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[2008] ZALCD 11
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Massdiscounters (Pty) Ltd v South African Comercial Catering And Allied Workers Union and Others (D402/08) [2008] ZALCD 11 (19 June 2008)
IN
THE LABOUR COURT OF SOUTH AFRICA
HELD
AT DURBAN
CASE
NO: D 402/08
In
the matter between
MASSDISCOUNTERS
(PTY)
LIMITED
APPLICANT
And
SOUTH
AFRICAN COMERCIAL CATERING
AND
ALLIED WORKERS
UNION
FIRST RESPONDENT
ONE
THOUSAND FIVE HUNDRED AND
NINETY
SEVEN
OTHERS
FURTHER RESPONDENTS
JUDGMENT
19
June 2008
CELE
AJ
Today is the return
date. In fact it is the anticipated return date of a
rule
nisi
granted on 4 June 2008 in this
matter by my brother, MOLAHLEHI J. The anticipated
date was 7 August 2008.
The terms of the order granted appear
in paragraphs 2.1 right through to 5.2 of his order. It is
contained in about three
pages. This is pointed out with a view
to indicating that reading it now into the record might take time,
but I do need to
highlight certain portions thereof, and in
particular paragraph 2.1 up to 2.4. These read,
“
2.1
Declaring that the conduct of the Third and Further Respondents
constitute an unprotected strike.
2.2. Interdicting
and restraining the Third and Further Respondents from continuing
with and participating in any conduct
constituting a strike as
defined in
section 213
of the
Labour Relations Act, 66 of 1995
, as
amended (“the Act”), unless and until the provisions of
Section 64
of the Act have been complied with;
2.3 Directing the
Third and Further Respondents to comply with their Individual
Contracts of Employment.
2.4 Interdicting
and restraining the Second and Further Respondents from being upon
the premises at which they ordinarily
render their services to
Applicant, as set out in annexures “A”, “B”,
“C” and “D”
annexed hereto, save to act
normally in compliance with their individual contracts of employment,
or for any other legitimate reasons.”
The order proceeds as
I’ve indicated, and it’s fairly long.
The
respondents filed their opposing papers on 17 June 2008 together with
a notice in terms of
Rule 8
sub rule (1) of the rules for the proper
conduct of this Court, which is a notice to anticipate the
rule
nisi
. They simultaneously filed a
notice of counter application, seeking an order in the following
terms.
“
1.
that the conduct of the Applicant in denying the First Respondent’s
members, who refused to undergo biometric imprinting
or biometric
scanning, access to their place of work constitutes an unlawful
lockout;
2. that the
Applicant is hereby interdicted and restrained from denying the First
Respondent’s members access to their
workplace in the event
that they refuse to undergo further biometric imprinting and/or
scanning by an access control device;
3. that the threat
by the Applicant that the First Respondent’s members would be
denied access to their workplace and
denied their pay as a
consequence, is declared to be unlawful and coercive;
4. that the
Applicant is ordered to delete from its computer systems the
biometric imprints obtained from any of the First
Respondent’s
members, on written request by any such member and to serve and file
an affidavit from a suitably qualified
expert that same has been done
within 24 hours of such written request.
5. that the
Applicant pays the costs of this counter application on attorney and
client scale.”
In
respect of the prayer in paragraph 4 there is a suggestion that it
should be amended to include after, “On written request
by any
such member”, “and in circumstances where the imprint was
obtained after 20 May 2008”. That would
sort of then
limit the ambit of the prayer sought.
The
counter application has been opposed by the applicant.
I
therefore need firstly to deal with the initial or the first
application, which application was filed by the applicant.
As
the matter is now opposed it must follow that the order sought is one
in the nature of a final interdict, in which event the
applicant must
therefore show a clear right or a
prima
facie
right, must show an injury
actually committed or reasonably apprehended, it must show the
absence of any suitable or alternative
remedy, and in this approach
see the decisions in Setlogelo v Setlogelo
1914 AD 221
and
particularly
FAWU v Premier Foods
Industries Limited (Epic Foods Division)
(1997) 15 ILJ 1082 (LC).
