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[2011] ZALCCT 73
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SACTWU and Others v Berg River Textiles, a division of Seardel Group Trading (Pty) Ltd (C63/2011) [2011] ZALCCT 73 (4 November 2011)
THE
LABOUR COURT OF SOUTH AFRICA, CAPE TOWN
JUDGMENT
REPORTABLE
OF
INTEREST TO OTHER JUDGES
CASE
NO: C 63/2011
IN
THE MATTER BETWEEN:
SACTWU
FIRST
APPLICANT
J
WILLIAMS
SECOND
APPLICANT
B JOSEPH & 34
OTHERS
THIRD
AND FURTHER APPLICANTS
AND
BERG
RIVER TEXTILES,
A
DIVISION OF
SEARDEL
GROUP TRADING (PTY) LTD
RESPONDENT
Heard
:
24 – 26 October 2011
Delivered
:
4 November 2011
Summary:
Dismissal – participation in
unprotected strike (35 union members); automatically unfair dismissal
on grounds of religion
(one employee).
JUDGMENT
STEENKAMP
J
INTRODUCTION
[1]
The
36 individual applicants are members of the South African Clothing
and Textile Workers’ Union (SACTWU), the first applicant.
They
were dismissed for being absent without leave after having
participated in a series of unprotected work stoppages. The question
to be considered is whether their dismissal was fair. But there is a
further element particular to the second applicant, Mr Johannes
Williams. That is that he refused to work on Sundays and that, he
claims, is the only – or at least the primary – cause
for
his dismissal. He claims, therefore that his dismissal was
automatically unfair in terms of s 187(1) (f) of the Labour Relations
Act
[1]
, as the reason for the
dismissal was discrimination on the grounds of his religious beliefs.
BACKGROUND FACTS
[2]
The
employees, all members of SACTWU, were employed by the respondent,
Berg River Textiles, which is a division of Seardel Group
Trading
(Pty) Ltd. It operates a textile factory in Paarl. SACTWU has a
closed shop agreement with the respondent company.
[2]
[3]
Due to a down-turn in trade, the respondent
approached the exemption committee of the National Textile Bargaining
Council for a
ruling or recommendation as to whether it could be
exempted from the 7.5% general wage increase for the 2009 bargaining
year.
The exemption committee recommended that the
implementation of the increase could be postponed until 31 October
2009 and that the
parties (namely SACTWU and the respondent) should
endeavour to re-negotiate shift patterns in order to reduce costs.
[4]
Negotiations ensued and on 11 November 2009
the parties entered into a collective agreement that altered the
shift patterns at the
respondent. It is common cause that the
agreement constituted a binding collective agreement as contemplated
by the LRA. Although
SACTWU – represented by its organiser,
Bonita Loubser, and shopsteward Anwa Meniers – had agreed to
it, it is common
cause that the new shift system was less
advantageous to its employees for the following reasons:
4.1
Excessive overtime that had hitherto been
worked during the week was reduced substantially.
4.2
Saturdays were remunerated at normal time
rather than 1.5 times the hourly rate.
4.3
Sundays were remunerated at 1.5 times
rather than 2x.
4.4
Meal breaks were less favourably
remunerated.
4.5
Weekend work would be compulsory rather
than voluntary.
[5]-
There was thus unhappiness amongst some
employees both insofar as their reduced take home pay was concerned
as well the manner in
which their working hours were being
prescribed.
[6]
Due to necessary changes in the
respondent’s time recording systems, the respondent only made
initial attempts to implement
the new shifts in March 2010.
These attempts were met with resistance by some employees, prompting
the respondent to fly
in its Group Human Resources Director (Mr Amon
Ntuli) from KwaZulu-Natal to address the workers. Ntuli –
who had served
as the National President of SACTWU for more than 20
years -- perceived that they were unhappy.
[7]
The implementation was again postponed on
Ntuli’s advice due to the number of public holidays in April,
with the result that
the first phase of the implementation only
occurred on 3 May 2010. The implementation was met with
sporadic instances of
non-compliance, but went largely unchallenged.
[8]
On 8 June 2010, the second phase was given
notice that implementation would commence on 14 June 2010. The
individual applicants
were affected by this implementation.
