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[2011] ZALCJHB 203
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SA Post Office Ltd v TAS Appointment and Management Services CC and Others (J112/12) [2011] ZALCJHB 203 (13 February 2011)
REPUBLIC OF SOUTH AFRICA
Reportable
Of
interest to other judges
THE LABOUR COURT OF SOUTH AFRICA
JOHANNESBURG
case no: J 112/12
In the matter between:
SA POST OFFICE LTD
Applicant
and
TAS APPOINTMENT AND MANAGEMENT SERVICES CC
First Respondent
N T NGIDI CONSULTING (PTY) LTD
Second Respondent
MARULA STAFFING (PTY) LTD
Third Respondent
EMPLOYEES LISTED IN ANNEXURE “A” TO THE NOTICE OF
MOTION
Fourth to further Respondents
Heard
:
09 February 2012
Delivered
:
13 February 2011
Summary:
(Urgent interdict – return day - unprotected
strike of labour broker employees – locus standi of labour
broker client
to launch interdict)
JUDGMENT
LAGRANGE, J
Background
On 23 January 2012, an interim interdict was granted by this court
on an urgent basis declaring the strike action of the fourth
to
further respondents to be unprotected strike action in terms of the
Labour Relations Act 66 of 1995 ("the LRA").
The strikers
were interdicted from continuing with the strike and prohibited from
interfering in a variety of ways with the business
of the applicant
as well as restrained from coming within 500 metres of the
applicants premises.
The strikers were not employees of the applicant, the Post Office,
but employees of various subcontractors providing labour to
the Post
Office to perform mail-sorting duties at approximately 23 depots in
Gauteng province. The first to third respondents
were the
subcontractors whose employees were on strike. Only one of them, the
first respondent opposed the application, while
the others
essentially played a passive role in the proceedings.
The strikers' main demand was that they be made permanent employees
of the applicant instead of remaining subcontracted workers.
Prior
to the strike commencing they did not refer any dispute to the CCMA
nor did they give any notice of the strike before it
commenced. No
new evidence contradicting these factual assertions made by the
applicant originally was before the court on the
return day.
Accordingly, there is no reason to doubt that the strike was an
unprotected one in terms of section 64 (1) (a) and
(b) of the LRA.
On 8 February 2012, the applicant filed a supplementary affidavit in
which it claimed that the interim court order had not been
heeded
and the strike had spread to other depots. In so far as the
applicant has made out a case that the strike action is ongoing,
the
need for a final prohibitory interdict has been established, subject
to overcoming the objections raised by the fourth to
further
respondents on the return day.
Legal argument and analysis
On the return day, the application was very belatedly opposed by the
individual respondents, who were represented
pro bono
by an
attorney, Mr D.Cartwright. The opposition was based on a single
legal question, namely whether or not this court was entitled
to
grant an interdict of this nature in a case where the applicant was
not the strikers’ employer. He characterised the
point as a
jurisdictional one, whereas the applicant's counsel Mr Halgryn, SC,
argued it really concerned the question whether
the applicant had
locus standi
to bring the application.
Mr Cartwright argued that if the applicant were permitted to
approach the court and succeed in obtaining an interdict, then any
third party whose business was affected by an unprotected strike
could also approach the court for similar relief, even where
the
strikers’ employer chose not to interdict the strike action.
Essentially, he argued that the LRA only provided recourse
for the
strikers’ own employer in a primary strike.
The applicant’s counsel argued that there were three legal
bases on which it could rely to establish its legal interest
in the
matter. The first ground on which the applicant contends it has a
legal right to approach this court is a common law right
not to have
its business or the performance of its other employees’ duties
unlawfully interfered with, as well as the right
to be protected
against unlawful damage to its property.
