About SAFLII
Databases
Search
Terms of Use
RSS Feeds
South Africa: Johannesburg Labour Court, Johannesburg
SAFLII
>>
Databases
>>
South Africa: Johannesburg Labour Court, Johannesburg
>>
2011
>>
[2011] ZALCJHB 47
|
|
Scaw Wire and Strand, a division of Scaw Metals SA (Pty) Ltd v National Union of Metal Workers Union of South Africa and Others (J32/2011) [2011] ZALCJHB 47 (25 May 2011)
SCAW
WIRE AND STRAND, a division of SCAW METALS SA (PTY) LTD V
NATIONAL UNION OF METAL WORKERS OF SOUTH AFRICA AND OTHERS
Case
No.: J32/2011-Reasons - Interdicting strike- demand , lacked
details and unclear therefore unlawful
22
May 2011 –order granted 14 -01-2011
IN THE LABOUR COURT OF SOUTH AFRICA
HELD AT JOHANNESBURG
REPORTABLE
Case No.: J32/2011
SCAW WIRE AND STRAND, a division of
SCAW METALS SA (PTY) LTD
…..............................................................................
Applicant
And
NATIONAL UNION OF METAL WORKERS
OF SOUTH AFRICA AND OTHERS
…...................................................................
Respondent
Reasons for the Order
Molahlehi J
Introduction
[1] On the 4
th
January 2011
this Court made an order in the following terms:
“
1. The applicant’s
non-compliance with the rules relating to service and time periods is
condoned and the matter is dealt
with as one of urgency in terms of
Rule 8 and on short notice in terms of section 68(2) of the Labour
Relations Act 95.
2. A final order is issued with
immediate effect in the following terms:
2.1 declaring the industrial action
which the respondent intends to embark upon on Monday 17 January 2011
or thereafter to be unlawful
and unprotected strike action;
2.2 Interdicting and restraining
the respondents from embarking on strike action and any unlawful
conduct in this regard, in support
of the unlawful demand made which
arises from a dispute referred by the respondents to conciliation on
the 17
th
November 2010;
2.3 Interdicting and restraining
the respondents, including officials, office bearers and members of
the first respondent, from
proceeding with, calling for, supporting,
encouraging or in sighting its members to engage in industrial action
on the 17
th
January 2011, or thereafter;
2.4 Interdicting and restraining
the respondents from making any unlawful demands of the applicant, in
particular the demand which
is subject to the dispute referral of 17
November 2010;
2.5 directing the first respondent
to take all reasonable stops to advise its members that the intended
strike action is unprotected
and persuade them not to participate in
the strike action.
3. Ordering that the cost of this
application be paid by the respondent jointly and severally the one
paying the other to be absolved.
4. Directing that this court be
served on the first respondent by way of facts.”
[2] The application which led to the
granting of the order was brought on an urgent basis. The application
was unopposed and after
enquiring and being satisfied as to the
service of the papers on the respondents, the matter was considered
on the basis of the
applicant’s papers only. This meant that
the court had only one version before it. The essence of the court
order is that
the strike which the applicant are alleged to have
intended to embark upon on the 17
th
January 2011, was
declared to be unlawful and unprotected.
Background facts
[3] The dispute which the respondents
referred to conciliation and to which a certificate of outcome was
issued arose from the outcome
of a disciplinary inquiry related to
the use of alcohol at the workplace.
[4] The policy for regulating use and
abuse of alcohol of the applicant draws a distinction between
voluntary and random alcohol
testing of employees. The policy further
gives the applicant the power to randomly test its employees in as
far as the use of alcohol
is concerned. Once selected an employee has
no other option but to submit to the testing for refusal would
constitute misconduct.
[5] On the 31
st
May 2010 Mr
Mavudla, an employee of the applicant and a member of the union was
referred for alcohol testing in the morning. According
to the
applicant he tested positively for alcohol and was sent home for that
reason. However at midday his manager Mr du Sart requested
Mr Mavudla
to return to work which he did and apparently on his return to work
at about 13h00 he incorrectly stated in a letter
that he had tested
negatively for alcohol when he returned to work at 13h00. The same
applies to Mr du Sart who incorrectly indicated
to the applicant that
Mr Mavundla was tested for alcohol when her returned to work at 11h52
and the results was negative.
