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[2014] ZALCJHB 63
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National Union of Metalworkers and Others v Lectropower (Pty) Ltd (JS119/13) [2014] ZALCJHB 63; (2014) 35 ILJ 3205 (LC) (20 February 2014)
REPUBLIC
OF SOUTH AFRICA
THE
LABOUR COURT OF SOUTH AFRICA, JOHANNESBURG
Reportable
CASE
NO JS 119/13
In
the matter between:
NATIONAL
UNION OF
METALWORKERS 1
ST
APPLICANT
FENYANE,
AMOS & 16 OTHERS 2
ND
TO FURTHER APPLICANTS
and
LECTROPOWER
(PTY)
LTD RESPONDENT
Trial
13, 14 and 18 February 2014
Judgment
delivered: 20 February 2014
JUDGMENT
VAN
NIEKERK J
Introduction
[1]
The second and further applicants (‘the employees’),
represented by their union, the first applicant, contend that
they
were unfairly dismissed after participation in a day-long unprotected
strike at the respondent’s premises during October
2012. The
employees’ decision to embark on an unprotected strike and the
respondent’s decision to dismiss them has
left some 17
individuals without work and their employer deprived of what it
concedes to be their scarce and specialist skills.
This outcome has
benefitted neither party – the employees and those who are
economically dependent on them have been deprived
of income for some
16 months; the respondent has incurred significant costs to engage
suitably-skilled replacement labour to maintain
production.
[2]
The applicants do not dispute that they went on strike on the
afternoon of 16 October 2012 and that the strike continued the
next
day, until their dismissal at approximately 14:00 that afternoon.
They also do not dispute that the strike was unprotected,
in the
sense that none of the procedural requirements established by the
Labour Relations Act were followed before they decided
to embark on
industrial action.
[3]
The issue to be decided is whether despite the unprotected nature of
the strike, the employees’ dismissal was substantively
and
procedurally fair and if so, the appropriate remedy to be afforded.
[4]
There is a preliminary matter relates to the identity of the
employees who are party to these proceedings. Attached to the
statement of claim, there is a list of 17 names, all persons
dismissed for participation in the strike. The supplementary
pre-trial
minutes contain an annexure identifying 20 persons as
individual applicants. The three additional names are those of the
union
shop stewards - Messers Abraham Tau, William Mhlatsi and
Solly Nkosi. Mr. Masutha, a union official who represented the
applicants,
clarified matters during the trial and confirmed that
these proceedings concern only those employees dismissed for striking
on
17 October 2012 and listed in the annexure to the statement of
claim. As will appear from the factual background recorded below,
the
shop stewards were dismissed on 16 October 2012 but for different
reasons, none of which are the subject of the pleadings filed
in
these proceedings.
Material
facts
[5]
The material facts are by and large a matter of common cause. The
dispute between the parties has its roots in a list of grievances
signed by the employees and sent to the respondent on 4 October 2012,
and requesting a response by 15 October. The heading to the
letter,
written on a union letterhead, reads “Grievance against Ivan
Lines.” Mr. Lines is a shareholder and the managing
director of
the respondent. The letter lists some 18 specific grievances, ranging
from discrimination, the format of pay slips
and various demands for
increases in remuneration, that the grievants sought to have
addressed. The grievance that caused all the
trouble is contained in
the penultimate paragraph of the letter. It reads as follows: “The
workers further request that Mr.
Iven (sic) Lines be removed as a
manager at Witbank Branch.”
[6]
On 12 October 2012, the union’s legal department addressed a
letter to the respondent referring to the grievance letter
and
declaring a dispute. It is common cause that on the same date,
the union formally referred a dispute to the bargaining
council. In
that part of the referral that required the union to indicate the
desired result of conciliation, the union stated
“The removal
of Mr. Ivan Lines”.
[7]
The respondent had instructed its attorneys in relation to the
grievance. They in turn had instructed Adv. OJ Lagrange, a practising
advocate, to chair a grievance hearing, to be held at the
respondent’s premises on the morning of 16 October 2010.
