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[2018] ZALAC 21
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MTO Forestry (Pty) Ltd and Others v Chemical, Energy, Paper, Printing, Wood and Allied Workers Union (CEPPWAWU) (PA14/16) [2018] ZALAC 21; [2018] 10 BLLR 950 (LAC) (19 July 2018)
INTHE
LABOUR APPEAL COURT OF SOUTH AFRICA, PORT ELIZABETH
Not reportable
Case no: PA14/16
In the matter between:
MTO FORESTRY (PTY)
LTD
First Appellant
BOSKOR RIPPLANT (PTY)
LTD
Second Appellant
BOSKOR SAAGMEULE (PTY)
LTD
Third Appellant
and
CHEMICAL, ENERGY,
PAPER, PRINTING,
WOOD AND ALLIED
WORKERS UNION (CEPPWAWU)
Respondent
Heard:
13 March 2018
Delivered:
19 July 2018
Summary: Strike action
– employees dismissed for participating in an unlawful strike –
whether the employer’s
conduct amounted to lockout justifying
employee embarking on strike – court finding the locking of the
gate was caused by
a miscommunication on the part of the employer as
it could not conceive that employer would ferry employees from their
homes to
work just to lock them out – Court finding that
employees used the opportunity to strike in support of the national
strike
– court further finding that employees’ case
different to that of the Stellenbosch employees in that unlike these
employees,
the Stellenbosch employees indicated their willingness to
return to work after being served with the court order. The employees
did not budge notwithstanding management and union’s effort to
persuade them to cease the strike- they, by their conduct,
refused to
obey lawful instructions and their dismissal was consequently fair.
Labour Court’s judgment set aside and appeal
upheld.
Coram:
Phatshoane ADJP, Musi JA and Savage AJA
JUDGMENT
MUSI JA
[1]
The first appellant (the employer) owned a timber plantation at
Stellenbosch and it also owned sawmills in the Eastern Cape
(Boskor).
It employed members of the respondent (The Chemical, Energy, Paper,
Printing, Wood and Allied Workers’ Union (the
union)). The
first appellant was bought by and transferred to the second and third
appellants as a going concern with effect from
1 July 2012.
[2]
The employer was a member of the Employers’ Association of the
Sawmilling Industry of South Africa (EASISA). The union
and the
EASISA were members of the National Bargaining Council for the Paper
and Wood Sector (bargaining council). From time to
time the EASISA
and trade unions who were members of the bargaining council concluded
collective agreements which,
inter alia,
regulated the
conditions of employment of employees of the employers represented by
the EASISA.
[3]
On 30 November 2009, the employer resigned from the EASISA, effective
from 20 March 2010. As a result of the resignation, the
employer was
no longer represented at the bargaining council. It was not a party
to collective agreements reached at the bargaining
council.
[4]
During 2011, the unions and the employer associations represented at
the bargaining council could not reach agreement on a wage
increase.
On 18 July 2011, the union issued a strike notice, which was served
on the employer, wherein it indicated that it intended
to commence
with strike action on, 21 July 2011, at 06h00.
[5]
The employer responded to this strike notice on 19 July 2011. It
indicated that it understood that its employees intended to
join the
intended strike action. It pointed out that should its employees
embark on such action it would be unprotected because
it is not a
member of the EASISA; there was no wage dispute between it and the
union and that no dispute involving it had been
referred to the
bargaining council or the Commission for Conciliation, Mediation and
Arbitration (CCMA). It requested the union
to furnish it with a
written undertaking, by 15h00 on 20 July 2011, that its employees,
who were members of the union, would not
embark on the intended
strike action.
[6]
A meeting was held between the employer and the union on 20 July
2011. Ms Mkoto, the union’s organiser at the Port Elizabeth
office, issued a notice to the union members and shop stewards which
read as follows:
‘
this
notice serves to inform our members not to embark on the strike on
Thursday, 21 July 2011 as MTO Forestry is not part of the
Bargaining
Council.
Therefore,
there is no deadlock between CEPPWAWU and MTO Forestry. The union is
handling this matter very urgently.’
