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[2009] ZALCD 2
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Appolo Tyres (Pty) Ltd (Formerly Dunlop Tyres International) Ladysmith (Pty) Ltd v National Union of Metal Workers of South Africa (NUMSA) and Others (D162/09) [2009] ZALCD 2 (29 September 2009)
IN
THE LABOUR COURT OF SOUTH AFRICA
HELD
IN DURBAN
CASE NO: D162/09
In
the matter between:
APPOLO
TYRES (PTY) LTD (FORMERLY
DUNLOP
TYRES INTERNATIONAL
(LADYSMITH)
(PTY) LTD)
APPLICANT
AND
NATIONAL
UNION OF METAL
WORKERS
OF SOUTH AFRICA
(“NUMSA”)
1
ST
RESPONDENT
SHADRACK
SITHOLE
2
ND
RESPONDENT
AMERICAN
XABA
3
RD
RESPONDENT
SIFISO
MLAMBO
4
TH
RESPONDENT
PHILANI
KHOZA
5
TH
RESPONDENT
BONGANI
ZULU
6
TH
RESPONDENT
MUSA
MSIMANGA
7
TH
RESPONDENT
ALFRED
MCHUNU
8
TH
RESPONDENT
NHLANHLA
MADONSELA
9
TH
RESPONDENT
THEMBA
NGUBANE
10
TH
RESPONDENT
ELLIOT
MASIMULA
11
TH
RESPONDENT
THOKOZANE
DLADLA
12
TH
RESPONDENT
NKOSINATHI
SHANDU
13
TH
RESPONDENT
INDIVIDUAL
RESPONDENTS
SET
OUT IN ANNEXURE “A
14
TH
&
FURTHER RESPONDENTS
JUDGMENT
Molahlehi J
Introduction
[1
This matter concerns an application for costs arising from an
interdict which the applicant had brought against the respondents.
The interdict related to an unprotected industrial action which NUMSA
and its members embarked upon. The applicant brought an urgent
application in terms of which it sought a declarator that the
respondents had embarked on an unprotected strike including an order
interdicting and restraining the respondents from continuing with and
participating in any conduct in furtherance of the unprotected
strike.
The
parties
[2]
The applicant is Apollo Tyres (Pty) Ltd formerly known as Dunlop
Tyres International (Ladysmith) (Pty) Ltd, a company duly registered
in terms of the company laws of South Africa, carrying on the
business of manufacturing of new tyres and is a member of the New
Tyres Manufacturers Bargaining Council.
[3]
The first respondent is the National Union of Metalworkers of South
Africa (“NUMSA”), a trade union duly registered
in
accordance with the
Labour Relations Act, 66 of 1995
, and a majority
union at the applicant’s work place. Mr Mbuso Mchunu and Mr
Thulani Ngubane are the local organizer and regional
organizer of
NUMSA respectively. The further respondents are both members of NUMSA
and its shop stewards at the workplace of the
applicant.
Background
facts
[4]
As indicated above the applicant is a manufacturer of new tyres for
the automotive industry and at the time dispute arose employed
some
900 (nine hundred) employees in total at its Ladysmith plant. The
applicant used to operate a 24 (twenty) hour, 7 (seven)
days per week
manufacturing operation. Because of the economic down turn in the
purchase of new cars the applicant suffered a down
turn in the volume
required by the tyres market at large. According to the applicant it
was because of this economic down turn
that it was forced to
institute a “
lay off”
on Sundays so that it could
operate only six days a week being Monday through to Saturday, both
days inclusive. This was also in
an attempt to lower fixed overhead
costs and to lower fiscal cost per unit and maintain financial
viability and to retain employment
of its employees.
[5]
In protest against the implementation of the “
short time”
and “
lay off”
the respondents embarked on an
industrial action during November 2008. In response to that
industrial action the applicant launched
an urgent application under
case number D 837/08, which application was set down for hearing on
19
th
November 2008. However, that application was
adjourned
sine die
on 19
th
November 2008 to afford
the parties an opportunity to seek an amicable solution to their
problem.
