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[2016] ZALAC 44
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Commercial Stevedoring Agricultural and Allied Workers Union v Robertson Abattoir (CA12/2015) [2016] ZALAC 44; [2016] 12 BLLR 1163 (LAC); (2017) 38 ILJ 121 (LAC) (22 August 2016)
INTHE
LABOUR APPEAL COURT OF SOUTH AFRICA, CAPE TOWN
Reportable
Case
no: CA12/2015
In
the matter between:
COMMERCIAL
STEVEDORING AGRICULTURAL
AND
ALLIED WORKERS UNION (CSAAWU) OBO
ISAAK
DUBE AND
OTHERS
Appellants
and
ROBERTSON
ABATTOIR Respondent
Heard:
24 May 2016
Delivered:
22 August 2016
Summary:
Employees alleging automatically unfair dismissal in that they
refused to accede to employer’s demand to increase
the number
of daily carcasses slaughtered – employer on the contrary
alleged that employees dismissed for misconduct following
a proper
disciplinary hearing. Labour Court granting absolution from the
instance because employees failed to adduce evidence about
their
automatically unfair dismissal claim. Court finding that meeting
about the daily increase of the number of carcasses to be
slaughtered
took place giving rise to an alleged automatically unfair dismissal
claim – trial court should decide on the
merit of the section
187(1)(c) claim - Labour Court’s judgment set aside- Appeal
upheld with costs.
Coram: Davis, Musi JJA
and Murphy AJA
JUDGMENT
DAVIS
JA
Introduction
[1]
This case turns on the scope of the concept of absolution from the
instance. Its application to the present dispute fundamentally
affects the lives of 39 abattoir employees (‘the employees’)
who were dismissed from their employment with respondent
in late
2010.
[2]
The respondent concedes that it dismissed the employees but claims
that 30 of the employees were dismissed for misconduct in
the form of
insubordination on 1 December 2010 and a further nine for misconduct
on 23 December 2010. By contrast, the appellants
claim that they were
dismissed on 30 November 2010 by way of a dismissal as contemplated
in s187 (1)(c) of the Labour Relations
Act 66 of 1995 (“LRA”).
[3]
The court
a quo
found that the appellants had not presented
any evidence upon which a court “could or should” find
that they were dismissed
on 30 November 2010 and that the dismissal
thus fell within the scope of s187 (1)(c) of the LRA. Accordingly,
absolution from the
instance was granted in favour of the
respondent.
The
factual background
[4]
The key facts, which are necessary in order to analyse the dispute,
can be summarised thus: On 19 November 2010, a meeting was
held
between the appellants and the respondent with regard to the working
hours, remuneration of employees as well as the slaughtering
targets
for the employees. Of particular relevance was the respondent’s
attitude that the union’s members and, in particular,
the
employees should consider increasing the targets for the number of
sheep carcasses to be slaughtered, as set out in the respective
contracts of employment; that is from 600 carcasses per day to 850
carcasses per day. In return for this commitment, it was proposed
to
pay an increase of R 150 per week, subject to 100% attendance from
the employees.
[5]
From 22 November 2010 until 30 November 2010, the employees reported
for work at 07h00 and worked until 17h00. During this time,
they
slaughtered 600 carcasses, which was required of them in terms of
their contracts of employment. On 23 November 2010, the
respondent
sent a letter to the appellants which read as follows:
‘
1. Die vakunielede
nie gehoor gee aan die dienskontrak nie, sowel as die ooreenkoms wat
daar bereik is in die verband met ons gesprek
was plaasgevind het op
19 November 2010.
2. Dar is ooreengekom dat
daar 850 karkasse per dag geslag sal word en daaraan word ook nie
gehoor gegee nie.
3. Indien u lede nie
gehoor aan die dienskontrak gee nie, sal die nodige dissplinere
stappe teen hul geneem word.’
[6]
Appellants replied to this letter, denying respondent’s
contentions in the following terms:
‘
The
union hereby put on record that there was never agreement reach or
sign by the parties on 19 November 2010 in terms of our members’
mandate.