[7] Mr Jean Joubert, a
senior manager of the employer, held a meeting with the shop
stewards. During this meeting, he explained
to the shop stewards that
the employer had a contingency plan which it intended implementing
should the employees embark on the
anticipated unprotected strike.
The contingency plan included cancelling the bus service between the
employees’ homes and
work, blocking the entrances to the
employer’s premises and deactivating striking employees’
clock cards.
[8]
The s
hop stewards gave an undertaking that the workers would
not embark on a strike on 21 July 2011. As a result of this
undertaking,
Joubert informed his colleague, Mr Visser, who was
responsible for security at Boskor, not to implement the contingency
plan. The
shop stewards proceeded to put up notices informing union
members not to participate in the strike.
[9]
The next morning, at 05H30 the employees arrived for the 06h00 shift.
They found the access gates and turnstiles locked. They
gathered at
the parking area. The gates and turnstiles were locked due to a
misunderstanding, in that Visser did not communicate
to the security
officers that the contingency plan had been called off. When Joubert
arrived at 06h15 he requested the security
personnel to open the
gates and turnstiles. Joubert endeavoured to get hold of the shop
stewards so that they could have a meeting;
they refused to join him
for fear of intimidation.
[10]
At 07h00, the employer issued an ultimatum to the employees. The
ultimatum read as follows:
‘
You
are hereby notified that your refusal to enter and continue with your
normal duties on Thursday, 21 July 2011 from 6h45 constitute
an
unprotected
strike action.
The
following arrangements will therefore apply.
1.
The
principle of “no work - no pay”(sic) will apply.
2.
Formal
disciplinary action would be instituted against all employees who
participated in the unprotected action on Thursday, 21
July 2011.
Please
note that you (sic) should you not adhere to this ultimatum by 07h15
on Thursday, 21 July 2011, you would be locked out and
not allowed to
enter the company’s premises at Boskor sawmill.’
[11]
The ultimatum was distributed amongst the employees who were singing
and chanting in the parking area. Some of the employees
tore up the
ultimatum.
[12]
At approximately 07h34, management and the shop stewards held a
meeting during which management explained to the shop stewards
that
the gates were locked as a result of a misunderstanding. They
undertook not to penalise any of the workers who refused to
enter the
premises and further undertook to pay them their normal daily wage as
if there was no work stoppage caused by the closure
of the gate or
the refusal to work. The shop stewards left to convey the message to
the employees. At 8h40 the shop stewards reverted
and conveyed to
management that the employees are unwilling to accept the apology and
offer. Furthermore, they indicated that they
would be continuing with
the industrial action.
[13]
The second ultimatum was drafted and distributed, at 09h00. In this
ultimatum the employer informed the employees about the
meeting
between it and the shop stewards and, reiterated its apology and
offer to compensate the employees. It recorded that the
employees
refused the offer. It reiterated that the strike was unprotected and
that the principle of no-work no-pay would be applied
and that formal
disciplinary action might be taken against employees which might
result in dismissal.
[14]
When the second ultimatum yielded no positive results, Ms Mkoto was
contacted telephonically. She advised the shop stewards,
in the
presence of management, that the strike is unprotected and that the
employees must return to work. The shop stewards informed
the
employees about the telephone conversation. The employees would not
budge. After some persuasion during further phone calls,
Ms Mkoto
travelled to Boskor from Port Elizabeth in an endeavour to persuade
the employees to return to work. Her efforts were
unsuccessful.
[15]
The employer had launched an application for interdictory relief in
the Labour Court on 20 July 2011, because its workers at
the
Stellenbosch plant also went on strike. The matter was set down for
22
July 2011.
[16]
On 22 July 2011, the employees arrived at Boskor, at 5h30, with
company transport. They refused to work although their clock
cards
and the clocking system were activated. At 10h00, management met with
the shop stewards and the employees and handed them
a copy of the
employer’s Notice of Motion and supporting documents in support
of the relief sought in the Labour Court. The
nature and purpose of
the application were explained to the employees. Still, the employees
would not budge. The interim order
was issued late on 22 July 2011,
returnable on 10 August 2011. It interdicted the employees from
participating in the strike. The
employees left their workplace at
13h30 before the interim order could be served on them.
