About SAFLII
Databases
Search
Terms of Use
RSS Feeds
South Africa: Cape Town Labour Court, Cape Town
SAFLII
>>
Databases
>>
South Africa: Cape Town Labour Court, Cape Town
>>
2007
>>
[2007] ZALCCT 13
|
|
Food And Allied Workers Union and Others v Cold Chain (C324/2006) [2007] ZALCCT 13 (8 March 2007)
IN THE LABOUR COURT OF
SOUTH AFRICA
(HELD AT CAPE TOWN)
CASE
NO
: C324/2006
In
the matter between:
FOOD
AND ALLIED WORKERS UNION
First
Applicant
FAIZEL
MARTIN
Second
Applicant
and
THE
COLD CHAIN
Respondent
J
U D G M E N T
NEL
AJ:
[1]
In this matter the second applicant, Mr Faizel Martin ("Martin"
or "the employee") seeks relief against
the respondent
("the employer") for what the employee alleges was an
automatically unfair dismissal in terms of section
187(1)(f) of the
Labour Relations Act ("the LRA").
[2]
It was common cause between the parties that Martin was dismissed
solely as a result of his refusal to relinquish his position
as a
shop steward when he was offered a higher grade position as an
alternative to being retrenched.
[3]
It was contended that the employer's demand that Martin resign as a
shop steward and his subsequent dismissal contravened the
provisions
of section 187(1)(f) of the LRA, as read with sections 4 and 5
thereof. It was in particular alleged that the employer
discriminated
against Martin on the grounds of his union affiliation and his
participation in lawful trade union activities. It
was accordingly
contended that there was no fair reason for Martin's dismissal,
whether as part of a retrenchment exercise or otherwise.
Factual
background
[4]
Martin had been employed by the respondent since 1995. At the
time of his dismissal he was a shop steward of the first
respondent
(“FAWU”) and also its regional treasurer, a
non-remunerative position.
[5]
Prior to the events giving rise to his dismissal, Martin was employed
in a Grade 13 position on the employer's organisational
structure.
The employer employs the Peromnes Grading System pursuant to which
managerial employees are graded from 1-12, while
other employees are
graded 13-18. A recognition agreement between FAWU and the
respondent defined the bargaining unit as
being Grades 13-18. It
would appear that a distinguishing feature of employees occupying
Grades 1-12 was that these employees performed
some supervisory or
managerial functions within the employer company.
[6]
In February 2006, the employer gave formal notice to FAWU in terms of
section 189(3) of the LRA proposing a restructuring of
the workplace.
On 30 March 2006, Martin was formally advised by the employer that
his position had become redundant and that he
could apply for
alternative positions. The next day Martin was given one week by his
employer to advise it of his decision with
regard to the vacant
positions which had been offered to him. On 4 April 2006, FAWU wrote
to the employer indicating that Martin
would be interested in either
the administration clerk or transport clerk position.
[7]
A meeting was held between FAWU, Martin and the employer on 10 April
2006. At this meeting, Martin was expressly made aware
of the
condition attaching to acceptance by him of the transport clerk
position namely that as the position was a Grade 12 position,
he
would have to relinquish his position as a shop steward.
[8]
On 24 April 2004, FAWU on behalf of Martin, advised that Martin
accepted the position of transport clerk. Although the employer
had
earlier made it a condition that acceptance of the position as
transport clerk would require that Martin should relinquish
his shop
steward position, the letter of acceptance of 24 April 2006 did not
deal with this condition. On 26 April 2006,
the employer
directed a letter to Martin to which it attached a copy of the job
description for the transport clerk position, requesting
that Martin
should sign it, indicating acceptance of the responsibilities
outlined therein. The letter further stated that:
"Also
discussed with you at our meeting on 10 April 2006, was the fact that
the Grade of the transport clerk position, being
a Grade 12, falls
outside the bargaining unit. In compliance with the FAWU constitution
and the company/union relationship agreement,
you will accordingly be
required to step down from your duties as senior shop steward for the
Cape Town distribution centre and
you will be required to relinquish
your FAWU office-bearer duties and responsibilities, immediately upon
assuming your new responsibilities
with effect from 1 May 2006".
[9]
This letter, at the end thereof, required that Martin should sign it
to indicate acceptance of all the terms and conditions
as stated in
the letter.
