Chemical, Energy, Paper, Printing, Wood and Allied Workers Union v CTP Ltd and Another (JS 215/10) [2012] ZALCJHB 163; [2013] 4 BLLR 378 (LC); (2013) 34 ILJ 1966 (LC) (19 December 2012)

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[2012] ZALCJHB 163
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Chemical, Energy, Paper, Printing, Wood and Allied Workers Union v CTP Ltd and Another (JS 215/10) [2012] ZALCJHB 163; [2013] 4 BLLR 378 (LC); (2013) 34 ILJ 1966 (LC) (19 December 2012)

Reportable
REPUBLIC OF SOUTH AFRICA
IN THE LABOUR COURT OF SOUTH AFRICA, JOHANNESBURG
JUDGMENT
Case no: JS 215/10
In the matter between:
CHEMICAL, ENERGY, PAPER, PRINTING,
WOOD & ALLIED WORKERS’ UNION
...................................................
First
Applicant
KEETSO & 211 OTHERS
............................................
Second
and Further Applicants
and
CTP LIMITED
......................................................................................
First
Respondent
THUTHUKA PACKAGING (PTY) LIMITED
...................................
Second
Respondent
Last date heard: 6 September 2012
Delivered: 19 December 2012
Summary:
Mass dismissal for
striking – strike found to be technically unprotected –
sanction of dismissal disproportional and
unfair – strikers
reinstated with some deduction of back-pay
.
___________________________________________________________________
JUDGMENT
MYBURGH AJ
Introduction
In this action,
the first applicant (‘the union’) claims that the
dismissal of the second and further applicants (‘the

individual applicants’) was automatically unfair in terms of
section 187(1)(a) of the LRA
1
because they were engaged in a protected strike,
alternatively substantively and procedurally unfair insofar as their
strike was
unprotected. The relief sought is an order of full
retrospective reinstatement.
The matter involves a number of important issues of
labour law, including when a party can withdraw an admission in a
pre-trial
minute, the distinction between a primary and a secondary
strike, the determination of a strike as being unprotected, and the
determination of the appropriate sanction in the case of a
technically unprotected strike, including issues relating to strike

violence and inconsistency in discipline.
At the trial, the
respondents commenced adducing evidence and called two witnesses –
Holden (a director of the first and
second respondents) and
Backhouse (the general manager of CTP Packaging). The union closed
its case without calling any witnesses.
Voluminous documentation was
placed before the court on the basis that it is what it purports to
be and on the understanding
that the court should have regard to all
on it
2
in arriving at its judgment.
There are six main issues to be determined:
whether the first respondent should be allowed to
withdraw an admission contained in the pre-trial minute that it was
the employer
of all of the individual applicants;
if so, whether the individual applicants engaged in the
CTP Gravure and Thuthuka Packaging divisions (see below) were
actually
employed by the second respondent (and not by the first
respondent);
whether the strike by the individual applicants was a
protected strike so as to render their dismissal automatically
unfair;
if not, whether the dismissal of the individual
applicants was substantively fair;
whether the dismissal of the individual applicants was
procedurally fair; and
if the dismissal of the individual applicants was
unfair on any basis, the appropriate relief to be granted to them.
Overview of facts and chronology of events
The different divisions at which the individual
applicants worked
The individual applicants worked (in different numbers)
at four different divisions: (i) CTP Printers Web Offset and Gravure
(‘CTP
Web’); (ii) CTP Packaging; (iii) CTP Gravure; and
(iv) Thuthuka Packaging (referred to conjunctively as ‘the
four
divisions’).
According to the respondents, the first two of these
divisions were operating units of the first respondent, and second
two operating
units of the second respondent (which is a wholly
owned subsidiary of the first respondent). (See further below.)
CTP Web is situated in Isando, while CTP Packaging, CTP
Gravure and Thuthuka Packaging are all situated in Elandsfontein.
The strike at CTP Stationary
On 10 December 2008, the union tabled a list of 11
demands for 2009/2010 on CTP Stationary – it being another
division of
the first respondent, which is situated in Industria
West. The demands included a demand for a 17% across-the-board wage
increase,
a 13
th
cheque at 4.33%, and centralised
bargaining. In regard to the latter, what the demand entailed was a
demand that CTP Stationary
should agree to convert the Statutory
Council for the Printing, Newspaper and Packaging Industries (‘the
statutory council’),
under which it and the four divisions
fell, into a bargaining council (‘the bargaining council
demand’).
On 23 April 2009, union members at CTP Stationary
embarked on what was, at all material times, regarded by all
concerned as a
protected strike. The strike followed a referral by
the union to the statutory council for conciliation, the issuing of
a certificate
of outcome, and the giving of 48 hours’ notice
of strike action to CTP Stationary. In both the referral and
certificate
of outcome, the employer / other party was described as
CTP Stationary.
The strike at CTP Stationary continued until 5 June
2009, when it was resolved by agreement (see below).
The ‘secondary strike’
On 5 May 2009, some two weeks into the strike at CTP
Stationary, the union issued a secondary strike notice, which read
as follows
(the quotation is verbatim):
‘
We
hereby serve the company with seven (7) days’ notice,
3
starting from Wednesday 06 May 2009, meaning that workers will be on
strike the 13
th
May 2009. The workers will be in support for the following demands:
12% across the board, 13
th
cheque at 4.33%, statutory council to be bargaining council /
centralised bargaining.
Thanking you in advance for your
cooperation.’
Although it was contended by the respondents that the
secondary strike notice contains demands distinguishable from the
demands
that gave rise to the primary strike, this is clearly not
the case. Instead, the secondary strike notice contained a pared
down
version of the primary strike demands as they stood at the
time.
The notice was received by CTP Web, CTP Gravure and
Thuthuka Packaging on 5 May 2009, but was only received by CTP
Packaging on
12 May 2009.
On 13 May 2009, the secondary strike commenced at the
four divisions.
The secondary strike was brought to an end by the
dismissal of the individual applicants at the four divisions during
the period
18 – 28 May 2009. Each dismissal is dealt with
under a separate heading below.
The three Labour Court interdicts
On 28 April 2009,
this being before the commencement of the secondary strike, the
first respondent obtained an interim order against
the strikers at
CTP Stationary interdicting them from, in effect, misconducting
themselves during the course of the strike. The
founding affidavit
in support of the application
(deposed to by the
general manager of CTP Stationary, Hart) recorded that the strike
itself was protected. (The interim order
was confirmed on 12 August
2009.)
On 14 May 2009, being the day after the secondary
strike commenced, the first respondent obtained a further interim
order interdicting
the strikers at CTP Stationary and the individual
applicants (engaged at the four divisions) from, in effect,
misconducting themselves
during the strike. This was the second
interdict brought against the strikers at CTP Stationary and the
first against the individual
applicants.
The founding affidavit in support of this application
(deposed to by Holden) records that the strike at CTP Stationary was
protected
and that the individual applicants were employed by the
first respondent, and reflects the only challenge to the legality of

the secondary strike at that stage as being in relation to CTP
Packaging – this on the basis that it had not received the

prescribed seven days’ notice thereof. (The interim order was
confirmed on 11 September 2009.)
On 20 May 2009,
the first respondent obtained another interim order interdicting the
strikers at CTP Stationary and the individual
applicants (engaged at
the four divisions) from coming within 500 metres of the main gate
to the premises of CTP Web. This in
circumstances where the CTP
Stationary strikers and the individual applicants (from the four
divisions) had gathered there on
19 May 2009. This was the third
interdict against the CTP Stationary strikers and the second against
the individual applicants.
4
The founding affidavit in support of this application
(deposed to by the works director of CTP Web, Bain) reflects the
first respondent
as being the employer of the individual applicants
(at the four divisions) and records that it ‘had emerged’
that
the secondary strike was unprotected, but that no relief was
sought in this regard. (The interim order was confirmed on 11
September
2009.)
CTP Packaging dismissal
On 13 May 2009, CTP Packaging gave the union notice of
a disciplinary enquiry scheduled for 09h00 on 18 May 2009, at which
strikers
would face the charge of having ‘on Wednesday, 13 May
2009 … engaged in an unprotected industrial action in
contravention
of section 66 of the [LRA]’. (More strikers at
CTP Packaging were charged the following day with the same charge.)
Also on 13 May 2009, and in response to this, the union
addressed a letter to CTP Packaging in which it alleged that notice
of
a secondary strike had been properly given on 5 May 2009 and that
the strike was protected.
On 14 May 2009, CTP Packaging suspended the strikers
with full benefits pending the outcome of the disciplinary enquiry.
At 09h00 on 18 May
2009, the disciplinary enquiry at CTP Packaging was convened before
an external chairperson, Hutchinson. In
circumstances where CTP
Packaging objected to the composition of the union delegation that
arrived,
5
the union refused to participate in the enquiry and
left, whereupon the enquiry continued in the absence of the union.
On the basis of
the evidence placed before him by Backhouse, Hutchinson delivered an
ex tempore
decision
(which was tape recorded and subsequently transcribed) in which he
found that the strikers were guilty as charged on
the following
basis:
‘
Secondary
strikers should have no material interest in the demand of other
employees against their employer, and should have no
direct and
substantial interest in the outcome of the dispute.
The secondary strikers have, in
fact, a material interest in the outcome of the primary strikers
(sic) with particular reference
to its demands: mainly of (1) a 12%
wage increase across the board; (2) a 13
th
cheque of
4.33%; (3) the statutory council to be replaced by a bargaining
council, with centralized bargaining as a function.
The 7 days’ notice
required in terms of the [LRA], to be given to CTP Packaging, was not
given.’
The following warrants mention in relation to this
finding by Hutchinson: having found that the strikers were not
engaged in a
secondary strike, he gave no consideration to whether
their strike qualified as a protected primary strike; he was wrong
in finding
that the strikers had a material interest in anything
more than the bargaining council demand (see further below); and his
finding
that the strike was not a secondary strike and, at the same
time, that the strikers had not given the required notice of a
secondary
strike is incongruous.
Turning to sanction, Hutchinson found as follows under
the heading ‘sanction’:
‘
The
aggravating factors are of a very serious nature.
I find that the trust
relationship between employer and employees has irrevocably broken
down. All employees found guilty as charged
should be dismissed, and
that their dismissal should take place with immediate effect.’
The aggravating factors relied on by Hutchinson do not
appear from his outcome report, and he made no mention at all of any
violence
/ intimidation by the strikers.
On the same day, 18 May 2009, CTP Packaging advised the
strikers of their summary dismissal. A total of some 95 strikers
were
dismissed. They had been engaged in a strike for one day by the
time of their dismissal (given that they had been suspended on
14
May 2009) and had not been issued with an ultimatum before being
dismissed.
CTP Gravure dismissal
Also on 18 May
2009, CTP Gravure addressed a letter to the union in response to its
secondary strike notice of 5 May 2009.
6
In this letter, CTP Gravure advised as follows:
‘
No
doubt you will appreciate that your members engaged at our workplace
cannot, as a question of law and fact, embark upon and claim
the
protection of secondary strike action in accordance with the
provisions of section 66 of the [LRA] where they have a direct
and
substantial interest in the subject matter forming one or more of the
demands made of (sic) the primary strikers.
Your notice of 5 May 2009 makes
it specifically clear that two fundamental issues in respect of which
your members have a direct
and substantive interest will form the
subject matter of the sympathy action embarked upon. These relate, in
particular, to centralised
bargaining and the establishment of a
bargaining council in the industry in which we conduct our business.
Under these circumstances, we
will be persisting with and take appropriate disciplinary measures
against your members. A notification
convening a disciplinary hearing
in this regard will be despatched to your offices shortly. We believe
this is such a gross and
significant violation of applicable
legislation by your members acting under your advice, that we will be
proposing that they be
dismissed.’
Also on 18 May 2009, CTP Gravure addressed a letter to
the union calling upon the union official and the two shop stewards
at
the division to attend a disciplinary hearing at 16h00 on 20 May
2009, ‘in order to advance reasons as to why … your

