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[2012] ZALCJHB 167
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Metal and Engineering Works Union of South Africa and Others v Bearing International a Division of HUDACO Trading (Pty) Ltd (J1874/12) [2012] ZALCJHB 167 (27 July 2012)
REPUBLIC OF SOUTH AFRICA
THE LABOUR COURT OF SOUTH AFRICA, JOHANNESBURG
JUDGMENT
Not reportable
case
no: J1874/12
In the matter between:
METAL
AND ENGINEERING WORKERS
UNION
SA
............................................................................................
First
applicant
FRED
LOUW & OTHERS
(named in annexure “A” hereto)
..............................
Second to
Further applicants
and
BEARING
INTERNATIONAL A DIVISION OF
HUDACO
TRADING (PTY) LTD
..............................................................
Respondent
Heard
: 27 July 2012
Delivered
: 27 July 2012
Summary: Urgent application for an order to declare a
lock-out unlawful. Application dismissed with costs. Lock-out
constitutes
a defensive lock-out in terms of the
Labour Relations
Act, 66 of 1995
.
judgment
AC BASSON J
[1] The applicants (Metal and Electrical Workers’ Union –
‘MEWUSA’ on behalf of the individuals named in
Annexure
‘A’ to the Notice of Motion – hereinafter referred
to as ‘the individual applicants’) brought
an urgent
application seeking the following orders:
An order interdicting the respondent (Bearings International –
A division of Hudaco Trading (Pty) Ltd) from continuing
with the
lock-out imposed on 12 July 2012 and to permit the individual
applicants to resume their duties.
An order declaring that the lock-out is not in compliance with
Chapter 4 of the
Labour Relations Act
1
(‘the LRA’).
An order that the respondent is liable in respect of the payment of
wages for those employees locked out from 12 July 2012 until
the
date the lock-out is uplifted.
[2] The Court dismissed the application with costs. Here are the
written reasons for the order.
Brief exposition of the relevant facts
The applicants’ version
[3] According to the applicants’ papers, negotiations commenced
with them regarding matters of mutual interest. According
to the
applicants, these negotiations did in fact commence but ended in a
deadlock on 5 July 2012.
[4] The dispute was referred to the CCMA for conciliation on or about
11 July 2012 but before the matter could be resolved the
respondent
issued a notice of a lock-out and served it on the individual
applicants on 12 July 2012. According to the applicants
they were
informed that they would remain locked out until such time that they
accept the respondent’s final demands.
The respondent’s version
[5] The respondent paints a very different picture. According to the
respondent it engaged with MEWUSA in negotiations concerning
substantive terms and conditions of employment on 19 June 2012. These
negotiations deadlocked on 28 June 2012. As from 27 June
2012 the
respondent experienced conduct by the individual respondents
retarding or obstructing the normal flow of work.
[6] The respondent is a distributor of bearings and power
transmission products and supplies a complete range of various
imported
and local products through more than 50 wholly owned branch
outlets. The respondent operates a 24 hour hot-line service
countrywide
and an after- hours support. On time delivery is
extremely important and incorrect picking and/or sending of stock to
branches
undermines the very fabric of the respondent’s
business. The respondent explained that it operates in a highly
competitive
industry and that clients can easily obtain replacement
products from competitors.
[7] The respondent’s warehouse space consists of 6 500 square
meters of storage space and is packed up to 12 meters high.
The
respondent stocks approximately 170 000 line items.
[8] During the time that the individual applicants embarked on a
retardation or obstruction of work, the respondent became aware
that
stock items were being misplaced and not returned to the correct bin
locations or placed in incorrect bin locations making
the locating of
stock difficult if not impossible. These incidents of incorrect
picking and sending of incorrect stock to various
branches commenced
after 26 June 2012 and increased significantly with the advent of the
individual applicants’ unhappiness
with the respondent’s
final wage offer. In support of these allegations, the respondent
annexed to its answering papers numerous
e-mails from branches
complaining of either incorrect picking or the sending of incorrect
stock. In addition to these incidents
of obstruction of work and
sending of incorrect stock to branches, the workflow of the
individual applicants in respect of inter-branch
transferrals dropped
significantly from 450 - 550 per day to as low as 235 by 5 July 2012.
[9] On 6 July 2010 the respondent held a meeting with shopsteward
regarding the go-slow and the apparent drop in workflow in respect
of
inter-branch transfers. The respondent raised the following issues
with the shopstewards: Incorrect stock being sent to branches;
empty
boxes being sent to branches; boxes being sent without documentation;
forklifts not being recharged and staff standing around
loitering.
