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[2017] ZALAC 55
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SACCAWU obo Mokebe and Others v Pick'n Pay Retailers (JA36/16) [2017] ZALAC 55; [2017] 12 BLLR 1196 (LAC); (2018) 39 ILJ 201 (LAC) (26 September 2017)
IN
THE LABOUR APPEAL COURT OF SOUTH AFRICA, JOHANNESBURG
Reportable
Case
no: JA36/16
In
the matter between:
SACCAWU
OBO BONOLO MOKEBE & 71 OTHERS
Appellant
and
PICK
‘N PAY
RETAILERS
Respondent
Heard:
14 March 2016
Delivered:
26 September 2017
Coram:
Waglay JP,
Kathree-Setiloane
and Phatshoane AJJA
JU
DGMENT
KATHREE-SETILOANE
AJA
Introduction
[1]
This is an appeal against the judgment of the Labour Court (Basson
J), in which it found the dismissal of 61 employees (“the
employees”) for engaging in an unprotected strike, of about an
hour’s duration on 24 September 2010, substantively
and
procedurally fair. The employees were all employed as so-called
variable time employees (VTEs) at Pick ‘n Pay’s
(“the
company”) Woodmead store at the time of their dismissal. They
were all members of the South African Commercial
Catering and Allied
Workers Union (SACCAWU) (“the union”), which acts on
their behalf in this appeal.
[2]
The appeal is in essence about penalty. The union contends that
because the employees were only on strike for about an hour,
the
penalty of dismissal was disproportionate and thus unfair. The
company contends, to the contrary, that the penalty of dismissal
was
appropriate when viewed in the context that the employees:
(a)
while already on a final written warning for the same misconduct;
(b)
deliberately engaged in an unlawful strike, in the last and busiest
hour of trading on a
public holiday (Heritage Day), which was
calculated to cause the company damage and did, in fact, do so when
approximately 100
customers abandoned their trolleys;
(c)
deliberately defied numerous instructions and warnings by management
not to strike
at 15:00 hours;
(d)
deliberately tried to mislead the Labour Court with a defence that
there was a miscommunication
with the union and that they thought
they were entitled to strike at 15:00 hours; and
(e)
showed no remorse for their misconduct, thereby rendering a continued
relationship intolerable.
Background
[3]
The company and the union were engaged in wage negotiations at a
national level. On 10 June 2010, for reasons unrelated to the
wage
negotiations, the employees engaged in industrial action (by marching
from the company canteen to the other side of the Woodmead
store
where the manager’s office was situated and back to the canteen
again) pursuant to which the employees were issued
final written
warnings. On 12 June 2010, the union referred a dispute of mutual
interest to the Commission for Conciliation, Mediation
and
Arbitration (“CCMA”). An attempt at conciliation was
unsuccessful, and the union obtained a certificate of outcome
from
the CCMA in relation to the non-resolution of the wage dispute
forming the subject of the negotiations.
[4]
On 22 September 2010, the company and the union were engaged in a
mediation process in relation to that wage dispute. There
was an
impasse by 15h00 on that day. At 17h29 that afternoon, the union
issued the company with a strike notice in relation to
a national
strike which would commence on 24 September 2010 at 19h00 (“the
strike notice”). The strike notice read:
‘
The intended
industrial action will take the form of a complete withdrawal of
labour by all SACCAWU members and those who stand
to benefit from the
proceedings negotiated by the Union in the collective bargaining
process from which the current dispute arose,
throughout all the
establishments / operating units of Pick ‘n Pay across the
Republic of South Africa. Such withdrawal of
labour will be effective
from 24 September 2010 at 19h00 up to 24h00 on the 27th of September
2010…’
[5]
On 24 September 2010, the employees (who were scheduled
to work until the closure of the store at 16h00, and in some cases
until
16h30 to service remaining customers post-closure) embarked on
the strike at the company’s Woodmead store at times earlier
than their scheduled ending times. Their times of joining the strike
ranged from 14h59 to 15h44.
[6]
Mr Frans Nkosi (“Nkosi”) (Regional Chairperson of the
union and a member of the National Negotiation Committee (NNC);
Mr
Mbulisani Ngomane (a regional office bearer of the union, Ms Joyce
Letsoalo (Co-ordinator of the shop stewards’ committee
at the
Woodmead store) (“Letsoalo”); and Mr Sibongile Mzizi
(“Mzizi”) (one of the dismissed employees)
testified on
behalf of the employees.
[7]
Mr David Green (“Green”) (receiving security
coordinator); Mr Jacques van Rooyen (“Van Rooyen” (store
manager); Mr Joseph Goba (“Goba”) (head of department:
foods), Mr Willem van der Berg (“Van der Berg”)
(head of
department: general merchandise); Mr Sabelo Mngomezulu (“Mngomezulu)
(regional manager); and Ms Valerie Olga Petrus(“Petrus”)
(fruit and vegetable manager) testified on behalf of the company.
[8]
Nkosi testified that during the regional council meetings held with
the shop stewards (including two from the Woodmead store)
on
Tuesdays, it was reported to them that the strike was to commence at
15h00; this being the decision of the National Negotiating
Committee
(NNC). Strike pamphlets were distributed to all stores indicating
that the strike will commence at 16h00. However, on
Monday, 20
September 2010, the union discovered that the commencement time
of the strike was incorrectly recorded in the
pamphlet as 16h00
instead of 15h00. It, nevertheless, decided to distribute the
pamphlet to the employees since it would have been
too costly to
print new ones.
[9]
On Tuesday, 21 September 2010, there was a scheduled regional council
meeting which was attended by Busisiwe and Ndlovu, both
shop stewards
at the Woodmead store. The shop stewards were given copies of the
strike pamphlet at the meeting and asked to distribute
them as soon
as possible.