THE FIRST WORK
STOPPAGE
[9]
On Tuesday, 15 June 2010, Williams (the
second applicant) sought to register his protest against the new
system by reporting for
duty under the old system. The reason
for his conduct was to register his protest against the new system as
it required him
to work on a Sunday which was contrary to his
religious beliefs. This resulted in him being escorted off the
premises. He
lodged a grievance about the new shift system compelling
him to work on Sundays.
[10]
The balance of the employees engaged in a
two hour work stoppage in support of WIlliams. The respondent
made contact with
SACTWU’s new regional organiser for the
Boland, Gerrit Willemse, and asked him to come to the premises and to
address his
members. The stoppage ended after Willemse spoke to the
workers and encouraged them to return to work. Only 16 of the
36
applicants participated in this stoppage. The respondent issued
each of them with a written warning. It is common cause that this
constituted an unprotected strike as the applicants had not followed
the prescribed procedure set out in s 64 of the LRA. The warning
letter, that was given to each employee individually, read in part:
“
The
purpose of this notice is to warn you that if you engage in an
illegal work stoppage again, or if you are absent from your work
station without permission, further serious disciplinary action will
be taken against you which may result in your immediate dismissal.”
[11]
On the same date, the respondent published
a notice advising the employees against such action in the future.
This notice
read in part:
“
The
purpose of this notice is to warn all employees that if you engage in
an illegal work stoppage again, or if you are absent from
your work
station without permission, further serious disciplinary action will
be taken against you which may result in your immediate,
summary
dismissal.
We urge you to follow the
appropriate procedures available to you, and carefully think about
your actions and the consequences thereof.”
[12]
Following the work stoppage of 15 June
2010, Willemse (the SACTWU regional organiser) undertook to engage
with the workers, particularly
Williams, with a view to regularising
the situation. For this reason, Williams’s grievance
(regarding Sunday work)
was put on hold. He worked the new shifts
from that point on, but was granted an interim indulgence in respect
of the following
Sunday (20 June 2010). He made no commitments
however to work the Sunday shifts in the future.
THE SECOND WORK
STOPPAGE
[13]
On Saturday 19 June 2010 the applicants
(excluding Williams) engaged in a work stoppage by leaving early on
the Saturday morning
shift and failing to report at all for the
Saturday afternoon shift.
[14]
No further warnings were issued nor was any
other disciplinary action taken against those employees.
However, a few days later
the respondent “drew a line in the
sand”, as Mr
Whyte
,
for the applicants, put it.
[15]
On
Thursday 24 June 2010 the respondent published an ultimatum requiring
the employees to comply with the new shifts from Monday
28 June
2010. It was however contended by the respondent that this did
not grant the employees the right to act with impunity
prior to that
date. The ultimatum stated unequivocally
[3]
:
“
This
is the ultimatum:
If you do not
work on your required shift from the start of your first shift on
Monday 28 June 2010 and continue to do so, you
will be dismissed
immediately. Any work stoppages, which is an unprotected stoppage,
will be dealt with in the same manner.
If
you are dismissed, you will lose your job and your family will lose
all your benefits.
We
urge you to consider the aforesaid in the most serious light and
return to work immediately.”
THE THIRD WORK
STOPPAGE
[16]
On Saturday 26 June 2010 the applicants
again engaged in an unprotected work stoppage by leaving early from
the Saturday morning
shift and not arriving at all for the Saturday
afternoon shift. Williams was not involved in this conduct.
The respondent
did not issue any warnings or take disciplinary action
against the employees at this stage.
[17]
On 29 June and 2 July 2010, SACTWU’s
regional organiser (Willemse) drafted two memoranda on a SACTWU
letterhead which were
posted at the respondent’s premises. The
union called on its members to work the new shifts. The first
memorandum further
stated:
“
We
humbly request that all employees affected by the New Shift
Agreement, that you adhere and comply with this Agreement and the
Ultimatum.
Should workers refuse to
comply with the above, they stand the risk to be dismissed by the
company.
....
We once again request
your co-operation in this regard.”
[18]
In the second memorandum, SACTWU repeated
the request to its members to work the new shift hours and
reiterated:
“
Should
anyone refuse, please note that you open yourself to be disciplined,
which could cause your termination of service.”