[10]
On 28 April 2006, although Martin was willing to sign the written
transport clerk description, he refused to sign this letter
of
appointment which contained the condition that he should step down
from his duties as senior shop steward and to relinquish
his FAWU
office-bearer duties and responsibilities.
[11]
Martin accordingly commenced his duties in the transport clerk
position on 2 May 2006, but refused to relinquish his union
positions. A meeting was held on the same day between Martin and the
employer at which the employer repeated its demand. Martin
continued
to refuse to relinquish the positions. That very same day, 2 May
2006, the employer gave Martin a final retrenchment
notice advising
him that, as a result of his failure to accept the position of
transport clerk with the conditions attached by
the employer, the
company was left with no alternative other than to proceed with
Martin's retrenchment. His retrenchment was to
take effect on 1 May
2006.
[12]
In terms of this notification, in addition to his
pro
rata
bonus from 1 January to 31 May
2006, his notice of one month's salary and his leave pay, Martin was
paid severance pay equal to
one week's salary for every completed
year of service. His 11 years of service resulted in a severance
payment of 11 weeks' remuneration
equal to an amount of R10 350. The
total payment to Martin amounted to R21 590,62.
[13]
Under these circumstances, I find that it is clear that the employer
offered Martin an alternative position to retrenchment,
which
position Martin was prepared to accept. The employer, however,
made acceptance of the position offered conditional
on Martin
stepping down from his duties as senior shop steward for the Cape
Town distribution centre and requiring that he should
relinquish his
FAWU office-bearer duties and responsibilities the moment he assumed
his new responsibilities with effect from 1
May 2006.
[14]
It is equally clear that when Martin refused to give effect to these
conditions, he was retrenched. The crisp issue which calls
to be
determined is accordingly whether it was lawful and/or fair for the
employer to impose these conditions, it being clear that,
but for
Martin's refusal to relinquish his shop steward and FAWU
office-bearer duties and responsibilities, he would have been
retained by the employer in the transport clerk position.
The
law
[15]
Section 23(2) of the Constitution provides that every worker has the
right to form and join a trade union and to participate
in the
activities and programs of that trade union. Clearly, to perform the
duties of a shop steward and to be an office-bearer
of a trade union
are such activities. This right is couched in clear and unambiguous
terms and may only be limited by a law of
general application as set
out in section 36 of the Constitution.
[16]
As the LRA was promulgated with a view to give effect to these stated
section 23 constitutional rights, section 4(2) of the
LRA stipulates
that every employee has the right to join a trade union, subject to
the constitution of that trade union. It further
stipulates that
every member of a trade union has the right, also subject to the
constitution of that trade union, to participate
in its lawful
activities. Likewise this section of the LRA gives trade union
members a right to stand for election and to be eligible
for
appointment as an office-bearer or official and, if elected or
appointed, to hold office of that trade union.
[17]
Section 5(1) of the LRA in turn provides that "no person may
discriminate against an employee for exercising any rights
conferred
by this Act".
[18]
Section 5(3) of the LRA provides that no person may advantage an
employee in exchange for that person not exercising any right
conferred by the LRA.
[19]
Section 5(2)(a)(i) and (ii) also prohibits an employer from requiring
an employee not to be or become a member of a trade union.
Section
5(2)(c)(i) and (iii) precludes an employer from acting to the
detriment of an employee "because of past, present or
anticipated...membership of a trade union" or participation in
its activities.
[20]
There is no doubt that the rights contained in section 4(2) of the
LRA are exactly the rights which may be exercised by an
employee
without fear of being discriminated against by reason of the employee
so exercising his or her rights, or being advantaged
in exchange for
not exercising any right confirmed by the LRA.
[21]
Mr Whyte, on behalf of the applicants, referred me to
IMATU
& Others v Rustenburg Transitional Council
[1999] 12 BLLR 129C
(LC), a judgment in which
Brassey
AJ
at length considered similar issues
to those to be determined by me. In that matter the Rustenburg
Transitional Council ("the
Council") gave three reasons for
adopting the stance that a certain level of senior managerial
employees could not be allowed
to serve in executive positions of the
trade union. They were that those officials would have access to
confidential information;
that they were required to initiate or
conduct disciplinary hearings against employees; and thirdly that
these employees may, by
reason of their membership of the union
executive, find themselves in the position in which they were unable
or unwilling to fulfil
essential tasks required of them.