[10]
On Wednesday, 22 September 2010, in a last ditch attempt to avert a
strike, the parties met at the CCMA. Amongst the members
of the NNC
who attended were Nkosi and Mr Sam Mashaba (a member of the NNC). At
around 15h00 hours on the day, the union decided
to delay issuing the
strike notice as there was a possibility of settling the dispute. The
dispute did not settle, so the union
issued the strike notice later
that day. It resolved to change the commencement time of the strike
from 15h00 to 19h00 in order
to comply with the 48 hour notice
requirement.
[11]
The amended notice was sent to the company by e-mail and was received
by it at 17h29. Two regional office bearers, namely Ngomane
and Ms
Brenda Nkosi were then assigned to communicate the change in the
commencement time of the strike, from 15h00 to 19h00 to
the stores,
in the Wits region. However, according to Ngomane’s testimony,
they were unable to phone the shop stewards to
advise them of this,
as the shop stewards office at the Woodmead store was not
operational.
[12]
Van Rooyen, the store manager, testified that on arriving at the
store on the morning of Thursday, 23 September 2010 at about
06h00,
he read the strike notice which he had received by e-mail. It had
been sent to the general managers of the various stores
in order for
them to communicate the impending strike to management and staff. At
about 07h00 that day, Van Rooyen held a meeting
with his heads of
department including Goba and Green at which he advised them of the
strike notice. At about 08h00, he instructed
a human resources
officer to place the strike notice on the notice boards, at the staff
entrance to the store, and the entrance
to the staff canteen, which
they duly did. This was corroborated by Green and Goba.
[13]
Letsoalo and Mzizi (Mzizi was dismissed for participating in the
unprotected strike), to the contrary, denied that there was
a notice
board outside the canteen, and that the strike notice was displayed
on the notice boards at the staff entrance. Mzizi
testified that he
had no knowledge of the decision-making process at union level which
led to the decision to strike at 15h00 on
24 September 2010. He said
that he was notified by Busisiwe (a shop steward), at the Thursday
shop stewards’ feedback meeting,
that the strike would commence
at 15h00 on 24 September 2010. He said that he believed what he was
told and understood the strike
to be legal.
[14]
Mzizi, furthermore, testified that at no stage before the
commencement of the strike at 15h00 on the 24
th
, was he or
his fellow employees informed by either the shop stewards or
management that the starting time of the strike had changed
from
15h00 to 19h00. He also said that he was not aware of any steps that
the company might have taken to inform the employees
that the strike
was illegal. He was adamant that he had not seen the strike notice
and nor was it placed on the company notice
boards. In conclusion, he
said that he did not play a role in the planning of the strike and
was remorseful for going out on strike
early on 24 September 2010. He
said that had he known that the commencement time had changed, he
would not have joined the strike
at 15h00.
[15]
Van Rooyen testified that he had met with the shop stewards including
Letsoalo and Ndlovu, in his office, at about 10h30 on
the morning of
23 September 2010. He handed them copies of the strike notice,
conveyed its contents to them, and requested that
they do likewise at
the union feedback meeting scheduled for 11h30 that morning. Green,
who was present at the meeting with Van
Rooyen and the shop stewards,
testified that the shop stewards were told that the strike notice had
been placed on the notice boards.
Letsoalo denied that the meeting
took place and that she had ever seen the strike notice. She,
however, testified that a union
feedback meeting was held between the
shop stewards and employees on the day, at which they were told that
the strike would start
at 15h00. She said that the shop stewards
(Dorcas Ndlovu and Busisiwe) who briefed them had just returned from
the shop stewards’
council.
[16]
Letsoalo said that she was on leave on 24 September 2010, when the
strike took place. She testified, under cross-examination,
that she
had not had sight of the strike notice, and denied that it was placed
on the staff notice boards outside the staff canteen,
where the shop
stewards’ feedback meetings were held. She also denied
attending a meeting with management where copies of
the strike notice
were handed to the shop stewards, including herself. Lastly, she
asserted that neither herself nor the staff
were aware that the
strike was to begin at 19h00, as they were informed that it would
begin at 15h00 on 24 September 2010.
[17]
Friday, 24 September 2010 was a public holiday. The senior managers
on duty were Goba (acting store manager in Van Rooyen’s
absence), Green and Buthelezi. None of the shop stewards were at
work. On the understanding that the strike would begin at 19h00,
Petrus enquired from the staff in her department, at about 07h30 that
morning, whether they planned to work a full day. When Petrus
was
told that they intended to work until 16h00, she warned them that
they were on a final written warning. They responded by saying
that
"Joyce [Letsoalo] will fight for them". Letsoalo was the
de
facto
representative of the VTEs (or union activist).
[18]
At about 09h00, Green saw Letsoalo, Ndlovu and Mashaba handing out
the strike pamphlets both inside and outside the store.
They were
wearing union T-shirts. Goba also saw Letsoalo and Ndlovu handing out
the strike pamphlets to both staff and customers
in the store. He did
not personally see Mashaba doing this. Mzizi, on the other hand,
testified that he had not seen the strike
pamphlet and nor did he see
Letsoalo, Ndlovu and Mashaba handing them out.
[19]
Round about the same time, Paula and Thembi Weyi (the two frontline
supervisors) handed Green a strike pamphlet, and advised
him that the
employees were planning to clock out at 16h00 since they had been
given an assurance, from the shop stewards, that
“nothing will
happen to them” if they did so. Green and Goba quickly
arranged, through a temporary employment service
(“TES”),
for 30 relief workers (cashiers and packers) to start working at
16h00.
[20]
At about 10h00 on 24 September 2010, Van Rooyen, who had the day off,
arrived at the store with his wife to do some shopping.
Green and
Goba advised him that Letsoalo, Ndlovu and Mashaba were handing out
strike pamphlets to staff and customers. Van Rooyen
saw numerous
pamphlets on the floor, which he and his fellow managers picked up.
