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[2012] ZALCCT 36
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FAWU and Others v Premier Foods Ltd t/a Blue Ribbon Salt River (C 722/2012) [2012] ZALCCT 36; [2012] 12 BLLR 1281 (LC); (2013) 34 ILJ 1171 (LC) (7 September 2012)
REPUBLIC OF SOUTH AFRICA
THE LABOUR COURT OF SOUTH AFRICA, CAPE TOWN
JUDGMENT
Reportable
Of
interest to other judges
case
no: C 722/2012
In the matter between:
FAWU
First applicant
M KAPESI and 31 others
Second and further applicants
and
PREMIER FOODS LTD
T/A BLUE RIBBON SALT RIVER
Respondent
Heard
:
4 September 2012
Delivered
:
7 September 2012
Summary:
Urgent application - rule
nisi
– workers
reinstated by LAC after unfair dismissal based on operational
requirements – employer barred from instituting
disciplinary
hearings based on same facts.
JUDGMENT
STEENKAMP J
Introduction
This urgent application stems from a dismissal almost five years
ago, on 31 October 2007. The second and further applicants (“the
applicants”) were dismissed after a particularly violent
(albeit protected) and prolonged strike – not for misconduct,
but ostensibly for operational requirements. The Labour Court
1
found that the dismissals were unfair. The Court did not order
reinstatement, though, but compensation equivalent to twelve months’
remuneration.
On appeal
2
the finding with regard to unfair dismissal was upheld; however, the
Labour Appeal Court ordered that the applicants must be
reinstated.
That judgment was handed down on 16 March 2012.
The respondent has given effect to the judgment and the applicants
have been paid retrospectively. However, the respondent has
now
suspended the applicants and notified them of fresh disciplinary
hearings. The applicants
3
(together with their trade union, the Food and Allied Workers’
Union) have brought an urgent application to interdict the
disciplinary hearings and to lift the suspensions. They argue, in a
nutshell, that it is unfair of the employer to embark on
new
disciplinary hearings, five years after the alleged misconduct, when
it has failed to prove an unfair dismissal for operational
requirements based on the same facts.
Background facts
The background to the initial dismissal is summarised by Basson J.
4
The strike carried on for two months. It was marred by atrocious
acts of violence. Non-strikers were harassed and intimidated.
A
female non-striker was dragged from her home at night and assaulted
with pangas and sjamboks. The vehicle of a non-striker
was set
alight and destroyed. A neighbour of the non-striker, who was able
to identify the perpetrators, was shot and killed.
Houses were
petrol bombed. A shot was fired through a security guard’s
vehicle parked outside of the home of the respondent’s
regional manager, Mr Lavery. As Basson J remarked:
5
“
The
individuals who perpetrated these acts clearly had no respect for
human life, the property of others or the rule of law. What
makes
matter worse is the fact that it appears from the evidence that the
police and the criminal justice system have dismally
failed these
defenceless non-strikers. Although criminal charges were laid against
certain individuals, nothing happened to these
charges. The
non-strikers were completely at the mercy of vigilante elements who
did as they pleased and who had no regard for
the life and property
of defenceless individuals. It must be pointed out that although a
certain measure of rowdiness and boisterousness
behaviour are
expected or typical to most strike actions, the acts that marred this
particular strike were particularly violent
and senseless and
stretched far beyond the kind of conduct that normally occurs during
a strike. The witnesses who gave evidence
in court were visibly
traumatised by the acts of these vigilantes.
Strikes that are marred by this
type of violent and unruly conduct are extremely detrimental to the
legal foundations upon which
labour relations in this country rest.
The aim of a strike is to persuade the employer through the peaceful
withholding of work
to agree to their demands. As already indicated,
although a certain degree of disruptiveness is expected, it is
certainly not acceptable
to force an employer through violent and
criminal conduct to accede to their demands. This type of vigilante
conduct not only seriously
undermines the fundamental values of our
Constitution, but only serves to seriously and irreparably undermine
future relations
between strikers and their employer. Such conduct
further completely negates the rights of non-striking workers to
continue working,
to dignity, safety and security and privacy and
peace of mind.”
After the strike ended, the employer intended to take disciplinary
action against the perpetrators. However, given the background
sketched by Basson J, many witnesses were fearful to testify. The
respondent’s key witness, Mr Xhongo, disappeared and
has not
been found until this day.