Lagrange
had initially formed the view that the grievance
would “die down”, an assessment that he revised
after
receipt of the union’s letter on 12 October 2012. Present
at the meeting were Lagrange and Lines, and the three shop stewards,
Tau, Mahlatsi and Nkosi. In his evidence, Tau stated that he and his
colleagues had been instructed that morning to attend a meeting
in
the boardroom – they had been given no advance notice of the
meeting or of its purpose. Lagrange’s evidence was
that he
questioned the shop stewards regarding the format of the letter, and
in particular, the fact that it was not signed by
a union official.
The shop stewards explained that the matter had been drafted with the
union’s assistance. Lagrange says
that he then explained to the
shop stewards that the respondent was a corporate entity, that Lines
was a shareholder and director
and that he could not be dismissed
from the respondent’s employ. Lagrange told the shop stewards
considered the grievance
is it related to Lines to be an act of
“irresponsible trade unionism” and a demonstration of
mala
fides, and asked the shop stewards what they would do if
Lines were not removed. Tau replied that they would strike. For
reasons
that remain unclear, Lagrange then took the view that the
shop stewards were the ringleaders of what was certain to be a
wildcat
strike in support of a demand that he considered unjust and
unreasonable, and that in the circumstances, the employment of the
shop stewards should be terminated with immediate effect. The shop
stewards were then told as much, and instructed to leave the
premises. A short while later, they were presented with letters of
dismissal.
[8]
In their evidence, Tau and Mahlatsi disputed that they had said that
there would be a strike should the demand in respect of
Lines not be
met. They also disputed that the terms of the grievance were such
that what was being demanded was the dismissal of
Lines – the
letter referred only to his removal from the Witbank plant. Tau
testified that “no-one wanted to strike
– we were
surprised when we were fired.” Surprised as they were,
the shop stewards left the boardroom, and were
later handed letters
of dismissal.
[9]
Tau and Mahlatsi testified that they left the boardroom and went to
the change room where other employees asked them what had
happened in
the meeting. They told the employees that they had been dismissed.
The employees then said that they would seek an
explanation from the
respondent as to why the shop stewards had been dismissed. It is not
disputed that on the afternoon of 12
October 2012, the employees
refused to work or to leave the premises until the usual time of
16:00. The respondent’s operational
manager, Mr. Jaco Claasens,
testified that as the workers were leaving, Tau said to him “You
will see” and that Fenyane
threatened a co-employee by the name
of Connie. This was not disputed.
[10]
Claasens decided that the next morning, initially at least, no-one
should be allowed into the respondent’s premises and
that he
should speak to the workforce outside. The shop stewards who had been
dismissed the previous day were present. At approximately
7:30 the
next morning, Claasens told the assembled workforce that they should
proceed to work, but for the three shop stewards
who had been
dismissed. The majority of the workforce refused to enter the
premises, saying that they would not work if the three
shop stewards
were not allowed into the building.
[11]
At approximately 9:00, Claasens compiled an ultimatum which reads as
follows:
‘
NOTICE TO ALL
EMPLOYEES
You are participating in
an illegal strike. You must return to work by 12 o’clock today,
FAILING COMPLIANCE
HEREWITH WILL LEAD TO YOUR AUTOMATIC DISMISSAL.
Workers are reminded that
times are tough and they must think CAREFULLY ON THEIR ACTIONS
Jaco Claasens
17
th
October
2012
08:47am”
[12]
The ultimatum was displayed on the outside of the respondent’s
premises, and a copy telefaxed to the union office. The
union
responded by addressing a telefax to the respondent, written by Ms.
Cecilia Mpofu, the local organiser. In the letter, she
acknowledged
receipt of the copy of the ultimatum and asked to meet with the
respondent at 11:45 in order to resolve the matter.
Mpofu arrived at
the respondent’s premises as she had undertaken to do, and
asked to speak to Claasen. Claasen testified
that when he attempted
to admit Mpofu to the premises, the people standing outside stormed
the gate. He requested Mpofu to calm
the workers down and bring them
under control. This happened a number of times, with the result that
Mpofu never gained entry to
the premises. At 13:45, Claasen decided
that the employees had had enough time to consider the ultimatum and
drafted letters dismissal.