The pamphlet stated that more than 27 000 SACCAWU
members employed by
“Pick ‘n Pay throughout the country would embark on
strike action on 24 September 2010, starting
at 16h00”. Van
Rooyen, Goba and Green tried to find Letsoalo and Ndlovu in order to
question them about the new (16h00) starting
time of the strike, but
they were nowhere to be found. Van Rooyen also telephoned Mr Maduma
(chairperson of the national office
bearers of the union) but could
not get hold of him either. Van Rooyen left the store at about 12h00.
[21]
At about 12h30 on 24 September 2010, Green was advised by Paula and
Thembi Weyi that the commencement time of the strike had
been brought
forward from 16h00 to 15h00. As Green put it:
‘
They told me that they are
going off at 15:00 hours as they were instructed by the shop stewards
and were told if they [go] off
at 15:00 hours nothing will happen to
them.’
Upon
learning of the change of commencement time of the strike, Goba
immediately informed Van Rooyen of this telephonically. Van
Rooyen
thereupon instructed management to caution staff against leaving work
early because the commencement time of the strike,
as per the strike
notice, was 19h00 and not 15h00. Van Rooyen corroborated Goba’s
testimony on this aspect. At about 13h00
and pursuant to Van Rooyen’s
instructions, Goba instructed the department managers to warn the
staff against striking at
15h00. He personally saw them carrying out
his instruction.
[22]
At about the same time, a meeting of supervisors was convened in
Buthelezi’s office. According to Green, he appealed
to the
supervisors present to ignore the call to strike at 15:00.They,
however, informed him that they were instructed by the union
and the
shop stewards to go out on strike at 15h00 and that “nothing
will happen to them”. Soon thereafter, Green observed
Buthelezi
trying to persuade all frontline employees not to go on strike early.
Green also tried to dissuade the employees from
striking at 15h00.
Mzizi, however, testified that he did not, during the course of that
day, see anyone warning employees against
striking at 15h00.
[23]
At about 14h55, Green saw the cashier's cashing up. They thereafter
walked with the packers to the cash office. He opened the
cash office
for them. After doing so, he saw a sizable number of employees in the
process of clocking out at the scanner next to
the cash office. Green
warned them that their conduct was illegal, and that they would lose
their jobs as they had already been
given final written warnings in
June 2010. They responded by telling Green that they had nothing to
worry about as the “shop
stewards had told them that nothing
will happen to them". Green understood this to refer to the
three shop stewards who had
been at the store that morning, namely
Letsoalo, Ndlovu and Mashaba. The strikers ignored Green's plea,
clocked out and left.
[24]
Goba was also in the vicinity of the cash office at 15h00. He
attempted, in the presence of Petrus and Buthelezi, to persuade
the
strikers to return to work. They responded by stating that they would
not take instructions from management vis à vis
the strike as
the union and Letsoalo, in particular, “will stand up for
them”. At about 15h00, Green saw Mr David Mbele
(Mbele) trying
to persuade the employees in the fruit and vegetable department (next
to the cash office) to return to work. He
said that Mbele instructed
them to return to work on the basis that “their strike was
illegal". Goba corroborated Green’s
testimony on this
aspect.
[25]
At around 15h00, the TES workers were brought in. This enabled
management to keep 15 of the 45 tills operating. According to
Van
Rooyen, approximately 100 trolleys were abandoned by customers during
the strike from 15h00 hours onwards, as a result of which
the company
suffered a loss of R190,000.00. He said that the peak trading hour on
the day (a public holiday) was from 15h00 to
16h00.
Judgment of the Labour Court
[26]
The Labour Court identified the key factual dispute as being whether
the employees had deliberately planned to go on strike
at 15h00 hours
or whether this was an innocent error. In finding against the
dismissed employees on this issue, the Labour Court
reasoned as
follows:
‘
The
overwhelming evidence was that clear instructions were given by Van
Rooyen and his managers to the employees warning them against
commencing with the strike at 15h00. These instructions also clearly
conveyed to the employees that should they go on strike at
15h00, the
strike would be illegal. Having also accepted that the strike notice
must have come to the knowledge of the employees,
the action of the
employees to embark on strike action at 15h00 was in deliberate
defiance of management.
On the evidence therefore I do not
accept that the 60 odd employees went on strike at 15h00 not knowing
that the strike was to commence
only at 19h00. It is clear from an
overall conspectus of the evidence that the strike was planned to
commence at 15h00 and
that it was in fact orchestrated by the
shop stewards and more in particular Letsoalo and the employees knew
that the strike would
be illegal not only because the strike notice
was displayed on the noticeboard, but also in the light of the fact
that they were
repeatedly warned by management. Embarking on the
strike action at 15h00 hours was in deliberate defiance of
management.’
[27]
In arriving at this finding, the Labour Court rejected every aspect
of the union's evidence including that: (a) the strike
had originally
been planned to commence at 15h00 hours and not at 19h00 hours as
reflected in the strike notice; (b) the strike
notice was not placed
on the notice boards and the employees had not seen it; (c)
management did not hold a meeting with the shop
stewards on 23
September 2010 and inform them of the strike notice; (d) the strike
notice was not discussed at the union report
back meeting held at
11h30 that day; and (e) Letsoalo, Ndlovu and Mashaba had not handed
out the strike notice at the store on
the morning of 24 September
2010.
[28]
The Labour Court also held that the union and the employees “were
not truthful in their pleaded defence” because
they “had
deliberately tried to mislead the court with a defence that was…
devoid of any truth”. In this regard,
it found,
inter alia
,
Nkosi’s evidence “convoluted” and
“contradictory”, and Letsoalo’s evidence “not
truthful". It was, furthermore, critical of the union's failure
to call as witnesses Mahlome, Legodi, Mashaba and any of the
dismissed employees apart from Mzizi.
[29]
In relation to the penalty of dismissal, the Labour Court found the
following factors to be aggravating:
(i)
By striking when they knew that they should not, "the
[appellants] had deliberately set themselves on a conflict path with
the employer" (described by the court as "a deliberate
collision course with management").
