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[2011] ZALCPE 6
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National Union of Mineworkers obo Jongilanga and Another v Civil & General Contractors CC and Another (P54/08) [2011] ZALCPE 6; (2011) 32 ILJ 2709 (LC) (4 May 2011)
IN
THE LABOUR COURT OF SOUTH AFRICA
PORT
ELIZABETH
CASE NO: P 54/08
In
the matter between:
NATIONAL
UNION OF MINEWORKERS
OBO
A Z JONGILANGA
….................................................
First
Applicant
ALFRED
JONGILANGA
….............................................
Second
Applicant
and
CIVIL
& GENERAL CONTRACTORS CC
….......................
First
Respondent
G
VAN DER WESTHUIZEN
…....................................
Second
Respondent
JUDGMENT
LALLIE AJ
[1] The second applicant is a builder. On 2 July 2001 he commenced
working for the first respondent on a fixed term contract which
expired on 26 January 2003. On 27 January 2003 he entered into
another fixed term contract of employment with the first respondent.
On 11 March 2004 the second applicant was given a document by Mr
Snyders (Snyders) the general foreman of the first respondent.
The
document purports to be the second applicants’ confirmation of
his resignation as a member of the National Union of Mineworkers
(NUM). The applicant refused to sign the document and on 24 May 2004
the applicant received a notice of the termination of his
contract of
employment on the grounds that it had expired. He was given an option
of either working the notice period or payment
in lieu of notice.
[2] In these proceedings the applicants seek an order declaring the
second applicant’s dismissal automatically unfair on
the
grounds that the second applicant was dismissed for refusing to
resign as a member of NUM when ordered to do so by the first
respondent.
[3] The second applicant explained that after joining the NUM in 2003
his working conditions became unpleasant. Mr Van Der Westhuizen
(Van
Der Westhuizen), the second respondent’s managing member told
him that he did not like people who were trade union members.
Even
Snyders made his employment intolerable by calling him names,
insulting him and criticizing the quality of his work in the
presence
of his fellow employees. In 2004 he was given a lot of warnings which
he refused to sign as they were unwarranted.
[4] The applicant testified that although his last contract was for a
year it was terminated after 3 months. He stated that he
was not
given reasons for the non-renewal of his contract but was just told
that he was not going to be employed any more although
work was still
available. He insisted that he lost his job because he had joined a
trade union.
[5] Referring to the document confirming his resignation from the
NUM, the applicant stated that Snyders and Popie told him that
if he
signed it he would be given a permanent position. He refused as union
officials had advised him not to sign any document
from the first
respondent. Another reason for not signing the document was that it
was written without his consent. He took the
letter to the office of
the Commission for Conciliation Mediation and Arbitration (CCMA)
where he was advised to take it to his
union organizer.
[6] Van Der Westhuizen denied having told the second applicant that
he did not like people who joined trade unions. He had accepted
the
existence of trade unions although he did not encourage employees to
join the. The second respondent’s NUM membership
was therefore
not an issue to the respondents. He explained that the document given
to the second applicant was a standard document
given to all
employees who wanted to terminate their union membership. It was
created to solve the first respondent’s problem
of having to
pay union subscriptions not deducted from employees who had not
resigned in writing as trade union members. He denied
that the first
respondent victimized employees for trade union membership.
[7] Van Der Westhiuzen further explained that the first respondent
had no reason to rid itself of union members. It had no reason
to
target the second applicant whose trade union membership had no
effect on it. He insisted that the second applicant’s
contract
of employment was terminated with other employees’ contracts
because their fixed term contracts had expired and
there was no more
work to give them. Their trade union membership played no role as the
decision to terminate contracts affected
unionized and non-unionized
employees.
[8] Section 5 (1) of the
Labour Relations Act 66 of 1995 (
LRA)
protects employees against discrimination for exercising the
rights the
LRA
confers on them. Section 5 (3) of the
LRA
precludes people from advantaging or promising to advantage
employees in exchange for those employees not exercising any right
conferred
by the
LRA
or not participating in any proceedings
in terms of the
LRA.
Section 4 (1) (b) grants every employee
the right to join a trade union subject to its constitution. Section
187 (1) of the
LRA
declares dismissal contrary to section 5 of
the
LRA
automatically unfair.
[9] In
Kroukam v SA Airlink (Pty) Ltd
[2005] 12 BLLR 1172
(LAC) the Labour Appeal Court set out the test to determine whether
it has been proved that a dismissal is automatically unfair
as
follows:
“
In my view, section 187 imposes an evidential burden upon
the employee to produce evidence which is sufficient to raise a
credible
possibility that an automatically unfair dismissal has taken
place. It then behoves the employer to prove to the contrary, that
is
to produce evidence to show that the reason for the dismissal did not
fall within the circumstances envisaged in section 187
for
constituting an automatically unfair dismissal.
”
[10] It is common cause that the second applicant and the first
respondent entered into two fixed term contracts of employment.
The
first was signed on 2 July 2001 and the second on 27 January 2003.
Although the second applicant testified that the duration
of the
second contract was a year I accept the respondents’ version
that the subsistence of the contract depended on the
completion of
the task for which he was employed. The second contract provides that
it would expire on completion of the contract
for which the second
applicant was employed. I am satisfied, based on the second
applicant’s evidence that he understood
the notion of fixed
term contracts which expired on completion of a specified task.