What was agreed upon was
that the company will revert back to the union on all our members
demands during the cause of this week.
What was further agreed
upon is that the company will comply with the BCEA as workers were
working very excessive overtime hours
as from 06h00 am till 12h00 am
or even till 01h00 am. Which was in total contravention
of the BCEA.’
[7]
A further letter was generated by the appellants in which it was
stated it is your company that has transgressed the BCEA, by
forcing
workers to work for 18 to 19 hours per day which is very much inhuman
and it is this type of excessive hours that our members
refuse to
work which are in their right (sic)”. This letter elicited a
response from the respondent’s attorneys who
advised the
appellants that the respondent was now contemplating disciplinary
action against the employees, which, in turn, caused
a response from
the appellants which denied any basis for such disciplinary action.
[8]
On 29 November 2010, at approximately 17h00, Mr van Staden of the
respondent informed the employees to report to the main office
at the
respondent’s premises at 10h00 the following day for a
disciplinary enquiry. No written notices of the enquiry were
provided
nor were any written charges provided. Notwithstanding these
developments, the employees reported for duty at the respondent’s
premises at 07h00 on 30 November 2010. Upon arrival, they were locked
out of the respondent’s premises and not permitted
to commence
work.
[9]
It appears to be uncontested, given the respondent’s response
to the appellants’ amended statement of claim of 17
September
2012, that 30 employees were ultimately disciplined and found guilty
of insubordination by refusing to slaughter the
agreed amount of
carcasses (850) and because of a refusal to work after 17h00; that is
refusing to work any overtime.
[10]
On 30 November 2012, the appellants wrote to Mr De Bot of the
respondent as follows:
‘
Please note our
members inform our offices that when they arrive at work today (30
November 2010) the gates have been locked and
the company refuses to
allow then to resume their normal duties. This boils down to an
illegal lockout in terms of s 67 of the
Act as no due process was
followed. This letter also serves as an ultimatum that the
company allows our members to resume
their normal duties and meets
with the union.
The
union therefore proposes an urgent meeting today 30 November 2010 at
12h00 to resolve the matter. The union are sending a union
delegation
urgently from Cape Town to your factory in Robertson for such a
meeting.’
[11]
The disciplinary hearing took place, this letter notwithstanding. The
minute of the disciplinary enquiry, significantly, dated
30 November
2010 includes the following important passages:
‘
6. Die werkgewer
het sy saak voorgehou:
(a) dat die slagkwotas,
soos in die dienskontrak, gedurende die hoogseisoen soos
November/Desember verhoog word as gevolg van die
verhoogde aanvraag
vanaf kliënte. Die slagkwotas word daagliks aan die begin
van die dag (soms reeds die vorige dag)
met die werknemers bespreek.
Gedurende die tyd was dit ook nie anders nie. Die werknemers
het egter besluit om op te
hour slag wanneer die kwota soos in die
dienskontrak genoem bereik was. Dan het hulle die werkstasie
skoongemaak en teen
vyfuur het hulle huis toe gegaan. Daar was
ook ‘n dag wat die werkstasie nie skoongemaak was nie en moes
ek mense inkry
om dit te doen. Die werknemers het gesê
dat hulle deur die Vakbond aangesê is om nie verder oortyd te
werk nie
ten spite van die feit dat van die werknemers skriftelik
onderneem het om oortyd te werk. Werknemers het die
versoek
van die werkgewer geignoreer dat die slagkwotas sowel as
oortyd werk met hulle bespreek en ooreengekom was.
(b) Die werknemers het
ook die werkstasie vroeg verlaat en het die werkgewer se versoek om
na die werkstasie terug te keer geignoreer.
7. Die aangeklaagdes was
nie teenwoordig om hulle saak te stel nie.
8. Geen betoog het
plaasgevind a.g.v bogenoemde.
9. Die aangeklaagdes word
skuldig bevind op die aanklag.
10. Bevinding:
Die aangeklaagdes her ‘n
Finale Geskrewe Waarskuwing ontvang op 23 November 2010.