[17]
On 25 July 2011, the employees arrived at their workplace at 05h30,
with the buses provided for by the employer. The sheriff
explained
and served the court order on them. Copies were given to some
employees and others were affixed to the gate. The employees
still
refused to return to work. At approximately 10h00 the employer issued
and distributed the third ultimatum which read as follows:
‘
Despite
previous ultimatum you persist with your actions by refusing to
report for duty and to continue with your normal duties.
You
are reminded that your actions are unprotected and unlawful and in
contempt of an order issued by the Labour Court on Friday
22
nd
of July 2012(sic).
You
are hereby finally instructed to report for duty by no later than
12:30 today 25 July 2011...’
[18]
The employees did not return to work. They had a meeting with Ms
Mkoto and decided to suspend the strike until the return date
of the
interim order.
[19]
The interim order was confirmed. 193 employees were charged with
participating in an unprotected and unlawful strike, non-compliance
with a Labour Court order and refusal to follow a reasonable
instruction by management to return to work. They were all found
guilty at a disciplinary hearing and dismissed on 22 August 2011.
They appealed. The appeal of 15 employees was successful and they
were reinstated. The rest, 178, were unsuccessful on appeal and their
appeal was dismissed on 13 September 2011. They approached
the Labour
Court, seeking an order that their dismissals were unfair and that
they should be reinstated.
[20] In the Labour Court,
the employees contended that:
[20.1] the strike
was protected in terms of section 64(3)(c) of the Labour Relations
Act
[1]
(the Act).
[20.2] they had a
material interest in the demands levelled at the bargaining Council
and therefore did not have to comply
with the requirements of a
secondary strike in terms of section 66(1) of the Act;
[2]
[20.3] their
dismissals were unfair because the employer did not comply with the
provisions of item 6 of schedule 8 of the
Act
[3]
and
[20.4] they were
treated differently from the Stellenbosch employees who also embarked
on strike action.
[21]
The Labour Court dismissed the argument that the strike action was in
response to an unlawful lockout. It correctly pointed
out that the
employees failed to establish that there was an unlawful lockout.
[22]
The Labour Court found that the employees led no evidence to gainsay
the employer’s explanation that the gates were locked
owing to
a misunderstanding on the morning of 21 July 2011. It found the
employer’s explanation to be reasonable and pointed
out that it
would be senseless for the employer to arrange transport to collect
the employees from their homes and bus them to
work only to prevent
them from gaining access to the workplace and perform their duties.
[23]
It found that section 66(2)(b)
[4]
of the Act is clear, in that it requires employees who wish to embark
on a protected strike as envisaged in section 66(1) of the
Act to
give the employer at least seven days’ notice prior to the
commencement of the strike. No such notice was given to
the employer
in this matter.
[24]
The Labour Court found that the strike was in response to the
unjustified conduct of the employer, in that after the employees
had
given a guarantee that they would not participate in the strike which
was to commence on 21 July 2011 and the employer undertook
not to
implement the contingency plan which involved locking its gates, the
employees found the gates locked when they reported
for duty on 21
July 2011. It found that the employer failed to comply with the
provisions of item 6 of Schedule 8 of the Act because
the employees
were provoked by the employer.
[25]
The Labour Court was of the view that the ultimata were not
eloquently drafted and did not give the employees sufficient time
to
heed them.
[26]
The Labour Court found that the employees at Boskor were treated
differently from the Stellenbosch employees and that there
was no
justification for such differentiation. The Stellenbosch employees
were not dismissed whereas the Boskor employees were
dismissed. This
rendered the dismissal of the employees unfair.
[27]
The Labour Court therefore found that the dismissal of the employees
for participating in an unprotected strike was substantially
and
procedurally unfair. It ordered their reinstatement from the date of
their dismissal.
