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[2011] ZALCJHB 48
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Chemical Energy Papers Printing Wood and Allied Workers Union and Others v CTP Ltd (JS 215/2010) [2011] ZALCJHB 48 (7 June 2011)
LAGRANGE, J
IN THE LABOUR COURT OF
SOUTH AFRICA
HELD IN JOHANNESBURG
Reportable
Case No: JS 215/2010
In the matter between:
CHEMICAL ENERGY PAPER
PRINTING
AND ALLIED WORKERS
UNION
…......................................................
FIRST
APPLICANT
KEETSO & 211
OTHERS
….........................................................
FURTHER
APPLICANTS
AND
CTP LIMITED
…............................................................................................
RESPONDENT
JUDGMENT
LAGRANGE, J
Introduction
This is a condonation
application for the late filing of a statement of case. Judgement in
this matter was handed down on 7 June
2011, with a summary of my
reasons, which read as follows:
"In summary, I find
that the delay is significant and the explanation for the union and
its legal representatives’ dilatoriness
is weak. Nonetheless,
the applicants seem to have reasonable prospects of success and the
case raises legal questions of some importance.
The prejudice to the
parties is evenly balanced, and such prejudice the employer has
suffered through delays in the matter which
are not of its making,
can for the most part be rectified in any remedy afforded to the
applicants, should they ultimately succeed."
I then made the
following order, coupled with a direction to the parties:
"a. The
applicants’ late referral of their statement of case is
condoned.
b. No order is made as
to costs.
Further, the parties
are directed to hold a pre-trial meeting within 14 calendar days of
the full reasons for the judgment being
filed."
My full reasons for the
judgement are set out below.
The test for granting
condonation is well known, but worth repeating. In
Melane v Santam Insurance Co Ltd
1962 (4) SA 531
(A)
,
the following was said about the factors that will be taken into
account when considering a condonation application:
'In
deciding whether sufficient cause has been shown, the basic principle
is that the Court has a discretion, to be exercised judicially
upon a
consideration of all the facts, and in essence it is a matter of
fairness to both sides. Among the facts usually relevant
are the
degree of lateness, the explanation therefor, the prospects of
success and the importance of the case. Ordinarily these
facts are
interrelated, they are not individually decisive, save of course that
if there are no prospects of success there would
be no point in
granting condonation. Any attempt to formulate a rule of thumb would
only serve to harden the arteries of what should
be a flexible
discretion. What is needed is an objective conspectus of all the
facts. Thus a slight delay and a good explanation
may help to
compensate prospects which are not strong. Or the importance of the
issue and strong prospects of success may tend
to compensate for a
long delay. And the respondent's interests in finality must not be
overlooked.'
1
The
period of delay
By early June 2009 the
respondent and what appears to be an associated company, Thuthuka
Packaging (Pty) Ltd, had dismissed 212
of the union's members
following their participation in a so-called ‘secondary’
strike, which began on 13 May 2009.
A number of separate referrals
in respect of the alleged unfair dismissal of the members were made
to the statutory council for
the Printing Newspaper and Packaging
Industry ('the statutory council'). On 1 July 2009 these disputes
were jointly conciliated
without success. From that date, the
applicants had 90 days to refer the dispute to the labour court. The
referral ought to have
been made by 30 September 2009, but was only
made over five months later on 11 on March 2010. This is a
significant period of
delay.
The reasons for the
delay
The applicants claim
that, because of the large number of employees involved,
consultations between union officials, the members
and legal
representatives took place on a number of different occasions. The
number of employees involved also meant that the
expected cost of
litigation would be high and it was necessary for the
unionstructures to meet and decide "on the best approach
to
deal with this matter". A vague reference is made to a meeting
of the "union hierarchy" which was convened
in August 2009
and which led to the union instructing its attorneys of record on 26
August to deal with the matter.
The respondent rightly
criticises the lack of detail about the number and nature of the
meetings and consultations which took
place. It must be emphasised
that evidence on affidavit should not be presented in the style of
broad and somewhat imprecise
pleadings when evidence of material
issues is narrated. Affidavits drafted in the style of pleadings
generally do not contain
sufficient specificity to sustain the
claims they make, and their generality also makes them difficult to
reply to, either at
all, or in sufficient detail.