members engaged at our premises proceed to embark upon, specifically
secondary strike action, in which they have a direct interest
in the
demands of the primary strikers engaged at CTP Stationary’.
At about 15h00 on 20 May 2009, the general manager of
CTP Gravure (Cormack) received a letter from the union which
requested that
‘the company … suspend the intended
disciplinary hearing until the legal strike is resolved’.
Cormack was
not prepared to do so and pressed on with the
disciplinary enquiry at 16h00 (in the absence of the union) before
an external
chairperson, Cook.
On 22 May 2009, Cook issued his findings in terms of
which he decided that the strike was unprotected on this basis:
‘
From
the letter of 5
th
of May 2009 and the demands contained (sic), it is clear that the
employees are striking in support of demands in which they have
a
clear material interest, namely “12% across the board, 13
th
cheque at 4.33%, statutory council to be bargaining council /
centralised bargaining”.
I therefore am of the view that
the employees are not participating in a secondary strike but are in
fact participating in a primary
strike. The employees have not
complied with the requirements set out in section 64 and 65 of the
LRA. The employees should therefore
have referred the dispute in
terms of section 64(1)(a). Accordingly, the notice of secondary
strike is defective. Consequently
the strikers are deprived of the
protection afforded by the Act, and the strikes may be treated as
misconduct and / or breach of
contract.
In light of my conclusions
above, I am of the view that there was no valid reason to suspend the
hearings [as per the union’s
request].’
The following warrants mention in relation to this
finding by Cook: his finding that the strikers had a material
interest in anything
more than the bargaining council demand is both
at odds with CTP Gravure’s letter to the union of 18 May 2009
and wrong
(see further below); and, although finding that the
strikers were engaged in a primary strike, he had no regard to
whether they
could ‘piggy-back’ off the referral for
conciliation made by the strikers at CTP Stationary in line with the
judgments
addressed below.
Cook went on to make the following recommendation:
‘
The
union has adopted the view that its members are engaging in a
legitimate secondary strike, despite the fact that the employer

clearly has informed them that their view is incorrect. However, the
individual members have relied upon the advice of their union

representatives. The employees were also only asked to come and
explain why they engaged on a secondary strike in which they had
a
direct interest.
In conclusion, I therefore make
the following recommendation: That the employees are issued with a
final written warning for their
failure to advance reasons as to why
the employees proceeded to embark upon, secondary strike action, in
which they have a direct
interest in the demands of the primary
strikers engaged at CTP Stationary. The employees are to return to
work immediately and
advance reasons as to why the employees
proceeded to embark upon, secondary strike action, in which they have
a direct interest
in the demands of the primary strikers engaged at
CTP Stationary at a date and time to be determined by the employer,
failing which
they may face dismissal.
My recommendation in no way
should be seen as a limitation on the employer’s right in (sic)
to charge the employees for any
misconduct that they may have been
guilty of during the pursuance of their invalid strike action.’
On the morning of 25 May 2009, CTP Gravure addressed a
letter to the union advising it of Cook’s findings, recording
that
the strikers were issued with a final written warning, and
giving the strikers until 06h00 on 27 May 2009 to return to work,

failing which they were to attend a further disciplinary enquiry at
15h00 that day on the charge of having ‘continued to
embark
upon an unprotected secondary strike and … failed to report
for work as instructed’. The letter ends by recording
that it
was CTP Gravure’s intention to seek the dismissal of the
strikers at this disciplinary enquiry.
On 27 May 2009, the strikers at CTP Gravure neither
heeded the ultimatum nor attended the disciplinary enquiry, which
was conducted
by another external chairperson, De Jager.
On 28 May 2009, De Jager handed down his finding, in
which he decided that the strikers should be dismissed with
immediate effect.
In so deciding, he relied on Cook’s finding
that the strike was unprotected and that the strikers had been
issued with
a final warning. He made no mention of acts of violence
/ intimidation constituting an aggravating factor.
Also on 28 May 2009, CTP Gravure addressed a letter to
each of the strikers advising them of their dismissal with effect
from
that date.
Also on 28 May 2009, CTP Gravure addressed a letter to
the union advising it of the dismissal. The letter records the basis
of
the dismissal as being that ‘your members have been
summarily dismissed for failing to return to work as requested and

continuing to participate in an unprotected strike’. A total
of some 15 strikers were dismissed. They had been on strike
for 12
working days by the time of their dismissal and were issued with a
two-day ultimatum / final warning before being dismissed.
CTP Web dismissal
On Friday, 15 May 2009, CTP Web issued a ‘final
ultimatum’ calling upon the strikers to return to work by
06h00 on
Monday, 18 May 2009. They failed to heed the ultimatum.
On 18 May 2009,
the union / strikers at CTP Web were notified to attend a
disciplinary enquiry at 09h00 on 21 May 2009.
7
On 20 or 21 May 2009, and before the disciplinary
enquiry commenced, the union sent CTP Web a letter requesting that
the enquiry
be postponed pending the conclusion of the strike.
At 09h00 on 21 May 2009, given that the union was not
in attendance, the disciplinary enquiry proceeded in its absence
before
an external chairperson, Swartz. This in circumstances where
Swartz refused the union’s request for a postponement.
Also on 21 May 2009, Swartz handed down her decision.
She found that the strikers were guilty of having engaged in an
unprotected
strike on this basis:
‘
In
terms of the union’s notice of the secondary strike dated 5 May
2009, the union’s demands (sic) have a material interest
in the
outcome of the primary strike with reference to the salary demands of
“… 12% across the board; 13
th
cheque at 4.33%”.
I therefore find that the
secondary strike does not fall within the scope of s 66 of the LRA.
Furthermore the notice of the
secondary strike dated 5 May 2009 called for a one day strike.
On 21 May 2009 union workers
were still on strike.’
The following warrants mention in relation to this
finding by Swartz: different to Hutchinson and Cook, she did not
find that
the strikers had a material interest in the bargaining
council demand; she was wrong in finding that the strikers had a
material
interest in the demands listed by her (see below); having
found that the strike was not a secondary strike, she gave no
consideration
to whether it qualified as a protected primary strike;
and her finding that the secondary strike notice provided for only a
one-day
strike is also wrong (the issue not having been pursued by
the respondents at the trial).
Regarding sanction, having made reference to acts of
intimidation / violence, Swartz decided that summary dismissal was
appropriate
on this basis:
‘
In
light of the above I find that the striker’s conduct
aggravating (sic) because of their aggressive conduct, ignoring the

court order and staying away from their employment for over nine
days.’
It is common cause that the dismissal took effect on 21
May 2009. A total of some 64 strikers were dismissed. They had been
on
strike for seven working days by the time of their dismissal and
had been given a one-day ultimatum before being dismissed.
Thuthuka Packaging dismissal
On 18 May 2009, Thuthuka Packaging addressed a letter
to the union advising that the secondary strike was unprotected, and
recording
that it would seek the dismissal of the strikers.
Also on 18 May
2009, the strikers at Thuthuka Packaging were notified to attend a
disciplinary enquiry at 15h00 on 20 May 2009.
8
On 20 May 2009, in response to this, the union
addressed a letter to Thuthuka Packaging requesting that the
disciplinary enquiry
be suspended pending the resolution of the
strike.
There was no appearance by the union at the
disciplinary enquiry at 15h00 on 20 May 2009. After standing the
matter down for a
short while, the external chairperson, Martin,
decided to proceed with the enquiry in the absence of the union –
this after
finding that the union’s letter of earlier that day
did not constitute a proper application for a postponement.
On 22 May 2009, Martin handed down his decision, in
terms of which he found that the strikers were engaged in an
unprotected secondary
strike on this basis:
‘
The
submissions made to me by the employer are to the effect that the
employees of Thuthuka Packaging, as secondary strikers, have
a
material, direct and substantial interest in two of the primary
strikers’ demands, being the conversion of the statutory

council to a bargaining council and centralised bargaining.
Insofar as the members of [the
union] are engaging in a secondary strike and at the same time have a
direct and substantial interest
in the outcome of the demands of the
primary strike, the strike is not a secondary strike as envisaged by
the Act.’
The following warrants mention in relation to this
finding by Martin: of all of the disciplinary chairpersons, he was
the only
one who found that the strikers only had a material
interest in the bargaining council demand; and having found that the
strikers
were not engaged in a secondary strike, he (like Hutchinson
and Swartz) gave no consideration to whether they were engaged in a

protected primary strike.
Turning to the issue of sanction, Martin found as
follows:
‘
A
sanction of dismissal is the harshest penalty available. The
employees have chosen not to avail themselves of the opportunity
to
present a case at the enquiry, and have proceeded with their
industrial action, despite a warning that they would be dismissed
as
a result of their involvement in the so-called “secondary
strike”.
I am of the opinion that a
dismissal in the circumstances is warranted.
Nonetheless, and in the light of
the absence of the employees and trade union from the disciplinary
enquiry, the employer may wish
to avail itself of an opportunity to
approach the Labour Court for an interdict against the secondary
strike, prior to dismissing
the employees. This may possibly allow
the parties to engage in a more detailed and ventilated consideration
of the dispute between
the parties.’
Martin makes no mention in his findings of violence /
intimidation by the strikers having been an aggravating factor.
It is common cause that the dismissal took effect on 22
May 2009 – this in circumstances where no attempt was first
made
to interdict the strike itself. A total of some 38 strikers
were dismissed. They had been on strike for eight working days by
the time of their dismissal and were not issued with an ultimatum
before being dismissed.
Settlement talks and the resolution of the CTP
Stationary strike
On 1 June 2009, CTP Packaging invited the union to
discuss the way forward with it.
On 2 June 2009, and following a meeting held between
the union and CTP Stationary the previous day, the general manager
of CTP
Stationary (Hart) addressed a letter to the union reading in
part as follows:
‘
My
understanding is that the secondary strikes [at the four divisions]
were deemed to be illegal and as such I believe that those
of your
members who continued to participate have been dismissed. It would
appear that this situation has been further aggravated
through acts
of violence and intimidation.
I would therefore recommend that
if this situation is to be salvaged, meetings will need to be made
(sic) without further delay.
I have approached the MD’s of the
other divisions who have agreed to meet with you individually. You
may have had contact
from them already. If not please give them a
call.’
On 3 June 2009, it would appear that CTP Packaging and
the union held a meeting, at which the union sought the
reinstatement of
the dismissed strikers. (Allied to this, Backhouse
testified that, after the dismissal of the strikers at CTP Packaging
on 18
May 2009, he met informally with a representative of the
dismissed strikers (one Stanley), who conveyed to him that a
settlement
should include CTP Packaging conceding the bargaining
council demand.)
A meeting was set up between CTP Gravure and the union
for 3 June 2009, but it is not clear from the documents whether it
went
ahead.
On the morning of Friday, 5 June 2009, the union
addressed a letter to: CTP Stationary advising that the strike had
been resolved
and that the strikers would return to work on Monday,
8 June 2009; and the four divisions advising that the secondary
strike
was over and that the secondary strikers would also return to
work on the aforesaid date.
Also on 5 June 2009, and in response to the union’s
letter calling off the secondary strike, CTP Packaging addressed a
letter
to the union recording that the strikers had been dismissed
with effect from 19 May 2009, that it was not in a position to
reinstate
them and was not prepared to accept their tender of
services, but that it was nevertheless willing to entertain
settlement discussions.
Also on 5 June 2009, CTP Gravure addressed a letter to
the union in response to its letter calling off the secondary
strike. In
this letter, CTP Gravure advised that it was not in a
position to reinstate the dismissed strikers and was not prepared to
accept
their tender of services, but that it was nevertheless ‘fully
committed to explore possible resolutions of this matter and
in this
regard we await to hear from you …’.
On 8 June 2009, an agreement of settlement was entered
into between CTP Stationary and the union in resolution of the
strike at
CTP Stationary, with the strikers having returned to work
that day. The agreement records,
inter alia
, that the strike
was protected, that the union withdrew the bargaining council
demand, and that:
‘
The
company reserves its rights to take such disciplinary measures as may
be deemed appropriate against those individuals who are
allegedly
guilty of any acts of violence and intimidation during the strike
engaged upon by the union’s members.’
It is common cause that, after having returned to work,
certain union members at CTP Stationary were dismissed for acts of
misconduct
committed by them during the strike.
On 9 June 2009, the union responded to the letters of
CTP Packaging and CTP Gravure of 5 June 2009 by disputing that the
secondary
strike was unprotected and alleging that the dismissals
were consequently automatically unfair.
Also on 9 June 2009, CTP Packaging responded by
inviting the union to a meeting at 15h00 the following day in the
hope that a
negotiated settlement was possible.
On 10 June 2009, the union requested that an appeal
hearing be held for all the dismissed workers on 15 June 2009.
Also on 10 June 2009, and following a meeting between
the parties that day, CTP Gravure advised the union in a letter that
it
could not agree to reinstate the dismissed strikers, but that it
would reconsider settlement at conciliation (in the event of a