[11] On 11 March 2004 the second applicant received the document
confirming his resignation as a member of NUM which he refused
to
sign and on 28 May 2004 he was given a month’s notice of the
termination of his contract on the grounds that his contract
had
expired. The applicants’ case was that the first respondent had
dismissed the second applicant in a manner that is automatically
unfair in that he was dismissed for refusing to resign as a member of
his trade union NUM.
[12] It was the applicant’s version that on 10 March 2004 the
first respondent and the second applicant entered into a fixed
term
contract of employment which should have expired on completion of the
contract for which he was employed. According to this
version, the
following day the second applicant was forced by the first respondent
to resign as a member of NUM. He was given a
typed resignation
document which had already been signed by his foreman Snyders and
Pompie who both signed as witnesses. As a result
of refusing to sign
the document he was given, on 28 May 2004, a month’s notice of
the termination of his employment contract.
The reason given for the
termination of his contract was that it had expired. The respondents
insisted that the second applicant’s
contract of employment was
terminated owing to its expiry.
[13] The respondents submitted that the contract of employment which
was purportedly signed on 10 March 2004 was fraudulent as
it was
fabricated. The contract looks as though it has been tempered with.
The fax number is typed below the telephone number.
However, below
the fax number another telephone number is superimposed over the
e-mail address. Unlike the other two contracts
whose validity is not
in dispute, it has not been signed by the second applicant. The
second applicant’s evidence under cross-examination
was
consistent with the respondents’ version in that he denied
knowledge of the contract. He further denied ever receiving
it and
stated that he did not know how it became part of the bundle. No
evidence was led to prove that in making the concession
the second
applicant was either mistaken or confused. The second applicant and
first respondent therefore never entered into a
third fixed term
contract. In the circumstances the applicants’ version that the
second applicant was given the document
confirming his resignation
from NUM a day after the second applicant and the first respondent
had entered into a third fixed term
contract of employment is not
true.
[14] The existence of the document confirming the second applicant’s
resignation as a member of NUM was not in dispute. Van
Der Westhuizen
explained under cross-examination that the resignation document was
created after Mr Mzwana (Mzwana), an official
of NUM, told the first
respondent that NUM needed written proof when employees resigned from
being trade union members. The resignation
document was then given to
any employee who wanted to resign as a trade union member. Snyders
testified that the second applicant
requested the letter of
resignation as a NUM member. Having signed as a witness that the
second applicant wanted to resign from
NUM he gave it to second
applicant who took it home. He denied promising the second applicant
permanent employment as he lacked
authority to fulfill such a
promise. He conceded having spoken to the second applicant about his
poor work performance and giving
him a warning for sub-standard work.
He stuck to his version that trade union membership did not influence
the way he treated the
second applicant even under vigorous
cross-examination.
[15] Snyders denied insulting the second applicant or treating him
badly for being a trade union member. He was not even ware that
he
was a trade union member. It is common cause that he started speaking
to the second applicant about his unsatisfactory work
and giving him
warnings even before he joined NUM. Although the second applicant
testified that he lost his job because he joined
the union he added
that it was his opinion that he was not given another opportunity to
work because he had joined a trade union.
It was also his evidence
that he was not given reasons for the non-renewal of his contract.
[16] When the applicants’ version that the second applicant was
targeted because of his union membership was challenged the
second
applicant complained bitterly about the way Snyders ill-treated him,
criticizing the quality of his work, belittling him
and calling him
names in the presence of his co-employees. What came out strongly
from the second applicant’s evidence was
his alleged
ill-treatment by Snyders. The reason for the non-renewal of his
contract changed for being for unknown, joining a trade
union,
refusing to resign as a trade union member and being targeted for
victimization for being the only qualified brick layer.
One is forced
to wonder at the need to base the applicants’ case on a
fabricated fixed term contract of employment because
dismissing an
employee for refusing to resign as a member of a trade union is
sufficient to found a claim for an automatically
unfair dismissal.
There was no need to fortify the claim with lies.
[17] The applicants attempted to create an impression that the second
applicant was given employment on 10 March 2004, a day later
he was
forced to resign from being a NUM member and when he refused his
fixed term contract was terminated. They were unsuccessful
because
their version was not supported by evidence instead evidence proved
that the applicants resorted to fabrication because
they had no
grounds for their claim. They therefore failed to produce sufficient
evidence to raise a credible possibility that
an automatically unfair
dismissal had taken place.
[18] No evidence was adduced justifying the citation of the second
respondent as a party in these proceedings. The claim against
the
second respondent is therefore dismissed.
[19] In the circumstances the following order is made:
1. The first and second applicants’ claim against the first and
second respondents is dismissed;
2. No order is made as to costs.
_______________
LALLIE AJ
Date of hearing : 28 February to 1 March 2011
Date of Judgment : 04 May 2011
APPEARANCES
FOR THE APPLICANTS : Mr Bengequla
NATIONAL UNION OF MINEWORKERS :
FOR THE RESPONDENT : Mr Unwin
CHRIS UNWIN ATTORNEYS