Die bevinding is dat die beskuldigdes
deur hulle versuim om die
opdrag van die werkgewer na te kom die besigheid ingevaar gestel en
daarmee saam die voortgesette indienshouding
van werknemers.
Aangesien November/Desember piek seisoen is, word daar van die
werknemers verwag om die ooreengekome kwotas
te slag sowel as om
oortyd te werk soos en wanneer nodig. Die oortydwerk was
skriftelik ooreengekom en vorm deel van die
dienskontrak.
Verder is die werkgewer
en werknemer in gesprekke betrokke rakende werknemeraangeleenthede en
sou dit wesenlik gewees het om voluit
te werk totdat die sake
aangespreek en uitgeklaar is. Die verantwoordelikhied is nie
deur hulle geopenbaar nie.
11. Sanksie
Die beskuldigdes se
dienste word beëindig met ingang van 1 Desember 2010 en in
ooreenstemming met die kennisgewingstydperk
soos deur hulle
dienstermyn bepaal en soos voorgeskryf deur die Wet of Basiese
Diensvoorwaardes. Hulle hoef nie weer
vir diens gedurende
die kennisgewing tydperk aan te meld nie. Die beskuldigdes se
laaste loon sal weekliks betaal word vir
die tydperk van kennisgewing
soos van toepassing.’
[12]
On 23 December 2010, a further disciplinary hearing was held in
respect of the nine employees. It appears that in their case,
the
complaint was that the workers had been absent from work from 30
November to 07 December 2010 and again on 20 December 2010.
The
disciplinary hearing came to the following conclusion:
‘
Die feit dat die
werkers nie kom werk het nie was die betwis nie. Ek moet
dus slegs kyk of die redes vir hul afwesigheid
geldig is of nie.
Sommige van die werkers het aangedui dat hulle verbied was om te kom
werk. Die werkers het briewe
gekry waar hulle versoek was om te
kom werk en nog steeds het hulle nie kom werk nie. Ander
werkers beweer dat hulle
gedreig was om nie te kom wekr nie.
Dit is interessant dat sommige van die werkers gedreig was en ander
nie. Werkers
was ook in die lokasie bly, het kom werk.
Ek vind dit dus vreemd dat slegs dié werkers gedreig was.
Ek bevind dus die werkers skuldig op die klagtes. Ek het ook
nie die weergawe van die ander twee werkers wat afwesig was
vir die
verhoor nie. Die verhoor is in hul afwesigheid gehou want geen
redes is gegee vir hul afwesigheid nie.
Ek bevind hulle
ook skuldig.
[13]
The dismissal of the nine employees gave rise to an interlocutory
application before Steenkamp J in which the respondent challenged
the
locus standi
of the employees to approach the Labour Court on
the basis that the dispute about their dismissal had not been
conciliated and
accordingly the court had no jurisdiction to consider
their dispute. At this hearing, Mr de Vos, who appeared on behalf of
the
employees, contended that the dismissals on 01 December and,
particularly insofar as the interlocutory application was concerned,
the dismissal on on 23 December, were both a “sham” and
that, in substance, all of the dismissals had taken place on
30
November 2010. Steenkamp J accepted that these workers had based
their claim on an automatically unfair dismissal that took
place on
30 November 2010. He went on to find at para 19 of his judgment:
‘
That the claim
might be a bad claim and might not pass muster under s 187(1)(c) of
the LRA is beside the point. That claim
can only be decided
once all the evidence is in and once the parties have placed their
arguments before the court. It does
not deprive the nine
workers from their
locus standi
at this stage.’
The
judgment of the court
a quo
[14]
Steenkamp J thus approached the dispute on the basis that the
appellants first had to establish that a dismissal had taken
place on
30 November 2010. He found that there was no evidence to justify this
contention. The employees had been paid for the
day. They had then
been called to a disciplinary hearing. Admittedly, the hearing was
held in their absence, but the respondent
had terminated their
employment for misconduct. This effectively occurred for the nine
employees on 23 December 2010 and on 1 December
2010 in respect of
the 30 employees. Steenkamp J fortified his conclusion that the
appellants had produced no evidence to justify
a contrary finding by
referring to the evidence of Mr Christians, who had testified on
behalf of the appellants to the effect that,
at a meeting on 30
November, Mr De Bot on behalf of the respondent had stated
unequivocally that the employees have not been dismissed
but had to
await the outcome of the disciplinary hearing. The learned judge held
that the two disciplinary enquiries thus supported
the conclusion
that workers had not been dismissed before 1 December and 23 December
2010 respectively.