THE FOURTH WORK
STOPPAGE
[19]
Despite the ultimatum and these repeated
requests from the employer and their own trade union, on Saturday 3
July 2010 the applicants
again engaged in the same form of
unprotected work stoppage as they had on the previous two Saturdays.
No attempt was made
on that day (or on the previous Saturdays for
that matter) to contact Willemse and seek his intervention in the
stoppage.
Williams worked his normal Saturday shift.
[20]
Sunday 4 July 2010 was the first Sunday on
which Williams was required to work. He failed to report for
duty.
DISCIPLINARY ACTION
[21]
On Monday 5 July 2010 the individual
applicants were suspended. Willemse was called in and met with
Laubscher (respondent’s
CEO). Willemse proposed that he
try to persuade each employee to sign an individual commitment to
work the new shift system.
This proposal never came to fruition
and none of the individual applicants testified that they did, or
indeed were willing to,
sign such an undertaking.
[22]
Disciplinary hearings commenced on an
individual basis on 8 July 2010. The third and further
applicants all pleaded guilty
to the charges put to them and were
dismissed.
[23]
Williams pleaded not guilty on the basis
that he was entitled, by virtue of his right to freedom of religion,
to refuse to work
on the Sunday. He was nevertheless found
guilty and also dismissed.
Was the dismissal of
applicants 3-36 fair?
[24]
It
is trite law that participation in an unprotected strike is to be
seen simply as an incidence of misconduct which must be judged
on the
basis of how serious that misconduct is
[4]
.
[25]
The relevant considerations are set out in
section 6 of the Code of Good Practice to the LRA. The factors to be
considered are:
25.1
the seriousness of the contravention of the
LRA;
25.2
attempts made to comply with the LRA; and
25.3
the conduct of the employer.
[26]
The “seriousness of the
contravention” ground would include factors such as the
duration of the strike, attempts made
by the union and employer
respectively to resolve the dispute as well as the extent of the
disruption to the business of the employer.
[27]
As with any dismissal for misconduct, the
court ultimately needs to determine whether the relationship has
irretrievably broken
down and whether a less severe form of
discipline ought to have been utilized by the employer, dismissal
being the ultimate and
most severe sanction available. At the same
time, the court will take into account that the LRA prescribes a
relatively simple
procedure to render strike action protected; the
failure of a trade union and its members to make use of this
procedure removes
the protection with which they could have clothed
themselves and opens them up to the sanction of dismissal, especially
if the
employer had issued an ultimatum making the consequences of
their actions clear..
[28]
Ultimately,
dismissal must be proportionate to the misconduct in question
[5]
.
THE SERIOUSNESS OF THE
CONTRAVENTION
[29]
The individual applicants made no attempt
to comply with the provisions of the LRA and they repeated their
misconduct on three occasions
after the 15 June 2010. What is more,
the individual applicants blatantly disregarded not only the
provisions of a collective agreement
to which they – through
their trade union – was a party, but even two memoranda issued
by that same trade union calling
upon them to cease their misconduct.
SACTWU acted in a responsible manner, having entered into the
collective agreement. Its members
did not.
[30]
Mr
Whyte
pointed out that there was no evidence to suggest that the misconduct
was in and of itself particularly serious or lead to any
sustained
losses on the part of the respondent. Allied to this, he
argued, is that the respondent itself does not appear
to have
considered the initial stoppages as particularly serious as no action
was taken following the stoppages of 19 and 26 June
2010. But had the
respondent dismissed the employees after one of the earlier work
stoppages, he would no doubt have argued that
it was premature. The
misconduct was particularly serious in that it was repeated; it was a
contravention of the LRA; it disregarded
earlier warnings and an
unequivocal ultimatum; and, perhaps most alarmingly, it disregarded a
collective agreement and repeated
exhortations by the employees’
own collective bargaining agent.