[22]
Brassey AJ
,
having considered sections 4 and 5 of the LRA, (at paragraph [15],
page 1305) had the following to say about the argument presented
to
him that the legislature could never have intended to bring senior
managers within the ambit of the protections given by sections
4 and
5 of the LRA:
"I
cannot agree. Bound by a Constitution that confers organisational
rights on workers without limitation, the legislature
might well have
decided that no such limitations should be embodied in the
protections conferred by the Act. There is nothing untoward,
still
less absurd, in giving senior management the right to participate in
trade union activities: white collar unions have long
been recognised
as legitimate and there is no reason to believe the legislature
intended to curb their scope or activities.
The implication of
limitations and conditions into statutory provisions is not likely to
be undertaken and, even if one were persuaded
that they might be
legitimate here, it would be all but impossible to decide where the
legislature implicitly intended the line
to be drawn. I
consider that the sections must be read as they stand".
[23]
Brassey AJ
continued (at paragraph [17] page 1306) to say that:
"……
The protections conferred by the organisational rights clauses give
employees, whatever their status, the
absolute right to join trade
unions and take part in their activities. By so doing, they
legitimise acts that might otherwise constitute
a breach of the
employee's duty of fidelity, prohibit victimisation and outlaw rules
of the sort that the respondent laid down
in the present case.
Beyond that, they do nothing to exempt employees from their duties
under the contract. The employee
must still do the work for
which he is engaged and observe the secondary duties by which he is
bound under the contract.
If he does not, he can be disciplined
for misconduct or laid off for incapacity".
[24]
I can see no reason why, or basis on which I should deviate from
Brassey AJ's
conclusions. I am in fact in full agreement with the expressed
conclusions as to the protections conferred on employees by
the
organisational rights clauses.
[25]
I have not been referred to any contrary view to that expressed by
Brassey AJ
in the
Rustenburg Transitional Council
matter (supra). In fact it appears to have been fully endorsed by
labour law commentators. In this regard see Grogan:
"Double
Cross Manager's right to hold union office"
Employment Law. (Vol. 15) November 1999 No. 6 pages 4 - 9; PAK Le
Roux in "
Trade Union rights for
Senior employees." Contemporary Labour Law
(Vol.9) No.6 January 2000 pages 58 - 60; and
Carl
Mischke
:
"Shop
stewards: their rights and obligations"
Contemporary Labour Law
(Vol.12) No.1 August 2002 pages 1 - 7.
[26]
Mr Wagener, contended on behalf of the respondent, that the matter
before me was distinguishable from the
Rustenburg
Transitional Council
decision (
supra
).
He contended that it was distinguishable because therein the Court
was dealing with the invalidity of a general resolution and
it was
not considering the peculiar status of a shop steward. I am, however,
not persuaded that the matter before me is distinguishable
for these
reasons, or at all. It is clear that, just as this Court is required
to herein consider the application of section 23
of the Constitution
and sections 4 and 5 of the LRA, that was what
Brassey
AJ
considered. His conclusions, as
indicated, were that the protections conferred by the organisational
rights clauses gave employees,
whatever their status, the absolute
right to join trade unions and take part in their activities. As I
have stated, I am in complete
agreement that the protections
conferred by sections 4 and 5 of the LRA are absolute.
[27]
Mr Wagener further argued that in terms of the ordinary rules of
offer and acceptance, it had been clearly demonstrated that
Martin
had agreed to the condition attaching to his appointment as a
transport clerk namely that he would resign as a shop steward.
If I
understood his argument correctly, it would appear that he contended
that a binding contract had come into effect to which
Martin was
bound. The effect thereof was that, on him accepting the appointment
as transport clerk, he had to comply with the condition
preceding
such appointment, namely that he had to resign as a shop steward and
relinquish his FAWU office-bearer duties. For this
reason, so Mr
Wagener argued, it could not be said that, under these circumstances,
the employer had discriminated against Martin
by reason of his union
activities when it terminated his employment when he refused to
comply with the terms of this agreement.
[28]
Even if I were to assume that such a "contract" or
agreement had been reached, and that Martin, as Mr Wagener contended,
acted in breach of his "contractual" terms (by refusing to
resign as a shop steward and to relinquish his union office-bearer
duties and responsibilities), I believe that Martin was entitled to
do so. This would be so as I believe, in light of my conclusion
that
the organisational rights afforded Martin in terms of sections 4 and
5 of the LRA are absolute, that such a contractual term
would have
been unlawful on the basis of it being contrary to public policy. In
any event, on the evidence adduced before me, I
am unpersuaded that a
binding contract, as contended on behalf of the employer, had come
into existence between the employer and
Martin.
