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[2012] ZALCCT 44
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FAWU and Others v Supreme Poultry (Pty) Ltd (Formerly known as Country Bird) (C 371/06) [2012] ZALCCT 44 (11 December 2012)
Reportable
Of interest to other judges
REPUBLIC OF
SOUTH AFRICA
THE LABOUR COURT OF SOUTH AFRICA,
BLOEMFONTEIN
JUDGMENT
Case
no: C 371/06
In the matter between:
FAWU
First applicant
ANNA NTSHINTSHI & 29 OTHERS
Second to 31
st
applicants
and
SUPREME POULTRY (PTY) LTD
(FORMERLY KNOWN AS
COUNTRY BIRD)
Respondent
Heard
:
7-9 November 2011; 19-20 March 2012; 23 November
2012
Delivered
:
11 December 2012
Summary:
Strike dismissal – unprotected strike –
provocation, short duration, peaceful – dismissal unfair –
reinstated
with 12 months’ backpay.
JUDGMENT
STEENKAMP J
Introduction
The 29 individual applicants (“the employees”) took part
in an unprotected strike. They were dismissed. Was the dismissal
fair?
Background facts
The employees worked at the respondent’s chicken farm known as
Kelly’s View in the Free State. They took part in
an
unprotected strike on 16 January 2006 and were dismissed as a
result.
1
They are members of and represented by the Food and Allied Workers’
Union (FAWU), the first applicant.
On 16 January 2006, a delegation of shop stewards approached Mr
Chris Knightley, the respondent’s then manager at Kelly’s
View. They presented him with a list of grievances concerning the
assistant farm manager, Ms Nomvula Moshebi. The letter stated:
“Our
suggestion is [that] either she is transferred to another farm or
position or totally dismiss her as an assistant
manager”.
Knightley testified that the workers’ main concern was Ms
Moshebi, whom they wanted transferred or dismissed; as well as
some
issues concerning incentive bonuses and overtime pay.
Knightley told the shop stewards that he was not in a position to
address their demands and that they should talk to his superior,
Mr
Armstrong. When Armstrong arrived, he told the employees to go back
to work. He read the letter of grievances, crumpled it
up and tossed
it back at the shop stewards. Armstrong also told the employees to
leave the property, otherwise he would have
them removed. The
employees then left the premises peacefully and boarded a bus to
take them back to Bloemfontein. They were
suspended and a collective
disciplinary hearing, chaired by an attorney, Ms Magda Schoeman, was
held on 20 January 2006. The
employees admitted that they had
partcipated in an unprotected strike; and they were dismissed on 30
January 2006.
Evaluation / Analysis
The applicants dispute the procedural and substantive fairness of
their dismissal. In considering their claim, the court has
to assess
the evidence of the following witnesses:
Ms Magda Schoeman, chairperson of the disciplinary hearing;
Mr Chris Knightley (both of these called by the respondent);
Ms Adelina Mphoyi, one of the applicants;
Mr Kamohelo Piet Qabathi, applicant and shopsteward; and
Mr Mosiua Phillip Majara, FAWU official.
When assessing the credibility of the witnesses and the
probabilities
2
,
I shall rely strongly on the evidence of Knightley. He is no longer
in the respondent’s employ, and perhaps for that reason,
struck me as an independent and honest witness. He recalled the
events of the day as clearly as he could, assisted by a
contemporaneous
note he made on the day, given the lengthy time
lapse between those events and this trial. He readily conceded that
the strike
was peaceful; that the employees had been provoked by
Armstrong; and that their grievances were legitimate. In contrast to
the
applicant’s witnesses, whose evidence in some respects
contradicted the allegations in their statement of claim, Knightley
made no attempt to colour his evidence to suit the respondent, nor
did he divert from his evidence in cross-examination. When
he could
not remember the events of six years ago clearly, he said so.
Wherever there is a discrepancy between the witnesses
regarding the
events of 16 January 2006, I shall rely on the evidence of
Knightley.
In limine
At the commencement of the trial in November 2011, Ms
Charoux,
for the respondent, raised various points
in limine
. The
issues raised concerned jurisdiction, prescription and condonation.
I ruled on those issues and provided written reasons
on 8 November
2011. I shall not repeat those, save to include a copy of those
reasons with this judgement.
Procedural fairness
The applicants claim that the dismissal was procedurally unfair
because Ms Schoeman did not have the authority to dismiss them.
Ms Schoeman was a practising attorney at the time when she chaired
the disciplinary hearing. Perhaps understandably, she could
not
recall much of the events of six years ago. Unfortunately (and
somewhat surprisingly) neither Ms Schoeman nor the respondent
could
provide minutes of the disciplinary hearing, even though Schoeman
was adamant that minutes were kept.
It is common cause that the employees admitted that they had
participated in an unprotected strike. After considering mitigating
and aggravating circumstances, Schoeman came to the following
conclusion, set out in a letter from her to FAWU’s Majara
and
copied to the respondent’s human resources manager, Kulu
Ferreira, on the 30 January 2006:
“
1.