The decision to dismiss was his, made on
the basis that the ultimatum to return to work had gone unheeded. He
distributed the letters
at 14:10. The letters record the reason for
dismissal as a failure to comply with a demand to return to work by
12:00 hours and
participation in unlawful and illegal strike.
[13]
The employees then stated that they wished to collect their personal
belongings. Claasen agreed provided that employees entered
the
premises two at a time. When he opened the gate, the gate was stormed
and all of the employees entered the premises, which
they left by
14:30.
[14]
Evidence was led in relation to events that occurred outside of the
respondent’s premises after the dismissal of the
employees on
17 October 2012. These are relevant not to the merits of any
dismissal but to remedy, at least to the extent that
they concern
incidents of misconduct committed by identified employees. On 18
October, Claasen testified that he went to work where
he witnessed
Tau and Fenyane threaten two employees who had reported for work,
specifically, they threatened to burn an employee’s
bakkie if
he did not join the strike. Events that followed on 19 and 20 October
and on 22 October assumed a pattern – the
dismissed employees,
including the shop stewards, gathered outside the premises where they
played cards and drank beer. Claasen
testified that on 22 October
2012, an employee identified as Ali (Bahle Mchobukhozi) took a
screwdriver and punctured the tyres
of vehicles belonging to members
of staff. The police were called and Ali was arrested. It is not
disputed that he was later convicted
of malicious damage to property.
Applicable
legal principles
[15]
The legal principles to be applied to a dispute concerning a
dismissal for participation in an unprotected strike are well
established. Item 6 (1) of the code of good practice contained in
schedule 8 to the Labour Relations Act reads as follows:
‘
6 (1) Dismissal
and industrial action. (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 the circumstances must be
determined in the light of the facts of the case, including –
(a)
the seriousness of the contravention of this Act;
(b)
attempts are made to comply with this Act; and
(c)
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
intend 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 employee should be allowed sufficient
time to reflect
on the ultimatum and respond to it, either by complying with it all
rejecting it. If the employer cannot reasonably
be expected to extend
the steps to the employees in question, the employer may dispense
with them.’
[16]
The Labour Appeal Court recently observed that it is clear from the
provisions of s 68(5) of the LRA that a Judge called upon
to
determine the fairness of a dismissal effected on the ground of
participation in an unprotected strike should consider, in addition
to item 6 of the code, the provisions of item 7. That provision
regulates dismissals for misconduct more generally, and requires
the
determination of whether dismissal was inappropriate sanction for the
contravention of a relevant of rule or standard. (See
NUMSA v CBI
Electric African Cables
[2014] 1 BLLR 31
(LAC)). The
determination of the substantive fairness of a strike-related
dismissal must therefore take place in two stages –
first,
under item 6 when the strike related enquiry takes place and
secondly, under item 7. In other words, a strike-related dismissal
which may meet the requirements of item 6 may nonetheless fail to
pass the substantive fairness requirements under item 7, particularly
when dismissal is adjudged not to be a fair sanction in the
circumstances (see paragraph [29] of the
CBI
judgment).
[17]
The LAC referred (with approval) to Grogan:
Dismissal,
Discrimination and Unfair Labour Practices
(Juta 2005), where the
author expresses the view that item 6 is neither exhaustive nor
rigid, and that other factors including the
duration of the strike,
the harm caused by the strike, the legitimacy of the strikers
demands, the timing of the strike, the conduct
of the strikers and
the parity principle are all relevant.
[18]
The requirement in item 6 of the Code that an employer should, at the
earliest opportunity, contact a trade union official
to discuss the
course of action it intends to adopt affords the union an opportunity
to persuade the strikers to resume work and
secondly, provides a
safeguard against possible rash action by the employer. If an
employer decides to issue an ultimatum, it should
meet the
requirements of the Code, and the employer must ensure that it allows
employee sufficient time to reflect on the ultimatum
and to respond
to it (paragraph [35] of the
CBI
judgment).