[6]
On Friday, 23
rd
January 2009 the NUMSA referred a
facilitation process to the CCMA in terms of
section 189A
of the
Labour Relations Act of 1995
, read with the provisions of clause 9 of
the 2007/2010 Main Agreement of the New Tyres Manufacturing
Bargaining Council. The applicant
contends that at the time NUMSA
referred the matter to the bargaining council, it had not issued
notice indicating an intention
to proceed with retrenchments as a
result of the “
lay off”
and “
short time.”
[7]
During November 2008, members of NUMSA embarked on an industrial
action in protest against the implementation of “
short time”
and “
lay off”
which the applicant contended was
unprotected and accordingly launched an urgent application under case
number D837/08. This application
was set down for hearing on 19
th
November 2008. The parties engaged in negotiations closer to the date
of the hearing and accordingly the matter was put on hold
pending the
out come of the negotiations and the urgent application postpone
sine
die
on 19
th
November 2008.
[8]
On Friday, 23
rd
January 2009 NUMSA made a referral in
terms of
section 189A
of the Labour relations Act to the CCMA read
with the provisions of clause 9 of the 2007/2010 Main Agreement of
the bargaining
council. The applicant contended that the NUMSA
launched the referral in terms of
section 189A
despite the fact that
it (the applicant) had not prior to that referral given notice in
terms of
Section 189
(3), of an intention to proceed with a
retrenchment exercise as a result of the “
lay off”
and “
short time
.” The facilitation referral was
according to the applicant not made in compliance with the provisions
of
section 189A
(3) of the
Labour Relations Act but
on the basis of
clause 9 of the Main Collective Agreement.
Section 189
(3) provides:
“
The Commission
must appoint a facilitator in terms of any regulations made under
subsection (6) to assist the parties engaged in
consultations if-
(a)
The employer has in its notice in terms of
section 189
(3) requested
facilitation: or
(b)
Consulting parties representing the majority of employees whom the
employer contemplates dismissing
have requested facilitation and have
notified the commission within 15 days of the notice.”
[9]
The CCMA set down the facilitation meeting despite the non compliance
with the requirements of the provisions of
section 189(3)
of the
Labour Relations Act. The
meeting was facilitated by the commissioner
of the CCMA on 4
th
February 2009, under CCMA case number
KNDB 721-09. At that meeting the jurisdiction of the CCMA to
entertain the dispute was contested
by the applicant as the
facilitation was not held pursuant to a
section 189
(3) notice of the
Labour Relations Act. The
commissioner apparently refused to make a
ruling on the jurisdictional point raised by the applicant.
[10]
On the 27
th
January 2009, the respondents embarked on
another industrial action and as result thereof the applicant
re-instituted its urgent
application which had been adjourned under
case D837/08 on the 28
th
January 2009. That application
was however, dismissed on the basis that insufficient notice, being
less than 48 hours was given
to the respondents.
[11]
The strike was resolved on 3
rd
February 2009, with the
parties concluding an agreement in terms of which the respondents
undertook not to engage in further unprotected
industrial action and
to ensure that they follow a dispute procedure should industrial
action be contemplated.
[12]
On 4
th
February 2009 the applicant issued a notice in
terms of
section 189(3)
of the
Labour Relations Act in
terms of which
it gave notice of possible retrenchments. The applicant contended
that it was forced to consider the possibility
of retrenchment
because the respondents were unwilling to accept the “lay off
and “short time” proposal it had
made to address the
financial difficulties it had found itself in.
Certificate
of outcome
[13]
The CCMA facilitator issued the certificate of outcome under case
number KNDB721-09, indicating that the dispute remained unresolved
as
at 17
th
February 2009 and advising that the dispute was to
be referred to the Labour Court. The applicant took the view that the
certificate
of outcome was invalid and of no force in relation to the
referral by NUMSA. Based on this view and on the same day of receipt
of the certificate, the applicant addressed a letter to NUMSA
informing it that the certificate of outcome does not give employees
any rights to embark on industrial action. In the letter the
applicant further noted that any industrial action based on the
certificate
of outcome will be unprotected and unlawful and will be
interdicted.
[14]
On 20
th
February 2008, NUMSA addressed a letter to the
applicant requesting it to meet with the shop stewards for the
purposes of:
“
1.