[15]
It is against this finding, with the leave of this Court, that the
appellant has approached the Court on appeal.
Absolution
from the instance
[16]
It is
important to bear in mind that this appeal is based on a grant of an
order of absolution from the instance. Accordingly, the
test which
must be determined is whether firstly there was a dismissal and
secondly whether the appellant has provided evidence
which raises a
credible possibility that the dismissal in question fell within the
scope of s187(1)(c) of the LRA. This approach
has been confirmed by
this Court in
Kroukamp
v SA Airlink
(Pty) Ltd
[1]
:
‘
In my view, s 187
imposes an evidential burden upon the employees to produce evidence
which is sufficient to raise a credible possibility
that an
automatically unfair dismissal has taken place. It then behoves
the employer to prove to the contrary, that is to
produce evidence to
show that the reason for the dismissal did not fall within the
circumstance envisaged in s 187 for constituting
an automatically
unfair dismissal.’
[2]
[17]
This
dictum,
which sets out the law insofar as unfair dismissals are concerned,
should be read together with the general legal position relating
to
an application for absolution from the instance at the end of the
plaintiff’s case. In this connection, the correct approach
was
set out by Harms JA in
Gordon
Lloyd Page and Associates v Rivera and Another
[3]
as follows:
‘
The test for
absolution to be applied by a trial court at the end of a plaintiff’s
case was formulated in
Claude Neon Lights (SA) Ltd v Daniel
1976 (4) SA 403
(A) at 409 G-H in these terms:
“…
(W)hen
absolution from the instance is sought at the close of plaintiff’s
case, the test to be applied is not whether the
evidence led by
plaintiff establishes what would finally be required to be
established, but whether there is evidence upon which
a Court,
applying its mind reasonably to such evidence, could or might (not
should, nor ought to) find for the plaintiff. (
Gascoyne v Paul and
Hunter
1917 TPD at 173;
Rutor Flour Mills (Pty) Ltd v Adelson
(2)
1958 (4) SA 307
(T).”
This implies that a
plaintiff has to make out a prima facie case – in the sense
that there is evidence relating to all the
elements of the claim –
to survive absolution because without such evidence no Court could
find for the plaintiff (
Marine
& Trade Insurance Co Ltd v Van de Schyff
1972 (1) SA 26
(A) at 37 G – 38 A; Schmidt
Bewysreg
4
th
ed at 91-2). The test has from time to time formulated in
different terms, especially it has been said that the Court must
consider whether there is ‘evidence upon which a reasonable man
might find for the plaintiff’ (
Cascoyne
(loc cit
))
– a test which had its origin in jury trials when the
‘reasonable man’ was a reasonable member of the jury
(
Ruto
Flour Mills
).
Such a formulation tends to cloud the issue. The Court ought
not to be concerned with what someone else might think; it
should
rather be concerned with its own judgment and not that of another
‘reasonable’ person or Court. Having
said this,
absolution at the end of a plaintiff’s case, in the ordinary
course of events, will nevertheless be granted sparingly
but when the
occasion arises, a Court should order it in the interest of
justice.”’
[4]
This
appeal must be determined on the basis of this clear statement of the
law as to when it is legally appropriate to grant an
order of
absolution.