In
order to sort of understand the salient issues it has become
necessary to briefly look at the history of this matter. In
doing so I will attempt to look at the version as it is presented by
the parties to the extent that they are agreeable. Where
they
disagree I will make an attempt to point out such differences.
The
applicant has always regulated the access to workplace of its
employees through various mechanisms, including a mechanism which
has
become known as a time keeper. According to the applicant it
experienced a number of difficulties and insufficient resources
to
attend to the software or hardware of the system and the suppliers
could not support the system, resulting in the applicant
being
compelled to look for a new access system.
This
declaration is disputed by the respondents. According to the
respondents the first respondent and its members have never
been made
aware of any specific problems relating to their existing system, and
where the first respondent was operating, first
respondent being a
union, a representative union, utilisation of a clock card system
such as was used previously by the applicant
to regulate access to
the workplace of the employees, appeared to have been a system that
worked well. Shoprite Checkers
is used as an excellent
example. It is suggested that Shoprite Checkers successfully
regulates access to the workplace by
many thousands of employees
using a similar system to that which the applicant now declares or
claims is not up to the job.
I
am, however, also conscious of a submission under oath by a Mr Colin
Fleming, who declares under oath that he is an information
technology
executive employed by the applicant, who has testified to a large
extent about the system which has been adopted by
the applicant.
I think it is appropriate to look briefly at what he says.
He
says that he was part of a committee that investigated the
replacement of an outdated and unsupported time and attendance
system,
coupled with the implementation of a new access control
system at the applicant’s stores. Together with himself,
as
one of four IT representatives, there were representatives from
the human resources, payroll, store operations, and store development
departments, as well as suppliers of the replacement system, who all
sat on the executive steering committee and considered the
implementation of a new time and attendance and access control system
at the applicant’s stores.
From
this piece of his evidence it would appear that when a substantive
decision was taken, the applicant acted with its members,
with its
employees, but did not sit together with any members that may have
been representing the first respondent or the union
itself.
Well, whatever reason underlying this, one would have expected that
it would have facilitated the issues between
the employer and
employees if such a decision had been taken with the union being
invited to sit down and take part in such an
important deliberation.
However,
Mr Fleming goes on to say that he dealt extensively with the
supplier company, Business Connection, and with the literature
and
correspondence which was presented to them by the supplier, both of
the software and hardware which is being utilised.
He conceded
that he is not an expert in the field of biometrics, but he professes
to have learned the system which has become the
subject of the first
and further respondents’ dispute. He says Leanne
Elizabeth van der Byl is also no expert on biometrics.
This is
in reference to the deponent to the answering affidavit when Leanne
commented on this system.
According
to him the system that had been utilised by the applicant had become
outdated and defunct. The whole system and
the attendance
system was based on the typical transponder card technology, and was
linked to software that ran on DOS operating
system. The system
was called the time keeper system, and was implemented approximately
20 years ago. He believes that
the applicant could no longer
obtain hardware to run the system for new stores, or to maintain a
stock of spares to support existing
stores.
According
to him what was an inadequate time and attendance system needed to be
replaced by a system operating on supported hardware
and software
that would provide store management with better controls for
budgeting, scheduling and managing exceptions, with a
lower
administrative overhead. In addition the replacement is seen to
be a prerequisite for an automated labour scheduling
system that
forms part of a broader and longer time labour management strategy.
It is his view that it was simply too risky
to continue operating
with the time keeper system as support of the hardware and software
and system knowledge were no longer readily
available, causing
problems with normal business functioning in store.
The
applicant therefore chose to replace the time keeper with a new
access control and time and attendance system that was cutting-edge,
and that through capital investment would last the applicant a number
of years, as had the time keeper system.