[6] Arising from the above the union
demanded that both Mr Mavundla and Mr du Sart be charged with
breaking the policy of the applicant.
The applicant obliged by
charging both for misconduct. The outcome of the disciplinary hearing
was that both employees were found
guilty of misconduct but however
different sanctions were imposed on them. In the case of Mr du Sart
the chairperson of the disciplinary
enquiry recommended that he be
counseled and gave Mr Mavundla a final written warning.
[7] The union was apparently not happy
with the outcome of the disciplinary hearing and accordingly referred
a further dispute to
the bargaining council. In the referral form the
union categoried the dispute to be concerning;“
failure to
comply with the provision of company procedures”
And as concerning the outcome
required, the union stated as follows; “
comply with the
provisions of the procedure consistently.”
[8] The parties could not reach a
consensus on how the dispute could be resolved and accordingly the
conciliating commissioner issued
a certificate of non-resolution.
[9] The applicant contended that
because the union failed to provide particulars as to in what way it
had failed to apply the procedure
consistently it was unable to
consider the union’s demand and to formulate an appropriate
response. In this regard the applicant
addressed a letter to the
union on 15
th
December 2010 requiring further details. The
letter which the applicant addressed to the union reads thus:
“
RE: MUTUAL INTEREST
CERITIFICATE ISSUED: CASE NO- MEGA31304
With reference to the certificate
of outcome of non-resolution issued on the 13
th
December
2010 please clarify us the exact nature of your demand relating to
the companies alleged “failure or and refusal
to comply with
the provisions of the companies disciplinary code and grievance
procedures consistently.”
We understand for your referral to
the MEIBC and the conciliation meeting that you claim that we have
applied our disciplinary code
and grievance procedure inconsistently.
Please urgently advise us as to the following:
In what way have we applied our
code or procedure inconsistently;
In respect of who m have we
applied our code or procedure inconsistently;
Against whom have we applied our
code or procedure inconsistently;
What is it that you demand that
the company does in order to apply its code and procedure
consistently.
The company reiterates that it
remains willing to attempt to resolve this matter, to the extent that
it is able to and on the basis
that the demand made is a lawful one.
At this end, we request that you urgently respond to us in this
regard.”
[10] The union did not according to
the applicant respond to the above letter and accordingly another
letter was addressed to the
union dated 11 January 2011, wherein the
union was requested to furnish its response by 10h00 on the 12
th
January 2011. Again no response was received from the union. The
union having failed to meet the deadline for responding on the
issue
raised, the applicant addressed a further letter to them on the 12
th
January2011 wherein it was indicated that their demand was unlawful.
[11] The applicant says it thereafter
received information that the union was planning to embark on a
strike action on the 17
th
January 2011. The applicant then
sent a letter to the union dated the 13
th
January 2011,
wherein it sought an undertaking from the union that no strike action
would take place on the 17
th
January 2011. As there was
again no response from the union the applicant decided to launch this
application.
[12] As indicated above the matter was
unopposed and after satisfying myself that the union was properly
served with the application,
I proceeded to entertain the applicant’s
case. However, before entertaining the merits of the case, the court
had to consider
first the condonation application which was made by
the applicant in prayer
one of the notice of
motion.
[13] The first enquiry in relation to
the condonation application has to deal with the provisions of Rule 8
of the rules of the
court. Rule 8 of the rules of the court provides
as follows:
“
(1) A party that applies for
urgent relief must file an application that complies with the
requirements of rule 7(1), 7(2), 7(3)
and, if applicable, 7(7).
(2) the affidavit in support of the
application must also contain……
(8) the reasons for the urgency and
why urgent relief is necessary:
(b) the reasons why the
requirements of the rules were not complied with, if that is the
case; and
(c) if a party brings an
application in a shorter period than that provided for in Section 68
(2) of the Act, the party must provide
reasons why a shorter period
of such notice should be permitted.”
[14] Turning to the general principles
governing the granting of an interdict on an urgent basis, it is
trite that the applicant
must show that the matter needs to be
considered on an urgent basis, that there is no other appropriate
relief, that he or she
will suffer irreparable harm and prejudice if
the interdict was not to be granted. The applicant has also to show
that the balance
of convenience favors the granting of the interdict.
In an application for a final order the applicant must further show
that he
or she has a real right which needs to be protected.
