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[2012] ZALCD 11
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Ngcobo and Others v Chester Butcheries (D 268/2011) [2012] ZALCD 11; (2012) 33 ILJ 2932 (LC) (8 May 2012)
7
REPUBLIC
OF SOUTH AFRICA
THE LABOUR COURT OF
SOUTH AFRICA, DURBAN
JUDGMENT
Reportable
Of interest to other
judges
Case no: D 268/2011
In
the matter between:
NGCOBO
LUNGILE & SIX
OTHERS
.............................................................
Applicants
and
CHESTER
BUTCHERIES
............................................................................
Respondent
Heard:
10 April 2012
Delivered:
08 May 2012
Summary:
Withholding bonuses for having engaged in a protected strike
contravenes section 5 (1) of the LRA. The applicants have
the initial
evidentiary burden to establish only a credible possibility that the
non-payment of their bonuses was based purely
on the fact that they
had exercised their right to strike. The employer who engaged in such
conduct must then prove that the conduct
did not infringe section 5
(1). The applicants did not satisfy their evidentiary burden to put
the respondent to a defence.
___________________________________________________________________
JUDGMENT
WHITCHER AJ
Issue to be determined
[1] The key question
raised in this matter is whether the respondent by not paying bonuses
to the applicants for the year 2010 discriminated
against the
applicants for participating in a lawful strike. In other words, the
issue is whether the respondent contravened section
5(1) of Chapter
11 of the Labour Relations Act (the Act).
1
The evidence
[2] Mr Bheki Shabane, the
provincial secretary of the applicants’ union, testified on
behalf of the applicants. Mr V Criticos,
the Financial Director of
the respondent, testified on behalf of the respondent.
[3] The respondent
operates a chain of about 19 butchery stores. In early 2010, the
applicants’ union recruited members at
three of the
respondent’s stores: the Richards Bay Taxi Rank store, the
Empangeni store and the Belvedere store. The applicants
were employed
at the Richards Bay Taxi Rank store which only opened in 2009. The
respondent pays discretionary bonuses on an annual
basis. The
applicants were paid bonuses in January 2010 for the year 2009 and in
January 2012 for the year 2011. No bonuses were
paid to the
applicants for the year 2010. The applicants linked the non-payment
of this bonus to their having engaged in a protected
strike in
November 2010. The applicants pleaded that the respondent took a
unilateral decision that all employees who had participated
in the
November 2010 strike would not receive a bonus while other employees
of the respondent were paid bonuses.
[4] It, however, became
apparent during Mr Shabane’s testimony that members of the
union working at the Empangeni and Belvedere
stores were in fact paid
bonuses although they had participated in the November strike and
that 60 employees from various stores
nationwide were not paid
bonuses.
[5] In response to this,
Mr Shabane then stated that the employees who were paid bonuses at
the Empangeni and Belverdere stores
returned to work from the strike
a day earlier than the seven applicants who held out longer at the
Richards Bay Taxi Rank store.
Moreover, an employee at the Richards
Bay Taxi Rank store, one “Deena”, who initially went on
strike but returned to
work early, was also paid a bonus. These facts
then served as the basis for the essentially punitive and unfairly
discriminatory
decision to withhold bonus payments from the
applicants. This contention did not form part of the applicants’
pleadings.
[6] Mr Criticos testified
that the respondent pays discretionary bonuses which are based on the
performance and profitability of
the particular store and in this
regard the bonuses vary from store to store. The Richards Bay Taxi
Rank store opened in 2009 and
the applicants were paid bonuses only
once in the past in 2010 for the year 2009. This was based on the
financial performance of
the store in 2009. The applicants’
participation in the strike had nothing to do with the respondent’s
exercise of
the discretion not to pay bonuses to the applicants. No
bonuses were paid at the store in question because it ran at a loss.
It
was running at a loss even before the strike. As bonuses are
funded out of the profits of the store, if a store does not make a
profit no bonus is paid. Mr Criticos conceded “Deena”
participated in the strike in question and was paid a bonus.
It was
common cause that she returned to work early in the strike and when
she returned, she was deployed to the Belverdere store
because the
Richards Bay Taxi Rank store was closed because of the strike.
According to Mr Critcos, she should not have been paid
a bonus
because she was employed at the Richards Bay Taxi Rank store. Her
payment had been an administrative mistake which arose
from the fact
that when she was deployed to the Belvedere store she was placed on
the Belverdere staff list. When bonuses were
paid, they were paid
according to the staff list of the profitable stores listed for bonus
payments and that is how this anomaly
crept in.