The respondent also
makes the point that if the union had set about drafting its
referral at the end of August it still had ample
time to finalise
this by the end of September.
The union’s Durban
based attorney was apparently appointed because she had previously
dealt with another of the union's
matters relating to the
respondent. She set up a consultation with some of the affected
employees and union officials to coincide
with another business trip
she had to make to Johannesburg on 22 to 23 September 2009. On the
second day she provided the union
with her opinion on the matter.
Her opinion apparently discouraged litigation in favour of
negotiating a settlement supposedly
because of the number of
employees involved. Although the attorney appears to have acted
promptly once she had taken instructions
in issuing an opinion, it
appears to have been poor judgment on her part and the union’s
to have left the matter until
she was due to come to Johannesburg on
other business, even if that might have saved some incidental travel
costs.
The union legal officer
says that on 25 September 2009 he took steps to initiate discussions
between a union delegation, including
national office bearers, and
the company to discuss a settlement of the matter. A union letter to
the company of 26 September
2009 does request a meeting with the
company. However, inexplicably it refers to an "urgent meeting
for short time"
to be convened with national office bearers on
one of three dates in early November. At the time the legal officer
was aware
that the referral was due shortly, but it was only on 11
October 2009 that he contacted the organiser who had written the
letter
to the respondent to find out what progress had been made. On
21 October he advised the attorney that the union had instructed
its
Wits region to try and set up a meeting with the company which would
be attended by national office bearers of the union
in an effort to
avoid expensive and lengthy litigation. It was only on 28 October
2009 that he phoned the responsible union official
to urge him to
follow up on the letter requesting a meeting and to impress on the
company the urgency of the matter. On 3 November
2009, a few days
later, the union official sent another letter to the company
requesting a meeting to discuss the subject of
mass dismissals and
confirming that dates had previously been requested from the company
on 3, 4 and 5 November to which no response
had been received.
The respondent rightly
criticises the gaps from 23 September 2009 onwards in the union’s
fitful attempts to settle the matter,
and points out that such
efforts did not preclude the union from filing a statement of case
in the meantime. It seems the union
felt that if it might be able to
settle the matter, the costs of litigation would be avoided, and
provided it continued to take
some steps, albeit slowly, that was
sufficient to address any problem with a late referral.
It must also be said
that the respondent’s conduct was not irreproachable. The
respondent's replying affidavit makes it
clear that once the 90 day
period for a timeous referral had expired it started to engage
permanent replacements for the applicants.
Thus, when the union did
make approaches to the company in October 2009 about prospective
settlement discussions, the respondent
could have advised the union
then that it was wasting its time. The respondent does not provide
any explanation for its own failure
to respond to any of the union's
communications. While it is theoretically true that settlement
negotiations might have been
pursued by the union after having filed
a statement of case, the company could also have conveyed the
futility of even contemplating
such discussions well before January
in a letter of one or two lines. It would have cost it little in
time and effort to express
that it had no interest in pursuing
settlement discussions with the applicant rather than waiting until
mid-January 2010. Instead
it preferred to ‘play possum’
until then.
After the futile efforts
to elicit the respondent’s interest in a meeting, the union
only instructed its attorney in early
December to deal with the
matter. The attorney phoned her counterpart at the respondent's
attorneys, again raising the prospect
of settling the matter. She
was advised that another attorney was dealing with the matter and a
message would be left for him
to return her call, but he did not.
Two days later on 10 December 2009, she wrote to him suggesting a
meeting at which settlement
could be discussed. On 18 December 2009,
having receive no response, like the union before her, she phoned
him again. In a letter
confirming their conversation, the union’s
attorney confirms that they agreed that she would not refer the
matter to court
until he had a chance to confirm instructions with
his client. The body of that letter reads:
"I confirmed
being informed by you that those instructing you are currently on
leave until early January 2010 and that it is
impossible to obtain
instructions on settlement before then.
I also confirm our
agreement that my offices will hold off drafting our clients'
pleadings until you have received those instructions.
Your client may
still want to oppose a condonation application my clients may have to
bring.
I will write again to
you in mid January 2010 to see whether the entire matter or aspects
of it can be settled."
The respondent’s
attorney did not dispute the contents of this letter, but also did
not respond to her until she again contacted
him on 18 January 2010.