He
says that the system requires access control software to interpret
the scanned finger template from the biometric reader in order
to
provide
bona fide
persons with access to and from the store, and to prevent
unauthorised access to the store. This requires that everyone
the applicant wishes to have access to the stores be loaded onto the
system prior to the system being able to record staff clocking,
including head office staff according to him, and suppliers.
A
staff member who has been loaded onto the system, who presents a
finger template for scanning by the biometric reader will gain
access
to the store once their biometric template is matched to the one on
record by the biometric software, which in turn releases
the
turnstile locking mechanism or paraplegic gate in the case of a
paraplegic member of staff. If their biometric template
cannot
be matched to any of those on record in the system the individual
will not be granted access to the store.
He
then gives out how the process works, and he gives details in his
affidavit. He deals with the transponder and says the
transponder card system is incompatible with the timekeeper system,
which may result in the duplication of the time and attendance,
or
errors of time and attendance. The timekeeper system was
designed for one time recording device or access control device.
The data recorded by the timekeeper device will eventually be
converted into weekly wages of the individual employees, however
exceptions must be resolved by the store secretary firstly, and once
that data has been captured it is sent to the head office
for the
payroll run. Exceptions are abnormalities from the norm, for
example, unscheduled overtime.
He
indicates that there was a pilot project that took place at Game
Gateway and at Pinetown DC, thereafter from the beginning of
May 2008
the pilot was rolled out to the following stores, Brooklyn, Gauteng,
Menlyn Park, Pretoria, Colonnade, Gauteng, Game,
Pinetown stores.
Then he says that on 2 June the final rollout took place, and he
indicates the various stores where this
rollout was effected.
As
I have noted the respondents are noting that the applicant indeed
admits in paragraph 35 of the founding affidavit that a final
decision to implement the timekeeper system had been made in November
2007. On its own version the decision was taken prior
to any
consultation with the first respondent.
The
deponent to the answering affidavit gives out her own interpretation
of how the system works, but what also is important is
that this is
said by the deponent to the answering affidavit, that the applicant’s
permanent team induction booklet, which
is usually touted by the
applicant as containing terms and conditions of employment, states as
follows under chapter 4, Policies
and procedures, clause 8, to read
among others, “On arrival at facilities you should clock your
card or swipe your card.”
According to the respondents,
therefore, the applicant’s policies and procedures require only
that employees make appropriate
use of the staff card provided to
them by the applicant. The concern raised by the respondent is
that, whatever the precise
terms and conditions of the employees’
employment might be, there is nothing contained therein which
requires the employees
to submit to biometric imprinting, which
personal information taken is then stored by the applicant under
questionable circumstances.
It
is conceded by the respondents that in November 2007 there was a
meeting between the applicant and the first respondent.
The
following history is given by the respondents. In and around
September 2007 the applicant implemented a biometric access
control
system at the Gateway stores, and an ordinary update card access
system at the Pavilion store. The matter came to
the attention
of the deponent in October 2007, when the first respondent’s
Gateway members lodged a formal grievance against
the applicant in
respect of the implementation of the biometric access system.
The grievance was brought to the attention
of the first respondent’s
official, one Mr Bongani Myeza, the Gateway shop steward.
The deponent discussed that
matter with Links Rajgopal, the
applicant’s IR manager, and enquired as to why the biometric
system was necessary.
Mr Rajgopal’s response was
that the purpose of the biometric system was to safeguard employees
as they were instances
of members of the public entering stores
wearing fake staff uniforms, misappropriating stock.
According
to the deponent that explanation did not make much sense, but then on
15 November there was a meeting that had been arranged
for, for the
purpose of discussing issues around provident fund arrangements in
respect of permanent and part-time employees.
Ms van Der
Byl also attended that meeting and, as no satisfactory response
according to her had been received to the
grievance lodged by the
Gateway employees, it was again raised as an issue at the subsequent
meeting, the meeting of 15 November
2007.