[29]
I have also considered the propositions contained in the employer's
letter addressed to Martin that the FAWU constitution required
that a
shop steward and office-bearer should resign if he or she fell
outside the bargaining unit. This contention is, in
my view,
not at all supported by FAWU's constitution. In terms of the
FAWU constitution, it is apparent that an employee's
position,
vis
à vis
the bargaining unit of an
employer, is totally irrelevant.
[30]
The further contention by the employer was that the recognition
agreement between FAWU and the employer required that a shop
steward
should resign once he or she was employed outside of the bargaining
unit as defined by the agreement. Again I could
find no support
for such contention in the agreement itself. The fact that the
scope of the agreement may be limited to employees
employed in Grades
13-18 does not, in my view, prohibit an employee in Grade 12 from
becoming, or remaining, a shop steward or
a union office-bearer.
[31]
The further argument was raised by the employer that Martin could not
be allowed to be a shop steward as he would have been
required to be
at his workstation the whole time. This proposition of the
employer was seemingly based on the fact that it
contended that
Martin had spent an extraordinary amount of time performing his shop
steward duties and that in his more senior
position that would no
longer have been possible. The recognition agreement between
the employer and FAWU allowed that shop
stewards may take a maximum
of 13 days off. Mr Whyte submitted in this regard that as
Martin, on assuming his Grade 12 position,
would fall outside the
ambit of the relationship agreement, the employer would have been
entitled to have limited the time taken
off by Martin. Or it could
even have granted him no time off at all in terms of the provisions
of section 15 of the LRA.
I would imagine that if the employer
wanted to grant Martin no time off in terms of the provisions of
section 15 of the LRA, then
it would have had to argue, and if
necessary persuade the CCMA, which would have jurisdiction in respect
of section 15 rights,
that it was not reasonable to give Martin any
leave during working hours for the purpose of performing the
functions of an office-bearer
of the representative trade union.
[32] I am of the view
that as employees have an absolute right to be a trade union member
and participate in its lawful activities
irrespective of their
seniority, that it will in the first instance be unlawful for an
employer to deny an employee promotion into
those senior ranks unless
he refuses to relinquish his shop steward and/or office-bearer duties
and responsibilities. Secondly,
if any employee for that matter fails
to perform his duties as an employee in any respect whatsoever, he
needs to be dealt with
in terms of the clear and accepted principles
applying to employees who fail to perform.
[33]
In this regard the employer complained that Martin would not be able
to perform his duties to investigate, report and initiate
charges
against co-employees properly. It was counter-argued that this was in
any event a general duty resting on all employees
and that if Martin
failed to fulfil this duty, he could be disciplined. Martin
also testified before me that he would have
been able to perform the
duties to investigate, report, and if necessary, to initiate charges
against co-employees. He said that
FAWU members would have accepted
this. Mr Whyte argued that on the other hand, if the FAWU membership
or FAWU itself became unhappy
with the manner in which Martin was
investigating, reporting or initiating charges against co-employees,
they could simply vote
Martin out of office.
[34]
It is apparent that what was required to happen was that both the
employer as well as the employee would have been required
to regulate
matters in terms of how Martin conducted himself. If he failed
to perform his employee duties in any respect
because of attending to
his union duties, he could have been disciplined by his employer.
I am in agreement with the proposition
by Mr Whyte that if Martin,
after being promoted to the more senior position, was experienced by
his fellow union member employees
as not attending to his union
responsibilities with the same diligence as he did before, they may
have voted him out of office.
[35]
I also need to consider the allegation by the employer that there was
a practice at the employer that any employee shop steward
or
office-bearer would resign that position if promoted out of the
bargaining unit. There certainly was no agreement in writing
or
evidence of one verbally entered into between FAWU and Martin on the
one hand, and the employer. Nor was there evidence that
FAWU and
Martin had accepted this alleged practice. I am of the view that the
fact that other employees might have chosen to resign
from their
positions in the union, once they were promoted, did not preclude
Martin from exercising the rights conferred on him
by sections 4 and
5 of the LRA.