Appellants’
case
[18]
Ms de Vos SC, who appeared together with Ms de Vos on behalf of the
appellants, submitted that, although the respondent had
conducted
disciplinary hearings, to which I have already made reference, they
were based on “trumped up” charges in
that the employees
could not be said to have refused a lawful instruction, in
circumstances where there were negotiations in respect
of the daily
slaughter targets and overtime to be worked as appears from the
correspondence to which I have made reference. Furthermore,
she
referred to a passage of cross-examination of Mr Christians in which,
contrary to the finding of the court
a quo
, the witness had
insisted that the respondent, in dismissing the employees, sought to
compel the employees to accept a demand in
terms of s187(1)(c) of the
Act which provides that a dismissal is automatically unfair if the
reason for the dismissal is a refusal
by employees to accept a demand
in respect of any matter of mutual interest between them and their
employer. The relevant passage
reads thus:
‘
Mr Christians: …
Die maatskappy is bereid om (onduidelik) as die werkers die 850 slag,
of daai voorstel wat (onduidelik)
as die werkers dit nakom
(onduidelik). Dan was daar geen probleem vir die
maatskappy om die werkers (onduidelik) terug
te vat nie.
Mr Loots: Maar dit was u
mening, soos dit hier blyk.
Mr Christians:
Maar dit is my mening en die korrespondensie wys dit is so. Ek
dink my mening is reg, is korrek…
Mr Loots: Ja maar
dit bly u …
Mr Christians: Dat hulle
sal teruggaan as hulle daai ure werk wat die maatskappy wil he hulle
moet werk, daai lang ure, maar nie
sal terugvat as hulle volgens
hulle basiese diens - … die basic conditions werk nie, en
volgens die kontrak nie, (tussenbeide)
…
Mr Loots: Dis u sterk
opinie.
Mr Christians: Dis my
opinie dat die maatskappy hulle sal terugvat op daai basis, ja.’
[19]
This passage of evidence was supported by an affidavit to which Mr
Christians deposed in an earlier urgent application in which
he
stated ‘I verily believe that the company will reinstate the
workers if they accede the demand of slaughtering 850 sheep
per day’.
[20]
Mr Dube, who testified on behalf of the appellants provided further
support for appellants’ case as follows:
‘
As ons soggens by
die hek kom dan is daar ‘n blaai met die name van almal.
Teken langs hou naam jy is hierso, teken,
gaan agter toe. Sit
daar agter in die jaart. Julle gaan nie hier om nie.
Julle werk nie. Sit agter.
Daar het ons gesit vir soos
twee weke. Toe dat ons net gehoor het in die laaste week die
Vrydag julle hoef nie more in te
kom nie, julle kan net julle geld
kom haal, julle hoef nie more hier te kom sit nie. Julle kan
maar net julle kom haal.
En ons geld is aan ons betaal
die laaste geld buitekant by die hek het ons ons geld – ons was
nie binne nie.
En kan ek nie teruggaan
na die – in daai tyd wat u nou data gesit het, wat het nou van
die slagtery geword? --- Dit het aangegaan.
Die slagtery het
aangegaan.
Nou wie het geslag as die
slagmanne daar on die hoek gesit het? --- Daar was mense
van die Paarl wat ingery is want
die oggend – die oggend toe
ons kom wat ons om tienuur kom, toe is daai mense alreeds daar.
En die company het vir
hulle slaapplek gereël net langs die
slagpale by die (onduidelik) daai mense her daar gebly. Daar is
vir hulle kos voorsien.
Daar was vir hulle beddens, hulle het
daar geslaap. Ons het by die hek gestaan. Daai manne het
verby ons geloop, gaan
hulle in.’
[21]
Mr Dube added important evidence by claiming that there had been an
encounter with Mr De Bot on 30 November 2010. The relevant
passage of
his testimony reads thus:
‘
En mnr De Bot het
gereageer en gesê nee, mar hulle is nie ge-dismiss nie, ons sal
by vieruur weet. Wat ek – soos
ek gehoor het die argue
van die tyd, so ek is nie seker nie, want ek het nie die tyd nie,
maar dis wat hy – wat ek gehoor
wat hy ook gesê het, hy
wat mnr De Bot is. Nee, hulle is nie ge… - ons sal
vieruur sal ons weet wat is die outcome.
So ek – sy tyd
kan uit gewees het ook. Ek – maar ek het nie tyd gekyk
daai tyd nie, maar dis wat hy gesê
het. Of hy sy tyd
gekyk het hoe laat dit was kan ek nie sê nie.’