According
to her the applicant’s representatives made it clear that they
were intent on implementing the new system, as appears
to be conceded
in Mr Naidoo’s affidavit, which is the founding
affidavit. She then refers to a document marked
LV1, which she
annexes, and it summarises the objections to the system in the
following manner: that there had been no consultation
with the
first respondent. The established company procedure required
the use of a card system. It was unacceptable
for the company
to unilaterally decide to use the employees’ fingerprints for
their own purposes, and a breach of the workers’
constitutional
rights. The company had required the employees to submit to
fingerprints without their consent.
Further
aspects of the system were of concern to the employees, namely the
failure of the system to pay overtime, inappropriate
deductions for
late access, no weekly reports, as had previously been the case.
The system was incorrectly deducting an hour
from the pay of
flexitime workers. The workers, according to her, felt that
they were tendering their services in circumstances
more appropriate
to a prison. The grievance recommends that the company suspends
the system until proper consultation with
the first respondent had
taken place. That is the position taken by the respondents in
this respect.
There
obviously are more issues that the parties deal with in their papers,
which I have looked at and paid particular attention
to.
What
is then clear in this application is that it was brought about
because the applicant introduced a new clocking system involving
a
biometric reader in circumstances in which some of its employees were
not happy with the system. They still called on the
applicant
to engage them in further deliberations about the new system, and
this crying out by the respondents is very clear in
their papers.
It is also clear in the annexures that have been given, or that have
been filed by the respondents. I
make reference to those
annexures that are marked LV1 right through up to LV6. I have
taken note of the data protection,
biometric in the workplace, an
attached document there.
Having
looked at all these considerations I have to come back to the
question whether or not the applicant has shown a clear right.
When the founding affidavit was prepared obviously the applicant
sought a
rule nisi
,
and today, as I have indicated, this matter is opposed. The
applicant seeks a final interdict.
From
the papers that are before me it appears clear that the new system
has not been included in a formal manner into the policy
and
procedure document of the applicant. The policy and procedure
document still reads that, “On arrival at facilities
every
employee shall produce a clock card or a swipe card.”
I
now have to investigate that it can be said successfully by the
applicant that it had a clear right to get the interdict that
it
seeks when it introduced a change under the circumstances where there
was less room for negotiations with the union at
least
representing the employees or those that are not members of the
union, such of them as can be involved in such deliberations.
It
is indeed the prerogative of an employer to run its affairs, to run
it’s business which it is better equipped to run, but
in so
doing, to the extent that what it does is likely to have an effect on
its employees, the
Labour Relations Act is
there to guide an employer
on how to handle issues. The dispute that appears to be between
the parties appears to me to be
the one of mutual interest between
the parties. It is a dispute which, once contemplated by either
of the parties, ought
to have been referred for conciliation by a
proper body, a bargaining council if there be one, if not by the
CCMA. This regrettably
was not done. The employer
or the applicant in my view ought to have taken that route as soon as
it was realised that
there was a dispute resulting from the change of
the working environment.
It
is clear from the documents before me that the clocking system is
part and parcel of the procedures prescribed by the applicant.
That portion of the reference to the policy and procedure clause (a),
which has been disclosed by the respondent, has not been
disputed by
the applicant. Clearly therefore in my view this was a case
that was crying out for proper negotiations between
the two parties,
the employer and the employees, so that at the end the employer could
confidently then amend its policy and procedure,
which would
obviously be part and parcel of the terms and conditions of
employment of its employees. Now it went all by itself
unilaterally to change a vital term of employment, which is governed
under the policy and procedure, and thus exacerbated the dispute
that
arose between the parties.
Having
been the catalyst to this dispute the applicant rushed to this Court
and was able to get a
rule nisi
.
In my view the applicant was not entitled to it. In my view as
the papers stand the applicant did not have a clear
right for which
it would be entitled to the relief that it now seeks today. The
injury that it cries out will actually be
committed or is being
committed, which means a loss of income at the moment, in my view was
self-created again. This could
have been obviated by prudent
means.