On 20 January 2010, he finally did respond. He confirmed that he now
had been given an opportunity to
take instructions. In the light of
the considerable time period which had lapsed since the dismissal of
the workers and since
that no referral had been made he was
instructed that his clients had employed alternative personnel and
were not in a position
to entertain any settlement of the matter. In
fact, as I have noted above, this is something the respondent
appears to have embarked
on from the end of September 2009 and was
not a recently decided course of action.
The day after receiving
this unequivocal rebuff, the union’s attorney instructed
counsel to draft the statement of case.
The further delay of over a
month whilst the matter lay in counsel's hands was explained by
referring to "the exigencies
of counsel's practice and the
amount of documentation he had to familiarise himself with".
The applicant contends that even
though the matter was not
technically complicated it was factually detailed and entailed
consideration of considerable documentation.
The
applicant’s attempt to explain the last period of delay on
account of the alleged ‘exigencies’ of counsel’s
practice is not acceptable. If such an explanation is offered, it
should at least be supported with some evidence of the particular
exigencies which prevented the statement of case being drafted
within a shorter period. Attorneys operating under deadlines or
where matters are overdue should ascertain counsel’s ability
to act with the required degree of celerity before issuing
them with
a brief.
2
In considering the
faltering steps taken by the union and its legal representatives, it
is apparent that they were not seized
with the necessary sense of
urgency that the situation required, and progress in filing the
statement was unjustifiably slow.
However, given that the company
had effectively taken a decision to replace the strikers by the end
of September when the 90
day period expired, it must be said that it
could have conveyed this to the union in October or at the least by
early November
2009. Although the respondent clearly advised the
union’s attorney on 18 December 2009 that his clients right to
oppose
a condonation application was reserved, it is arguable that
there was some understanding that the union would not be expected to
file its statement until it had received the company's response, and
that the company would not take great exception to the delay
between
18 December 2009 and 20 January 2010.
In summary, the union
and its representatives took steps, but did so too slowly. As such,
there is an explanation for the delay
but it is a weak one, because
it does not really get to grips with explaining the lethargic pace
of their efforts and is lacking
in the necessary detail in places,
even if some allowance is made for the unresponsive attitude of the
respondent to their approaches
to open discussions on a settlement
of the matter.
The respondent’s
argument was that in view of the unsatisfactory nature of the
explanation and the length of delay this
is one of those cases in
which it was not necessary for the court to even consider the other
factors mentioned by the court in
Melane’s
case. In an
earlier judgment I reviewed what I considered to be the main
authorities on this principle and concluded as follows:
“…
(
i)n
the light of current jurisprudence, it seems that in condonation
applications where the explanation for one or more significant
periods of delay is absent or completely inadequate this may
constitute a sufficient reason for refusing condonation, but even
in
such instances, adjudicators in exercising their discretion are not
precluded from still considering the prospects of success.”
3
In this instance the
explanation for the entire whole period of delay is patchy and in
parts quite unacceptable, but an explanation
is not wholly lacking.
Taken together with a consideration of the other relevant factors, I
concluded that condonation was justified
in this instance and should
not be dismissed despite the weakness of the explanation and the
long delay.
Prospects of success
It
is for the applicants to establish that there is ‘sufficient
cause’ excusing their non-compliance with the 90 day
time
limit.
4
Neither party dealt with
the prospects of success in any detail if at all in the affidavits
supporting and opposing the condonation
application. The applicants
merely alluded to their statement of case and the respondent makes
no mention of the prospects of
success at all, but in argument
relied also on what is set out in its statement of case. The
tentative evaluation of the prospects
of success for the purposes of
this application is therefore reliant on what was stated in the
applicants’ statement of
case and the answering statement of
the respondent. It is useful to outline the course of events briefly
as it emerges from those
pleadings.
As previously mentioned,
the respondent is one of two separate companies being CTP Ltd and
Thuthuka Packaging (Pty) Ltd, each
have two of the four operating
divisions, namely CTP Web Offset and Gravure and CTP Packaging, and
CTP Gravure and Thuthuka Packaging,
respectively. Although Thuthuka
Packaging (Pty) Ltd was not cited in its own right as a respondent,
its two divisions were operating
entities in which striking members
were engaged and which, in turn, set in motion the hearings which
resulted in their dismssals.