[15] In as far as urgency is concerned
I accepted that the applicant had shown good cause why the matter
needed to be considered
on an urgent basis. In this respect I took
into account that a certificate of outcome of conciliation and the
several letters that
the applicant address to the respondent
regarding both the demand and the information that the applicant had
received regarding
the threat of the strike taking place on the 17
th
January 2011. In the absence of any other information to the contrary
I had no reason to doubt the version of the applicant.
[16] As concerning the 48 hours notice
required in term of section 68(2) of the LRA, it is clear from the
applicant’s papers
that notice given to the respondent was less
than 48 hours. However taking into account the facts and the
circumstance of this
matterI was persuaded that good cause was shown
as to why the notice which was less than 48 hours should be
permitted.
[17] I now turn to the merits of the
application. There are several questions I need to ask myself in this
regard. The first question
which is pertinent and which I will seek
to answer first is whether, or not the applicant had a right in the
circumstances of this
case, not to be faced by a strike action.
[18] The procedure to follow for
employees to embark on a lawful strike action is set out in section
64(1) (a) of the LRA. For the
strike to be lawful and protected the
union must first ensure that the dispute is referred to the
Commission for Conciliation Mediation
and Arbitration or relevant
bargaining council and thereafter a certificate be issued indicating
that the dispute remains unresolved
or the 30 days have lapsed since
the referral was made. Thereafter, once these requirements have been
satisfied the union must
give the employer a 48 hour notice of the
intended strike action.
[19] The other requirement for the
strike to be lawful and protected is that the demand which the strike
is to be based upon must
be lawful. In
Ceramic Industries Ltd T/A
Betta Sanitary Ware v Natinal Construction building & Allied
Workers Union
(2)
(1997) 18 ILJ 671 (LAC)
, the court had
to deal with a situation very similar to the present where, the union
demanded that three of the employees be disciplined
or be dismissed
for victimizing a shop steward. The Labour Court had found that the
dispute as framed by the union was not justiciable
or arbitrable and
therefore the union was on the basis of that entitled to embark on a
protected strike
action.
On appeal the Labour Appeal Court held that the underlying
dispute in matters of this nature is to be determined by the
grievance
that gave rise to the demand and not necessarily by the
remedy sought. Thus in terms of that decision the prohibition in
section
65 (1) (b) &
(c) of the LRA depends on the determination of “the
issue in dispute”. See
Grogan Workplace (10
th
Edition page 380-381).
[20] Another case which is referred to
in Grogan’s work is
TSI Holdings (Pty) Ltd v National Union
of Mine Workers of SA & others (2006) 27
ILJ 1483 (LAC)
,
where the
union demanded the dismissal of a supervisor who had used racist and
derogatory language against their members. In analyzing
the real
dispute the Labour Appeal Court held that because the union demanded
that the employer should dismiss without offering
an employee a fair
hearing such a demand was unlawful.
[21] Similarly in
Metro Bus (Pty) v
SAMWU (2009) 9 BLLR (LC),
this court had to deal with a demand by
the union that one of the employees be suspended pending the
disciplinary enquiry. The
employer in that case conducted an
investigation and came to the conclusion that it would not be proper
to suspend the employee.
In agreeing with the approach adopted by
Metro Bus the court held that:
“
On
the
papers before me
I
conclude that Metro Bus did comply with the relevant requirements
relating to a fair suspension and decided that suspension was
not
appropriate. The decision was not challenged at the time and
therefore a reasonable inference to draw, taking into account
the
time lapse, is that SAMWU did not have issue with the manner in which
Metro Bus dealt with the issue. For this reason the strike
action
based on this demand would be unprotected and therefore SAMWU is
interdicted from embarking on a strike based on the demand
that Mr
Ngcobo be suspended would constitute an unprotected strike”.
See also
City of Johannesburg v SA
Municipal Workers Union & others (2010) 31 ILJ 1175 (LC).
[22] In the present case, my view that
the demand that Mr Mavundla be disciplined and dismissed is not in
the circumstance of this
case a lawful demand, given the fact that
disciplinary action has already been taken against Mr Mavundla and a
sanction imposed.
[23] It was on the basis of the above
reasons that the above court order was made.
Molahlehi
J
Judge of the Labour Court of South
Africa
Date of hearing: 14 January 2011
Date of judgment: 25 May 2011
For the Applicant: Kate Savage of
Bowman Gilfillan Inc
For
the Respondent: No appearance
7