referral to the statutory council), and that its disciplinary code
did not provide for an internal appeal process.
On 11 June 2009, CTP Packaging addressed a letter to
the union recording that: it had failed to attend the proposed
meeting on
10 June 2009; ‘it would be inappropriate,
unreasonable and improper for all your members to be reinstated on
any terms
and conditions suggested in the meeting of 3 June 2009 and
… we have not received any appropriate solutions subsequent
to this meeting’; settlement may be reconsidered at statutory
conciliation; and its disciplinary code did not provide for
an
internal appeal.
The statutory conciliation process
On 15 June 2009, the union referred a separate dispute
against each of the four divisions for conciliation to the statutory
council,
with the dispute being described as an automatically unfair
dismissal in terms of section 187(1)(a).
On 1 July 2009, and following the consolidation of the
four referrals and an unsuccessful attempt at conciliation, the
statutory
council issued four separate certificates of outcome.
The memorandum of demands
It would appear that, on 17 August 2009, a union
delegation presented a memorandum of demands to management. The
memorandum recorded
a demand for the reinstatement of the individual
applicants at the four divisions, and a ‘demand that the
statutory council
be changed to a bargaining council’.
On 20 August 2009, in response to the memorandum of
demands, CTP Packaging addressed a letter to the union. The letter
records
that CTP Packaging was not in a position to reinstate the
dismissed employees, and further that:
‘
We
trust that you will also appreciate that CTP Packaging, as an
employer, have absolutely no authority or jurisdiction in order
to
convert a Statutory Council into a Bargaining Council. Furthermore,
we have no doubt and trust that you appreciate the fact
that this is
a matter that should be addressed at a higher level through the
appropriate employers’ organisations and trade
unions which are
parties to the council concerned.’
The condonation application and pleadings
The union’s statement of claim was due on 30
September 2009.
On 2 March 2010, the union launched an application for
condonation for the late delivery of its statement of claim. In its
founding
affidavit, the union alleged that the individual applicants
were all employed by the first respondent within the four divisions.
Although dated 2 March 2010, the statement of claim
herein was filed on 11 March 2010 – this being some five
months late.
In the statement of claim, it is again alleged that the
individual applicants were all employed by the first respondent
within
the four divisions. As stated above, the applicants’
cause of action is an automatically unfair dismissal in terms of
section
187(1)(a), alternatively a substantively and procedurally
unfair dismissal.
On 16 March 2010,
the first respondent filed its reply to the applicants’
statement of claim (‘the first respondent’s
reply’
9
).
The reply is unorthodox in that it simply contains a rendition of
the ‘background’ to the matter, and does not
answer the
applicants’ statement of claim on a paragraph-by-paragraph
basis.
In any event, the first respondent’s reply
records the company structure as follows:
‘
1.3
The application launched herein relates to certain divisions of the
[first] respondent, namely CTP Web Offset and Gravure
10
situate at Isando, Gauteng and CTP Packaging, situate at
Elandsfontein and Homestead, Gauteng.
1.4 In addition, the two
remaining entities forming the subject matter of the current
application, namely CTP Gravure and Thuthuka
Packaging were divisions
of a separate alternative legal entity known as Thuthuka Packaging
(Pty) Limited.’
Significantly, although having pleaded this, no point
is taken in the first respondent’s reply that this structure
had any
bearing on whether or not the strike by the individual
applicants was protected.
Consistent with the position adopted throughout, the
first respondent’s reply records that employees at ‘CTP
Stationary
embarked upon protected strike action in accordance with
the provisions of section 64 of the [LRA]’.
The first respondent’s reply goes on to allege
that the strike by the individual applicants in the four divisions
was unprotected
on this basis.
‘
1.11
Following numerous interdicts issued by this Honourable Court against
the violent, unlawful and intimidating conduct of the
first
applicant’s members and having received legal advice on the
matter, it emerged that the conduct of the first applicant’s

members insofar as their secondary strike action is concerned, was
unlawful and improper. In this regard, aside from the short
service
of the notice contemplating secondary strike action served on CTP
Packaging, it transpired that it was improper for the
individual
applicants to have embarked upon strike action in terms of section 66
of the Act in instances where they had a primary
interest in the
matter under dispute and which, to all intents and purposes, would
affect them. Each one of the division’s
respective business
interests fall within the registered scope, sector and area of the
Statutory Council and accordingly, any conversion
of the Statutory
Council to a “Bargaining Council”, as demanded by the
first applicant, would have the effect of benefiting
the individual
applicants directly inasmuch as they, by virtue of any such
contemplated conversion, would fall within the registered
scope of
such Council;
1.12 In addition, inasmuch as
this, for all intents and purposes, would have related to a “refusal
to bargain” as envisaged
in terms of section 64(2) of the Act,
an advisory award would have had to have been obtained against each
one of those particular
business units and divisions concerned. No
such award had been obtained in relation to that dispute in
accordance with the provisions
of section 135(3)(c) of the Act.’
It was common cause at the trial that the first time
that the first respondent raised the advisory award point was in its
reply
– it not having formed the basis of the decisions of any
of the four disciplinary enquiry chairpersons.
On 8 June 2010, the first respondent filed its
answering affidavit opposing the application for condonation, which
affidavit was
deposed to by Holden. In this affidavit, and contrary
to the first respondent’s reply, Holden admitted that the
individual
applicants were all employed by the first respondent
within the four divisions.
On 7 June 2010, Lagrange J handed down judgment in the
condonation application, with his full reasons having followed on 22
June
2010. In terms thereof, Lagrange J granted condonation and
directed the parties to hold a pre-trial conference within 14 days.
On 4 July 2010, the applicants’ erstwhile
attorneys of record appear to have provided the first respondent’s
attorneys
of record (Fluxmans) with a draft pre-trial minute. With
reference to the covering letter which accompanied the draft, it
would
appear that the draft was based in part on a ‘list of
common cause and disputed issues’ which had been provided by

Fluxmans. The minute was not concluded at this point in time, as the
first respondent sought leave to appeal against the judgment
of
Lagrange J.
On 1 November 2010, Lagrange J dismissed the
application for leave to appeal.
In February 2011, the LAC dismissed the first
respondent’s petition for leave to appeal.
On 14 May 2011, Fluxmans (per Soldatos) signed and
served the pre-trial minute under cover of a letter reading in part:
‘
We
confirm that certain “common cause” facts have been
amended by ourselves, however, we do not believe that this would,
in
any way, change the nature and import of the matters under contention
… .’
Amongst the common cause facts which were agreed in the
pre-trial minute – and went un-amended by Soldatos – are
that
the individual applicants were all employed by the first
respondent within the four divisions.
The events of the trial
Mr Cassim SC, who appeared together with Mr Boda for
the first respondent, submitted a lengthy written opening address,
which
outlined the two parts to the first respondent’s case:
firstly, that the strike was unprotected, and, secondly, that the

sanction of dismissal was fair and appropriate.
In relation to the issue of whether or not the strike
was protected, Mr Cassim submitted in opening that the strike was
unprotected
on the following four grounds:
firstly, although styled a secondary strike, given that
the individual applicants had a material interest in the bargaining
council
demand, the strike was actually a primary strike and was
unprotected because there had been no referral of the dispute for
conciliation
to the statutory council by the individual applicants
in terms of section 64(1) (‘the first alleged ground of
illegality’);
secondly, given that the bargaining council demand
qualified as a refusal to bargain as defined in section 64(2)(a),
both the
strike at CTP Stationary and at the four divisions was
unprotected because an advisory arbitration award had not been
obtained
in terms of section 64(2) (‘the second alleged ground
of illegality’);
thirdly, the individual applicants engaged within CTP
Gravure and Thuthuka Packaging were actually employed by the second
respondent,
with the result that the strike by them was unprotected
because no dispute against the second respondent had been referred
for
conciliation to the statutory council – this in breach of
section 64(1) (‘the third alleged ground of illegality’);

and
fourthly, insofar as the strike at CTP Packaging was a
secondary strike, it was unprotected because CTP Packaging had only
received
one day’s notice (instead of seven days’
notice) thereof in breach of section 66(2)(b) (‘the fourth
alleged
ground of illegality’).
The third alleged ground of illegality was a new ground
that had not previously been relied upon – and involved, in
effect,
an application to amend the common cause fact set out in the
pre-trial minute that all the individual applicants were employed
by
the first respondent within the four divisions.
In relation to the issue of the appropriate penalty, Mr
Cassim submitted that dismissal was fair and appropriate in the
light
of a number of aggravating factors.
Mr Cassim’s opening address prompted the
applicants to make three separate applications for the amendment of
their statement
of claim, all of which were unopposed and granted.
The key features of these amendments were that the applicants:
joined the second
respondent as a party;
11
allege that the strike by the individual applicants was
not a secondary strike, but was instead a primary strike in support
of
the demands made by the CTP Stationary strikers and that it was
protected;
allege that, insofar as it is found that the primary
strike was not protected, the dismissal of the individual applicants
was
selective because the employees at CTP Stationary who
participated in the strike were not dismissed; and
allege that, insofar as it is found that the individual
applicants at CTP Gravure and Thuthuka Packaging were employed by
the
second respondent, it would be unfair to differentiate between
them and the other strikers in that all the strikers were advised
by
the union that the strike was protected and they were at no stage
advised by their employer that this was a differentiating
feature.
The parties also handed up a list of common cause facts
in amplification of those set out in the pre-trial minute (they have
been
set out above).
The respondents commenced adducing evidence, and, as
stated above, called Holden and Backhouse. In summary, Holden’s
evidence
mainly involved laying a basis for the amendment of the
pre-trial minute by the respondents, while Backhouse’s
evidence
related to the events at CTP Packaging. Aspects of their
evidence are dealt with below.
As stated above, further to the respondents closing
their case, the applicants closed their case without calling any
witnesses.
After a day’s break to allow counsel to prepare
written heads of argument, the matter was then argued. I deal with
the main
arguments of the parties in the process of addressing the
six issues for determination below.
The first issue for determination: the first
respondent’s application to amend the pre-trial minute
The first issue to be determined is whether the first
respondent’s application to amend the pre-trial minute by
withdrawing
the admission that it employed all the individual
applicants in the four divisions should be allowed. The issue is a
significant
one because, if the amendment is allowed and it is then
found that the individual applicants engaged at CTP Gravure and
Thuthuka
Packaging were actually employed by the second respondent,
this may have implications regarding whether the strike by them was

protected.
Before dealing further with the application, it is
convenient to briefly consider the principles applicable to the
withdrawal
of an admission made at a pre-trial conference.
In
MEC
for Economic Affairs, Environment & Tourism, Eastern Cape v
Kruizenga and Another
12
(
Kruizenga
),
the SCA said the following about the role and importance of
pre-trial conferences and the significance of admissions of fact