According to the respondent, Mr Buthelezi (a shopsteward) replied
that the business would not run as usual as long as
people were
unhappy. A copy of the minutes of this meeting is attached to the
respondent’s answering affidavit. At this juncture
I must point
out that the applicants’ papers do not even refer to this
meeting nor to the apparent efforts made by the respondent
to resolve
the matter.
[10] In addition to these discussions with shopstewards, the
respondent also sought the assistance of the union to intervene
urgently
to resolve the apparent retardation of work by the
individual applicants. MEWUSA did not respond to the fax sent to
them. After
this fax was sent to MEWUSA, the respondent again
experienced further problems with incorrect orders being sent to
branches. The
respondent attaches numerous e-mails from disgruntled
customers complaining about these incorrect orders. On 4 July 2012,
for example,
the individual applicants sent an empty sealed box to
the Durban branch.
[11] The respondent further points out that the skeleton staff
picking rate over a period of two hours achieved half of the numbers
achieved by 45 of the individual applicants in a full day shift which
consisted of 7 1/2 hours.
[12] In the replying affidavit, the applicants reply to these
allegations by merely denying that the individual applicants engaged
in a retardation of the workflow and that they have caused any loss
of business to the respondent.
[13] A lock-out notice was indeed issued by the respondent on 12 July
2012. In the notice the respondent points out that the individual
applicants were participating in illegal industrial action in the
form of a go-slow, retardation and obstruction of work that does
not
comply with the provisions of the LRA. The respondent accordingly
gave notice to the individual applicants in terms of
section 64(3)(d)
of the LRA that they remain locked out ‘until such time as you
accept the final demands/ final wages and conditions of employment
offers tabled by the company...’
Evaluation of the merits
[14] A party who approaches this Court on an urgent basis must
explicitly set out the circumstances which render the matter urgent.
In addition thereto the applicant must set out the reasons why the
applicant claims it will not be able to obtain substantial redress
at
a hearing in due course.
[15] The applicants firstly ask for a declarator on an urgent basis
that the lock-out is illegal and secondly for an interdict
against
the respondent to uplift the unlawful lock-out and to permit the
applicants to return to work. As will be pointed out,
I am not
persuaded that the applicants have made out a case for relief on the
papers: Firstly, the applicants have not persuaded
this Court that,
even if the lock-out was unprotected, they are unable to recover by
way of normal action in due course any wages
owed to them. Secondly,
the applicants have also not persuaded this Court that they do not
have an alternative remedy available
at their disposal. There exists
no reason why the applicants cannot approach this Court in the normal
course and claim any wages
that were deducted as a result of the
lock-out. I am furthermore not persuaded that the applicants will
suffer irreparable harm
if the order is not granted. The applicants
argue that the ‘unlawful lock-out’ is ‘an evil’
and that it
undermines collective bargaining ‘in that it
weakens the financial muscles (i/e MEWUSA’s stop order
facilities and
individual Applicants’ wages)’ during the
lock-out. The lock-out does not infringe upon MEWUSA’s right to
receive
union subscriptions during the lock-out and as long as
remuneration is due to MEWUSA, subscriptions will be paid from the
wages
to MEWUSA. In respect of wages, if the lock-out was protected
(although I am of the view that the lock-out is protected), the wages
could be recovered by normal action in due course. In respect of the
balance of convenience, I am not persuaded that the applicants
have
made out a case why the balance favours them particularly in light of
the fact that the evidence overwhelmingly shows that
the individual
applicants have been engaging in acts of sabotaging the operations of
the respondent. Lastly, in respect of an alternative
remedy, as
already pointed out, MEWUSA could sue for damages suffered if stop
orders are not paid over. The individual applicants
could further sue
for payment of their wages should the lock-out be declared unlawful.
[16] I have, however, notwithstanding my concerns regarding the
urgency of this application, nonetheless decided to deal with the
merits of this application particularly in light of the fact that I
am of the view that the individual applicants are engaged in
acts of
sabotage against the respondent.
[17] I am not persuaded that the applicants have made out a clear
right for the relief sought: In this regard I am not persuaded
that
the applicants did not participate in an unprotected strike. I am
persuaded by the overwhelming evidence attached to the respondent's
papers that the evidence supports the conclusion that the individual
applicants were in fact engaged in a concerted retardation
of work in
the workplace and that their actions are severely disrupting the
normal operations of the respondent. In arriving at
this conclusion I
was mindful of the approach as set out in
Plascon Evans Paints Ltd
v Van Riebeeck Paints (Pty) Ltd
.