Against this background, the respondent came to the conclusion that
it could not present sufficient direct evidence in the internal
disciplinary hearings. It decided – apparently on the advice
of its then legal representatives and a labour consultant
– to
dismiss the alleged perpetrators for operational requirements. It
did so on the basis that it had reason to believe
that the
applicants had committed acts of serious criminal conduct; that it
had a profound impact on the business of the employer;
and, in
circumstances where it was impossible to take disciplinary action
against the applicants.
Basson J held that the dismissals were unfair. She held that the
operational requirements route was not open to the employer
where
the reason for dismissal was misconduct. She was not persuaded that
the respondent was not able to hold disciplinary hearings.
In
exceptional circumstances, hearsay evidence could have been
admitted. Instead, the respondent chose to embark on a retrenchment
process in terms of section 189 of the Labour Relations Act.
6
The Court held that the respondent could not circumvent the
misconduct route by resorting to the operational requirements route.
Turning to the appropriate relief, Basson J held:
“
The
applicant seeks the retrospective reinstatement of all of its members
to the date of the dismissal. I do not intend to dwell
on this aspect
in much detail suffice to point out that enough evidence was placed
before this Court by the respondent to show
that an employment
relationship will never be able to exist between the applicants and
the respondent. I therefore decide against
reinstating the
applicants. I do, however, award each of them compensation equal to
12 months’ salary.”
FAWU appealed and Premier cross-appealed. The Labour Appeal Court
dismissed the cross-appeal and upheld the judgment of the court
a
quo
that the dismissals were unfair. With regard to relief,
though, it upheld the appeal and held:
“
There
is no evidence that the applicants committed acts of violence or
intimidation. This being so it would seem that the court
a
quo
made
this finding on the evidence of violence and intimidation which was
not linked to the applicants. Without a link between the
applicants
and the acts of violence and intimidation there is no evidence that
the employment relationship between the parties
cannot be sustained.
Cf
Edcon
Ltd v Pillemer NO and Others
(2009)
30
ILJ
2642
(SCA). It follows then that the general rule, which gives primacy to
reinstatement as the preferred remedy for unfair dismissal,
must
prevail.”
The order of the Labour Court was therefore altered to read:
“
The
respondent is to reinstate the applicant employees retrospectively to
the date of their dismissal”.
Premier applied for special leave to appeal to the Supreme Court of
appeal, and on its refusal of leave, to the Constitutional
Court.
Both were dismissed, the latter on 1 August 2012.
The applicants reported for duty on 27 August 2012. On 28 August
2012 the respondent suspended them and notified them to attend
a
disciplinary hearing on 30 August 2012. The misconduct forming the
basis of the disciplinary hearings consisted of the same
instances
of misconduct during the strike in 2007 that led to their dismissal
for operational requirements when the respondent
formed the view
that it could not pursue disciplinary hearings at that stage for
lack of evidence.
The disciplinary hearings were postponed to 5 September 2012 after
unsuccessful attempts by the parties’ legal representatives
to
resolve the issues. The applicants launched this application on 3
September 2012 for hearing on 4 September 2012.
This application: the relief sought
The applicants seek a rule
nisi
declaring the disciplinary
proceedings and the employees’ suspension pending those
proceedings to be in breach of the order
of the Labour Court (per
Basson J), as amended by the LAC, and accordingly unlawful; and/or
unfair, and in contravention of the
employees’ rights to fair
labour practices. They further seek to interdict the respondent from
continuing with the disciplinary
proceedings and order uplifting the
suspensions.
Jurisdiction
It is now trite that this court does have jurisdiction to interdict
incomplete disciplinary proceedings. However, as the Labour
Appeal
Court pointed out in
Booysen v The Minister of Safety and
Security & others
7
,
such an intervention should be exercised in exceptional cases only.
It is left to the discretion of this court to exercise the
power to
intervene, having regard to the facts of each case. Among the
factors to be considered would be whether failure to intervene
would
lead to grave injustice, or whether justice might be obtained by
other means.
Urgency
I am satisfied that the applicants acted with due haste in bringing
this application once it became clear that the respondent
was intent
on proceeding with the disciplinary hearings. In oral argument Ms
Savage
, for the respondent, did not pursue the argument that
the application was not urgent.
Has the respondent complied with the order of the LAC?
The applicants have argued, firstly, that the respondent is in
breach of the order of the Labour Court as amended by the LAC.
The
argument is based on the premise that the formal reinstatement of
the employees is meaningless, given their suspension, as
they have
been deprived of the opportunity to work.