made in the course thereof:
‘
The
rule [i.e. rule 37] was introduced to shorten the length of trials,
to facilitate settlements between the parties, narrow the
issues and
to curb costs. One of the methods the parties use to achieve these
objectives is to make admissions concerning the number
of issues
which the pleadings raise. Admissions of fact made at a rule 37
conference, constitute sufficient proof of those facts.
The minutes
of a pre-trial conference may be signed either by a party or his or
her representative. Rule 37 is thus of critical
importance in the
litigation process.’
13
These findings made in relation to rule 37 of the High
Court Rules are equally applicable to rule 6(4) of the Labour Court
Rules.
A pre-trial minute
is a consensual document and, in effect, constitutes a contract
between the parties.
14
It is precisely
because of the critical importance played by pre-trial conferences /
minutes in the litigation process that the
SCA has twice held that,
in the absence of special circumstances, a party cannot resile from
the agreement. In
Filta-Matrix (Pty) Ltd v
Freundenberg
15
(
Filta-Matrix
),
the SCA stated the principle as follows:
‘
To
allow a party, without special circumstances, to resile from an
agreement deliberately reached at a pre-trial conference would
be to
negate the object of Rule 37 which is to limit issues and to curtail
the scope of the litigation. [Authority omitted.] If
a party elects
to limit the ambit of his case, the election is usually binding
[authorities omitted]. No reason exists why the
principle should not
apply in this case.’
16
Filta-Matrix
17
was one of the judgments considered by the LAC in
NUMSA
v Driveline Technologies (Pty) Ltd and Another
18
(
Driveline Technologies
)
in arriving at this summary of the legal position:
‘
To
my mind the cases are consistent that whether or not a party will be
allowed to raise or rely upon or introduce a cause of action
or issue
after a pre-trial agreement or pre-trial minute has been concluded in
a case depends on whether it can be said that the
party seeking to
rely upon or to introduce or raise such cause of action or issue
has
abandoned that cause of action or has agreed either expressly or by
implication (I would say necessary implication) not to pursue
or rely
upon such cause of action or point or has informed the court or the
other party that such point or such cause of action
or issue will not
be relied upon. If he has, he cannot be allowed.
If he has not, he can be allowed. This is quite apart from those
circumstances where a party would be able to resile from such
an
agreement
on
the same basis as he would be able in law to resile from any other
contract.
’
19
(Emphasis added.)
As I interpret
this judgment, where a party in a pre-trial minute abandons a point,
or agrees (expressly or by necessary implication)
not to pursue /
rely on the point, or otherwise informs the opposing party that the
point will not be relied upon, then he will
not be allowed to do so
at a later stage, unless he is able to resile from the agreement on
a basis upon which he would in law
be able to resile from a
contract.
20
In
Rademeyer
v Minister of Correctional Services
21
(
Rademeyer
),
the High Court found as follows regarding the requirements of
‘special circumstances’ in the present context:
‘
Applying
the above criteria to the application now before me, the defendant in
order to succeed, must show that special circumstances
exist for this
court to exercise its discretion in his favour. Three requirements
must be met: firstly, the defendant must furnish
an explanation
sufficiently full of the circumstances under which the concession was
made and why it is sought to be withdrawn;
secondly, he should
satisfy the court as to his
bona
fides
;
and thirdly, show that in all the circumstances justice and fairness
would justify the restoration of the status
quo
ante
.’
22
The court in
Rademeyer
23
did not cite any authority for these being the
requirements of special circumstances in the present context; nor
have I been able
to find any such authority. In my view, setting the
test for special circumstances as being substantially equivalent to
the test
for the grant of condonation (as
Rademeyer
does) is too lenient and does not take
account of the fact that a pre-trial agreement equates to a contract
between the parties.
Once this is accepted, then special
circumstances in the present context should, in my view, be
understood as meaning that, in
order to resile from the agreement
(or part thereof), the applicant must establish a basis for doing so
in the law of contract.
To my mind, this interpretation accords with
Driveline Technologies
24
and is consistent with
Kruizenga.
25
In any event, in assessing the present application, I
do so with reference to both tests.
Turning to the facts, as stated above, Holden was
called to give evidence on this issue. Early on in his testimony, Mr
van der
Riet SC (who appeared for the applicants) raised an
objection to the effect that it was only the attorney who signed the
pre-trial
minute on behalf of the first respondent (Soldatos) who
could lay a basis for the amendment. In response, Mr Cassim
submitted
that it was his intention to first establish the facts
about the corporate structure and the identity of the employer
through
Holden. In the event, Soldatos – who was present in
court during the opening address – was not called to testify.
In summary, Holden testified as follows in-chief. With
reference to certain certificates of incorporation and change of
name,
the first respondent came into existence in 1999 and the
second respondent in 1997. In 2004, the first respondent sold CTP
Gravure
(then a division of the first respondent) to the second
respondent as a going concern, with the result that from then
onwards
the second respondent operated two divisions –
Thuthuka Packaging and CTP Gravure. At all material times, the two
companies
operated independently of each other. The contention in
the affidavits drafted during the strike and in the pre-trial minute

that the first respondent was the employer of all the individual
applicants within the four divisions was incorrect, with the correct

position being as was pleaded in the first respondent’s reply.
According to Holden, the concession made in the pre-trial
minute was
probably a
bona fide
mistake on the part of Soldatos, which
had been carried through from the affidavits drafted during the
strike.
Under cross-examination, Holden experienced difficulty
in explaining how the alleged errors in the affidavits had come
about.
But, as far as he was concerned, the individual applicants
engaged in Thuthuka Packaging and CTP Gravure were employed by the
second respondent – this being knowledge that he said he
acquired from his position as a director of the second respondent.

Asked about the concession made in the pre-trial minute, he
confirmed that it was consistent with the affidavits in the
interdicts
and opposition to the application for condonation. Asked
how it had come about that Soldatos had entered into a pre-trial
minute
which was contrary to the first respondent’s reply,
Holden stated that he could not speak for Soldatos, but that
Soldatos
would probably have taken instructions from the heads of
the various divisions (i.e. the general managers) and sent them a
draft
of the pre-trial minute for their input. He could, however,
not recall whether Soldatos had sent him a draft before it was
concluded.
He had, however, given some input into the first
respondent’s reply. Asked then how he could contend that the
pre-trial
minute was concluded in error by Soldatos, Holden could do
no more than fall back on his knowledge of the corporate structure.
In argument, Mr
Cassim submitted that the first respondent should be allowed to
withdraw the admission for these reasons: (i)
the objective facts
demonstrate that there were two separate legal entities; (ii) the
oral evidence of Holden also established
this; (iii) no evidence was
led to demonstrate that the admission was true or even probable;
(iv) Lagrange J found in his judgment
in the condonation application
that there were two separate entities, each having two divisions;
(v) the first respondent did
not make the admission in its pleading
but rather in the pre-trial minute, with the pleading being
consistent with the evidence,
which did not establish that the first
respondent had abandoned its pleaded case; (vi) the evidence
established that the pre-trial
agreement was reached as a result of
a
bona fide
error;
(vii) justice dictates that the court adjudicate the matter on the
true facts; and (viii) there is no prejudice to the
applicants, as
they were alerted to the amendment before the trial started.
Mr van der Riet
submitted, in turn, that the first respondent made out no case that
they are entitled to resile from the agreement
contained in the
pre-trial minute. According to him, the fact that Soldatos was not
called as a witness puts an end to the matter.
It could not even be
contended, according to Mr van der Riet, that Soldatos acted outside
his instructions when he agreed on
behalf of the first respondent
that it employed all the individual applicants, given that a
director of the first respondent,
Holden, had on two occasions
stated this under oath.
26
Mr van der Riet also submitted that the first
respondent’s reliance on the finding by Lagrange J in his
judgment in the
condonation application was misplaced because all
the court had done was to paraphrase the first respondent’s
response
in its judgment.
To my mind, the predicament facing the first respondent
is this. On the face of the pre-trial minute, it was deliberately
entered
into by Soldatos. This in circumstances where, having been
in possession of a draft for more than a year, he made certain
handwritten
amendments to it before signing and sending it to the
applicants’ erstwhile attorneys. The pre-trial minute limits
the
ambit of the first respondent’s case by recording as a
common cause fact that the first respondent employed all of the

individual applicants. In a labour law dispute involving a mass
dismissal for strike action, this was obviously an important

concession. Although contrary to the first respondent’s reply,
the concession was consistent with the first respondent’s

affidavits supporting the second and third interdict applications,
and consistent with the first respondent’s answering
affidavit
in the condonation application, which, significantly, was delivered
after the first respondent’s reply. Furthermore,
according to
Holden, in finalising the pre-trial minute, Soldatos would probably
have taken instructions from the general managers
and sent them a
draft of the minute. If this was so, then, on the face of it, and
consistent with what had gone before, they
would appear to have
agreed (expressly or by implication) that the first respondent was
the employer of all the individual applicants.
Against this
backdrop, it was, to my mind, imperative for Soldatos to testify in
order to establish special circumstances for
the withdrawal of the
admission / concession. Given that he concluded the pre-trial
minute, he was the person required to provide
this court with a full
explanation of the circumstances under which the concession was made
and why it is sought to be withdrawn,
and to vouch for the first
respondent’s
bona fides
in
seeking to withdraw the concession made by him (these being the
first two requirements of ‘special circumstances’
set in
Rademeyer
27
).
These two requirements are interlinked and cannot be satisfied
without it first being established how the concession (sought
to be
withdrawn) was made in the first place. In the absence of Soldatos
having testified, this court has only the evidence of
Holden, which
does not address these issues to any material degree. Indeed, as
stated above, Holden testified that he could not
speak for Soldatos,
and had no personal knowledge of how the concession came to be made
by him.
Read
mutatis
mutandis
, the following extract from
Rademeyer
28
is apposite:
‘
In
my view the defendant has not come anywhere near to satisfying any of
these requirements. The defendant has failed to explain
the
circumstances under which the concession was made. No basis for the
attorney’s alleged erroneous belief has been tendered.
Nor has
the defendant dealt with the instructions the attorney was furnished
with regarding this aspect. But it does not end there:
the allegation
of a
bona
fide
mistake stands on its own and nothing further is stated allowing for
an assessment thereof. … Finally, the
bona
fides
of the attorney being under scrutiny one would have expected him to
set out the facts from which an assessment as to his
bona
fides
could be made.’
29
Turning to the
requirement of justice and fairness (being the third and final
requirement set in
Rademeyer
30
),
in the absence of the first respondent having satisfied the first
two requirements for ‘special circumstances’,
the broad
dictates of justice and fairness cannot, in themselves, serve as a
basis for allowing the amendment. In any event,
insofar as the first
respondent contends that justice / fairness dictate that the
amendment should be allowed because, as a matter
of fact, the
individual applicants at Thuthuka Packaging the CTP Gravure were
employed by the second respondent, it is by no
means clear to me
that this was established in evidence. This in circumstances where
Holden’s testimony to that effect
stands in conflict with two
affidavits deposed to by him, an affidavit disposed to by Bain, and
the concession made in the pre-trial
minute, which was apparently
approved by the general managers.
Furthermore, seen
through the lens of the approach adopted in
Driveline
Technologies
, the first respondent clearly
agreed in the pre-trial minute not to contest that it was the
employer of all the individual applicants.
That being the case, it
cannot resile from the agreement, unless it establishes a basis to
do so in the law of contract, which
it has clearly failed to do.
In all the circumstances, the application for the
amendment of the pre-trial minute is accordingly refused.
The second issue for determination: the identity of
the employer of the individual applicants engaged at Thuthuka
Packaging and
CTP Gravure
In circumstances where the first respondent’s
application to amend the pre-trial minute has been refused, it is,
as recorded
therein, a common cause fact that the first respondent
employed all of the individual applicants, including those engaged
in
Thuthuka Packaging and CTP Gravure
The third issue for determination: was the strike
protected so as to render the dismissals automatically unfair?
The strike was a primary and not a secondary strike
Section 66(1) defines a secondary strike as follows:
‘…
a
strike, or conduct in contemplation or furtherance of a strike, that
is in support of a strike by other employees against their
employer,
but does not include a strike in pursuit of a demand that has been
referred to a council if the striking employees, employed
within the
registered scope of that council, have a material interest in that
demand.’
The label that a
party attaches to a strike does not affect the true nature thereof.
If a strike is a primary strike, it does
not become a secondary
strike simply because someone calls it a secondary strike (and
vice
versa
).
31
The phrase ‘in
support of a strike by
other
employees against
their
employer’ (emphasis added) has been interpreted
to mean that secondary strikers must be employed by a different
employer
from that of the employees whom they seek to support.
Employees who strike in support of co-employees (i.e. employees of
the
same employer) are primary and not secondary strikers, even if
they are employed in different locations.
32
It was, no doubt, in realisation of this that the union
accepted that the strike by the individual applicants was a primary
and
not a secondary strike – this in circumstances where the
individual applicants were employed by the same employer as the

strikers at CTP Stationary, namely the first respondent.
Properly construed, the individual applicants were
engaged in a primary strike, in that they were striking in support
of the strikers
at CTP Stationary and in support of one of the
demands made by the CTP Stationary strikers in respect of which they
(i.e. the
individual applicants) had a direct interest, namely the
bargaining council demand.
The first alleged ground of illegality: absence of a
referral to conciliation by the individual applicants of the
bargaining council
demand / dispute
In circumstances where the individual applicants were
engaged in a primary strike and where it is common cause that no
separate
referral to conciliation was made on their behalf in
relation to the bargaining council demand / dispute, the issue under
this
head is whether such a referral was required in order for the
strike to be protected or whether the referral made in relation to