The law
[7] Section 5 (1) in
Chapter II of the Act provides that no person may discriminate
against an employee for exercising any right
conferred by this Act.
This section protects employees from victimisation for having
exercised a right under the Act. The right
to strike falls within the
ambit of this provision. If the employer’s conduct has the
effect of discriminating, it will fall
foul of the protections
offered by section 5.
[8] The burden of proof
provision of section 10 in Chapter II of the Act stipulates that an
employee who alleges that a right or
protection conferred by section
5(1) has been infringed must prove the facts of the conduct and the
employer who engaged in that
conduct must then prove that the conduct
complained of did not infringe the provisions of section 5(1).
[9] In the present case,
this meant that the applicants had an initial evidentiary burden to
produce evidence which showed that
they underwent differential
treatment by the respondent on the ground that they had participated
in the strike in question. In
this regard, they were required to
establish only a credible possibility that the non-payment of their
bonuses was based on the
fact that they had ‘participated in
the strike’ in question. Only in that evidentiary event would a
burden have come
to rest upon the respondent to prove otherwise [see
K
roukam v SA Airlink (Pty) Ltd
(2005) 26
ILJ
2153
(LAC);
Janda v First National Bank
(2006) 27
ILJ
2627
(LC);
Thomas v Mincom (Pty) Ltd
[2007] 10 BLLR 993
(LC);
Mahlanyana v Cadbury (Pty) Ltd
(2000) 21 ILJ 2274 (LC) and
Stojce v UKZN and Another
(2006) 27 ILJ 2696 (LC)].
[10] It is also relevant
that an employer is permitted to reward employees unequally even
though they are doing the same job. The
basis for such
differentiation must though be objective and fair, for instance,
greater skill, experience, years of service or
productivity.
Analysis of Evidence
and Argument
[11] Having regard to the
legal principles mentioned above, the applicants did not make out a
prima facie
case to even put the respondent to a defence.
[12] I say so, first,
taking note of the concessions made by the applicants’ witness
under cross-examination to the effect
that striking members of the
union at other outlets were indeed paid bonuses. This, as a matter of
logic, puts paid to the applicants’
complaint under section 5
of the Act that the strike was the cause of bonuses being withheld
from them.
[13] The applicants’
witness also conceded that bonuses were withheld from employees
working at stores where the union did
not organise and which did not
go on strike at all. This seriously undermined the applicants’
claim that the respondent’s
exercise of its discretion to pay
bonuses was made on the discriminatory ground of who had not
participated in the protected strike.
As a matter of probability, the
respondent’s explanation for the differential conduct
(profitability of individual stores)
accords far better with the
established facts of this matter than the applicants’
explanation (as a punishment for striking).
[14] Although it was not
pleaded, I have also considered the amended ground of discrimination
advanced by the applicants under cross-examination.
This was that the
differentiating ground upon which bonuses were awarded by the
respondent was how long individual strikers held
out. Those who held
out longest at the Richards Bay Taxi Rank store were denied bonuses.
Once again, in my view, the probabilities
favour the conclusion that
bonuses were withheld for less sinister reasons relating to store
productivity. The applicants’
explanation for why they were not
given bonuses cannot account for the countervailing facts and
concessions mentioned. Additionally,
there was no real evidentiary
basis from which it could be inferred that bonuses were withheld from
workers who continued with
a very short strike for just a day or two
longer.
[15] I can understand
how, in a post-strike environment, the fact that “Deena”
received a bonus might feed suspicions
of unfair discrimination. The
“Deena” anomaly was however not sufficient to offset the
fact that other employees at
many other stores also received no bonus
in 2010. On the balance, I accept the respondent’s evidence
that Deena’s bonus
was awarded as a result of her mistaken
inclusion on the Belvedere store employee list and not to reward her
for an early ending
of her participation in the strike.
[16] An issue was made of
the fact that the respondent did not produce its financial records to
corroborate its version. However,
the effect of the respondent’s
omission to produce certain evidence and its evidentiary burden to
produce such evidence depended
on the reliability and weight of the
evidence against it. In this case, considering the finding that the
applicants failed to establish
a
prima facie
case, there was
no need for the respondent to produce this evidence in addition to
its testimony which, on the facts that emerged
during the applicants’
case, was not improbable.
Order
[17] The applicants’
claim is dismissed.
There is no order as to
costs.
_____________
Whitcher AJ
APPEARANCES:
FOR THE APPLICANT: Peter
Hobden from Tomlinson Mnguni James Attorneys
FOR THE RESPONDENT: Glen
Kirby-Hirst from Macgregor Erasmus Attorneys
1
66
of 1995.