Since the conciliation of the dismissal
disputes the dismissals at Thuthuka Packaging (Pty) Ltd have been
part and parcel of
the same dispute, and the parties have treated
them as such. The number of union members dismissed by the
respective divisions
are as follows:
CTP Packaging –
95
CTP Web Offset and
Gravure – 164
CTP Gravure – 15
Thuthuka Packaging –
38
On 23 April 2009 a
protected strike was initiated at another division of CTP Ltd known
as CTP Stationery. The respondent claims
that one of the central
demands which cause the union members at CTP Stationery to start
their primary strike related to the
conversion of the Statutory
Council for Newspaper Printing and Packaging Industry to a
bargaining Council in order to enable
collective bargaining to be
undertaken in that forum.
On 5 May 2009, the union
served a notice on all the divisions, except for CTP Packaging,
advising them that the union would be
embarking on a secondary
strike commencing on 13 May 2009 in support of the strike at CTP
stationery. CTP Packaging apparently
only received the strike notice
on 12 May 2009, the day before the secondary strike was due to
commence. A number of the interdicts
were launched by the respondent
in an attempt to restrain the allegedly violent intimidatory conduct
of the applicants members
were on strike. However, the lawfulness of
the primary strike action at CTP Stationery and the ostensible
secondary strike action
at the four divisions was not challenged in
court by the respondent at any stage prior to the dismissals.
Initially, the respoondent
was acting in the belief that both the
primary and secondary strike action was lawful, except possibly in
the case of CTP Packaging.
In the respondent’s
answering statement it claims that it was only later, after
receiving legal advice on the matter that
it became aware that the
strike action might be unlawful, not only at CTP Packaging. The
secondary strike at the CTP Packaging
division commenced within a
day of the strike notice being issued, whereas section 66 (2) (b) of
the LRA provides that the employer
of employees participating in the
secondary strike must have received written notice of the proposed
secondary strike at least
seven days prior to its commencement. At
the time of approaching the labour court for an interdict on 14 May
2009, it appears
that the respondent was of the view that it was
only strikers at CTP Packaging that were engaged in unprotected
strike action,
because of the short notice of the strike.
Later, around 18 May
2009, the respondent formed the view that the calling of a secondary
strike in terms of section 66 of the
LRA was "improper" at
all divisions because the secondary strikers had a primary interest
in the matter and the dispute
and the outcome of the dispute would
affect them too, if the demand was met. The apparent basis for this
submission is that each
of the business interests of the respective
divisions, like those of CTP Stationery, also fall within the
registered scope sector
and area of the statutory council.
Consequently, any conversion of that body to a bargaining council
would benefit all the strikers.
This was first expressed in a letter
issued by CTP Web Offset and Gravure, which was written in response
to a letter from the
union concerning a strike ultimatum issued by
the respondent. The union also called for a meeting to be held on 18
May 2009 to
discuss the matter. It appears that the division in
question did not express any interest in holding a meeting with the
union.
Instead it confirmed that it would persist in taking
disciplinary measures against strikers, and responded with a further
letter
in which it invited union representatives to the disciplinary
hearing scheduled for 21 May 2009, to provide reasons why its
members
had embarked on strike action in which they had a direct
interest. A similar letter was sent to the union by CTP Gravure and
Thuthuka Packaging, with the added proviso that the hearing would
proceed in the absence of the employee representatives identified
by
the employer, if they did not attend. From the union’s account
of events, it would appear that no notice of the hearing
was
received in respect of the employees at CTP Packaging: the union
only received notice of the outcome of the hearing.
The union called on CTP
Web Offset and Gravure to suspend the disciplinary enquiries until
the "legal strike" was resolved,
but the respondent said
it was unable to do this because of operational requirements and
advised that the matter would proceed
whether or not union
representatives attended. CTP Web Offset and Gravure then approached
the labour court for further relief
to prevent the strikers coming
within 500 metres of the premises. Even though it contended that the
strike was unprotected, the
respondent did not seek any specific
relief in that regard, such as an interim declaration to that
effect. Simultaneously, CTP
Packaging notified the union of the
outcome of the disciplinary hearing, namely that the enquiry
chairperson had recommended
the dismissal of all the union's members
employed in that division.