CTP Stationary suffices.
Once the statutory
requirements for a protected strike have been met by a union and a
group of its members commence with a protected
strike, the union is
entitled to call out other of its members – in other
branches,
33
divisions
34
or bargaining units
35
of the employer – to join the strike over the
same dispute without having to again comply with the requirements of
section
64 of the LRA.
36
In
Afrox
,
37
the LAC held as follows in this regard:
‘
In
my judgment once a dispute exists between an employer and a union and
the statutory requirements laid down in the Act to make
a strike a
protected strike have been complied with, the union acquires the
right to call all its members who are employed by that
employer out
on strike and its members so employed acquire the right to strike
.
Once SACWU acquired the right to call a strike against the Applicant
in respect of that dispute, its members who are employed
by the
Applicant acquired the right to strike if called upon by SACWU to
strike. Once in that situation a union is under no obligation
to call
its members out on strike at the same time and it is free to commence
the strike with a small group of members and increase
the number of
its members participating in the strike as and when it considers that
to be appropriate unless it has waived such
a right. In this case the
union started by calling out on strike its members who are employed
by the Applicant in its Pretoria
West branch. Now it has called its
members in the other branches out on strike.
The new Act does not require
that before a member of a union can go on a protected strike, they
should have been the ones who referred
the issue in dispute to a
council or to the Commission for Conciliation, Mediation and
Arbitration. What is required is that the
issue in dispute is that
which is the subject-matter of their strike should have been referred
to conciliation and the other statutory
requirements should have been
met.’
38
(Emphasis added.)
This
dictum
(or part of it) has been repeatedly quoted with
approval by the LAC in a line of judgments dealing with comparative
situations,
which I refer to herein as the ‘
Afrox
line of judgments’.
39
During the course
of argument, I raised with Mr Cassim that, on the face of it, what
occurred in this matter is precisely what
occurred in
Afrox
40
–
the union first called out one division and
later on called out others. Mr Cassim’s response boiled down
to the submission
that the difference was that, in the present case,
the union deliberately elected to refer a dispute not against the
first respondent,
but rather against CTP Stationary specifically and
that it was bound by that election – and could thus not roll
out the
strike further without complying again with section 64. As
Mr Cassim put it, in circumstances where CTP Stationary had been
targeted,
the first respondent (as a whole overall) had not been put
on guard about the prospect of the strike spreading to other
divisions.
Along similar lines, Mr Cassim’s heads of argument
records the submission that it is apparent from the settlement
agreement
concluded on 8 June 2009 that only CTP Stationary was
party to the primary dispute. (It is, however, noteworthy that the
‘company’
is defined in that agreement as ‘CTP
Stationary, a division of CTP Limited’.) Allied to the
aforegoing, Mr Cassim
also submitted that, for the purposes of
section 64, the employer was actually CTP Stationary.
In response, Mr
van der Riet submitted,
inter alia
,
that the fact that the employer’s trading name was used in the
referral for conciliation did not mean that the actual
employer was
not involved in the referral. In support of this, Mr van der Riet
submitted, with reference to
Mathoe &
another v BS Auto Service (Pty) Ltd t/a Kwaggasrand Motors
,
41
that it is trite law that the owner of a business
trading under a trading name is the actual employer.
42
That, in the case
of a strike, section 64 contemplates a referral by employees of a
dispute involving their employer to conciliation
is clear.
43
To my mind, in the referral in this matter, what the
union sought to do was to refer a dispute against the employer of
its members
at CTP Stationary to conciliation. That the union
described ‘the other party’ to the dispute as being CTP
Stationary
did not serve to make it the employer. It is clear from
the documents, and it was confirmed in evidence, that the
‘proprietor’
of CTP Stationary is the first respondent.
In the circumstances, it is the employer.
Consistent with this, in the second application for an
interdict, Holden stated as follows in para 6.2 of the founding
affidavit
regarding the dispute that was ultimately referred by the
union to the statutory council:
‘
A
dispute was subsequently declared between the second respondent [i.e.
the employees] and
the
applicant
[i.e. CTP Ltd, the first respondent herein] in consequence of which
the dispute was referred to the statutory council …
.’
(Emphasis added.)
In these
circumstances, I am of the view that the referral was in substance
against the first respondent and that, in line with
Afrox,
44
the union was entitled to call out its members at other
divisions without having to separately refer a dispute on their
behalf
to conciliation. Seen thus, the answer to Mr Cassim’s
contention that the first respondent (as a whole) was not put on

guard that a strike could spread to other divisions is that –
on a proper application of the law – it was put on guard,
but
failed to recognise this. (As the analysis undertaken above reveals,
all four of the disciplinary chairpersons failed to
consider the
Afrox
line of
judgments.)
I am fortified in
my conclusion by the recent judgment of the Constitutional Court in
SATAWU
,
45
which was handed down after argument was heard in this
matter. The issue at stake in that matter was whether, in terms of
section
64(1)(b), a strike notice by the majority union covered all
employees or whether non-unionized employees had to give notice
separately
in order for a strike by them to be protected. The
majority of the court found that notice by the majority union was
sufficient.
There are two passages from the majority judgment which
are of particular relevance for present purposes. The first passage
is
this:
‘
The
point of departure in interpreting section 64(1)(a) is that we should
not restrict the right to strike more than is expressly
required by
the language of the provision, unless the purposes of the Act and the
section on “a proper interpretation of
the statute …
imports them” [footnotes omitted]. The relevance of a
restrictive approach is to raise a cautionary
flag against
restricting the right more than is expressly provided for. Intrusion
into the right should only be as much as is necessary
to achieve the
purpose of the provision and this requires sensitivity to the
constraints of the language used.’
46
This is important because the
Afrox
line of
judgments is based on precisely this principle.
The second passage is this:
‘
The
regulatory scheme of the Act and the provisions of section 64
envisage only one strike in respect of one “issue in dispute”

or “dispute”. The definite article, “the”,
before the words “issue in dispute” and “dispute”

in section 64(1)(a) and before the second use of the word “strike”
in section 64(1)(b) makes this plain. “[T]he
strike” in
section 64(1)(b) can only be in relation to “the [unresolved]
dispute” of section 64(1)(a). And if
there can only be one
strike in relation to one dispute, there seems to be little in
language or logic to suggest that more than
one notice in relation to
the single strike is necessary.’
47
By parity of reasoning, if there can only be one strike
in relation to one dispute, then to require multiple referrals by
groups
of employees engaged in different divisions in respect of the
same strike is equally incongruous (and is also not supported by
the
language of section 64(1)(a)).
The second alleged ground of illegality: the failure
to obtain an advisory award
A ‘refusal to bargain’ is defined in
section 64(2) as including a refusal to agree to establish a
bargaining council.
The bargaining council demand herein thus
qualified as a refusal to bargain, with the result that, in terms of
the aforesaid
section, the issuing of an advisory arbitration award
was a procedural pre-condition to the strike being protected.
In circumstances
where it is common cause that an advisory arbitration award was not
obtained, it follows that the strike by the
individual applicants
was unprotected as a consequence.
48
Although it was argued by Mr Cassim that this served to
taint the entire strike, it seems to me that, properly construed,
the
strike was protected insofar as the individual applicants
engaged therein in sympathy with the wage and 13
th
cheque demands made by the CTP Stationary strikers, but
was unprotected in relation to the bargaining council demand. Put
differently,
if the first respondent had sought to interdict the
strike by the individual applicants, it would not have succeeded
overall,
and, at best, would have secured an order that the
individual applicants were not entitled to persist with the strike
over the
bargaining council demand.
49
Although I return to this in the context of the
determination of the fairness of the sanction of dismissal, for
present purposes
it warrants mention that the strike at CTP
Stationary (which was always considered protected and which was
resolved by agreement
without resort to dismissal) was also
unprotected on this basis. The fact that the employees at CTP
Stationary escaped dismissal,
while the individual applicants were
dismissed, gave rise to the union’s inconsistency challenge
addressed below.
The third alleged ground of illegality: no referral of dispute
against the second respondent by employees engaged at CTP Gravure
and
Thuthuka Packaging
Given my finding on the second issue for determination
(see above), there is no merit in this alleged ground of illegality.
The fourth alleged ground of illegality: insofar as
the strike at CTP Packaging was a secondary strike, it was
unprotected because
CTP Packaging got short notice of the strike
While I accept the testimony of Backhouse that he only
received the secondary strike notice (dated 5 May 2009) on behalf of
CTP
Packaging on 12 May 2009 and thus only received one day’s
notice of the secondary strike, given that I have found that the

strike at CTP Packaging was a primary and not a secondary strike,
there is also no merit in this alleged ground of illegality.
Once it is
accepted that the strike by the individual applicants was a primary
strike, there was, in law, no need for the union
to give the first
respondent notice of the fact that the individual applicants were
joining the strike over and above the notice
given on 17 April 2009
in relation to CTP Stationary.
50
Conclusion and summary under this head
In conclusion and summary under this head, I find that
the strike by the individual applicants was unprotected on account
only
of their failure to obtain an advisory arbitration award in
terms of section 64(2). It follows from this that the dismissal of

the individual applicants was not automatically unfair in terms of
section 187(1)(a).
The fourth issue for determination: was the sanction
of dismissal substantively fair?
Relevant legal principles
The onus of
proving that the sanction of dismissal was fair rest, of course, on
the first respondent.
51
As a point of
departure, it is convenient to quote
section
68(5):
‘
Participation
in a strike that does not comply with the provisions of this Chapter,
or conduct in contemplation or in furtherance
of that strike,
may
constitute
a fair reason for dismissal. In determining whether or not the
dismissal is fair, the Code of Good Practice: Dismissal
in Schedule 8
must be taken into account.’ (Emphasis added.)
Item 6(1) of the Code of Good Practice: Dismissal (‘the
Code’) provides, in turn, as follows:
‘
Participation
in a strike that does not comply with the provisions of Chapter VI 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
–
the seriousness of the
contravention of this Act;
attempts made to comply with
this Act; and
whether or
not the strike was in response to unjustified conduct by the
employer.’ (Emphasis added.)
In addition to this, the general provisions of item
3(4), (5) and (6) of the Code are applicable. Item 3(4) provides
that ‘generally,
it is not appropriate to dismiss an employee
for a first offence, except if the misconduct is serious and of such
gravity that
it makes a continued employment relationship
intolerable’. Item 3(5) provides, in turn, that ‘when
deciding whether
or not to impose the penalty of dismissal, the
employer should in addition to the gravity of the misconduct
consider factors
such as the employee’s circumstances
(including length of service, previous disciplinary record and
personal circumstances),
the nature of the job and the circumstances
of the infringement itself’. And item 3(6) provides that ‘the
employer
should apply the penalty of dismissal consistently with the
way in which it has been applied to the same or other employees in