[28]
The employer challenged all the adverse findings made against it, by
the Labour Court. Mr Oosthuizen, on behalf of the employer,
pointed
out that the Labour Court made a finding that the dismissal of the
employees was substantively and procedurally unfair
but did not point
out in what respect the dismissals were procedurally unfair. The
procedural fairness of the dismissals was never
in dispute. He
contended that, given the context of this matter, the ultimata given
were fair.
[29]
Mr Euijen, on behalf of the employees, contended that the Labour
Court did not err in its findings and that the arguments of
the
employer are without merit.
[30]
The issues to decide are firstly, whether the locking of the gates
amounted to provocation, secondly, whether the ultimata
were
sufficient in the context of this case, thirdly, whether there was
inconsistency in disciplining the employees at Boskor in
light of the
sanctions imposed on the Stellenbosch employees and lastly whether
the dismissal of the employees was, given the totality
of the facts
and circumstances of this case, fair.
[31]
I agree with the employer’s contention that the procedural
fairness of the dismissals was not disputed. The court
a quo
did not give any reason for its conclusion that the dismissals were
procedurally unfair. I could not find any reason to impugn
the
procedural fairness of the dismissals. The court
a quo
erred
in this regard.
[32]
I agree with the Labour Court that the contention of the employees
that their strike was protected because it was in response
to an
unlawful lockout should be rejected out of hand. There was simply no
lockout. The gates were locked due to a genuine misunderstanding
or
miscommunication. This was explained to the employees and an offer
was made to pay them for the time lost whilst waiting for
the gates
to be opened. The Labour Court correctly found that the explanation
in relation to the locking of gates was reasonable.
Strangely though,
the Labour Court subsequently found that the strike was in response
to the unjustified conduct of the employer.
It found that the conduct
of the employees was a knee-jerk reaction after the respondent had
breached the agreement between the
parties.
[33]
The conduct of the employees can hardly be described as a knee-jerk
reaction. They rather opportunistically pounced on a genuine
misunderstanding and harnessed it to further their unlawful aim. I
say this because at 06h15 the gates and the turnstiles were
opened.
The employees were requested to go to their workstations but they
refused. They did not, at that stage, indicate that the
reason why
they did not want to go to their workstations was because they were
locked out. If their reaction was a genuine knee-jerk
reaction, one
would have expected them to go to their workstations when the
situation was explained to them - not only by management
- but also
by their shop stewards. It is unfathomable that the locking of the
gates for 45 minutes can provoke employees into embarking
on a
two-day strike against the advice of their union and shop stewards.
[34]
When the first ultimatum was issued they should have appreciated the
seriousness of the situation. They ignored the ultimatum.
They did
not complain that the 15 minutes given to them to reflect on their
conduct and its consequences was insufficient. Further
ultimata,
interventions by the shop stewards and interventions by Ms Mkoto
followed but the employees would not budge.
[35]
The Labour Court was pedantic about the contents of the ultimata. A
defective ultimatum which does not set out in chapter and
verse what
is stated in item 6(2) does not become
pro non scripto
. The
court must look at the content of the ultimatum, the extent of
non-compliance with item 6, if any, the impact of the non-compliance
as well as the surrounding circumstances and other measures which
were taken in the endeavour to entice the workers to go back
to their
workstations. If it is clear from all these circumstances that, in
substance, the ultimatum served the purpose envisaged
by item 6(2)
then it ought to suffice.
[36]
In
Mndebele
and Others v Xstrata SA (Pty) Ltd t/a Xstrata Alloys (Rustenburg
Plant)
[5]
this Court said the following:
‘
The
Code does not suggest how the ultimatum should be distributed or
required that it must be in writing. Furthermore, it states
that the
issuing of an ultimatum is not an invariable requirement. The purpose
of an ultimatum is not to elicit any information
or explanations from
the employees but to give them an opportunity to reflect on their
conduct, digest issues and, if need to be,
seek advice before making
the decision whether to heed the ultimatum or not. The ultimatum must
be issued with the sole purpose
of enticing the employees to return
to work, and should in clear terms warn the employees of the folly of
their conduct and that
should they not desist from their conduct they
face dismissal. Because an ultimatum is akin to a final warning, the
purpose of
which is to provide for a cooling-off period before a
final decision to dismiss is taken, the
audi
rule must be observed both before the ultimatum is issued and after
it has expired. In each instance, the hearing may be collective
in
nature and need not be formal.’