THE CONDUCT OF THE
EMPLOYER
[31]
It is understandable that the new shift
system could cause unhappiness amongst the employees. But the
trade union representing
those employees entered into a collective
agreement setting out the terms of that shift system. The
respondent’s uncontested
evidence was that the agreement went
through at least five drafts; that the former SACTWU regional
organiser, Meniers, reported
back to his members on each draft; that
he also reported back to the general secretary, Wayne van der Rheede
before it was signed
off on behalf of SACTWU; and that its national
organiser, Bonita Loubser, signed the agreement on behalf of SACTWU.
[32]
Mr
Whyte
pointed
out that, in
SACWU
v Unitrans Supply Chain Solutions (Pty) Ltd
[6]
a business had been transferred as a going concern in terms of
section 197(2) of the LRA. The employees refused to ‘recognise’
the new employer and withheld their services. The Court
concluded that this conduct was unlawful and unjustified, but
nonetheless
found that the dismissal of the employees was unfair as
the breakdown had been caused by the failure by the employers to
communicate
adequately with the union and employees. The court
also criticized the haste with which the (new) employer acted in
dismissing
the employees. But in the present case, the respondent
bent over backwards by failing to take any disciplinary action until
the
misconduct had been repeated four times; and far from failing to
communicate with the employees and their trade union, the respondent
negotiated with and ultimately struck a collective agreement with
SACTWU – one that its own members then disregarded.
CIRCUMSTANCES OF THE
EMPLOYEES
[33]
No evidence has been tendered to suggest
that the employees have relevant disciplinary records or that they
had been involved in
similar misconduct prior to the implementation
of the new shift system. The misconduct which took place on 19
and 26une,
and 3 July 2010 might be akin to one incident of
misconduct for the purposes of disciplinary action as no progressive
steps of
discipline had been taken between those dates thereby
putting the employees to terms. Nevertheless, they do constitute
repeated
acts of similar misconduct over those three discrete days.
[34]
Mr Waldek, who chaired the disciplinary
hearings, did testify, though, that the events of 15 June 2010 (and
hence the serious written
warning issued in respect of that work
stoppage) were not relevant to the outcome.
[35]
Many of the employees had lengthy service;
but this is a double-edged sword. Experienced unionised employees
should also have been
well aware of the potential consequences of
repeated unprotected strike action in defiance of their own
collective agreement.
LESS RESTRICTIVE MEANS
[36]
The applicants submitted that the dispute
would have been resolved had the respondent adopted the solution
proposed by Willemse
or had it imposed a clear final written warning
at the conclusion of the disciplinary hearing. I do not agree. Even
though the
work stoppages were not violent, it is difficult to fathom
a more reprehensible form of unprotected strike action than one where
the workers disregard the very outcome of collective bargaining
through their representative trade union. One is left wondering
what
more an employer in these circumstances could have done before
eventually issuing an ultimatum and acting in accordance with
it.
[37]
The sanction of dismissal with regard to
the third and further applicants – all of whom conceded their
misconduct and noted
that they were guilty of the misconduct in
question -- was fair and proportionate to the misconduct in
question.
THE CASE OF WILLIAMS:
DISCRIMINATION AND AUTOMATICALLY UNFAIR DISMISSAL
[38]
A
few weeks before this matter was heard, the Labour Appeal Court
handed down judgment in
The
Department of Correctional Services & another v POPCRU &
others
[7]
. In the light of the very succinct and useful summary of legal
principles set out in that case, the requirements for a successful
workplace based religious discrimination claim can be summarised as
follows:
38.1
An
ostensibly neutral workplace rule or policy which is applied to all
employees may be discriminatory if it offends against an
individual
employee’s religious convictions. This approach differs
from that expressed in
FAWU
v Rainbow Chicken Farms
[8]
where Revelas J found that it was required that there be some
form of differentiation between employees
[9]
.
38.2
It
is “incumbent on the [employees] to show that the [employer]
through their enforcement of the prohibition on the wearing
of
dreadlocks interfered with their participation in or practice of
their religion or culture”
[10]
.
38.3
The
principle involved must be a central tenet of that religion
[11]
.
38.4
The
employer must, of course, be aware of the employee’s religious
convictions
[12]
, although the
employees do not necessarily have to assert their rights
[13]
.
38.5
Once
an employee demonstrates that his or her employer has
prima
facie
discriminated against him or her, the employer must establish either
that the rule is an inherent requirement for the job or that
the
discrimination was fair under the circumstances
[14]
.