the past, and consistently as between two or more employees who
participate in the misconduct under consideration’.
Determining
whether dismissal was an appropriate sanction thus involves three
enquiries: an enquiry into the gravity of the contravention
of the
disciplinary rule; an enquiry into the consistency of application of
the disciplinary rule and sanction; and an enquiry
into factors that
may justify a different sanction (commonly referred to as factors in
mitigation and aggravation).
52
Recently,
in
NUM obo
Employees v CCMA
53
(
NUM
obo Employees
),
the LAC affirmed the position that participation in an unprotected
strike does not necessarily warrant dismissal:
‘
However,
the unprotected nature of this strike is not a license to dismiss
without a careful consideration of the surrounding circumstances.
In
determining whether those workers who participated in an unprotected
strike should be dismissed, a number of considerations
must be part
of the decision. Item 6(1) of the Code of Good Practice provides as
follows: … [see above].
This
provision of the Code affirms earlier law where the illegality of the
strike did not automatically result in the dismissal
of unprotected
strikers.’
54
Along the same
lines, a few years earlier, in
Hendor Steel
Supplies (a division of Argent Steel Group (Pty) Ltd formerly named
Marschalk Beleggings (Pty) Ltd) v National Union
of Metalworkers of
SA and Others
55
(
Hendor
),
the LAC held as follows:
‘
Mr
Redding correctly conceded that an unprotected strike did not
automatically justify dismissal as the only appropriate sanction.

Dismissal is manifestly the sanction of the last resort. [Authority
omitted.] Hence there is a need to examine the arguments of
both
parties as to the manner and conduct of the strike to test whether
dismissal was proportional to the misconduct.’
56
In
Sidumo
and Another v Rustenburg Platinum Mines Ltd and Others
57
(
Sidumo
),
the Constitutional Court determined how a commissioner (and this
would apply equally to this court) should go about determining

whether the sanction of dismissal is fair. In the majority judgment,
the court held as follows:
‘
In
approaching the dismissal dispute impartially a commissioner will
take into account the totality of circumstances. He or she
will
necessarily take into account the importance of the rule that had
been breached. The commissioner must of course consider
the reason
the employer imposed the sanction of dismissal, as he or she must
take into account the basis of the employee’s
challenge to the
dismissal. There are other factors that will require consideration.
For example, the harm caused by the employee’s
conduct, whether
additional training and instruction may result in the employee not
repeating the misconduct, the effect of dismissal
on the employee and
his or her long-service record.
To sum up. In
terms of the LRA, a commissioner has to determine whether a dismissal
is fair or not. A commissioner is not given
the power to consider
afresh what he or she would do, but simply to decide whether what the
employer did was fair. In arriving
at a decision, a commissioner is
not required to defer to the decision of the employer. What is
required is that he or she must
consider all relevant
circumstances.’
58
Along similar lines, Ngcobo J held (in a separate
concurring judgment in
Sidumo
) that the determination of the
fairness of a dismissal involves a value judgment, which stands to
be undertaken in this manner
–
‘…
fairness
requires that regard must be had to the interests both of the workers
and those of the employer. And this is crucial in
achieving a
balanced and equitable assessment of the fairness of the sanction.’
59
How the balancing
requirement is to be applied in practice was the subject of the
judgment of Tip AJ in
Theewaterskloof
Municipality v SALGBC (Western Cape Division) and Others
:
60
‘
Various
components must be placed in the scales: an objective analysis of the
particular facts of the case; adequate regard to the
applicable
statutory and policy framework; and adequate regard to the pertinent
jurisprudence as developed by the courts. Only
then can a value
judgment, properly so called as a comparative balancing of competing
factors, be made by the commissioner, producing
as an end result an
impartial answer to the central question whether or not the dismissal
was fair.’
61
In his article,
Dismissal for misconduct – Ghosts of
justice past, present and future
,
62
Van Niekerk J puts things as follows:
‘
At
the centre of the enquiry therefore is a need to balance the
employer’s interests (as expressed by the reasons for
dismissal)
with the employee’s interests (as expressed by the
basis of the challenge to the fairness of dismissal). Implicit in the
enquiry is the assumption that both the employer and employee are the
beneficiaries of the constitutional right to fair labour practices,

and that the enquiry commences with the scales evenly balanced. It is
for the commissioner, having regard to the relevant circumstances
and
after weighing all of the relevant factors, to determine where the
balance finally falls.’
63
Given that the
union relied on the contention that the individual applicants
laboured under the misapprehension that their strike
was protected
(see below), there are two findings of the LAC which warrant
mention. The first is this passage from
Coin
Security Group (Pty) Ltd v Adams and Others
64
(
Coin Security
):
‘
It
was argued by Mr Trengove for the respondents that they
bona
fide
but mistakenly believed their strike to be protected. Whilst a
bona
fide
,
and reasonable, yet mistaken, belief by strikers in the legality of
their strike action may have a bearing on the fairness of
any
subsequent dismissals (especially if the illegality is technical)
that is not the case in circumstances where strikers have
been warned
that their belief is mistaken. In those circumstances the strikers,
as the collective entity that they are when they
undertake concerted
action, must bear the risk that their union is wrong and their
employer is right. In the present case, the
union and the respondents
were warned on a number of occasions that, since they had the right
to refer the underlying dispute to
arbitration, their strike would be
and was unprotected.’
65
The second and
contrasting finding is this in
NUM obo
Employees
,
66
in which the LAC considered the strikers’
misapprehension to be strongly mitigating:
‘
Assuming
in favour of appellants on both of these questions [i.e. that the
strike was unprotected], it remains clear that second
and further
respondents genuinely believed the strike to be protected. The
managing director of the appellant, Mr Daniel, conceded
as much as is
evident from the following passage of evidence when Daniel was under
cross-examination: “And you understood
that it was their belief
that they were going on a protected strike - Absolutely. I knew that
they believed that it was protected,
but that was not my view.”’
67
A further issue
that requires mention is that, in order for the employer to satisfy
the onus of proof that the sanction of dismissal
was fair, it is
encumbent on it to lead evidence to establish a breakdown in the
trust relationship. As the SCA put it in
Edcon
Ltd v Pillemer NO and Others
68
(
Edcon
):
‘
In
my view, Pillemer’s finding that Edcon had led no evidence
showing the alleged breakdown in the trust relationship is beyond

reproach. In the absence of evidence showing the damage, Edcon
asserts in its trust relationship with Reddy, the decision to dismiss

her was correctly found to be unfair.’
69
Turning to the law
on inconsistency, reference should be made to this often quoted
passage from
SACCAWU and Others v Irvin &
Johnson Ltd
70
(
Irvin & Johnson
):
‘
Discipline
must not be capricious. It is really the perception of bias inherent
in selective discipline which makes it unfair. Where,
however, one is
faced with a large number of offending employees, the best that one
can hope for is reasonable consistency. Some
inconsistency is the
price to be paid for flexibility, which requires the exercise of a
discretion in each individual case. If
a chairperson conscientiously
and honestly, but incorrectly, exercises his or her discretion in a
particular case in a particular
way, it would not mean that there was
unfairness towards the other employees. It would mean no more than
that his or her assessment
of the gravity of the disciplinary offence
was wrong. It cannot be fair that other employees profit from that
kind of wrong decision.
In a case of a plurality of dismissals, a
wrong decision can only be unfair if it is capricious, or induced by
improper motives
or, worse, by a discriminating management policy
[authorities omitted].’
71
Recently, in
CEPPWAWU,
72
the LAC confirmed that an employer does not act
inconsistently where it only disciplines employees who it knows to
have misconducted
themselves, and takes no action in relation to
employees against whom it has no evidence.
73
With reference to
Irvin &
Johnson
,
74
the court went on to find as follows:
‘…
where
a number of employees are dismissed consequent upon a collective
wrongful conduct, a wrong decision by the employer resulting
in an
acquittal of an employee who did commit the wrong can only be unfair
if it is a result of some discriminatory management
policy.’
75
The parties’ main contentions
In argument, Mr Cassim advanced six main points in
support of the contention that the sanction of dismissal was fair,
namely that:
firstly, the individual applicants embarked on a power
play and pursued a strike in an interest dispute, with the employer
being
entitled to adopt remedial measures to protect its own
legitimate interest;
secondly, the individual applicants spurned the
opportunity to attend a disciplinary enquiry and advance reasons why
they should
not be dismissed and cannot now seek to address the
court on matters which they had the opportunity to present prior to
the decision
by the employer to dismiss them;
thirdly, the strike action was marred by violence, with
the effect of the final order granted by this court in the interdict
applications
being to confirm that the individual applicants
participated in unlawful conduct;
fourthly, the
individual applicants were assisted by the union, which was called
upon to intervene but failed to do so, and had
thus to bear the
consequences of the union’s approach in the matter along the
lines of
Coin Security Group
;
76
and
fifthly, the union failed to pursue the matter
timeously – this in circumstances where the union’s
statement of claim
was delivered five months late, by which time,
according to Backhouse, permanent replacements had been employed at
CTP Packaging
(it having waited out the 90 days provided for in
section 191(11)(a) before doing so); and
sixthly, the strike had a negative impact on
production.
Mr van der Riet, in turn, relied on three main submissions in
support of the contention that the sanction of dismissal was unfair:
firstly, in circumstances where the CTP strikers were not dismissed,
the dismissal of the individual applicants at the four divisions

amounted to selective dismissal without there being any basis for
differentiating between the two groups of employees;
secondly, the employer accepted that the union advised their members
that the strike by the individual applicants was protected;
and
thirdly, the employer had made out no case why it was necessary to
dismiss the strikers at the stage that it did. The individual

applicants were dismissed simply because the employer thought that
the so called secondary strike was unprotected, with the dismissal

being disproportionate to the strikers’ misconduct. .
In relation to the issue of inconsistency, Mr Cassim submitted in
response, with reference to
Irvin & Johnson
77
and
CEPPWAWU
,
78
that there are two reasons why the failure to
dismiss the strikers at CTP Stationary was not unfair
vis-à-vis
the individual applicants:
firstly, the union and CTP Stationary laboured
under a
bona fide
misunderstanding that the strike was protected –
it being submitted that, in the absence of a discriminating
management
policy having been established, there can be no
inconsistency in circumstances where one group of employees is not
dismissed
for a reason that may be wrong, but is
bona
fide
; and
secondly, the settlement agreement reached at CTP
Stationary compromised the employer’s right to take
disciplinary action
against the strikers for striking
per
se
–
it being submitted that the
fact that a dispute was settled with some cannot give rise to an
argument of inconsistency by others.
Evaluation and findings
As set out above, on the prevailing authorities, this court is
required to consider the totality of circumstances and balance
the
parties’ interests in the process of exercising a value
judgment on whether the sanction of dismissal was fair.
A convenient point of departure is a
consideration of the factors mentioned in item 6(1) of the Code,
which serve as a basis to
establish the gravity of the strikers’
misconduct – this being the first enquiry that should be
undertaken. Although
the strike herein was not in response to any
unjustified conduct by the first respondent, it is clear that the
contravention
of the LRA by the individual applicants was on the
lower end of the continuum of seriousness and that substantial
attempts were
made to comply with the LRA. This is so for three main
reasons: firstly, the contravention (i.e. the failure to obtain an
advisory
arbitration award) was of a procedural nature only, with
the strike not being hit by any of the substantive limitations in
section
65; secondly, there was a high degree of compliance with the
provisions of section 64, in the form of a referral to conciliation,