I disagree. The LAC has ordered the respondent to reinstate the
employees retrospectively. This Premier has done. It has formally
reinstated them and paid them the back pay they are entitled to. The
question whether it was fair to suspend them and to institute
fresh
disciplinary proceedings, is a different one; but it cannot be said
that Premier is in breach of the court order.
Requirements for interim interdict
In order to consider whether the applicants are nevertheless
entitled to the relief sought, the Court has to decide whether they
have satisfied the requirements for interim relief
8
,
i.e.:
a
prima facie
right;
a well-founded apprehension of irreparable harm;
the absence of an adequate alternative remedy; and
a balance of convenience in their favour.
In view of the discretionary nature of an interim interdict these
requisites are not judged in isolation and they interact.
9
Before dealing with the contentious question whether the applicants
have established a
prima facie
right, though open to some
doubt, I shall consider the other elements.
Apprehension of irreparable harm
It is so that the applicants are suffering some harm by being
suspended. Even though they are being paid, the Supreme Court of
Appeal
10
has noted – without going so far as to infer a ‘right to
work’ – that:
“
The
freedom to engage in productive work – even where that is not
required in order to survive – is indeed an important
component
of human dignity, as submitted by the respondent’s counsel, for
mankind is pre-eminently a social species with
an instinct for
meaningful association. Self esteem and the sense of self-worth –
the fulfilment of what it is to be human
– is most often bound
up with being accepted as socially useful.”
Counsel for the applicants have pointed out that, if disciplinary
proceedings continue and result in their dismissal, they will
once
again be unemployed and will have to refer a fresh dispute to the
CCMA, five years after their initial dismissal that was
held to be
unfair.
Although the employees are suffering harm through their suspension
and there is some apprehension of further harm, should they
be
dismissed, I am not convinced that it is irreparable. It is by no
means clear that the disciplinary hearings will result in
dismissal,
given the apparent dearth of direct evidence of misconduct against
them. And even if they were to be dismissed, they
have the remedies
under the LRA dispute resolution system available to them to repair
any harm done. Unless and until they are
dismissed, they are being
paid; and should they be dismissed, and should those dismissals once
again be held to be unfair, they
will be entitled to retrospective
reinstatement – even in the unlikely event that it again takes
five years, as in the
run-up to this application.
Nevertheless, this factor needs to be taken into account together
with the others outlined above before the court exercises its
discretion whether or not to grant interim relief.
Adequate alternative remedy
The remarks relating to the apprehension of irreparable harm to a
great extent also relevant to the question whether the applicants
have an adequate alternative remedy. Firstly, they will have an
opportunity to be heard in the planned disciplinary hearings.
Even
if the allegations of misconduct against them were to be proven, and
even if they were to be dismissed, they will have the
alternative
remedies prescribed by the LRA available to them. This factor is not
a strong consideration that would persuade the
court to exercise its
discretion to grant interim relief.
Prima facie right?
Perhaps the most contentious, but also the most persuasive, factor
to be considered in the context of this application is whether
the
applicants have established a
prima facie
right, though open
to some doubt.
I have already rejected the argument that the respondent is in
breach of the court order. The question remains whether the
applicants’ right to fair labour practices should bar the
respondent from proceeding with the envisaged disciplinary hearings.
The Labour Appeal Court in
Booysen
11
accepted the principle outlined in
Nxele v Chief Commissioner,
Corporate Services, Department of Correctional Services &
others
12
that the LRA imposes a general obligation on employers to treat
their workers fairly. This right is also located in the
constitutionally
entrenched right to fair labour practices
13
given effect to be national legislation, ie the LRA.
The respondent previously dismissed the applicants, ostensibly for
operational requirements. This Court and the LAC have held
those
dismissals to be unfair and the LAC ordered the respondent to
reinstate the applicants. Does that preclude the respondent
from
holding disciplinary hearings and, should the allegations of
misconduct against them be proven, from dismissing them?
In order to answer this question, the prior question is the real
reason for the applicants’ dismissal in 2007. The respondent
purported to dismiss them for operational requirements; however, on
the respondent’s own version, it did so only because
it
realised that it could not establish that the individual employees
could be linked to any acts of misconduct in the form of
violence or
intimidation with the available evidence. It issued a notice in
terms of s 189(3) of the LRA in which it clearly
stated:
“
During
the recent strike at Blue Ribbon Bakeries a number of employees were
[
sic
]
allegedly involved in serious criminal actions, including but not
limited to assault, arson, intimidation and shootings. Their
conduct
makes it impossible for the company to continue to employ those
employees as there is a significant threat of further violence.
We
are unable to take disciplinary action against those employees as
witnesses are too scared to give evidence.”