The union takes issue
with a number of aspects of the chairperson’s report which it
believes are deficient in one respect
or another and so rendered the
dismissals unfair, even if the strike had not been protected. Some
of the factors identified by
the union were that: the individual
employees were not summoned to the enquiry; the apparent failure of
the chairperson’s
to consider whether or not the secondary
strike was protected; their failure to consider the fairness of the
company’s
identification of the permitted representatives of
the employees who could attend the enquiry; whether or not the
refusal to
postpone the enquiry until the strike was over was fair.
Moreover, the union queries whether any regard was had to
aggravating
and mitigating factors, or to the state of the trust
relationship between individual strikers and the company in deciding
that
dismissal was the appropriate sanction. Similar criticisms are
made of the finding in the enquiry at CTP gravure in which the
chairperson had recommended a final written warning subject to a
return to work as a sanction.
The strike was only
called off with effect from Monday, 8 June 2009, supposedly after
the settlement of all outstanding issues.
The same day that the
union notified the various divisions that the strike was ending that
day, the divisions confirmed the dismissal
of their members and its
willingness to entertain any settlement negotiations. All the
divisions except for CTP Web Offset and
Gravure agreed to meet on 10
June 2009 in an attempt to resolve the matter. Obviously, if any
meeting took place (neither party
confirmed that it did) it was
unsuccessful in achieving that goal.
The third basis for the
respondent’s claim that the strike was unprotected is that the
strike demands referred, in effect,
to a dispute over a "refusal
to bargain" in terms of section 64 (2) of the LRA. Under that
provision an advisory award
must have been given before notice of
strike action is issued. The subsection deems a refusal to bargain
to include, among other
things:
“
(a)
a refusal
(i) to recognise a
trade union has a collective bargaining agent; all
(ii) to agree to
establish a bargaining Council;
(b) a with straw of
recognition of a collective bargaining agent;
(c) a resignation of
the party from a bargaining Council;
(d) a dispute about -
(i) appropriate
bargaining units;
(ii) appropriate
bargaining levels; or
(iii) bargaining
subjects."
On the face of it, it
appears that the dispute as described might well fall within the
purview of either, or both, of sub-sections
(a)(ii) or (d)(i).
The respondent claims
that it called upon the union to intervene and to ensure that its
members return to work, but the union
was of the view that the
strike was protected and did not heed the calls made and ultimatums
issued by the divisions. The union
said as much in some of its
letters. The respondent claims that it was in response to the
union’s stance that a hearing
was convened at each of the
divisions "... to enable the first applicant make any
representations may have wished and to
appreciate the employer's
submissions in this regard". The respondent states that, apart
from a brief attendance by the
union representatives at the hearing
at CTP Packaging, which was followed by a union walkout, invitations
to attend hearings
were ignored and the strike continued. It should
be mentioned that the union requested a postponement of the hearings
pending
the resolution of the primary strike.
The hearing conducted at
CTP Gravure by Advocate A. Cook resulted in a recommendation being
made by him that the strikers be issued
with a final written warning
and an ultimatum to return to work. However the ultimatum was not
heeded and a further hearing was
convened, which the union did not
attend, following which the strikers at that division were also
dismissed.
In summary therefore,
the merits of the respondents case as set out in its answering
statement is that: the ‘secondary’
strike at the four
divisions was unlawful; the union and its members were given ample
opportunity to make representations at
separately convened hearings
in each division, and the conduct of the individual applicants was
exacerbated by various forms
of violent and intimidatory conduct
during the strike. To bolster its own view of the unprotected
character of the strike, the
respondent argues that if the union had
believed the strike was protected it would have sought to halt the
disciplinary enquiries
by means of an urgent interdict.
A major bone of
contention between the parties is the fact that during the whole
course of the strike the labour court had not
been called upon to
make an order on the protected character of the strike action in any
of the affected divisions. The union
is of the view that before
dismissing its members the respondent ought to have obtained a
declaratory to this effect. In part
it seems to say this because
Advocate Cook apparently expressed a view along these lines in his
findings. Although no obligation
rested on either party to approach
the court for interim or final relief on the legal character of the
strike, undoubtably it
would probably have clarified matters for the
parties at the time given that both sides were of the view that
their respective
actions were either wholly, or at least partly,
justified by the legal character of the strike.