Respondent’s
case
[22]
Mr Loots, who appeared on behalf of the respondent together with Mr
Ackerman, submitted that there was no evidence to justify
appellants’
argument that the dismissal had taken place on 30 November 2010. In
the first place, there were disciplinary
hearings, which were
conducted on 1 and 23 December 2010. Employees had been paid during
this period, even though they had not
attended the hearing on 1
December 2010. Further, Mr Loots emphasised that a practice directive
which had been issued by Steenkamp
J on 09 September 2014 to the
effect that “applicants must establish the existence of
dismissal on 30 November 2010 in terms
of s 192 of the LRA.”
This, in his view the appellants had not been able to do.
Evaluation
[23]
Ms de Vos contended that, as the trial had not ended, it was still
open to her to point to the fact that the practice directive
was
incorrect and that it did not relieve the Court of its obligation to
consider all the evidence and determine the existence
of the
dismissal, that is whether it was on 30 November or 1 December 2010
and further whether the dismissal had taken place by
earlier conduct
of the respondent or pursuant to the two disciplinary hearings to
which reference had been made. Ms de Vos also
made the point that a
formalistic and technical approach adopted by a court, which prefers
formality over an enquiry into substantive
justice and therefore
constructs an obstacle course for impecunious employees should be
avoided.
[24]
I fully endorse this warning. It may well be that in form, the
employees were dismissed on 1 or 23 December and that a formal
amendment to that effect might yet have to be brought before a trial
court. But that on its own should not detract a court
from a
proper enquiry namely, whether there was evidence produced by the
appellants upon which a court applying its mind reasonably
could or
might have found a sufficient credible possibility that an
automatically unfair dismissal had taken place. To my mind,
the
evidence of Mr Christians and Mr Dube, read together with the broader
context of the dispute, namely a difference as to how
many carcasses
the employees were required to slaughter on a daily basis justifies a
conclusion that the appellants had negotiated
the initial evidential
hurdle and that an order of absolution from the instance could not be
granted on the evidence so presented.
[25]
It may be that once all of the evidence is heard, including that of
the respondent, that a court might conclude that the employees
were
dismissed for a reason alleged by the employer and accordingly that
the dismissals were justified. That of course is
for another
day before a different court. That is not the test, which must be
applied in this appeal.
[26]
Much was
made of a problem facing the appellants, namely that if the version
was that the dismissal on 30 November 2010 was final,
than in terms
of the law as set out in
NUMSA
and Others v Fry’s Metals (Pty) Ltd
[5]
(Fry’s Metals)
,
s187(1)(c) of the LRA could not apply. On the basis of this decision,
the section only applies to a conditional dismissal, that
is a
dismissal that was conditional upon an employee agreeing to the
demands of the employer. It is not strictly necessary to determine
whether the approach set out in
Fry’s
Metals
remains good law. However, as the parties did raise this issue in
some detail in their heads, it is opportune to comment thereon.
[27]
In effect,
this approach reflects the jurisprudence set out by Zondo JP in this
Court in
Fry’s
Metal (Pty) Ltd v NUMSA and Others
[6]
which finding was confirmed by the Supreme Court of Appeal in the
Fry’s
Metal
decision
supra
.
[28]
The reasoning employed by Zondo JP (as he then was) in order to
conclude that s187(1)(c) could only be applicable to a conditional
dismissal is set out in paragraphs 27 and 28 of this judgment as
follows:
‘
In my view what
was said by the Industrial Court in
Game Discount World
in
respect of a lock-out dismissal under the definition of a lock-out
under the old Act, namely, that such a dismissal cannot be
final and
irrevocable, applies with equal force to the provisions of s 187
(1)(c) of the Act. In order to fall within the
ambit of s
187(1)(c) a dismissal must have as its purpose the compulsion of the
employees concerned to accept a demand in respect
of a matter of
mutual interest between employer and employee. If dismissal is
not for that purpose, it falls outside the
ambit of s 187(1)(c).