The second ground relied on is that the applicant can approach this
court in terms of section 68(1)(a), which makes provision
for
interdictory relief to be granted where employees embark on
unprotected strike action, read with sections 157 and 158, which
set
out this court’s jurisdiction and powers. Section 68(1) reads:
“
68
Strike or lock-out not in compliance with this Act
(1) In the case of any strike
or lock-out, or any conduct in contemplation or in furtherance of a
strike or lock-out, that does
not comply with the provisions of this
Chapter, the Labour Court has exclusive jurisdiction-
(a) to
grant an interdict or order to restrain-
(i) any
person from participating in a strike or any conduct in contemplation
or in furtherance of a strike; or
(ii) any
person from participating in a lock-out or any conduct in
contemplation or in furtherance of a lock-out;
(b) to order
the payment of just and equitable compensation for any loss
attributable to the strike or lock-out,
or conduct, having regard to-
(i) whether-
(aa) attempts
were made to comply with the provisions of this Chapter and the
extent of those attempts;
(bb) the
strike or lock-out or conduct was premeditated;
(cc) the
strike or lock-out or conduct was in response to unjustified conduct
by another party to the dispute;
and
(dd) there
was compliance with an order granted in terms of paragraph (a);
(ii) the
interests of orderly collective bargaining;
(iii) the
duration of the strike or lock-out or conduct; and
(iv) the
financial position of the employer, trade union or employees
respectively.”
It is notable that the section does not specifically refer to the
party which is entitled to seek such relief. It merely gives
this
court exclusive jurisdiction to make such an order. It does not
describe class of potential applicants who may seek an order
interdicting unprotected strike action or unlawful conduct in
furtherance of a strike.
It stands to reason that the party applying for such an order needs
to demonstrate not only that the strike is one that is not
protected
in terms of the LRA as defined in section 67 (1), but also that the
strike action has infringed one or more of that
party’s legal
rights, in order to establish its
locus standi
to bring the
application. If it were not the case, the floodgate of litigation
which the strikers say would ensue, would not
be a fanciful
prospect. Thus, for example, it is not difficult to envisage a whole
range of parties whose business interests
may be materially
prejudiced by unprotected strike action. But the mere fact that a
business may suffer directly or indirectly
as a consequence of an
unprotected strike, does not necessarily give rise to a valid
delictual claim. Most commonly the typical
applicant in this sort of
matter is the strikers’ own employer, and it will simply be
assumed - usually without it having
to be stated - that the strikers
are in breach of their obligation to render their services, and
because the strike is unprotected
their conduct amounts to an
actionable breach of the employment contract. In these cases, the
legal nexus between the parties
is so close and direct and the act
of striking goes to the root of the employees’ primary legal
obligation to the employer
under the employment contract, there can
be no doubt about the employers
locus standi
to bring an
application to end the unprotected strike to protect its contractual
rights arising from the employment contract.
Factors which reinforce the view that a party wishing to interdict a
strike is not relying on section 68(1)(a)
per se
but on an
infringement of another right by the strikers are other provisions
of sections 67 and 68. Thus, section 67 (2) of the
LRA specifically
deems that participation in a protected strike or conduct in
furtherance of that strike cannot constitute a
breach of contract or
a delict. This provision effectively provides immunity to
participants in protected strikes against common
law claims based in
delict or on breach of contract, subject to the proviso that their
conduct does not constitute an offence
(see section 67(8) of the
LRA). Also, Section 68(1)(b) accords exclusive jurisdiction to this
court to order compensation for
any loss arising from unprotected
strike action. What both these provisions implicitly recognise is
that strike action can amount
to a breach of contract, or a delict
under the common law. Section 67(2) restricts the scope for bringing
contractual or delictual
claims against participants in a protected
strike, and section 68(1)(b) appears intended to reserve the
adjudication of any damages
claim arising from the infringement of
contractual or delictual rights arising from unprotected strike
action or conduct solely
for the Labour Court. By virtue of these
provisions therefore, this court has a limited and exclusive
jurisdiction over common
law claims when contractual or delictual
liability might arise from strike action which is unprotected, and
certainly in instances
where conduct committed in support of a
strike, whether protected or not, constitutes an offence.
Consequently, the purpose of section 68 (1) of the LRA is more about
the assignment of an exclusive power to this court to grant
interdictory relief to parties that can establish they have a
distinct cause of action based on contract or delict than the
creation of a distinct statutory right to interdict unprotected
industrial action. Therefore it seems that the second basis on
which
the applicant relies is not a separate ground establishing
locus
standi
, but simply refers to the mechanism for preventing
industrial action which entails a breach of common law rights.