[6]
[37]
In this matter, the employer issued three ultimata, the union
requested the employees to return to work and a court order was
served on the employees, but they would not return to work. I am
convinced that the reason why the employees did not report for
duty
was because they were supporting the National strike which was called
in the bargaining council after a deadlock at that forum.
It is not a
mere coincidence that the employees as Stellenbosch also embarked on
an unprotected strike. The locked gates were like
manna from heaven
which they used for their deliberate subversive aims.
[38]
It is common cause that when the Stellenbosch workers were served
with the interdict on Friday, 22 July 2011, they immediately
and
unconditionally indicated their willingness to return to work. They
were, however, advised that due to the lateness of the
hour that they
should return on Monday, 25 July 2011. They duly returned to work on
25 July 2011.
[39]
The employees at Boskor were served with the interdict on Monday, 25
July 2011 at 06h30. They did not return to work immediately
or
indicate that they are prepared to return to work immediately. On the
contrary, they refused to return to work for most of the
day and in
the afternoon decided to suspend the strike pending the return date.
Ms Mkoto had to intervene during the afternoon
to persuade them to
return to work. Their stance of suspending the strike belies the fact
that they were provoked. They knew that
they were engaged in an
unprotected strike. It is for that reason that Ms Mkoto wrote the
following to the employer, on 26 July
2011:
‘
this
serves to inform you that several meetings have been held with our
members that are on strike, the last meeting was on 25 July
2011 and
resolved the following:
1.
Workers
agreed to suspend the strike and go back to work on 26 July 2011.
2.
They
will wait for the court order of 10 August 2011 and take their
decision regarding the strike.
3.
Workers
are willing to accept the 8% of the bargaining council although the
union is on 9.8%.
4.
Workers
would not accept to be subjected to disciplinary action because of
the strike (sic)…’
[40]
In my view, the differentiation was fair, rational and justified. The
Stellenbosch employees indicated their desire to return
to work
immediately and unconditionally when the court order was served on
them. That was not the case with these employees. These
employees
returned to work at their own time and on the basis that they are
suspending a strike which at that stage was declared
unprotected by a
court of law. They did not return to work immediately upon the court
order being served on them. Ms Mkoto had
to intervene to persuade
them to adhere to the court order and return to work. It has been
said that some “inconsistency
is the price to be paid for
flexibility, which requires the exercise of a discretion in each
individual case”.
[7]
[41]
In my judgment, the employees were guilty of the misconduct with
which they were charged.
[42]
The imposition of a fair sanction is always a difficult task.
Fairness in this context means fairness towards both parties;
the
employee and the employer. The employer tried various options to get
the employees to desist from their unlawful conduct. The
employees,
on the other hand, were steadfast in their resolve to continue with
their unlawful action. In their quest to proceed
with their unlawful
conduct they not only defied several ultimata, but also instructions
and requests from their own union and
a court order.
[43]
In
Transport
& Allied Workers Union of South Africa on behalf of Ngedle and
Others v Unitrans Fuel and Chemical (Pty) Limited
[8]
(Ngedle) it was said:
‘
Therefore,
where striking workers engaged in unprotected strike action, the onus
rests on the workers to tender an explanation for
their unlawful
conduct, failing which the dismissal would be regarded as
substantively fair, provided dismissal was an appropriate
sanction.
In this matter, no reasons were provided to the employer by the
striking workers that expend the ability to return to
work following
the strike becoming unprotected.
’
[9]
[44]
In this case, the workers did not tender any evidence whatsoever
during the proceedings in the
Labour Court. In fact, they tried to
blame the employer for their conduct. They deliberately lied about
the reason for their unlawful
action.