Charges 1-4 will be taken as one charge for consideration of a
penalty.
2. Penalty: summary dismissal as
from 30/01/2006.
3. All administration will be
handled by Country Bird such as UIF, leave money, etc.
4. The employees have the right
to refer the matter to the CCMA.
5. The minutes and reason for
decision will be faxed to the union on 01/02/2006."
On 31 January 2006, Ferreira sent the following letter to Majara:
“
TERMINATION
OF SERVICE: FAWU MEMBERS: KELLY’S VIEW
The
above mentioned has reference.
Kindly
find attached the individual termination letters of the group of
employees that has [
sic
] been dismissed on 30 January 2006 in
respect of the disciplinary hearing that was heard on Friday, 20
January 2006.”
The respondent issued individual termination letters dated 30
January 2006 to each of the employees in the following terms:
“
TERMINATION
OF SERVICE
Resulting from a disciplinary
hearing held on 20 January 2006 in Bloemfontein with Ms Magda
Schoeman as chairman and in terms of
our disciplinary code, we wish
to inform [
sic
] your permanent dismissal from Country Bird
(Pty) Ltd with effect from 30 January 2006 due to misconduct.
Your termination benefits up to
date and including the state will include the following:
All earnings up-to-date less
tax, pro rata leave payment, and pro rata holiday leave allowance.”
It is perhaps unfortunate that Ms Schoeman personally sent the
letter reflecting the penalty of summary dismissal to FAWU on
30
January 2006 before the respondent’s human resources officer,
Ferreira, confirmed the termination of the employees’
service
by the respondent. However, it is clear that the respondent
dismissed the employees after Schoeman, as the chairperson
of the
disciplinary hearing, had recommended dismissal as a sanction. There
is no merit in the applicants’ submission that
the dismissal
was “unlawful” because it was somehow effected by
Schoeman and not by the respondent.
Substantive fairness
Participation in an unprotected strike is misconduct. However, it
does not always justify dismissal. The Code of Good Practice
3
spells that out:
“
(1)
Participation in a strike that does not comply with the provisions of
chapter IV 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;
whether
or not the strike was in response to unjustified conduct by the
employer.
(2) Prior to dismissal the
employer should, at the earliest opportunity, contact a trade union
official to discuss the course of
action it intends to adopt. The
employer should issue an ultimatum in clear and unambiguous terms
that should state what is required
of the employees and what sanction
will be imposed if they do not comply with the ultimatum. The
employees should be allowed sufficient
time to reflect on the
ultimatum and respond to it, either by complying with it or rejecting
it. If the employer cannot reasonably
be expected to extend these
steps to the employee is in question, the employer may dispense with
them.”
In the present case, the contravention of the LRA was not
particularly serious. The strike was of a short duration –
less than one hour, by the respondent’s own admission.
Armstrong told the employees to return to work within 15 minutes.
When they did not, he arranged bus transport and told them to leave
the premises. They did not have a further opportunity to
return to
work, but were immediately suspended pending the disciplinary
hearing.
Knightley was at pains to stress that the strike action was
peaceful. On the other hand, Armstrong shouted at the employees and,
rather than attempting to attend to their grievances, crumpled up
the letter containing the grievances and threw it back at them.
Knightley also readily admitted that the employees had been provoked
by the actions of the employer. Their grievances were legitimate
and
they had raised the same grievances number of times before, over a
period of at least two months, to no avail.
Ms
Charoux
argued that the respondent had issued more than
one ultimatum in compliance with item 6 (2) of the Code of Good
Practice. I do
not agree. The evidence shows the following when
regard is had to Knightley’s testimony and the contemporaneous
documentation:
Armstrong told the employees (verbally) to return to work within 15
minutes. When they did not, they were put on buses to return
to
Bloemfontein and suspended.
Armstrong told the employees to go back to work “otherwise
they must leave the property”. They were not given sufficient
time to reflect and to decide whether to return to work before they
were removed from the premises.
The respondent did not tell the employees “in clear and
unambiguous terms” what sanction would be imposed if they
did
not return to work.
Although Knightley had some recollection of “a letter”,
the respondent could not provide any proof of a written
ultimatum.
Knightley testified:
“
The
only ultimatum that I can honestly say I saw [
sic
]
was the verbal ultimatum”.
At best, Ferreira sent a letter to the union organiser, Majara,
after the employees had already been removed from the workplace
in
these terms:
“
INDUSTRIAL
ACTION: KELLY’S VIEW: 16 JANUARY 2006
The
above mentioned has reference.
It
came to the attention of management that your members at of Kelly’s
View breeder operation are behaving in an unruly
manner and refuse
to work.
Note
that are [
sic
] dedicated and official channels available to
lodge any grievances and the above mentioned behaviour is totally
unacceptable.