Issue notice for volunteers to be retrenched. This is only affecting
Ladysmith and not Sydney Road operation.
2.
Agree with the union who will be affected by retrenchment. This is
the list of employees excluded from volunteer
list.
3.
We demand that this must happen within 48 hours from your receipt of
this letter”
[15]
On the same day the applicant had also addressed a letter to NUMSA
noting that an agreement was reached with the CCMA that
it would be
requested to provide Ms Hilda Grobler as a facilitator further to its
notice in terms of
Section 189
(3) dated 4
th
February
2009. In addition the applicant indicated in the same letter that the
demands contained in NUMSA’s letter of the
20
th
February 2009 headed “48 hours” would be dealt with at
such facilitation.
[16]
On 5
th
March 2009, NUMSA issued the applicant with notice
of intention to embark on a strike action within 48 hours and would
rely for
that purpose on the certificate of outcome which was issued
by the CCMA on 17
th
February 2009. In response to this
notice the applicant indicated to NUMSA that the CCMA had no
jurisdiction to issue the certificate
and that any strike action
flowing from that certificate would be unprotected.
[17]
In the mean time the CCMA had confirmed that facilitation process
referred by the applicant in terms of
section 189A
was scheduled to
proceed on 21
st
March 2009. The applicant called on NUMSA
for this reason to call off its planned strike action.
[18]
The strike action by members of NUMSA commenced on the 7
th
March 2009 and two days thereafter the attorneys of the applicant
addressed a letter to NUMSA indicating the intention to launch
an
interdict interdicting the unprotected strike. There reports of
violence by strikers and intimidation on those of the employees
who
whished to work including damage to property.
The
law governing costs
[19]
The issue of costs is governed by the provisions of
section 162
of
the LRA, which provides as follows:
“
(1)
The Labour Court may make an order for the payment of costs,
according to the requirements of the law and fairness.
(2) When
deciding whether or not to order the payment of costs, the Labour
Court may take into account –
(a)
whether the matter referred to the Court ought to have been referred
to arbitration in terms of this
Act and, if so, the extra costs
incurred in referring the matter to the Court; and (b)
the conduct of the
parties –
(i)
in proceeding with or defending the matter before the Court; and
(ii)
during the proceedings before the Court.”
[20]
In
Jacob Jaure v Regent Life Company Ltd, unreported judgment case
number JS 268/06
this Court following on the authority in
Callgaurd Security Service (Pty) Ltd v Transport & General
Workers Union & Others (1997) 18 ILJ 380 (LC),
held that
costs in this Court do not automatically follow their results because
of provisions of
section 162
of
Labour Relations Act 66 of 1995
which, provides that the Court may make an order for the payment of
costs, according to the requirements of the law and fairness.
See
also
SAMWU and another v SA Local Government Association,
unreported judgment case number C229/07
and
The City of Cape
Town v SAMWU
[2008] ZALC 30
;
(2008) 7 BLLR 618
(LC).
[21]
In
Callgaurd Security Service
Zondo AJ, as he then
was, in considering the provisions of
s 162
of the LRA said:
“
It seems to me
that what the Act has decreed is that whether or not this court
should or should not make an order of costs in a
particular matter
depends on the “requirements of the law and fairness.” In
my view it is therefore important to appreciate
that consideration
should be given not only to the requirements of the law in disregard
of the requirements of fairness nor should
consideration be given
only to the requirements of fairness in disregard to the requirements
of the law.”
[22]
In dealing with the issue of costs under section 17(12) (a) of the
1956
Labour Relations Act, which
in all respect reads the same as the
present
section 162
of the
Labour Relations Act of 1995
, the Court
in
National Union of Mine Workers v East Rand Gold and Uranium Co
[1991] ZASCA 168
;
1992
(1) SA 700
(A)
provided guidelines to follow in considering the
issue of costs. In that case Goldstone J stated that the following
guidelines should
be taken into account in considering whether or not
grant costs:
“
1.
The provision that 'the requirements of the law and fairness' are to
be taken into account is consistent with
the role of the industrial
court as one in which both law and fairness are to be applied.