an attempt at conciliation, and the giving of 48 hours’ notice
of the strike;
79
and, thirdly, the failure to obtain an advisory
arbitration award related to only one of the strike demands, with
the strike being
otherwise protected. The aforesaid considerations
operate so as to establish that the misconduct of the individual
applicants
was not particularly serious. (Judged in its overall
context, it may well be described as a technical contravention of
the LRA.)
On the facts analysed above, the individual
applicants were dismissed for having engaged in an unprotected
secondary strike –
a dismissal which the first respondent now
seeks to defend
80
on the basis that the individual applicants were
actually engaged in a primary strike, which was unprotected (in
part) for a reason
that did not emerge until ten months after their
dismissal (i.e. that an advisory arbitration award was not
obtained). Assuming
in favour of the first respondent that it is
permissible for it to do so in the context of this being a hearing
de novo
,
81
what cannot be lost from sight is the real
possibility that – if the correct legal position had been
known at the time –
the individual applicants may not have
been dismissed at all, particularly in the absence of the strikers
at CTP Stationary being
dismissed.
Significantly in this regard, neither Holden nor
Backhouse suggested in evidence that dismissal would have followed
on the correct
assessment of the legal position. This is not
surprising as it would, of course, have been exceedingly difficult
for them to
defend the individual applicants’ dismissal in
evidence on the basis of something which was not thought of at the
time
of dismissal. Allied to this, neither Holden nor Backhouse led
any material evidence to establish a breakdown in the trust
relationship
as a consequence of the individual applicants’
misconduct, as required by
Edcon
.
82
Having assessed the gravity of the individual
applicants’ misconduct, the next
enquiry is into the
consistency of application of the disciplinary rule (prohibiting
unprotected strike action) and sanction.
Taken
together
Irvin & Johnson
83
and
CEPPWAWU
84
establish that an employer will not be guilty of
contemporaneous inconsistency where the decision not to dismiss some
employees
(while dismissing others) was an aberration (and should
thus not be held against it) or was caused by the fact that the
employer
was unaware that they had misconducted themselves or was
otherwise unable to prove that they had done so – provided, in
both instances, that the employer acts
bona
fide
and does not consciously
advantage the one group over the other.
From an inconsistency point of view, the present
matter is unusual because at the time of the strike, the first
respondent was
legitimately unaware that the strike by
either
group of employees (i.e. the CTP Stationary
strikers and the individual applicants) was unprotected on account
of a failure to
obtain an advisory arbitration award. The moment
critique (which sets this case apart from typical inconsistency
challenges and
defences) is when the first respondent elected in its
pleadings and before this court to raise this ground of illegality –

a ground which it then came to realise rendered the CTP Stationary
strikers and the individual applicants guilty of precisely
the same
misconduct. In taking the point and seeking to uphold the dismissal
of the individual applicants on the basis thereof,
while taking no
action against the CTP Stationary strikers,
85
the first respondent consciously elected to hold
its historical misapplication of the law against the individual
applicants, but
not against the CTP Stationary strikers.
In my view,
Irvin & Johnson
86
and
CEPPWAWU
87
do not assist the first respondent, not only
because this case actually does not fall into either of the
exceptions set therein,
but also because it is hard to conceive of
the first respondent being
bona fide
in circumstances where the parity principle cried
out for the first respondent to either not take the point or not
rely on it
in seeking to uphold the sanction of dismissal imposed on
the individual applicants, when the CTP Stationary strikers got away

scot free. This is particular so given that the CTP Stationary
strikers were on an unprotected strike for six weeks (23 April
to 5
June 2009) in comparison to the individual applicants whose strike
endured for between one and 12 days. I accordingly find
that the
dismissal of the individual applicants was inconsistent
vis-à-vis
the CTP Stationary strikers.
The last of the three enquiries into the fairness of the sanction of
dismissal involves
a consideration of aggravating
and mitigating factors. Although they do not necessarily all fit
under the heading of aggravating
factors, it is convenient to here
deal with the six main submissions made by Mr Cassim in advancing
the first respondent’s
case that the sanction of dismissal was
fair. I deal with the points in the order in which they were raised
and using the same
numbering.
I accept the first point as a matter of principle. But this, of
course, did not absolve the first respondent of its duty to act

fairly in dismissing the individual applicants.
I do not agree that because the individual
applicants did not attend their disciplinary enquiries they are now,
in effect, barred
from contesting the fairness of the sanction of
dismissal. It is trite that this is a hearing
de
novo
and that this court must itself
decide on the fairness of the sanction of dismissal on the basis of
the evidence before it.
While I accept that the strike was marred by violence and that a
final order was obtained against the individual applicants in
the
interdict applications, this cannot, in my view, be elevated to the
contention that each one of the individual applicants
necessarily
participated in the violence, such as to aggravate their misconduct.
Indeed, a perusal of the second and third interdict
applications
does not reflect that the first respondent established this at all.
It also warrants mention that, despite having
obtained a final order
against the CTP Stationary strikers, they were not all dismissed on
account of having misconducted themselves
during the strike.
Instead, they were all allowed to return to work following the
resolution of the strike, with the first respondent
then having
brought charges of misconduct against and dismissed those of them
who it could identify as having misconducted themselves.
I do not consider the passage from
Coin
Security
88
quoted above as a basis to sustain the fairness
of the sanction of dismissal in the circumstances of this matter for
the following
reasons: no warning was issued to the individual
applicants engaged within CTP Packaging and Thuthuka Packaging
before they were
called to a disciplinary enquiry and dismissed; the
warning / ultimatum issued at CTP Web and CTP Gravure was based on
the strike
being unprotected on an erroneous basis; and, allied to
the aforegoing, the individual applicants were never warned that
their
strike was unprotected (in part) only on account of an
advisory arbitration award not having been obtained – this
because
(different to
Coin Security
89
)
the first respondent did not know this at the time.
I do not consider the fifth submission as being relevant to the
fairness of the sanction of dismissal – it rather being

relevant to the issue of relief (see below).
While I do accept that the strike caused a loss of production and
that this is potentially aggravating, the submission takes
no
account of the fact that the strike by the individual applicants was
in part protected, with the result that such loss was
not
necessarily caused unlawfully.
In short, in my view, the first respondent’s main submissions
on sanction do not serve to establish any factor that substantially

aggravates the gravity of the individual applicants’
misconduct.
Turning now to the issue of mitigating factors,
there are two of some significance. The first is that there was no
evidence presented
of the individual applicants having any previous
disciplinary record in relation to unprotected strike action. The
second is
that, as submitted by Mr van der Riet, it is clear that
the union was of the view that the strike was protected, and that
this
would have been conveyed to the individual applicants.
Reference is made in this regard to
NUM
obo Employees.
90
Although neither party contended for a different outcome in relation
to the different divisions or placed any particular reliance
on the
duration of the strike and the handling thereof, the following
warrants repetition: the strike at CTP Packaging endured
for one day
and the strikers were dismissed without an ultimatum; the strike at
Thuthuka Packaging endured for eight days and
the strikers were
dismissed without an ultimatum; the strike at CTP Web endured for
seven days and the strikers were issued with
a one-day ultimatum;
and the strike at CTP Gravure endured for 12 days and the strikers
were issued with a two-day ultimatum
/ final warning. While it is so
that the misconduct of the strikers at CTP Gravure is capable of
being construed as more serious
than that of the strikers at CTP
Packaging (the dismissal of whom borders on the alarming), this does
not detract from the overall
analysis undertaken above. (It warrants
repetition that the unprotected strike at CTP Stationary endured for
six weeks.)
To sum up, the three enquiries applicable to the
determination of sanction reveal that: individual applicants were
not guilty
of particularly serious misconduct (such as may typically
warrant dismissal for a first offence); their dismissal was
inconsistent
vis-à-vis
the CTP Stationary strikers (whose misconduct was
more serious than theirs); and there exist no material factors in
aggravation
warranting the sanction of dismissal for a first
offence, while there are, at the same time, significant mitigating
factors in
favour of the individual applicants.
When the first respondent’s interests (as
expressed by the reason and motivation for the dismissal) are
balanced up against
the individual applicants’ interests (as
expressed by the basis for the challenge to the fairness of the
dismissal),
91
this is clearly a case where the balance finally
falls in favour of the individual applicants. To borrow from the
words of the
LAC in
Hendor
:
92
‘
In
summary, the use of the most extreme sanction, dismissal in this case
was manifestly disproportionate to the “misconduct”
of
the second and further respondents, for the reasons that have been
outlined.’
93
In the result, the dismissal of the individual applicants is held to
have been substantively unfair.
I should add that even if I am wrong in finding that the strike by
the individual applicants was only unprotected on account
of an
advisory arbitration award not having been obtained, I would
nevertheless not have upheld the fairness of the sanction
of
dismissal in the present matter.
The fifth issue for determination: was the dismissal of the
individual applicants procedurally fair?
In argument, Mr van der Riet contended that the dismissal of the
individual applicants was procedurally unfair for two reasons:

firstly, because there was no reason for not allowing the union
delegation who arrived at the first disciplinary enquiry at CTP

Packaging to attend the enquiry; and, secondly, because the union’s
request for the disciplinary enquiries to be suspended
‘until
the legal strike was resolved’ should have been acceded to.
I am not persuaded by either of these grounds of
compliant. Backhouse explained why he did not consider it
appropriate to have
a wider union delegation at the disciplinary
enquiry at CTP, which explanation is accepted. It was also in
keeping with the prevailing
authorities
94
for the first respondent to seek to conduct a
disciplinary enquiry during the course of the strike before
resorting to dismissal,
and it was under no obligation to suspend
same pending the resolution of the ‘legal strike’, when
the legality of
the strike was the very subject of the disciplinary
enquiry.
In the result, the dismissal of the individual applicants is held to
have been substantively unfair.
The sixth issue for determination: appropriate relief
In circumstances where the dismissal of the individual applicants
has been held to have been substantively unfair, they must
be
reinstated or re-employed unless any of the applicable exceptions
listed in section 193(2) apply.
In seeking to ward off reinstatement (either on the basis that a
continued relationship would be intolerable or that reinstatement

would not be reasonably practicable), the first respondent relied on
the following:
the violence that occurred during the course of the strike;
the fact that permanent replacements were hired at CTP Packaging
after the elapse of the 90-day period provided for in section