A
dismissal that is final cannot serve the purposes of compelling the
dismissed employees to accept a demand in respect of a matter
of
mutual interest between employer and employee because, after he has
been dismissed finally, no employment relationship remains
between
the two. An employee’s acceptance of an employer’s
demand in respect of a matter of mutual interest can
only be used or
worth anything if the employee is going to continue in the employer’s
employ.’
[29]
In arriving at this conclusion, Zondo JP referred to earlier findings
of the Industrial Court which had been based on the definition
of
lockout as contained in the now repealed
Labour Relations Act 28 of
19
56, which included in the definition of a lockout, a termination by
the employer of the contracts of employment of anybody or a number
of
persons in its employ:
‘
if the purpose of
that … termination … is to induce or compel any
persons, who are or have been in his employ or in
the employment of
other persons-
(1) to agree or comply
with a demands or proposals concerning terms or conditions of
employment.’
[30]
The definition of lockout has now been altered in the LRA to mean
“the exclusion by an employer of employees from the
employer’s
workplace for the purposes of compelling the employees to accept a
demand in respect of any matter of mutual interest
between an
employer and employee whether or not the employer breaches those
employees contracts of employment in the course of
or for the
purposes of that exclusion.”
[31]
A so-called “termination lockout” now finds its way into
s187(1)(c)
of the LRA. This section must now be interpreted within
the framework of two fundamental propositions:
1.
The
distinction is drawn in the LRA between a dispute of interest and a
dispute of right. In this context, the Constitutional Court
in
IN
RE: Certification of the Constitution of the Republic of South Africa
1996
[7]
; noted that employers
“may exercise power against workers through a range of weapons,
such as dismissal, the employment of
alternative or replacement
labour, the unilateral implementation of new terms and conditions of
employment and the exclusion of
workers from the workplace (the last
of these generally called a lockout)”. A distinction therefore
must be made between
these two concepts in terms of the present LRA.
2. The concept of
dismissal is defined in s186(1) in the LRA to mean an employer has
terminated employment with or without notice.
This definition governs
all dismissals including a dismissal in terms of s187(1) (c). If an
employer therefore dismisses an employee
in terms of s187(c) and an
employee then concedes to the demand of the employer, it would appear
that the employer may re-employ
the employee. The use of the concept
“reinstatement”, as a description of what occurs if an
employee concedes to the
demand of an employer who is then prepared
to accept the employee into the workforce is clearly at war with the
idea that the concept
of conditional dismissal can be made to fall
within the definition of dismissal in s186(1). In the event that an
employer “takes
back” an employee who acquiesces to a
demand of the employer, this is a fresh decision made by the latter
and not the result
of a fulfilment of a condition to “reinstate”
if the employee agrees to the demand of the employer.
[32]
It may well be that this dispute with regard to s187(1)(c) of the LRA
will require resolution in the near future but, for the
purposes of
making an order in this case, it is not necessary to determine
definitely this interpretive dispute. The trial court
may find, after
an evaluation of all the evidence that the present dispute does not
fall to be determined under s187(1)(c) of the
LRA.
Order
[33]
For all of the reasons set out:
1. The appeal is upheld
with costs, including the costs of two counsel.
2. The order of the court
a quo
of 23 March 2015 is set aside.
3. The matter is remitted
to the court
a quo
for a continuation of the trial.
__________________
Davis
JA
Musi
JA and Murphy AJA concurred.
APPEARANCES:
FOR
THE APPELLANTS:
Adv Anne Marie De Vos
Instructed
by SERI Law Clinic
FOR
THE RESPONDENT:
Adv Lourens Ackerman
Instructed
by Bisset Boehmke McBlain Attorneys
[1]
2005 (26) ILJ 2153 (LAC).
[2]
At para 28.
[3]
2001 (1) SA 88
(SCA).
[4]
At 92-93; para 2.
[5]
[2005] 3 All SA 318 (SCA).
[6]
[2003] 2 BLLR 140 (LAC).
[7]
1996 (10) BCLR 1253
(CC) at para 66.