38.6
In
particular, the employer must establish that it has taken reasonable
steps to accommodate the employee’s religious convictions
[15]
.
Ultimately the principle of proportionality must be applied.
Thus an employer may not insist on the employee obeying
a workplace
rule where that refusal would have little or no consequence to the
business.
38.7
The
employer’s motive and intention are not relevant to the enquiry
and it is thus not relevant whether the employer acted
with benign
motives
[16]
.
LEGAL PRINCIPLES
APPLIED TO WILLIAMS
[39]
It is clear that the application of the new
shift system (which constituted a workplace rule) ran contrary to
Williams’s religious
beliefs. He testified passionately
that he became a reborn Christian 20 years ago; that it is so central
to his belief system
that he is a lay preacher in his church, the
Apostolic Faith Mission; and that the Sunday work prohibition is a
central tenet of
those beliefs and is considered of utmost importance
to him.
[40]
Whilst it is clear that the workplace rule
applied equally to all and that there was no differentiation between
employees, the test
is now whether the workplace rule discriminated
against the beliefs of any single employee, irrespective of how
neutral the rule
was. The point is simply this: Williams was
the only employee who chose to register a complaint premised on his
religious
beliefs.
[41]
It is clear that the respondent’s
management knew of Williams’s religious convictions and had
known for some time.
More particularly, the respondent knew
that the Sunday work prohibition was a central tenet of his beliefs –
so much so that
he had in the past turned down promotions and
lucrative overtime work in order to go to church, preach and not work
on Sundays.
[42]
Whilst it is no longer a requirement that
the employee assert his rights, it is clear that Williams did so by
refusing to work the
Sunday shift and in attempting to “work to
rule” on 15 June 2010. He also lodged a grievance
and instructed
his union representative to deal with his dispute.
[43]
It is thus clear that Williams established
a
prima facie
case of discrimination against his religious beliefs. If
upheld, that discrimination, which resulted in Williams’s
dismissal, would constitute an automatically unfair dismissal for the
purposes of the LRA. It would also follow that in as
much as
compliance was an instruction, it was neither lawful nor reasonable.
[44]
The respondent argued that the rule was an
inherent requirement of the job and that it had no means of
accommodating the second
applicant and his beliefs. Once they had
forged a collective agreement, it was to be applied across the board
with no differentiation
between employees.
[45]
The applicants do not dispute that the
respondent had valid economic reasons for restructuring the shift
patterns or that it was
in some way barred from implementing those
patterns generally. What was submitted is that there is no good
reason why Williams,
as an individual, could not have been
accommodated within what is a relatively large business.
[46]
The respondent was obliged to conduct this
enquiry at the point of the disciplinary hearing as this was the
stage where it was required
to determine whether Williams had a valid
reason for refusing to obey a workplace rule. On the assumption
that he could be
accommodated, the respondent was required to find
that he was not guilty of unprotected strike action or the refusal to
carry out
a lawful instruction – the instruction itself being
discriminatory.
[47]
It would of course have been preferable had
the respondent simply elected not to prosecute second applicant to
begin with.
Whilst there was no grievance process “alive”
in a technical sense while the union representative was trying to
resolve
Williams’ concerns, it would have been clear to the
respondent that he was not going to comply with the Sunday work
demand.
It was thus inevitable that his dispute had to be
resolved one way or the other.
[48]
Against the clear guidelines formulated by
the Labour Appeal Court in
POPCRU,
the failure by the respondent to accommodate Williams by removing his
obligation to work on Sundays and dismissing him as a consequence
thereof rendered his dismissal automatically unfair.
CONCLUSION
[49]
The dismissal of Williams was automatically
unfair. The real or proximate cause for his dismissal was his
religious beliefs; had
he been willing to work on Sundays, he would
not have been dismissed. The respondent did not make any effort, or
at least not a
sufficient effort, to accommodate him by exploring
alternatives to Sunday work for him.
[50]
Williams sought reinstatement. He was by
all accounts an excellent worker with 26 years’ clean service.