(ii)
The employees “commenced with the strike at the time when they
knew that the employer was vulnerable", and "what made
matters worse is the fact that this was a public holiday and that
the
store was full of shoppers". The fact that the strike took place
during the last hour of trade "is indicative of
the fact that
the [appellants] tried to maximise the harm imposed upon the
employer".
(iii)
The "overwhelming evidence was that the [appellants] were
repeatedly
warned not only to desist from their conduct but of the
consequences of the conduct should they persist with embarking on an
unprotected
strike action".
(iv)
The Court went on to find that it could "also not ignore the
fact that
the [appellants] had deliberately tried to mislead the
court with a defence that was found to be devoid of all truth".
(v)
furthermore, only one of the [appellants] gave evidence and attempted
to show remorse. Not one of the other [appellants] came forward to
explain the conduct and to show remorse".
[30]
Having taken into account the short duration of the strike, the
Labour Court held that it did not mitigate the seriousness
of the
unprotected strike and that the aggravating factors simply outweighed
the mitigating factors. The Labour Court accordingly
found the
dismissal of the employees to be both substantively and procedurally
fair. The appeal against the judgment and order
of the Labour Court
is with its leave.
Unprotected
Strike
[31]
The evidence reveals overwhelmingly that the strike was unprotected
because, in terms of the protected strike notice which
is common
cause, the strike should have commenced as 19h00 on 24 September
2010, but the employees went on strike at 15h00 in circumstances
where the end of their shift time was either 16h00 or 16h30. Of the
61 dismissed employees, the end of shift of 44 of them was
at 16h00,
and that of the remaining 17 was at 16h30. It follows from this that
the 17 employees whose shifts would have ended at
16h30 were on
strike for between and an hour and an hour and a half, and the 44
employees whose shifts would have ended at 16h00
were on strike for
between 40 minutes to an hour. This means that the majority of the
employees participated in the strike for
under an hour. This was
clarified in the following exchange between Green and counsel for the
union during cross-examination:
‘
When you say employees embarked
on a strike. We accept that this is the time when employees
joined the strike action, the
out punched times [recorded in the
schedule on pp 463 - 471 of the record]?
Yes.
So if the strike commenced at 15:00,
the duration of the unprotected strike could only be a maximum of one
and a half hours, only
for those employees who embarked at 15:00 and
were scheduled to work until 16:30, do you accept that?---- I accept
that yes.
And of course, if an employee joined
the strike later than 15:00, it would be a shorter time than this?
---- It can be.
For employees scheduled to work only
until 16:00, who embarked on the strike later than 15:00, they would
have been on an unprotected
strike for less than one hour given the
end of their shift times. ---- It can be.’
[32]
The Company’s employees at two other stores, namely Carlton
Centre and Rosebank had also commenced striking at 15h00
on 24
September 2010. The Company instituted disciplinary action against
the employees (at the Woodmead store) for participating
in the strike
earlier than the time indicated in the strike notice. Those
employees, who were on final written warnings for the
events of 10
June 2010 were dismissed for participating in the unprotected strike
on 24 September 2010, whereas other employees
at the same store (i.e.
the Woodmead store) who were not on final written warnings, were only
issued written warnings for participating
in the unprotected strike
on the same day. Other employees at the company’s Carlton
Centre and Rosebank stores, who were
already on written warnings for
prior industrial action, were issued written warnings for
participating in the unprotected strike
on 24 September 2010.
[33]
The question that remains for determination is that even though the
strike was unprotected, is dismissal the appropriate sanction?
In
contending that it is not, the union relies for support on the
judgment of this Court in
Hendor
Steel Supplies v National Union of Metalworkers of SA and Others
(Hendor),
[1]
where in spite of the employees having embarked on an unprotected
strike for seven weeks, the court found the sanction of dismissal
to
be disproportionate to their misconduct, and unfair. In light of the
unions’ reliance on
Hendor,
a detailed recitation of the facts is warranted. These are the facts
in
Hendor
:
(a)
A group of employees raised complaints regarding their alleged
victimisation and race discrimination
at the hands of a foreman. As a
result, on 3 October 2002, there was a work stoppage on the night
shift (this being an incident
of unprotected industrial action)
following which the foreman was suspended pending a disciplinary
hearing. The foreman was issued
a final written warning pursuant to
the disciplinary hearing. The shop stewards, angered by the
decision of the employer
not to dismiss the foreman, embarked upon an
unprotected strike at the employer’s factory (this being the
second incident
of unprotected industrial action). Following the
issue of an ultimatum by the employer, on 15 October 2002, the
striking employees
were dismissed.
(b)
Pursuant to certain engagements between the employer and the
employees’ trade union
representatives, it was agreed that the
dismissed employees be reinstated and issued a final written warning
valid for 12 months,
for participation in the second incident of
unprotected industrial action. During February 2003 and after a
further demand, by
the employees, that the employer dismissed or
removed the foreman, which the employer refused to accede to, the
trade union referred
a "mutual interest dispute" to the
CCMA. The latter issued a certificate of non-resolution of the
dispute and on 20 June
2003 a strike notice was issued. On 25 June
2003, the employees commenced their unprotected strike. It endured
for seven weeks.
(c)
The employer issued an ultimatum to all employees advising them that
their strike
was illegal and that unless they reported for duty at
the commencement of the day shift on Friday, 4 July 2003, they would
be dismissed.
They were invited to make representations to the
employer prior to 4 July in relation to why they should not be
dismissed. On the
evening of 3 July 2003, the day before the
ultimatum was to expire, the union launched an urgent application, in
the Labour Court,
in which it sought an order interdicting the
employer from carrying out its dismissals.
(d)
The Labour Court made an order by consent in terms of which the
employer would not dismiss
the striking employees pending the hearing
of the matter on 1 August 2003. The application was heard on 1 August
2003 and on 13
August 2003 the application to interdict the employer
from dismissing the employees was dismissed. On the same day, the
union wrote
to the employer indicating that a decision had been taken
to call off the strike action with immediate effect. The employer
responded
by stating that it was entitled to terminate the employment
of the employees, but that it intended to give them a further
opportunity
to make representations on why they should not be
dismissed on 18 August 2003 at 9 am. On 18 August 2003,
representations were
made by the employees. After considering the
representations, the employer dismissed those employees who
participated in the strike.