An ultimatum was given to them to return to work at
08h00 and refusing to return to their place of work within 30
minutes strict
disciplinary action will be taken against them.
Kindly
note that management will not tolerate such behaviour and serious
disciplinary action will be taken against these employees
and could
result in a total lockout of employees.
We
hereby request you to meet ASAP with your shop stewards concerned
and to sort out the issues concerned.”
Even though the respondent did contact the FAWU official, it only
did so after the employees had already been suspended and at
a time
when it was impossible for the union official to persuade them to
return to work. At the time when the respondent contacted
him,
Majara was in Viljoenskroon and he could only attend to the matter
when he returned to Bloemfontein.
On the evidence before me, the respondent did not give the employees
an ultimatum in clear and unambiguous terms – and
certainly
not in writing – giving them an opportunity to reflect, to
return to work, and making it clear that they could
be dismissed if
they did not do so.
Even though the employees participated in an unprotected strike, I
do not consider dismissal to be a fair sanction, given the
following
factors:
the short duration of the strike;
its peaceful nature;
by the admission of the respondent’s own witness, the
employees were provoked by management;
the employees had legitimate grievances; and
the respondent did not issue the employees with an adequate
ultimatum.
CONCLUSION
Taking into account the surrounding circumstances, the dismissal of
the employees was substantively unfair, even though they
participated in an unprotected strike.
With regard to relief, I take into account that there is no evidence
that the trust relationship had broken down.
4
In terms of s 193(2) of the LRA, reinstatement is the primary
remedy. However, the Court has to take into account whether the
employer would be unjustly financially burdened if full
retrospective reinstatement were to be ordered.
5
In this case, the matter came to trial more than five years after
the dismissal. Much of the delay was due to the employer’s
organisation that represented the respondent company at that stage,
but some of it was also due to the union and some if seems
to have
been caused by systemic delays in this court that have since been
addressed. I also take into account that the applicants
do not have
clean hands – the employees took part in unprotected strike
action, and even though I have found that dismissal
was too harsh a
sanction, such action constitutes misconduct.
It would be unfair to the respondent if the Court were to order it
to pay the employees backpay for some six years. It would
be fair,
in my view, to order it to pay the employees backpay for 12 months,
i.e. to reinstate the employees retrospectively
to 30 January 2012
and to order them to report for duty by 30 January 2013. That will
enable both parties to prepare for the
return of the employees over
the festive season and it will take into account any disruptive
shut-down period over December.
At the Court’s request, the respondent has prepared a schedule
of the employees’ earnings at the time of their dismissal.
It
was attached to Ms
Charoux
’s heads of argument and I
shall refer to it as “Annexure A”. Their meagre earnings
ranged from R1260 to R1740
per month. Their backpay must be
calculated on these figures.
It may also be that some of the employees have passed away in the
lengthy time period since their dismissal. If so, their families
should be paid the compensation due to them.
Costs
Even though the applicants have been substantially successful, I
take into account that there is a continuing relationship between
FAWU, the first applicant, and the respondent. The respondent will
also have to forge a new relationship with the reinstated
employees.
I also take into account that the employees are represented by their
trade union and are thus not personally out of
pocket for legal
fees; and that they have not come to court with clean hands, having
participated in an unprotected strike. In
all of these
circumstances, and taking into account the principles of law and
fairness
6
,
I do not consider a costs order to be appropriate.
Order
I therefore make the following order:
The dismissal of the individual applicants was procedurally fair
but substantively unfair.
The respondent is ordered to reinstate the individual applicants
retrospectively to 30 January 2012.
The applicants must report for duty by no later than 30 January
2013, failing which they will forfeit the right to reinstatement.
Should any of the applicants be deceased, and upon proof of death,
the respondent must pay compensation equivalent to 12 months’
remuneration, as set out in Annexure A to the respondent’s
heads of argument, to their estates by no later than 14 February
2013.
There is no order as to costs.
_______________________
Steenkamp J
APPEARANCES
APPLICANTS:
Attorney MJ Ponoane,
Bloemfontein.
RESPONDENT:
Adv L Charoux
Instructed by Yusuf
Nagdee, Johannesburg.
1
Five
of the 29 individual applicants were in fact dismissed for being
absent without leave for the period between the strike and
the
dismissal, even though they did not take part in the strike. The
parties were
ad idem
that the court should not draw any
distinction between the two groups of employees and that they should
be treated the same for
the purposes of these proceedings.
2
Stellenbosch
Farmers’ Winery Group v Distell et Cie
2003 (1) SA 11
(SCA).
3
Schedule
8 to the Labour Relations Act, Act 66 of 1995 (“the LRA”):
Code of Good Practice: Dismissal, Item 6.
4
Edcon
Ltd v Pillemer NO & others
[2010] 1 BLLR 1
(SCA).
5
Mediterranean
Textile Mills (Pty) Ltd v SACTWU & others
(2012) 33
ILJ
160 (LAC).
6
LRA
s 162(1).