During argument, applicants counsel referred to other instances in
which this court had granted similar relief to the interim
order in
this matter in unopposed urgent applications and in which interim
orders had been confirmed. He agreed that because
no reasons were
given in those instances it was difficult for this court to assume
the issue now raised by Mr Cartwright was
pertinently before the
court on those occasions, but nonetheless persisted in arguing that
if this court denied the applicant
the relief it was seeking, it
would necessarily mean the reasoning in all those other cases was
wrong. While I accept the facts
in those matters may have been
indistinguishable, in essence, from the facts in this matter, I do
not think it follows that a
different decision in this case would
necessarily mean those judgements were wrong, in the absence of
knowing which legal issues
were before the court. After the hearing
the applicant filed a copy of heads submitted in an earlier case
also involving an unprotected
strike by employees of labour brokers
which supplied it with labour, in which it had been successful in
obtaining an interdict.
1
In the argument before this court the applicant also submitted that
the LRA recognised the tripartite nature of the labour broker
arrangement in section 198, which deals with temporary employment
services and certain situations in which the temporary employment
services client could be held jointly liable with the service for
any contraventions by the service of certain statutory instruments.
That may be so, but it does not tell us about all the legal
ramifications of that relationship. It was also argued that
employees
of a labour broker owe some kind of fiduciary obligation
towards the client. I am not aware of any legal authority for the
existence
of such an obligation nor was I referred to any.
The essential features of the legal relationship between the labour
broker, the client and the labour brokers’ employees
are
well-known. The labour broker contracts with the client to provide
certain types of labour to perform work for the client,
but the
persons who are engaged to perform the work are employed by the
labour broker and not the client. The client thereby
obtains the
services of persons to perform the work it requires without having
to employ them. In this instance, the applicant
called upon the
first to third respondents to provide replacements when the existing
staff went on strike. The first respondent
claims it did provide
replacement labour in the form of casual staff for all the affected
positions, but they were unable to
render services to the applicant
because of disruption by violent mobs.
There is undisputed evidence that the conduct of the strikers
included acts of assault and intimidation of permanent and
replacement
workers, the invasion of the applicant’s various
premises and malicious damage to the applicant's property. These
various
actions all amounted either to an unlawful interference in
the applicants’ employment contracts with other employees, or
breaches of the employer’s property rights, or criminal
offences, or alternatively a combination of one or more of these
types of infringement. Moreover, the combination of the strikers’
withdrawal of their own labour together with preventing
the
applicant from being able to make use of replacement labour clearly
interfered with the fulfilment of the labour brokers’
contractual obligations to the applicant to the obvious detriment of
the applicant. Withholding their own labour did not, in
and of
itself, prevent the labour brokers from fulfilling their obligations
as the first respondent’s answering affidavit
demonstrates.
But combined with the obstruction of the provision of replacement
labour it did.
In these specific circumstances therefore, confirmation of the rule
which both prohibited the strike and the other unlawful conduct
associated with it appears justified. In passing it would appear
that the police may have adopted an attitude that without an
interdict they could not always take action against the strikers. If
this is the case, it is completely erroneous. The police
do not need
a court order to intervene when faced with conduct which is
prima
facie
criminal in nature, simply because that conduct takes
place in the context of industrial action.
Order
The rule issued by this court on 23 January 2012, and extended on 09
February 2012 until today is confirmed.
The fourth to further respondents are ordered to pay the applicant’s
costs, being jointly and severally liable therefor,
the one paying
the others to be absolved.
_______________________
R Lagrange, J
Judge of the Labour Court of South Africa
APPEARANCES
APPLICANT:
L Halgryn, SC
instructed by Routledge Modise t/a Eversheds
Fourth to further
Respondents:
D Cartwright
1
SA
Post Office Ltd v TAS Appointment and Management Services CC
,
J1493/11
(unreported decision, date unknown)