[36]
I am accordingly satisfied that the employer breached Martin's rights
in terms of sections 4 and 5 of the LRA and that it acted
unlawfully
in demanding of Martin that he abandon his rights to participate in
lawful union activities. As the dismissal of Martin
was solely
premised on compliance with the unlawful demand I am also satisfied
that the dismissal was unlawful and unfair and that
it discriminated
against Martin on the grounds of his union affiliation. Accordingly
Martin's dismissal was automatically unfair
and in breach of section
187(1)(f) of the LRA.
Relief
[37]
Martin does not seek reinstatement but seeks compensation in terms of
section 194(3) of the LRA. It was contended on
behalf of Martin
that in the exercise of my discretion the just and equitable
compensation that I should award to Martin will be
24 months'
remuneration.
[38]
Martin's evidence was that he had remained unemployed and that he had
to subsist off his UIF payments. He did, however,
also indicate
that his decision not to seek reinstatement was purely based on
personal grounds. No serious effort was made
by Martin to blame
the employer for this decision of his not to seek reinstatement.
The employer likewise did not adduce
any evidence that it did not
want to reinstate Martin.
[39]
In considering the appropriate sanction herein I am of the view that
Martin was entitled to receive his notice, leave and bonus
pay. His
retrenchment compensation, in my view, really constitutes payment, or
a reward, for his years of service. Wherever
he may now be
employed, he will have to start at zero in respect of his years of
service. He has, however, in effect been paid
at least the obligatory
minimum of one week's remuneration for every year of service.
[40]
But for the applicant's personal reasons, which incidentally he did
not disclose what they are, there can be little doubt that
I would
have ordered Martin’s retrospective reinstatement, effective to
1 June 2006, which was the date that his dismissal
took effect. It
was argued by Mr Whyte that, particularly in a case of an
automatically unfair dismissal, compensation ought to
extend, where
appropriate, beyond mere patrimonial loss.
[41]
As I am of the view that I am empowered, in terms of section 193(3)
of the LRA, to make an order of reinstatement as well as
one of
compensation, the question is, would I have ordered compensation in
addition to reinstating Martin. I am aware that, where
appropriate,
compensation may go beyond mere patrimonial loss suffered by the
unfairly dismissed employee. However, had Martin
herein sought
reinstatement, I believe it would have been just and equitable to put
him in the position he would have been in had
he not been unfairly
dismissed by reinstating him with retrospective effect to 1 June
2006. In respect of the question whether,
in addition to
reinstatement, I would have ordered compensation. I would not have
done so. I would have considered the ongoing
relationship between the
parties as a very relevant and important reason why not to order
compensation in addition to the employer
already having had to pay
the remuneration to Martin in respect of his retrospective
reinstatement without having had the benefit
of Martin's services. I
have also considered Martin's evidence that it was the principle that
counted herein, and not the money.
He also confirmed that he
had not seriously pursued alternative employment. Taking all these
factors into consideration, I would
not have considered it just and
equitable, in addition to retrospective reinstatement, to order the
employer to pay Martin any
additional compensation.
[42]
Martin elected not to take the Court into his confidence and disclose
what exactly the personal reasons were why he did not
want to be
reinstated. As I have said, he certainly placed no blame for
this decision of his at the door of his erstwhile
employer.
Whilst the Court respects this personal attitude of the employee, I
do not believe that the employer should therefore
be penalised to a
greater extent than what would have been the case had I ordered
Martin's retrospective reinstatement to 1 June
2006. Under all these
circumstances, I believe that it is just and equitable that I order
that the respondent should pay Martin
the equivalent of nine months'
compensation. The salary, which Martin would have earned as transport
clerk, was R4 600 per month.
This is the position he would have been
appointed to had he not been automatically unfairly dismissed by the
respondent.
This is accordingly the remuneration that I order
should be the basis to calculate the nine months' remuneration, which
I intend
ordering the respondent to pay the second applicant. No
reason exists why costs should not follow the result.
[43]
Accordingly, the order that I make herein is the following:
1.
The second applicant's dismissal is found to have been automatically
unfair.
2.
The respondent is ordered to pay the second applicant the amount of
R41 400 being the equivalent of nine
months' remuneration at R4 600
per month.
3.
The respondent is ordered to pay the applicants' costs of suit.
________________________
Deon
Nel
Acting
Judge of the Labour Court
DATE
OF HEARING
:
15-17 November 2006
DATE
OF JUDGMENT
: 8 March
2007
Appearances
:
For
the applicants
: Mr J Whyte of
Cheadle Thompson, Haysom.
For
the respondent
: Mr M Wagener of
Bowman Gilfillan