(e)
The Labour Court found that the employees’ dismissals were
substantively unfair on
the basis that: (a) the employees were
understandably aggrieved by the continued presence of the foreman who
had used derogatory/racist
language; (b) the employees held a
bona
fide
belief that their strike was protected; (c) the employees
had returned to work immediately after the employer had succeeded in
interdicting the strike; and (d) the strike would have been
substantially shorter if the employer had not agreed to the
postponement
of its application for an interdict by a month.
[34]
The Court in
Hendor
held as follows in relation to the
principle of proportionality:
‘
Dismissal
is manifestly the sanction of the last resort (
WG
Doney (Pty) Ltd v National Union of Mineworkers of SA
(1999) 20 ILJ 2017 (SCA) at paragraph 18). Hence there is a need to
examine the arguments of both parties as to the matter and
conduct of
the strike to test whether dismissal was proportional to the
misconduct.’
It
went on to hold that:
‘
In
summary, the use of the most extreme sanction, dismissal in this case
was manifestly disproportionate to the "misconduct"
of the
second and further respondents.’
[35]
The principle that was established in
Hendor
is not that the
dismissal of employees because they were on a short duration strike
will inevitably be found to be disproportionate
and thus
substantively unfair. Rather, the principle established there is that
when determining whether the dismissal of striking
employees is
proportional to the misconduct, a court must examine the conduct of
both the employer and employees “as
to the matter and conduct
of the strike”
.
[36]
This Court has, in the past, confirmed the sanction of dismissal in
relation to employees who had participated in a short duration
strike.
National Union of
Metalworkers of South Africa (NUMSA) v CBI Electric African Cables
,
(
CBI
)
[2]
is one such case where it was found that the dismissal of employees,
who had engaged in a two-hour strike (while on a final written
warning) in response to the employer short paying them their wages,
was substantively fair because the employee’s decision
to
strike was:
[3]
‘
[D]eliberate
and calculated. It undermined the process of collective bargaining as
a tool to resolve industrial disputes. When [the
employees] 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 employee’s contention
that they were justified in leaving their shift early because of the
[employer’s] failure
to pay them correctly, is accordingly
rejected.’
[37]
The Court in
CBI
, however, found the dismissal of the
employees to be procedurally unfair because the employer had “made
no attempt to bring
the ultimatum to the attention of the Union when
it was clear that a union official dealing directly with the matter
was not immediately
available and could not be contacted”. The
Court accordingly found that the “strike would have been
avoided had the
respondent engaged with a union official before
issuing an ultimatum. The court accordingly awarded the dismissed
employees 12
month’s compensation, which it found to be just
and equitable in the circumstances.
[38]
Not unlike in
CBI
, the Labour Court found, in this dispute,
that the decision of the employees to strike was in deliberate
defiance of the company.
It, in fact, characterised the key factual
dispute as being “whether the employees had deliberately
planned to go on strike
at 15:00 hours or whether this was an
innocent error”. It accordingly found as follows:
‘
On
the evidence therefore I do not accept that the 60 odd employees went
on strike at 15h00 not knowing that the strike was to commence
only
at 19h00. It is clear from an overall conspectus of the evidence that
the strike was planned to commence at 15h00 and
that it was in
fact orchestrated by the shop stewards and more in particular
Letsoalo and the employees knew that the strike would
be illegal not
only because the strike notice was displayed on the noticeboard, but
also in the light of the fact that they were
repeatedly warned by
management. Embarking on the strike action at 15h00 hours was in
deliberate defiance of management.’
[39]
The Labour Court then went on to find that the employees had set
themselves on a collision course with management, by knowingly
being
party to a scheme aimed at exacting damage on the company by
embarking on the strike at 15h00 on 24 September 2010. This
finding
is not sustainable on the evidence. On the probabilities, the
employees would have been aware that the strike was originally
called
for 7pm, as the strike notice was brought to their attention when it
was placed on the notice boards, and they were reminded
of this by
the employer’s representatives. However, it is clear, on the
company’s own version, that the employees believed
that they
were allowed to strike at 15h00 on the basis of certain assurances
that they had received from the union representatives.
[40]
The testimony of both Green and Van Rooyen also puts paid to the
contention that there was something sinister at play in that
the
union had induced the employees to commence the strike early, despite
being cautioned by the company’s representatives
that this was
not the appropriate course of action. I consider the following
concessions which Green made, under cross-examination,
to be
dispositive of this issue:
‘
Employees being members of
SACCAWU would of course rely on things that their trade union tells
them, correct? Correct
yes.
They would be entitled to accept
in good faith what the – what is communicated to them by their
trade union, correct? Yes.
If something – if they receive a
conflicting message from another [indistinct], it is understandable
that there would be confusion
on the part of the
employees? Yes.’
As
is apparent from the following exchange between counsel for the union
and Van Rooyen, Van Rooyen also felt constrained to make
a similar
concession:
‘
Assuming for a moment that it
[i.e. the Notice mentioning the strike commencement time of 19h00,
which was allegedly communicated
to the Employees by the Company] did
come to their attention for purposes of my questions, the employees
of course are SACCAWU
members and are guided by SACCAWU in relation
to matters such as embarking on an unprotected strike, I think you
must accept that
at the very least? Yes.
Sorry? Yes.’
[41]
The Labour Court found correctly so, in this regard, that the
employees had received an instruction from the union to embark
on the
strike at 15h00. I, however, disagree with its finding that the
employees set themselves on a collision course with management
by
knowingly being party to a scheme aimed at exacting damage to the
company. The strike called for 15h00, by the union, was a
national
strike and not a store specific one. This calls into question the
contention that the employees (at the Woodmead Store)
were knowingly
party to a scheme aimed at exacting damage to the company.