2.
The general rule of our law that, in the absence of special
circumstances costs follow the
event, is a relevant consideration.
However, it will yield where considerations of fairness require
it.
3.
Proceedings in the industrial court may not infrequently be a part of
the conciliation process.
That is a role which is designedly given to
it. Parties, and particularly individual employees, should not be
discouraged from
approaching the industrial court in such
circumstances. Orders for costs may have such a result and
consideration should be given
to avoiding it, especially where there
is a genuine dispute and the approach to the court was not
unreasonable. With regard to
unfair labour practices, the following
passage from the judgment in the Chamber of Mines case supra at 77G-I
commends itself to
me:
“
In this regard
public policy demands that the industrial court takes into
account considerations such as the fact that justice
may be denied to
parties (especially individual applicant employees) who cannot afford
to run the risk of having to pay the other
side's costs. The
industrial court should be easily accessible to litigants who suffer
the effects of unfair labour practices,
after all, every man or woman
has the right to bring his or her complaints or alleged wrongs before
the court and should not be
penalised unnecessarily even if the
litigant is misguided in bringing his or her application for relief,
provided the litigant
is bona fide. . . .”
4.
Frequently the parties before the industrial court will have an
ongoing relationship that
will survive after the dispute has been
resolved by the court. A costs order, especially where the dispute
has been a bona fide
one, may damage that relationship and thereby
detrimentally affect industrial peace and the conciliation process.
5.
The conduct of the respective parties is obviously relevant,
especially when considerations
of fairness are concerned.”
[23]
In dealing with the facts of the case the Court found that even
though the NUM was a successful party, its conduct in the
negotiations process led to justifiable unhappiness and frustration
on the part of the company. The other factor which the Court
took
into account was the fact that the issues raised by the parties in
that case were of fundamental importance, not only to the
parties,
but to all the players in the important arena of industrial
conciliation. And more importantly the Court took into account
the
fact that there was ongoing relationship between the parties. It was
for these reasons that the Appeal Court in same way as
the Court a
quo did not make an order as to costs.
[24]
In the present instance the essence of the case of the applicant is
that cost order should be granted in its favour taking
into account
the conduct of NUMSA and its members particularly that of embarking
on an unprotected strike after being so advised
that the strike was
unprotected because it was based on an invalid certificate issued by
the CCMA. Another point made by the applicant
in this regard is that
NUMSA and its members continued with the unprotected strike even
after that Court order was issued interdicting
such strike. It is
further argued that it was as a result of the unprotected strike
action at the Ladysmith branch that the Durban
branch also
participated in a sympathy strike.
[25]
Although there are good and strong merits in the points raised by the
applicant regarding the conduct of NUMSA and its members
which
ordinarily would support the view that costs should be granted in
favour of the applicant, I am however, of the view that
granting of
costs would adversely affect not only in the short and medium term
but also in the long term the relationship building
exercise which
the parties have embarked upon. In this respect I have in particular
noted that the CCMA has already appointed a
commissioner to
facilitate the process. As I understand the process it will
facilitate dialogue so that parties may gain an understanding
of the
underlying issues that may have led to the unwarranted behavior of
NUMSA and its members. It is also my understanding that
very often,
unresolved conflicts and disputes or the perceived manner in which a
conflict has been handled can lead to deep divisions
between
management and workers. Granting a costs order against the
respondents would not in my view strengthen and capacitate the
value
adding and essential process which the commissioner has to undertake.
I have also taken onto account in arriving at the conclusion
that
costs should not be awarded that the issues that gave rise to the
conduct of NUMSA members are very emotive and sensitive
and that a
certificate of outcome had been issue by a CCMA commissioner which
NUMSA and its members relied on in embarking on the
industrial
action, invalid as it may have been.
[26]
In the premises, I make no order as to costs.
_______________
Molahlehi
J
Date
of Hearing :
18
th
June 2009
Date
of Judgment :
29
th
September 2009
Appearances
For
the Applicant :
Mr Kevin Dass of Farrel and Associates
For
the Respondent: Thanusha
Hoodley of Brett Purdon Attorneys.