191(11)(a); and
the elapse of time since the dismissal of some 3 ½ years, and
the fact that the union was to blame for some of the delay.
To my mind, none of these factors is a sufficient
basis to deprive the individual applicants of the primary statutory
remedy in
unfair dismissal disputes of reinstatement.
95
The issue of the strike violence and the manner
in which the first respondent would be at liberty to deal with it
has been dealt
with above. The fact that permanent replacements have
been employed does not
per se
render the reinstatement of the individual
applicants not reasonably practicable,
96
and the same applies to the elapse of time of 3 ½
years since the dismissal of the individual applicants. On both of
these
scores, the first respondent led no evidence to establish any
impracticability.
97
In
Republican Press
(Pty) Ltd v CEPPWAWU & Gumede and Others,
98
the SCA held as follows:
‘
In the
present case, the passage of six years from the time the workers were
dismissed, all of which followed consequentially upon
the failure of
the union to pursue the claim expeditiously, was sufficient in itself
to find that it was not reasonably practicable
to reinstate or
re-employ the workers.’
99
In the present matter, the delay was
significantly less than six years,
100
and the union can by no means be blamed for any
material portion of the delay beyond the initial five-month delay in
the delivery
of its statement of claim.
In all the circumstances, an order of reinstatement is appropriate.
Turning now to the issue of back-pay, the court
has the discretion to determine the extent thereof (or put
differently, the extent
of the retrospective effect of an order of
reinstatement).
101
As held in
Equity
Aviation
(CC),
102
in the exercise of its discretion -
‘…
a
court or an arbitrator may address, among other things, the period
between the dismissal and the trial as well as the fact that
the
dismissed employee was without income during the period of dismissal,
ensuring, however, that an employer is not unjustly financially

burdened if retrospective reinstatement is ordered or awarded.’
103
Recently, in
Mediterranean
Textile Mills
,
104
the LAC overturned on appeal a judgment of this
court in which dismissed strikers had been reinstated with full
back-pay of 27
months’ salary, and reduced the back-pay to 12
months’ salary. It did so not on account of any delays in the
determination
of the matter, but rather on account of the fact that
this court (according to the LAC) had not taken into account the
company’s
precarious financial position and did not take
cognisance of the employees’ conduct which deserved some form
of censure
as a mark of the court’s disapproval thereof.
105
Another judgment of the LAC in point is
Seardel
Group Trading (Pty) Ltd t/a Cape Underwear Manufacturers v SACTWU
and Others
,
106
in which the LAC reduced this court’s award
of back-pay to dismissed strikers reinstated by it from 12 months’
salary
to three months’ salary. It did so on account of the
fact that the employees had been on a final warning at the time of
the strike and on account of the employer’s precarious
financial position.
In the present matter, however, the first
respondent did not lead any evidence of financial distress. This
then leaves three main
factors militating against a full award of
back-pay: firstly, the initial delay of five months in the delivery
of the union’s
statement of claim; secondly, the fact that a
number of the individual applicants have secured some alternative
employment since
their dismissal;
107
and, thirdly, the fact that a light form of
censure is warranted. At the same time, it must be borne in mind
that to deprive the
individual applicants of too greater extent of
back-pay would be to place them in a substantially worse position
than the strikers
at CPT Stationary who were not dismissed, despite
also having engaged in an unprotected strike.
In all the circumstances, it would, to my mind, be just and
equitable to reinstate the individual applicants with effect from
1
June 2010 (effectively a year after their dismissal) and to provide
that any monies earned by them since their dismissal should
be
deducted from the back-pay due to them.
The individual applicants
Before turning to the order that I intend to make, it is necessary
to identify the individual applicants.
Although there are 212 individual applicants cited in the heading to
this matter, there are actually 222 individual applicants
–
they being the 212 listed in annexure ‘A’ to the
statement of claim and the 10 listed in exhibit ‘G4’.
Of the 222 individual applicants, five of them are deceased –
they being listed in exhibit ‘H’.
Order
In the premises, the following order is made:
the dismissal of the individual applicants is declared procedurally
fair, but substantively unfair;
the first respondent shall pay to the first applicant 12 months’
remuneration in respect of each of the deceased individual

applicants;
the first respondent shall reinstate the balance of the individual
applicants with effect from 1 June 2010 without any loss of

benefits;
any amounts earned by the balance of the individual applicants since
their dismissal in May 2009 shall be deducted from the back-pay
due
to them;
the balance of the individual applicants shall report for duty on
9 January 2013;
the first respondent shall pay the costs of the action.
________________________
A.T. Myburgh
Acting Judge of the Labour Court
APPEARANCES:
FOR THE APPLICANTS: JG van der Riet SC on the instruction of Cheadle
Thompson & Haysom
FOR THE RESPONDENTS: NA Cassim SC and F Boda on the instruction of
Fluxmans Inc
1
Labour
Relations Act 66 of 1995
. All references to sections herein are to
the LRA.
2
As
opposed to just those documents referred to in oral evidence.
3
This
being in compliance with the seven-day notice period provided for in
section 66(2)(b).
4
It
is difficult to understand how the first respondent could have
obtained an interdict in the Labour Court against the individual

applicants engaged by CTP Packaging on 20 May 2009, as they had been
dismissed by then (see below).
5
As
Backhouse explained in evidence, in circumstances where CTP
Packaging was run separately, he was only prepared to allow shop

stewards and employees of CTP Packaging to attend the disciplinary
enquiry. This resulted in the union deciding not to participate
in
the enquiry.
6
On
the face of it, the finding made at CTP Packaging formed the basis
of how the strike at the other divisions was thereupon dealt
with.
7
Although
unclear, it appears that the notification was probably in the same
form as used at CTP Gravure.
8
Although
unclear, it appears that the notification and preceding letter to
the union was probably in the same form as used at
CTP Gravure.
9
The
second respondent was only joined during the course of the trial.
10
Referred
to herein as CTP Web.
11
This
being the first time that the second respondent became party to the
proceedings.
12
2010
(4) SA 122
(SCA).
13
At
para 6.
14
Shoredits
Construction (Pty) Ltd v Pienaar NO & others
[1995] 4 BLLR
32
(LAC) at 34E-F.
15
[1997] ZASCA 110
;
1998
(1) SA 606
(SCA).
16
At
614B-D. Cited with approval in
Kruizenga
at para 6.
17
Fn
15 above.
18
[2007] ZALC 66
;
[2000]
1 BLLR 20
(LAC).
19
At
para 91.
20
See
also
Driveline Technologies
at
paras 16-17.
21
[2008]
JOL 21787
(W);
[2008] ZAGPHC 141.
22
At
para 6.
23
Fn
21 above.
24
Fn
18 above.
25
Fn
12 above.
26
In
the second application for a interdict and in the answering
affidavit in the condonation application.
27
Fn
21 above.
28
Fn
21 above.
29
At
para 6.
30
Fn
21 above.
31
Afrox
Ltd v SACWU & others
[1997] 4 BLLR
375
(LC) at 379D-E (
Afrox
);
SACTWU v Free State & Northern Cape
Manufacturers’ Association
[2002]
1 BLLR 27
(LAC) (
Free State &
Northern Cape Manufacturers’ Association
)
at para 22.
32
Free
State & Northern Cape Manufacturers’ Association
at
paras 17-18.
33
Afrox
at 379H-380C.
34
Early
Bird Farm (Pty) Ltd v FAWU & others
[2004] 7 BLLR 628
(LAC)
(
Early Bird Farm
) at para 48.
35
CWIU
v Plascon Decorative (Inland) (Pty) Ltd
[1998] 12 BLLR 1191
(LAC) (
Plascon Decorative
) at para 29.
36
See
also
Equity Aviation Services (Pty) Ltd
v SATAWU & others
[2009] 10 BLLR
933
(LAC) (
Equity Aviation
(LAC)) at paras 13, 27-29, 161-163 and 188.
37
Fn
31 above.
38
At
379H - 380C.
39
Free
State & Northern Cape Manufacturers’ Association
at
para 23;
Plascon Decorative
at para
29;
Early Bird Farm
at
para 42;
Equity Aviation
(LAC)
at para 28.
Plascon Decorative
was
cited with approval by the Constitutional Court in
SA
Transport & Allied Workers Union & others v Moloto NO &
another
(2012) 33 ILJ 2549 (CC) (
SATAWU
) at paras 56, 69
and 76.
40
Fn
31 above.
41
(1992)
13 ILJ 976 (LAC).
42
At
977I - 978B.
43
Although
para 2 of LRA Form 7.11 provides for the insertion of the details of
‘the other party’, the blocks that follow
require the
referring party to tick whether the other party is,
inter
alia
, an ‘employer’.
Consistent with this,
section 64
is replete with references to ‘the
employer’.
44
Fn
31 above.
45
Fn
39 above.
46
At
para 55.
47
At
para 65.
48
FGWU
& others v The Minister of Safety & Security & others
[1999] 4 BLLR 332
(LC) at paras 31-33.
49
Unitrans
Fuel & Chemical (Pty) Ltd v TAWUSA & another
[2011] 2
BLLR 153
(LAC) at paras 26-28;
Digistics (Pty) Ltd v SA Transport
& Allied Workers Union & others
(2010) 31 ILJ 2896 (LC)
at para 14.
50
Reference
is made in this regard to the
Afrox
line of judgments referred to above.
51
Section
192(2).
52
">
52
See
item 94 of the CCMA guidelines: misconduct arbitrations.
53
[2012]
1 BLLR 22
(LAC).
54
A
t
paras 21-22.
55
(2009)
30 ILJ 2376 (LAC).
56
At
para 8.
57
[2007]
12 BLLR 1097
(CC).
58
At
paras 78-79.
59
At
para 180.
60
[2010]
11 BLLR 1216
(LC).
61
At
para 8.
62
Published
in
Reinventing Labour Law
.
Van Niekerk J terms this the ‘justice as balancing approach’
or ‘balancing metaphor’. He is critical
of this approach
and goes on to contend for an alternative approach rooted in
proportionality. His conclusion captures his thesis:
‘A
utilitarian analysis does not meet the demands that dignity and
autonomy require – ultimately, in the process
of weighing
interests, it has permitted commissioners (and the courts) to make
value choices that are controversial and which
have not encouraged
an open and candid consideration of conflicting interests. A more
coherent concept of justice in dismissal
requires the employer to
establish that the sanction of dismissal is a rational response to
its goals of economic efficiency,
and that a relationship of
reasonable proportionality exists between the sanction of dismissal
and those goals. While not replicating
the constitutional test of
proportionality in relation to the limitation of fundamental rights,
it is an approach that is more
closely aligned to the constitutional
values than that which is applied by the labour courts in the
post-
Sidumo
era.’
63
At
112-113.
64
[2000]
4 BLLR 371
(LAC).
65
At
para 18.
66
Fn
53 above.
67
At
para 10.
68
[2010]
1 BLLR 1
(SCA).
69
At
para 23. The SCA held similarly in
Myers
v National Commissioner of the SAPS
(425/2012)
[2012] ZASCA 185
(29 November 2012) at para 24.
70
[1999]
8 BLLR 741
(LAC).
71
At
para 29. Cited with approval recently in
CEPPWAWU
v NBCCI & others
[2011] 2 BLLR 137
(LAC) (
CEPPWAWU
)
at para 21.
72
Fn
71 above.
73
At
para
21.
74
Fn
70 above.
75
At
para 21.
76
Fn
64 above.
77
Fn
70 above.
78
Fn
71 above.
79
This
all in relation to CTP Stationary, which served as a basis for the
strike by the individual applicants.
80
I
n
the light of this court’s findings on the basis for the strike
being unprotected.
81
It
is, however, arguable that this amounts to the first respondent
seeking to justify the dismissal on a basis different to the
actual
reason for dismissal – see
Fidelity
Cash Management Service v CCMA & others
[2008]
3 BLLR 197
(LAC) at para 32. But no finding is made in this regard
given that the issue was not raised by either party.
82
Fn
68 above.
83
Fn
70 above.
84
Fn
71 above.
85
The
first respondent may have been able to resile from the settlement
agreement on this basis. But if it could not do so, the
parity
principle dictated that it should then not take the point against
the individual applicants or otherwise not press for
their dismissal
on the basis thereof.
86
Fn
70 above.
87
Fn
71 above.
88
Fn
64 above.
89
Fn
64 above.
90
Fn
53 above. See the quotation at para 161 above.
91
See
para 159 above.
92
Fn
55 above.
93
At
para 14.
94
Modise
& others v Steve’s Spar Blackheath
[2000] 5 BLLR 496
(LAC).
95
Equity
Aviation Services (Pty) Ltd v CCMA & others
[2008] 12 BLLR
1129
(CC) (
Equity Aviation
(CC)) at para 36.
96
Indeed,
in virtually all mass dismissal cases, the workforce has been
replaced by the time of the trial.
97
Mediterranean
Textile Mills (Pty) Ltd v SACTWU & others
[2012]
2 BLLR 142
(LAC) (
Mediterranean Textile
Mills
) at para 29.
98
[2007]
11 BLLR 1001
(SCA).
99
At
para 22.
100
In
Mediterranean Textile Mills
at
para 40, the LAC held that a delay of some 27 months between
dismissal and reinstatement was ‘not an essential factor
in
determining whether or not retrospective reinstatement was the
appropriate sanction in this case’.
101
Equity
Aviation
(CC) at para 36.
102
Fn
95 above.
103
At
para 43.
104
Fn
97
above.
105
At
para 45.
106
[2009]
11 BLLR 1051
(LAC).
107
This
appears from the affidavits contained in exhibit ‘G’.