The misconduct for which the respondent now wants to hold the
applicants responsible, is exactly the same as that in respect
of
which it abandoned disciplinary hearings and opted for dismissals
based on operational requirements in 2007. Basson J held
that the
respondent could not follow the operational requirements route
simply because it could not prove misconduct. On appeal,
the LAC put
it bluntly:
14
“
There
is no evidence that the applicants committed acts of violence or
intimidation.”
The LAC also accepted that the applicants were selected for
retrenchment based on their alleged misconduct. That misconduct
could not be proven. The application of the selection criteria was
unfair. And on the basis that the misconduct –
qua
selection criterion – could not be proven, the LAC ordered
the respondent to reinstate the applicants.
It is clear that the respondent intends to pursue a course now that
it abandoned five years ago. It elected at the time to follow
the
operational requirements route. The resultant dismissals were
unfair. Nothing has changed – at least not on the affidavits
before me, including the answering affidavit filed (in great haste,
I acknowledge) by the respondent.
The scheme of the LRA is such that an employer may dismiss its
employees for a number of reasons; primary among these are conduct,
capacity and operational requirements, in line with the guidelines
provided by the International Labour Organisation. The forum
for
resolution of the dispute about an allegedly unfair dismissal
depends upon the categorisation of the dispute.
15
And section 193 of the LRA contemplates that the remedy ordered by
the adjudicator who finds that a dismissal is unfair, should
finally
determine the entire dispute in respect of that dismissal.
Although one should, in my view, eschew bright lines between the
various categorisations of dismissal disputes, the legislature
could
not have contemplated that an employer could pin its colours to the
mast of one type of dismissal, and should it fail in
proving that it
was fair, try again to dismiss its employees for another ostensible
reason but based on the same facts.
This is not the type of case where, in my view, a new hearing would
have been permissible in the following hypothetical scenario:
The
employer discovers that R50 000 goes missing from its books
every month. Only three employees have access to the bank
accounts.
The employer dismisses all three for operational requirements. While
the dispute winds its way through the courts,
the employer finds
hard evidence on X’s computer that X has been siphoning off
R50 000 a month to his private account.
The Labour Court (and,
on appeal, the LAC) finds the dismissal for operational requirements
to have been unfair and the three
employees are reinstated. Upon
reinstatement, the employer institutes a disciplinary hearing
against X for the theft of the money.
The employer surely cannot be faulted for taking disciplinary steps
against – and dismissing – X in that scenario.
But in
the present case, no new facts have apparently come to light. The
employer wishes to discipline – and possibly dismiss
–
the applicants for the same reasons as those that pertained five
years ago in 2007. It saddled the wrong horse then.
Having been
thrown off, it cannot start the race on a fresh horse. That would be
unfair to the applicants, much as one sympathises
with an employer
whose non-striking employees have been subjected to atrocious and
unacceptable acts of violence.
It is so that the respondent has never explicitly abandoned its
intention to take disciplinary action against, and if necessary
dismiss, the applicants; nevertheless, it elected to take one course
of action and, having failed in that course, it does seem
to me
unfair to now embark on another course to achieve the same goal. In
this context, the citation in
Administrator, Orange Free State &
others v Mokopanele & another
16
of the early judgment in
Angehrn and Piel v Federal Cold Storage
Co Ltd
17
,
albeit archaic in language and context, is still apposite to
this election:
“
It
seems to me that as soon as an act or group of acts clearly
justifying dismissal comes to the knowledge of the employer it is
for
him to elect whether he will determine the contract or retain the
servant ... He must be allowed a reasonable time within which
to make
his election. Still, make it he must, and having once made it he must
abide by it. In this, as in all cases of election,
he cannot first
take one road and then turn back and take another.
Quod
simel placuit in electionibus amplius displicere non potest.”
It is not necessary to attach to this course of action a label of
“double jeopardy”,
res iudicata
or
autrefois
acquit.
Nor have the applicants relied on estoppel by waiver.
The Labour Appeal Court recognized in
BMW (SA) (Pty) Ltd v Van
der Walt
18
that, in labour law, “fairness and fairness alone is the
yardstick”. The circumstances of the current case are not
so
exceptional as to warrant a second hearing: the respondent may have
been badly advised at the time, but it elected to follow
one route.
It would be unfair to embark on a different route, with the same
destination in mind, five years later and based on
the same set of
facts that pertained then.
To hold to the contrary would have the effect that multiple
referrals of the same dispute to different
fora
could follow.
