attempt to resolve the dispute
through conciliation within 30 days of the date the Commission
received the referral: However the parties may agree to extend the
30-day period…”
[2]
Section
150(2) reads as follows:
(2)
The Commission may offer to appoint a commissioner to assist the
parties to resolve through further conciliation a dispute
that has
been referred to the Commission or a council and in respect of
which-
(a)
a certificate has been issued in terms of section 135 (5) (a)
stating that the dispute remains unresolved; or
(b)
the period contemplated in section 135 (2) has elapsed;
[3]
See
section 187 which reads as follows:
“
A
dismissal is automatically unfair if the employer, in dismissing the
employee, acts contrary to section 5 or, if the reason
for the
dismissal is-
(a)
that the employee participated in or supported, or indicated an
intention to participate in or support, a strike or protest
action
that complies with the provisions of Chapter IV…”
[4]
“
(1)
Every employee has the right to strike and every employer has
recourse to lock-out if-
(a)
the issue in dispute has been referred to a council or to the
Commission as required by this Act, and-
(i)
a certificate stating that the dispute remains unresolved has been
issued; or
(ii)
a period of 30 days, or any extension of that period agreed to
between the parties to the dispute, has elapsed since the
referral
was received by the council or the Commission; and after that-
(b)
in the case of a proposed strike, at least 48 hours' notice of the
commencement of the strike, in writing, has been given
to the
employer, unless-
(i)
the issue in dispute relates to a collective agreement to be
concluded in a council, in which case, notice must have been
given
to that council; or
(ii)
the employer is a member of an employers' organisation that is a
party to the dispute, in which case, notice must have been
given to
that employers' organisation; or
(c)
in the case of a proposed lock-out, at least 48 hours' notice of the
commencement of the lock-out, in writing, has been given
to any
trade union that is a party to the dispute, or, if there is no such
trade union, to the employees, unless the issue in
dispute relates
to a collective agreement to be concluded in a council, in which
case, notice must have been given to that council;
or
(d)
in the case of a proposed strike or lock-out where the State is the
employer, at least seven days' notice of the commencement
of the
strike or lock-out has been given to the parties contemplated in
paragraphs (b) and (c).
(2)
If the issue in dispute concerns a refusal to bargain, an advisory
award must have been made in terms of section 135 (3) (c)
before
notice is given in terms of subsection (1) (b) or (c). A refusal to
bargain includes-
(a)
a refusal-
(i)
to recognise a trade union as a collective bargaining agent; or
(ii)
to agree to establish a bargaining council;
(b)
a withdrawal of recognition of a collective bargaining agent;
(c)
a resignation of a party from a bargaining council;
(d)
a dispute about-
(i)
appropriate bargaining units;
(ii)
appropriate bargaining levels; or
(iii)
bargaining subjects…”
[5]
Prinsloo
and Others v Goldex 15 (Pty) Ltd and Another
2014
(5) SA 297
(SCA)
)
at para 10.
[6]
At
paras 23 and 24.
[7]
At
para 26.
[8]
2002
(2) SA 141 (C).
[9]
at
156B-D.
[10]
(2000)
21 ILJ 924 (LAC).
[11]
At
para 15.
[12]
(1999)
20 ILJ 1258 (LC).
[13]
At
paras 28 and 29.