[42]
Moreover, the evidence reveals that the strike was originally meant
to commence at 15h00 on 24 September 2010. The starting
time then
changed to 19h00 in order for the union to meet the 48 hour notice
requirement. Union representatives were then instructed
to
communicate this to the stores in the Wits region, including the
Woodmead store. The shop stewards at the Woodmead store could
not be
reached because the phone in their office was not operational. This
resulted in the Woodmead store not being notified of
the change in
the commencement time of the strike. It turned out that a few other
stores, including those at Rosebank and Carlton
Centre, were not
notified of this. This indicates that if the employees in the
Woodmead store acted in deliberate defiance of the
company, then the
employees in these other stores must have done so as well. But this
is not what the evidence demonstrates. I
accordingly consider the
Labour Court to have erred in finding that the employees acted in
deliberate defiance of the company’s
instructions.
Ultimatum
[43]
The company’s representatives attempted to dissuade the
employees at the Woodmead store from striking before 19h00, but
were
unsuccessful in doing. However, what they did not do was to issue the
employees with an ultimatum once it became clear to
them that the
strike was to begin at either 15h00 or 16h00. Item 6(2) of the
Code provides 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. 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.’
[4]
[44]
It was contended on behalf of the company that it could not
reasonably have been expected to issue an ultimatum to the staff
as
it was given short notice that the strike would begin at 3pm. There
is no merit in this contention as the company had strike
guidelines
in place for handling unprotected industrial action. These guidelines
have, as annexure B, a
pro forma
ultimatum which is to be
issued to employees in a strike situation, where it was “not
possible to engage the shop stewards
and/or address the employees
personally”. The
pro forma
contains the body of the
ultimatum in it, and only requires the time, date and store name to
be inserted in the spaces provided.
[45]
The company was aware from 12h30 on 24 September 2010 that the strike
may commence at 15h00. In anticipation of this, it took
steps to
arrange for replacement labour but did not deem it necessary to
issue an ultimatum to the employees. As such, no
ultimatum was issued
to the employees either before or after the strike commenced; in
circumstances where a number of the employees
only “punched
out” much later than 15h00 including, in some cases,
approximately an hour later. There was nothing,
in my view, which
prevented the company from issuing a written ultimatum to the
strikers, which it was obliged to do in the circumstances.
[46]
The contention, advanced on behalf of the company, that there was no
obligation to issue an ultimatum in circumstances where
the employees
were informed that the strike was unprotected, loses sight of the
objective of an ultimatum, which was expressed
by this Court in
Modise v Steve’s Spar
Blackheath
[5]
as follows:
‘
The purpose of an ultimatum is…
to give the workers an opportunity to reflect on their conduct,
digest issues and, if need
be, seek advice before making the decision
whether to heed the ultimatum or not.’
This
is precisely why an ultimatum in writing is so important – the
employee concerned has a document in hand setting out
what is
required (and the consequences of non-compliance), and can reflect on
the matter in those circumstances.
[47]
The unique circumstances of the current dispute warranted the issue
of a written ultimatum because the employees were seemingly
of the
belief that the strike was a protected one. It is unlikely, on the
probabilities, that they would have proceeded to participate
in the
unprotected strike had they been furnished with a written ultimatum
which expressly spelt out the consequences of doing
so, such as no
payment for the duration of the strike and disciplinary action that
could result in the termination of their services.
[48]
As previously held by this Court
[6]
“
an
ultimatum is as much a means of avoiding a dismissal as a
prerequisite to affecting one”.
It
has a bearing not only on the procedural fairness of a dismissal, but
crucially also on the substantive fairness because it is
aimed at
avoiding a dismissal.
Failure
to provide a hearing
[49]
The company failed to give the employees an opportunity to be heard
before dismissing them, despite undertaking to provide
each of them
with an opportunity to submit a written representation, in the event
that it was not persuaded by the union that the
sanction of dismissal
was inappropriate. Importantly, in this regard, the company issued a
disciplinary notice to the employees
which read:
‘
1.
You participated again in unprotected industrial action on 24
September 2010, which
took the form of leaving your work station
collectively without authorisation at 15h00.
2.
Disciplinary enquiry proceedings will be initialised.
3.
Because of the difficulties of holding a disciplinary enquiry with
all employees
involved in the unprotected industrial action, which
could result in your dismissal, we have decided to hold a hearing as
per the
following:
3.1.
The union through its office bearers and shop stewards at the store
to be given the opportunity
to inform us why you should not be
dismissed. We have scheduled the hearing for date to follow. Please
advise your shop steward
of any representation that should be made.
3.2
Each employee involved to be given the opportunity to submit a
written representation thereafter
if the union cannot persuade us
that dismissal is inappropriate.
4.
The outcome of the hearing with the office bearers and shop stewards
will be
communicated to you.’
[50]
The company held a disciplinary hearing and an appeal hearing in
which only the union officials and shop stewards were permitted
to
participate. Contrary to the undertaking in the notice, the company
failed to provide the individual employees with an opportunity
to
submit written representations to persuade it otherwise once the
decision to dismiss them was taken. While I accept that in
the
context of a strike dismissal, a collective hearing may be utilised
where appropriate,
[7]
this does not give an employer
carte
blanche
to use collective
enquiries irrespective of the exigencies of a particular case. While
in some cases collective hearings may be
warranted, in others they
may not.
[8]
Van Rooyen’s testimony in the Labour Court was that in
cases of collective misconduct, the company always holds disciplinary
hearings on a collective basis. This implies that the company does
not tailor the process to meet the dictates of fairness based
on the
prevailing circumstances of a specific case.