Depending on the
protected character of the strike the fairness of the dismissals
will be determined by different criteria. If
the strike was
protected the dismissal of the employees merely on account of
participating in strike action would be automatically
unfair. To the
extent of that specific consideration was given to individual acts
of misconduct committed in the course of the
strike entailing
violence or intimidation the fairness of some or all of the
dismissals might still be sustained. There is insufficient
detail
before the court to suggest such conduct was relied upon in
dismissing any the strikers.
In the event that the
strike was unprotected then the appropriateness of dismissal as a
sanction will depend on a number of factors.
Among the factors which
must be considered of those set out in item 6 of schedule 8 to the
LRA which states:
"
(1)
Participation in a strike that does not comply with the provisions of
Chapter IV is misconduct. However, like any other act
of misconduct,
it does not always deserve dismissal. The substantive fairness of
dismissal in these circumstances must be determined
in the light of
the facts of the case, including—
(a) the seriousness of
the contravention of this Act;
(b) attempts made to
comply with this Act; and
(c) whether or not the
strike was in response to unjustified conduct by the employer.
Prior to dismissal
the employer should, at the earliest opportunity, contact a trade
union official to discuss the course of action
it intends to adopt.
The employer should issue an ultimatum in clear and unambiguous
terms that should state what is required
of the employees and what
sanction will be imposed if they do not comply with the ultimatum.
The employees should be allowed
sufficient time to reflect on the
ultimatum and respond to it, either by complying with it or
rejecting it. If the employer cannot
reasonably be expected to
extend these steps to the employees in question, the employer may
dispense with them.
"
A
difficulty in evaluating the prospects of success, given what was
before the court at this stage of proceedings, is that the
parties
have not yet had a pre-trial meeting in which the areas of dispute
had been narrowed down. Importantly, in a condonation
application of
this nature, the court does not have the benefit of an earlier award
or judgment which has already grappled with
the merits of the
dispute, as a court has when dealing with condonation for late
filing of review applications or applications
for leave to appeal.
If the union is correct that the workers in the four divisions were
engaged in secondary strike action then
it appears that, in at least
in three of the divisions,
their
action might well have been protected. In so far as the action in
respect of CTP Packaging is concerned the union contends
that they
were dismissed for one day’s absence from work and accordingly
even if their strike action had not been protected
their dismissal
was not warranted, especially if they had participated in the strike
action in a
bona
fide
belief
that it was lawful. It is also true the respondent expressed its
view on the lawfulness of that strike in view of the short
notice.
But if, as the respondent contends, the strike the workers were
engaged in was in truth a primary one, then what are
the
implications of this for the notice that was appropriate, given that
the workers at CTP Packaging were employed by the same
entity that
employed workers at CTP Stationery? For example, there is
established authority that employees of the same employer
who join a
protected strike would not have to make a separate referral for
conciliation in order to enjoy the same protected
status for their
participation in the strike.
5
If, on the other hand,
the company is correct that the secondary strike was unprotected,
the fact that this was not apparent to
the company and until a few
days into the strike, could mean that the union's interpretation of
its protected status and its
advice to its members on that basis was
not necessarily unreasonable at the time. Where there is scope for a
bona fide
disagreement over the legal character of the strike
this might well affect the fairness of any dismissals if it is
ultimately
found that the strike was unprotected. Obviously, if the
strike’s status had been subject matter of an interim order of
this court, the scope for reasonable disagreement on the question
would have been all but eliminated, at least pending the return
day.
Even if the strike
action was not protected, it might well be the case that there are a
number of important mitigating factors
which could result in the
dismissals being found to be unfair, such as: the union and the
strikers belief about the protected
status of the strike; the fact
that the employer was not unequivocal in its an interpretation of
the strike's status and appeared
hesitant to ask the courts to
confirm its view; whether or not the employer unfairly identified
employee representatives who
could attend the hearings, and whether
or not the individual chairpersons considered the prospects that the
legal status of the
strike was a matter of dispute.
In relation to the other
ground relied upon by the respondent for claiming that the strike
action was unprotected is that an advisory
award in respect of a
dispute over a refusal to bargain had not been issued prior to the
strike commencing. However, this submission
is at odds with its own
concession that the original strike at CTP stationery was protected.