[45] In
Ngedle
it
was also pointed out that:
‘
In
determining the appropriateness of a dismissal as a sanction for the
striking workers’ conduct, consideration must be given
to
whether a less severe form of discipline would have been more
appropriate, as dismissal is the most severe sanction available…
An illegal strike constitutes serious and unacceptable misconduct by
workers. This was exacerbated in that the workers also acted
outside
the bounds of both a court order and a collective agreement. In
instances such as this, where an employee has issued an
unequivocal
ultimatum informing workers engaged in an impermissible strike that
that misconduct will result in dismissal, subsequent
dismissal has
been found to be an appropriate sanction for non-compliance. I am
satisfied the dismissal was the appropriate sanction
.’
[10]
[46]
Each case must obviously be viewed on its own facts and
circumstances. I have already pointed out that the employees in this
matter did not allow themselves to be deterred from their unlawful
strike by any legal means. In my view, the sanction of dismissal,
in
light of the totality of the circumstances, imposed by the employer
was fair.
[47]
I accordingly make the following order:
[47.1] The appeal is
upheld with no order as to costs.
[47.2] The order of
the Labour Court is set aside and replaced with the following:
‘
The application is
dismissed.’
________________
C.J.
Musi JA
Phatshoane
ADJP and Savage AJA concur with Musi JA
APPEARANCES:
FOR
THE APPELLANTS:
Adv Oosthuizen S.C. and Adv C
Kahanovitz S.C
Instructed by Werkmans
Attorneys
Cape Town
FOR
THE RESPONDENTS: Adv
Euijen
Instructed by Cheadle
Thompson & Haysom
Cape Town
[1]
Section 64(3)(c) of the Labour
Relation Act 66 of 1995 (the Act) states that:
‘
the requirements of subsection
(1) do not apply to a
strike
or a
lock-out
if…
the
employees
strike
in response to a
lock-out
by
their employer that does not comply with the provisions of this
Chapter’
[2]
Section 66(1) of the Act provides:
‘
(1) In this
section ―secondary strike‖ means a
strike
,
or conduct in contemplation or furtherance of a
strike
,
that is in support of a
strike
by
other
employees
against
their employer but does not include a
strike
in
pursuit of a demand that has been referred to a
council
if
the striking
employees
,
employed within the
registered
scope
of
that
council
,
have a material interest in that demand.’
[3]
Item 6 of Schedule 8 of the Act reads
as follows:
‘
6.
Dismissals and industrial action
(1) Participation in a
strike
that
does not comply with the provisions of Chapter IV is misconduct.
However, like any other act of misconduct, it does
not always
deserve
dismissal
. The substantive fairness of
dismissal
in these circumstances must be determined in the light of the
facts of the case, including -
(
a)
the seriousness of the
contravention of
this Act
;
(
b)
attempts made to comply
with
this Act
; and
(
c)
whether or not the
strike
was in response to unjustified conduct by the employer.
(2) Prior to
dismissal
the
employer should, at the earliest opportunity, contact a
trade
union official
to discuss the course of action it intends to
adopt. The employer should issue an ultimatum in clear and
unambiguous terms that
should state what is required of the
employees
and what sanction will be imposed if they do not
comply with the ultimatum. The
employees
should be allowed
sufficient time to reflect on the ultimatum and respond to it,
either by complying with it or rejecting it.
If the employer cannot
reasonably be expected to extend these steps to the
employees
in
question, the employer may dispense with them.’
[4]
Section 66(2)(b) of the Act states:
‘
(2) No
person may take part in a secondary
strike
unless
-
…
(
b)
the employer of the
employees
taking part in the secondary
strike
or,
where appropriate the
employers’ organisation
of which
that employer is a member has received written notice of the
proposed secondary
strike
at least seven days prior to its
commencement… ’
[5]
Mndebele
and Others v Xstrata SA (Pty) Ltd t/a Xstrata Alloys (Rustenburg
Plant)
(2016) 37 ILJ 2610
(LAC).
[6]
Ibid para 27.
[7]
SACCAWU and Others v Irvin &
Johnson
[1999] 8 BLLR 741
(LAC).
[8]
Transport & Allied Workers
Union of SA on behalf of Ngedle and Others v Unitrans Fuel &
Chemical (Pty) Ltd
(2016)
37 ILJ 2485 (CC).
[9]
Ibid at para 46.
[10]
Ibid at para 50.