That cannot be in accordance with the stated purpose of the
effective resolution of labour disputes.
19
Taking all of these factors into account, I am satisfied that the
applicants have established at least a
prima facie
right,
though open to some doubt. The respondent’s intended course of
action impinges, it seems to me, on the applicants’
right to
be treated fairly.
Balance of convenience
The balance of convenience favours the applicants, who will remain
on suspension pending the return day. At this stage, pending
the
return day, there is no prejudice to the respondent other than a
short delay in the possible commencement of the disciplinary
hearings. That pales into insignificance against the background of a
five-year delay in instituting those hearings.
Conclusion
Having regard to all the factors required for the granting of
interim relief, I am satisfied that the applicants have made out
a
sufficiently strong case for the interim relief sought, even though
it may be said that they will not suffer irreparable harm
and that
they have an alternative remedy at their disposal. The right to fair
labour practices tilts the scale in favour of the
court exercising
its discretion to grant interim relief.
The conclusion I have come to leaves the court with a sense of
disquiet. Although the court has exercised its discretion to grant
interim relief in line with the applicable legal principles, there
is no doubt that the perpetrators of heinous acts of violent
misconduct will get off scot free. It may well be that some of those
perpetrators are amongst the applicants – in fact,
they
probably are. Unacceptable as that is, though, the principles of
legal certainty cannot be sacrificed. At best, the employer
may have
learnt from its mistakes; and one hopes that the union will attempt,
in future, to instil discipline in its members
when they embark on
protected strike action.
The question of costs will only be decided, together with the
question of final relief, on the return day on 18 October 2012.
Order
Leave is granted for this matter to be heard as one of urgency in
terms of rule 8.
A rule
nisi
is issued calling upon the respondent to show
cause on 18 October 2012 at 10h00 why an order in these terms should
not be made
final:
Declaring the disciplinary proceedings instituted against the
second and further applicants (the listed employees) on 28 August
2012 and their suspension pending the completion of the
disciplinary proceedings to be unfair;
Interdicting the respondent from continuing with the disciplinary
proceedings;
Uplifting the employees’ suspensions;
Ordering that the costs of the application be paid by the
respondent.
The relief set out above shall operate as an interim interdict
pending the return day of the rule
nisi.
_______________________
Anton Steenkamp
Judge of the Labour Court of South Africa
APPEARANCES
APPLICANTS:
Colin Kahanovitz SC
(with him Michelle Norton)
Instructed by Cheadle
Thompson & Haysom.
RESPONDENT:
Kate Savage of
Haffegee Roskam Savage.
1
FAWU
obo Kapesi & others v Premier Foods Ltd t/a Blue Ribbon Salt
River
[2010] 9 BLLR 903
(LC); (2010) 31
ILJ
1654 (LC)
[per Basson J].
2
Premier
Foods Ltd t/a Blue Ribbon Salt River v FAWU obo Kapesi & others
(2012) 33
ILJ
1779 (LAC).
3
The
application was initially brought on behalf of all 32 workers who
were party to the earlier proceedings. However, the applicants’
attorneys have indicated that they are only proceeding on behalf of
24 of those applicants. The names are listed in the court
papers.
4
FAWU
obo Kapesi & others v Premier Foods Ltd t/a Blue Ribbon Salt
River
[2010] 9 BLLR 903
(LC); (2010) 31
ILJ
1654 (LC).
5
Ibid
paras [5] – [6].
6
Act
66 of 1995 (“the LRA”).
7
[2011]
1 BLLR 83
(LAC) para [54].
8
LF
Boshoff Investments (Pty) Ltd v Cape Town Municipality
1969 (2)
SA 256 (A) 267 A-F.
9
Eriksen
Motors (Welkom) Ltd v Protea Motors, Warrenton & ano
1973
(3) SA 685 (A) 691 E-G.
10
Minister
of Home Affairs and others v Watchenuka and another
2004 (4) SA
326
(SCA) para [27] (per Nugent JA). See also
Mogothle v Premier
of the North West Province & another
[2009] 4 BLLR 331
(LC);
Lebu v Maquassi Hills Municipality
(2012) 33
ILJ
642
(LC) para [35].
11
Supra
para [47].
12
[2008]
12 BLLR 1179
(LAC).
13
Constitution
s 23(1).
14
At
para [35].
15
LRA
s 191.
16
(1990)
11
ILJ
963 (A) at 969 E-I.
17
1908
TS 761
at 786.
18
(2000)
21
ILJ
113 (LAC) para [12].
19
LRA
s 1(d)(iv).