If indeed that dispute to convert
a statutory Council to a
bargaining Council was one of the demands in that disputes and that
this demand can be construed as
one relating to a refusal to
bargain, it is difficult to understand why the primary strike quite
was also not unprotected in
that event. Also, if the respondent is
correct that in fact the applicants were engaged in a primary
strike, because they also
stood to benefit from the outcome of the
dispute if the demand relating to the conversion of the statutory
Council was attained,
then the question arises what the significance
of the notice to the respondents four divisions of the secondary
strike was.
In summary, it seems
that it is by no means certain that the dismissals in question were
procedurally and substantively fair.
The indeterminate status of the
strike from a legal perspective certainly suggests that the
applicants’ prospects of success
are not unreasonable, whether
their action was primary or secondary in character.
Importance of the
issue
It is true that the
prospects of success can only be evaluated on the basis of rather
broadly stated facts in the pleadings which
makes an assessment on
the probabilities difficult. However, even given those difficulties,
it is apparent that there are some
serious issues of legal principle
that need to be determined in the dispute in particular, the effect
of a union party misconstruing
the secondary all primary character
of industrial action in circumstances where it gives the employer
notice of the action which
is well in excess of the notice period
required for a protected primary strike. Secondly if, as the
respondent contends, the
original strike at CTP Stationery was
protected, and a primary object of the strike was one concerning a
refusal to bargain,
the question of whether or not protected
secondary action in support of that demand was subject to obtaining
an advisory award
would need to be determined, if it was indeed
secondary action.
I believe that the
circumstances of this case may raise a number of novel issues in law
and it is important not only for the parties
but for other employers
and employees for this matter to be determined. It is also true that
a large number of employees are
affected, though that is generally
the case in strike dismissals and on its own this would not normally
be a decisive factor
normally in determining the importance of the
matter. In the circumstances of this case however, where serious
legal issues are
raised and the number of persons affected by the
determination of such issues is significant, the case does appear to
me to be
of some general importance.
Prejudice
The employer took the
decision at the end of the 90 day period to replace the striking
workforce. It did not advise the union
that this was its stance
until mid January. Some of the delay in doing so might have been
attributable to communication gaps
between the respondent’s
attorney and itself, but the company’s silence in the face of
the unions efforts to engage
with it over the dismissals only
exacerbated the situation. At a time when it was already certain of
its course of action, it
stayed mum. In any event, it is not
uncommon for employers to find it necessary to take remedial action
to restore operations
to normal pending the outcome of that dispute.
If the employer were
compelled to reinstate the employees in question, in any subsequent
retrenchment of those it had recruited
in place of the strikers it
would be in a position to defend such retrenchment in view of the
court’s order. Moreover,
it would be entitled in the event of
any adverse order against it, following a finding of unfair
dismissal to ask the court to
take into consideration the delays in
the proceedings which were not of its making in fashioning an
appropriate remedy. On the
other hand, one has to balance the
interests of the dismissed employees. Should it turned out that
either they were engaged in
unprotected strike action, or that their
dismissals were nonetheless unfair even though they participated in
unprotected strike
action, they would have been denied the
opportunity of an independent forum determining the fairness of
their dismissal. As mentioned
above, this is a factor which should,
in my view, weigh more heavily with the court in condonation
applications not involving
a prior adjudication on the merits of the
dispute.
Conclusion
On a conspectus of all
the above considerations I reached the conclusion summarised in
paragraph [1] above.
ROBERT
LAGRANGE
JUDGE
OF THE LABOUR COURT
Date
of hearing: 17 February 2011
Date
of judgment: 7 June 2011
Reasons filed: 22 June
2011
Appearances:
For the applicants: T
Seery instructed by Shanta Reddy Attorneys
For the respondent: G
Fourie instructed by Fluxmans Inc.
1
At
532B-E
2
See
Allround Tooling (Pty) Ltd v NUMSA &
Others
[1998] 8 BLLR 847
(LAC)
at par [10]
3
See
Carter v Commission for Conciliation, Mediation &
Arbitration & others
(2010) 31
ILJ
2876 (LC)
at 2881-2883, paras [21] – [29] and more
particularly at 2883, par [29]
4
See
Saloojee and another, NNO v Minister of Community Development
1965 (2) SA 135
(A)
at 138E-F.
5
See,
e.g,
Early Bird Farm
(Pty) Ltd v Food & Allied Workers Union & Others
(2004) 25
ILJ
2135 (LAC)
at
2154,par [47].