Ever since his conversion,
he has had a very good relationship with
the respondent. There can be no bar to his reinstatement, which is
the primary remedy
prescribed by s 193(2) of the LRA. The respondent
also had the foresight to appoint replacement employees on a fixed
term basis
only pending the finalisation of this dispute. It will
therefore not be difficult from an operational point of view to
reinstate
Williams.
[51]
The dismissal of the third and further
applicants was fair. They did not object to the procedure and all
pleaded guilty. The only
question before this court was whether the
sanction was too harsh. Given the background outlined above and the
repeated efforts
by the respondent and SACTWU to persuade the
individual applicants to adhere to the collective agreement, it was
not.
COSTS
[52]
Both parties have been partly successful;
SACTWU insofar as it represents Williams, and the respondent with
regard to the remaining
applicants. It would be very difficult, if
not impossible, to apportion the costs of the trial between the
parties. SACTWU was
not to blame for its members’ conduct; on
the contrary, it acted in an exemplary and responsible manner in its
efforts to
save its members’ jobs. The respondent also acted,
on the whole, in a mature and responsible way in attempting to
resolve
the issues around shift work with the union, entering into a
collective agreement, and resorting to dismissal only after repeated
misconduct by the employees. The union and the respondent also have
an ongoing relationship. This is a case where, in law and fairness,
neither party should be held liable for the other’s costs.
RULING
[53]
The dismissal of the second applicant,
Johannes Williams, was substantively unfair. The respondent is
ordered to reinstate him retrospectively
into the same position that
he occupied prior to his dismissal; provided that he may not be
compelled to work on Sundays.
[54]
The dismissal of the third and further
applicants was fair.
[55]
There is no order as to costs.
_______________________
A J Steenkamp
Judge
APPEARANCES
APPLICANTS:
J Whyte of Cheadle Thompson & Haysom.
RESPONDENT:
F Cronjé.
[1]
Act 66 of 1995 (“the LRA”).
[2]
The irony has not escaped anyone in court that SACTWU’s
investment arm is one of the main shareholders in Seardel. The
chairman of the holding company is Johnny Copelyn, one-time General
Secretary of SACTWU. But none of this impacts on the facts
of the
case or the legal principles to be considered.
[3]
Bold and underlining as in the original.
[4]
See:
Food
& Allied Workers’ Union & others v Earlybird Farm
(Pty)
Ltd
(2003) 24
ILJ
543 (LC) at 548F – 549A
;
Machabakwa & others v Pletonic
CC
[1996] 9 BLLR 1143
(IC) at 1151J – 1152J
;
PACT v PPWAWU
(1994)
15
ILJ
65 (A) at 75C – E.
[5]
Hendor
Steel Supplies v NUMSA & others
(2009) 30
ILJ
2376 (LAC)
[6]
(2009) 30
ILJ
2469 (LC).
[7]
CA
6/2010, 27 September 2011 [per Murphy AJA, Waglay DJP and Davis JA
concurring).
[8]
(2000)
21
ILJ
615 (LC).
[9]
See
also
Dlamini
& others v Green Four Security
(2006) 27
ILJ
2098 (LC).
[10]
POPCRU
at
para 24 citing
MEC
for Education, Kwazulu-Natal & others v Pillay
[2007] ZACC 21
;
2008 (1) SA 474
(CC) at para 46.
[11]
See
Prince
v President of the Law Society of the Cape of Good Hope
[2002] ZACC 1
;
2002 (2) SA 794
(CC) and
Dlamini
& others v Green Four Security
(2006) 27
ILJ
2098 (LC) at paras 14 – 18.
[12]
See
Lewis
v Media24 Ltd
(2010) 31
ILJ
2416 (LC).
[13]
POPCRU
at para 27.
[14]
Harksen
v Lane NO
1998
(4) SA 1
(CC) at para 53.
[15]
FAWU
at para 33;
Dlamini
at para 13;
Lewis
at para 128;
POPCRU
at paras 43 – 45;
Pillay
at 73.
[16]
POPCRU
at para 35, citing
James
v Eastleigh Borough Council
[1990] UKHL 6
;
[1990]
2 AC 751
and
Nagarajan
v London Regional Transport
[1999] UKHL 36
;
[2000]
1 AC 501.