My
remarks must not be understood to be saying that the change ought not
to have been introduced. As I have intimated that
is the
prerogative of the employer. The employer knows best what is
suitable for it, but how it went about doing it was an
issue that
ought to have been open for deliberation by the parties.
As
has been shown in the papers and in the addresses that have been
given to me the new system has been implemented without much
difficulty in some of the areas. It might well be that it is
how those of the employer who were charged with such implementation
took charge of the situation. They have been more convincing to
the employees, thus facilitating the change.
The
absence of any suitable alternative remedy, as I have intimated, once
a party has cause a crisis itself it would be ludicrous
to expect
that it should be entitled to a relief on the guise that there is no
other suitable relief. In my view the applicant
is not entitled
to the order that it seeks.
I
have looked at the counter application as well. I do not think
it is necessary of me to grant the respondents the order
that they
seek. As I have intimated, the two parties are still together,
they are living together, they are working together,
it must be left
possible for them to find a way forward and resolve the issues that
confront them. That the fingerprints
have been obtained by
coercion through the use of this court, and that such information as
has been acquired should be wiped out,
I do not really think that it
is necessary to go that route, because if it is left for the parties
to sit down and discuss the
issue might resolve itself faster, it
might even be unnecessary to wipe out the information that has been
acquired, as I shall
assume that even the process of acquiring these
prints might be involving some expenses, and so in my view it is very
much unnecessary
to go that route, particularly because, as I have
attempted to get it, it has not been stated clearly that the
acquisition of such
prints was a violation of any right protected by
the constitution. Whilst respondent’s papers seem
to suggest
that, but the address made by Mr Schumann here sort
of changed that scenario, and I think rightfully so.
I
have looked at the Constitution Act itself. As it stands it
obviously names those rights that pertain to privacy, but it
is not
exclusive, it does not shut the door to other rights. But any
party who wants to rely on a right that is protected
by the
constitution must clearly articulate that right, and in my view,
whilst it might well be that in future it may be held that
usage of
the biometric reader might be seen to be violating such rights, but
one would have to make out such a case on the papers.
Therefore
again the counter application is not successful.
This
brings me finally to the question of costs. The applicant
obviously has in my judgment and in my ruling lost out, and
it is
only fair that I should dismiss its application with costs. In
respect of the counter application make no costs order.
So the
application is dismissed with costs. The
rule
nisi
is therefore discharged.
______________
Cele
AJ
Date:
27 August 2008
Appearances:
For
the Applicant:
Alex Rocher –
Farrell and Associates Attorneys
For
the Respondent:
Adv Paul Schumann
instructed by Brett Purdon Attorneys
IN
THE HIGH COURT OF SOUTH AFRICA
DURBAN
AND COAST LOCAL DIVISION
HELD
AT DURBAN
CASE
NO
:
D402/08
DATE
:
19 JUNE 2008
MASS
DISCOUNTERS (PTY) LIMITED
versus
SACCAWU
BEFORE
THE HONOURABLE MR JUSTICE CELE
ON
BEHALF OF APPLICANT
:
MR A ROCHER
ON
BEHALF OF RESPONDENT
:
MR SCHUMANN
INTERPRETER
:
NOT REQUIRED
PAGES 1 - 111
REPORT ON
RECORDING
Clear recording.
TRANSCRIBER’S
CERTIFICATE
This
is, to the best abilities of the transcriber, a true and correct
transcript of the proceedings,
where audible
, recorded by
means of a mechanical recorder in the matter:
MASS
DISCOUNTERS (PTY) LIMITED v SACCAWU
CASE
NO
:
D402/08
COURT
OF ORIGIN
:
DURBAN
TRANSCRIBER
:
JENNY CRAIG
DATE
COMPLETED
:
16 JULY 2008
NO
OF TAPES
:
CD
NO
OF PAGES
:
65