[51]
As contended for by the appellants, this was a case where individual
hearings (or at least, collective hearings in which individuals
could
participate) were warranted because the employees appeared to be of
the mistaken view that they were entitled to go out on
strike at 3
pm, on the day in question, as the strike was a protected one. In
Modise and Others v Steve’s
Spar Blackheath,
[9]
where the dismissed employees were of the similar belief because the
union had taken steps to make the strike legal, this Court
held that:
‘
The last observation relates to
the conclusion that it would have been a pointless and an unnecessary
exercise for the employer
in G.M. Vincent to afford the strikers a
hearing. My difficulty with this conclusion is that this was a case
where the union had
taken various steps prescribed by the old Act for
making a strike legal... Indeed, it appears from the judgement of the
industrial
court in the same matter that, when the matter was argued
in the industrial court, it was the union’s case that it (and,
a fortiori, the strikers) believed that the strike was legal (see
NUMSA V G.M. Vincent Metal Sections (Pty) Ltd
(1993) 14 ILJ
1318 (IC) at 1320J-1321A)... In those circumstances I cannot, with
respect, see how it could be said that a hearing
would have been a
pointless and an unnecessary exercise in such a case.’
The
Court went on to hold that:
[10]
‘
The need for
the respondent to hear the appellants was arguably even stronger in
this case because this was a case where, to the
knowledge of the
respondent, certain steps had been taken by the union which were
obviously aimed at making the strike a legal
strike. The respondent
should have realised that, because such attempts had been made, the
strikers could well have been under
the impression that the strike
was legal and, that, for that reason, they might have believed that
they were entitled to go on
strike and even to ignore any calls by
the respondent that they return to work. Although the appellant’s
strike was illegal,
they should not, in my judgement, be treated in
the same way as strikers who simply flouted the Act and made no
attempts whatsoever
to comply with it. They deserve some sympathy.
Workers must be encouraged to comply with the law. To treat them as
if they fall
into the same category as strikers who go on a strike
without any attempt at all to make their strike legal would not be
right.
It would not encourage unions and workers to make whatever
attempts they can to ensure that their strikes are legal.’
[52]
The union, in the current matter, had obtained a certificate of
outcome in terms of s64(1)(a) of the LRA and it had issued
a strike
notice in terms of s64(1)(b) thereof. This, in my view, rendered it
fair and appropriate for the company to hold a disciplinary
hearing
where individual participation was allowed for primarily two reasons.
The first was to ascertain each employee’s
understanding of
what the correct time of the commencement of the strike was. And the
second was to establish whether he or she
was knowingly complicit in
the purported scheme to cause damage to the company. As it turns out,
the company failed to adhere to
the process that it specifically
undertook to follow in the disciplinary notice which it issued to
employees. This rendered each
of the employees’ dismissals
procedurally unfair.
Inconsistency
[53]
On 10 June 2010, during the course of a weekly shop steward meeting
with employees in the company’s canteen at the Woodmead
store
(between 11h30 and 12h00), a group of employees marched from the
canteen to the other side of the store, where the manager’s
office was situated, and back to the canteen. It is common cause that
weekly shop steward meetings, such as this one, ran from
11h30 to
12h00. The employees were authorised to be away from work during this
period.
[11]
After the meeting, those employees scheduled to go for lunch would
have done so. They remained on authorised absence from work
during
their lunch break.
[54]
The company issued final written warnings to the employees for
participating in the march on 10 June 2010. By all accounts,
this
infraction differed materially from that for which the employees were
dismissed on the current charges. According to Goba,
who observed the
events of 10 June 2010, the “entire process took about 20
minutes or thereabout”. Green conceded,
as did Van Rooyen, that
the 10 June 2010 misconduct for which the employees were issued with
final written warnings, differed materially
from the conduct for
which they were dismissed.
[55]
In addition, Van Rooyen conceded that where an employee, on a final
written warning, commits misconduct which differs from
misconduct
previously committed, it would be unfair to impose the next level of
discipline. In terms of the company’s “Guidelines
for
Handling Unprotected Industrial Action” (“the
guidelines”), progressive disciplinary action starting with
a
written warning generally applies to industrial action off the shop
floor and a final written warning applies to industrial action
on the
shop floor. This guideline as well as the concessions made by the
company’s representatives, demonstrate that the
final written
warnings, which the employees received for their 10 June 2010
misconduct, were not a license to dismiss them for
striking (in most
cases for less than an hour) on 24 September 2010, as those warnings
related to “on the floor”
industrial action that
was distinguishable from the strike action on 24 September 2010.
[56]
The employees’ participation in an unprotected strike for less
than an hour on 24 September 2010 was not sufficiently
serious to
warrant what is, in the words of this Court in
Hendor
“
the
use of the most extreme sanction
”. In terms of its
guidelines, the company should have issued the employees with a
written warning (and not a final written
warning) for engaging in the
unprotected strike action on 24 September 2010 – which was, by
all accounts, the first time
that the employees embarked upon such
industrial action.
[57]
The evidence reveals that not all the workers who participated in the
unprotected strike at the Woodmead store, on 24 September
2010, at 3
pm were dismissed. Notably, the workers who were not on a final
written warning, for the 10 June 2010 incident, were
not dismissed
for participating in the 24 September 2010 unprotected strike. They
received written warnings. Similarly, the employees
at the Carlton
Centre and Rosebank stores, who also participated in the strike that
commenced at 3 pm on 24 September 2010, only
received written
warnings. This, in spite of the fact that they were already on a
written warning for participating in strike action
in June 2010.
[58]
Clause 3(6) of the Code of Good Practice: Dismissal (“the
Code”)
[12]
provides:
‘
The employer should apply the
penalty of dismissal consistently with the way in which it has been
applied to the same and other
employees in the past, and consistently
as between two or more employees who participate in the misconduct
under consideration.’
The
Code envisages a consideration of the employer’s historical and
contemporaneous treatment of employees. In so far as the
company’s
historical treatment of employees is concerned, it issued (ordinary)
written warnings to employees at its Carlton
Centre and Rosebank
stores for participation in unprotected industrial action (off the
floor) in May and June 2010. As concerning
its contemporaneous
treatment of employees, we know that the company dismissed those
employees to whom it had previously issued
final written warnings,
but did not dismiss employees at the Rosebank and Carlton Centre
stores who were already on written warnings,
and who committed the
same misconduct in embarking on the strike at 15h00 on 24 September
2010. It instead issued the employees
at the Rosebank and Carlton
Centre stores with further (ordinary) written warnings.