2
In motion proceedings where the applicant seeks final relief (as in
this case), disputes of fact to the extent that they do exist,
must
be decided in favour of the respondent. Applied to the present
dispute: If those facts disclose that the respondent instituted
a
defensive lock-out, the applicant must fail. The court in
Plascon
Evans
further pointed out that only where the respondent puts
forward denials that are not credible or puts forward palpably
implausible
versions, will the court reject it out of hand without
recourse to oral evidence. A respondent’s version therefore
ought
only to be rejected in motion proceedings if it is fictitious
or so farfetched and clearly untenable that it can confidently be
said on the papers alone that it is demonstrably and clearly unworthy
of credence. On the papers before this Court this is clearly
not the
case. The respondent put up detailed facts in its answering affidavit
detailing numerous incidents of incorrect picking
and sending of
incorrect stock including empty boxes to branches. In addition
thereto, the respondent has put up detailed evidence
confirming a
reduced rate of picking. Moreover, the respondent has put up credible
evidence demonstrating efforts to engage MEWUSA
to diffuse the
situation. In contrast hereto, the applicants merely put up bald and
unsubstantiated denials of the incidences of
sabotage detailed by the
respondent in the answering affidavit. Applying the principles set
out in
Plascon Evans,
I am of the view that the version put up
by the applicants that there was no unprotected industrial action
giving rise to the lock-out,
must be rejected.
[18] For the reasons set out above, I am of the view that the
application should fail. In respect of costs I have decided, despite
the fact that there is an ongoing relationship between the employer
and MEWUSA, to award costs against MEWUSA. I have taken note
of the
fact that the go-slow has had a particular disruptive effect on the
business of the respondent and I have taken note of
the fact that it
is clear from the papers that there were efforts made by the
respondent to engage with MEWUSA in an attempt to
end the very
obvious problems in the workplace in respect of the normal flow of
work.
[19] In the event the following order is made:
19.1. The application is dismissed.
19.2. The applicants are ordered to pay the respondent's costs
jointly and severally, the one paying the other to be absolved.
_______________________
AC BASSON J
Judge of the Labour Court
28 December 2012
APPEARANCES:
For the
applicants : Mr Baloyi of MM Baloyi Attorneys
For the respondent : Mr St Elmo Wilken of Mervyn Taback Inc
1
Act
66 of 1995.
2
The
Court held at 634 as follows: ‘
It seems
to me, however, that this formulation of the general rule, and
particularly the second sentence thereof, requires some
clarification and, perhaps, qualification. It is correct that, where
in proceedings on notice of motion disputes of fact have
arisen on
the affidavits, a final order, whether it be an interdict or some
other form of relief, may be granted if those facts
averred in the
applicant's affidavits which have been admitted by the respondent,
together with the facts alleged by the respondent,
justify such an
order. The power of the Court to give such final relief on the
papers before it is, however, not confined to
such a situation. In
certain instances the denial by respondent of a fact alleged by the
applicant may not be such as to raise
a real, genuine or bona fide
dispute of fact (see in this regard Room Hire Co (Pty) Ltd v Jeppe
Street Mansions (Pty) Ltd
1949 (3) SA 1155
(T) at 1163 - 5; Da Mata
v Otto NO
1972 (3) SA 858
(A) at 882D - H). If in such a case the
respondent has not availed himself of his right to apply for the
deponents concerned
to be called for cross-examination under Rule
6(5)(g) of the Uniform Rules of Court (cf Petersen v Cuthbert &
Co Ltd
1945 AD 420
at 428; Room Hire case supra at 1164) and the
Court is satisfied as to the inherent credibility of the applicant's
factual averment,
it may proceed on the basis of the correctness
thereof and include this fact among those upon which it determines
whether the
applicant is entitled to the final relief which he seeks
(see eg Rikhoto v East Rand Administration Board and Another
1983
(4) SA 278
(W) at 283E - H). Moreover, there may be exceptions to
this general rule, as, for example, where the allegations or denials
of
the respondent are so far-fetched or clearly untenable that the
Court is justified in rejecting them merely on the papers (see
the
remarks of Botha AJA in the Associated South African Bakeries case
supra at 924A).’