[59]
The company, furthermore, dismissed the employees, but did not
dismiss other employees in the same store (i.e. the Woodmead
Store)
who committed the same misconduct in embarking on the strike at
15h00, and who were also only issued (ordinary) written
warnings.
This, to my mind, is a clear case of inconsistency, rendering the
employees’ dismissals substantively unfair.
[60]
The inconsistency calls into question the contention that the
employees, had committed serious misconduct deserving of dismissal
and, were part of the alleged sinister scheme in deliberate defiance
of the company’s instruction not to go out on strike
at 3 pm as
opposed to 7 pm. To reiterate, the 24 September 2010 strike was a
national strike and not confined to the Woodmead store.
On an
assessment of the probabilities, the employees at the Woodmead store
could not have been involved in a sinister scheme in
deliberate
defiance of the company. As indicated, they were seemingly of the
belief that they would be participating in a protected
strike at 3 pm
on the day in question. In fact, Mzizi who testified on behalf of the
employees, stated that he was not involved
in the planning of the
strike and had he been aware that the “legal” starting
time of the strike was 7 pm as opposed
to 3 pm, he would not have
gone out on strike.
[61]
Importantly, on this aspect, Green’s testimony that at about
13h00 and after the shop steward feedback meeting on 23
September
2010, two shop stewards – Ms Letta Mhlomi and Ms Salome Legodi
-
informed him that the 19h00 commencement time
of the strike was discussed at the shop stewards’ feedback
meeting and that
they had received copies of the strike notice
advertising the commencement time as 19h00 on 24 September 2010, was
hearsay as neither
Legodi nor Mhlomi were called by the company to
testify at the trial.
The
Trust Relationship
[62]
Van Rooyen made two further significant concessions under
cross-examination. In relation to the first, he conceded that after
the events on 24 September 2010, the employees were not suspended and
continued working until their dismissal. In relation to the
second,
he conceded that he could trust the employees sufficiently to
continue working during this period. This concession, in
my view,
belies the company’s defence that “the employees acted in
deliberate defiance of management by knowingly being
part of a scheme
aimed at exacting damage to the company”.
[63]
As relating to the harm caused, Van Rooyen testified that even though
the company had employed replacement labour to operate
15 of the 45
tills, approximately 100 customers abandoned their trolley during the
strike, as a result of which the company suffered
a loss of R190
000,00. Notwithstanding the significance of this issue (the harm
caused by the striking employees) to the substantive
fairness of the
dismissals, except for the say so of Van Rooyen the company led no
evidence in support of it. It is also significant
that despite the
participation of other employees in the strike at 15h00 on 24
September 2010 (at the Woodmead, Rosebank and Carlton
Centre stores),
they were not dismissed.
[64]
The argument that the trust relationship with the other employees
remained intact, but it did not in relation to the dismissed
employees (who committed the same misconduct) is absurd. It also
contradicts the company’s contention that the dismissed
employees were knowingly part of the sinister scheme that the union
had constructed to exact damage to the company. If there were
any
merit in this contention, then the other employees (at the Woodmead,
Carlton Centre and Rosebank stores), who embarked on the
strike at
15h00, should have also been dismissed - and not merely warned.
Accordingly, I consider the employees’ misconduct
not to be
such as to render their continued employment intolerable.
[65]
For these reasons, I consider the dismissal of the employees by the
company to be both procedurally and substantively unfair.
The company
has advanced no reasons for why I should not grant the employees the
primary relief of reinstatement with back pay
retrospective to the
date of their dismissal. In the circumstances, I see no reason not to
grant the employees that relief. The
appeal accordingly succeeds.
Costs
[66]
As concerns the question of costs, I consider it fair and just that
costs follow the result.
Order
[67]
In the result, I order that:
1
The appeal is upheld with costs.
2
The order of the Labour Court dismissing the
action is set aside and replaced with the following order:
‘
1.
The dismissal of the employees is procedurally and substantively
unfair.
2
The respondent is ordered to reinstate the employees retrospectively
to the date of dismissal.
3
The respondent is ordered to pay the employees back pay retrospective
to the date of dismissal.
4
The respondent is ordered to pay the costs of the action.’
F
Kathree-Setiloane AJA
LABOUR
APPEAL COURT
Waglay
JP and Phatshoane AJA
concur
in the judgment of Kathree-Setiloane AJA
APPEARANCES:
FOR
THE APPELLANT:
R Itzkin
Instructed by Dockrat Inc Attorneys
FOR
THE RESPONDENT:
A Myburgh SC
Instructed by Bowman
Gilfillan In
[1]
(
2009) 30
ILJ 2376 (LAC).
[2]
[2014] 1
BLLR 31 (LAC).
[3]
CBI
at para 39.
[4]
Own
Emphasis.
[5]
[2000] 5 BLLR 496
(LAC) at para 73.
[6]
Mveltrans (Pty) Ltd t/a
Bojanala Bus Services v Pule and Others
(JA 72/13)
(2014) ZALAC 63
(23 October 2014) at para 55.
[7]
National Union of
Metalworkers of SA v Vetsak Co-operative Limited and Others
(1996) 17
ILJ
455 (A).
[8]
Modise and Others v Steve’s
Spar Blackheath
[2000] 5
BLLR 496
(LAC) at para 96.
[9]
At para 64.
[10]
At para 99.
[11]
Section 213 of the LRA defines a strike as “the partial or
complete concerted refusal to work, or the retardation or
obstruction of work, by persons who are or have been employed by the
same employer or by different employers, for the purpose of
remedying a grievance or resolving a dispute in respect of any
matter of mutual interest between employer and employee, and every
reference to “work” in this definition includes overtime
work, whether it is voluntary or compulsory.”
[12]
Schedule 8 to the LRA.