Analysis
[19]
In the present instance, as I have indicated, it is not disputed that
the strike that commenced at the respondent’s premises
on 17
October 2012 constituted an unprotected strike, and that the
individual applicants were dismissed for that reason. Turning
first
to substantive fairness, the employees do not dispute that they
committed an act of misconduct – what is in issue from
a
substantive perspective is the fairness of the sanction of dismissal.
[20]
A paramount consideration in the present instance is the cause of the
strike and in particular, the union’s contention
that the
strike was provoked by the respondent. It is clear to me from the
evidence that the strike was not orchestrated by the
union or the
shop stewards in support of any of the grievances that had been
tabled – the inescapable conclusion is that
the strike was
triggered by events that occurred on 16 October 2012 and in
particular, the dismissal of the three shop stewards.
The employees
obviously felt aggrieved at the manner in which the shop stewards had
been treated and the lack of any explanation
from the respondent’s
management, and decided in response to withdraw their labour. Mr.
Swanepoel, who appeared for the respondent,
submitted that this was
an unjustified response, since it remained open to the union to refer
a dispute concerning the dismissal
of the shop stewards to the
bargaining council. At one level, it might be suggested that
participation in an unprotected strike
is never justifiable, since
the Act provides avenues for the resolution of all disputes, whatever
their nature. However, justifiability
in relation to an assessment of
substantive fairness is a rather different concept. First, as it
appears from the principles discussed
above, the code specifically
acknowledges that participation in an unprotected strike is not an
act that
per se
justifies dismissal. The relevant enquiry is a
multi-factoral one, in which the cause of the strike must necessarily
be considered.
[21]
In the present instance, the shop stewards were called to a meeting
of which they say they had no advance notice. This was
not disputed.
The primary purpose of the meeting was to discuss the list of
grievances that they had previously tabled. The chair
of the meeting,
Lagrange, took exception to the demand relating to the removal of
Lines from his position, and to Tau’s response
to the effect
that should Lines not be removed, the workers would strike. Even if I
reject the applicant’s version that no
mention was made of a
strike during the course of the meeting, on the respondent’s
version, Tau did not state that the workers
would strike that
afternoon, or the next day, or that any strike that might be called
would not comply with the provisions of the
LRA. Lagrange conceded
that he had instructions to effect the dismissal of the shop stewards
– the irresistible conclusion
is that this was a decision taken
prior to the commencement of the meeting and that the real purpose of
the meeting, absent a retraction
by the shop stewards of the
grievance concerning Lines, was to pre-empt any industrial action by
removing the shop stewards. The
respondent did not seriously dispute
this proposition – its defence was to justify its conduct on
the basis that the shop
stewards were, to use the words put to the
applicant’s witnesses under cross-examination,
‘trouble-makers’.
[22]
It is not disputed that in dismissing the shop stewards, the
respondent failed to comply with the Code, and in particular,
the
provisions of item 4(2) which requires an employer, prior to
instituting disciplinary action against a shop steward, to inform
and
consult with the trade union. On its own version, the respondent
complied with none of the provisions reflected in item 4(1)
of the
Code - the shop stewards were not notified prior to the meeting of
the allegations against them, nor were they permitted
a proper
opportunity to state a case or afforded reasonable time to prepare a
response to the allegations made against them.
[23]
There was no history of unprotected industrial action directed
against the respondent, nor was there any evidence that the
disciplinary records of the employees disclosed warnings for
misconduct of that nature. In my view, the decision to dismiss the
shop stewards during the course of the grievance hearing held on the
morning of 16 October 2012 was precipitate and ill-considered.
Absent
the dismissal, it is highly unlikely that the employees would have
become as upset as they did, prompting their refusal
to work. In my
view, the respondent’s decision to dismiss the shop stewards,
egregious as it was in the circumstances, serves
strongly to
mitigate the employees’ conduct.
[24]
Insofar as procedural requirements are concerned, it is common cause
that on the morning of 17 October, a copy of the ultimatum
issued by
Claasens was telefaxed to the union’s offices. It is also not
disputed that Mpofu addressed a letter to the
respondent
stating that she would arrive at the respondent’s premises
later the same morning, to attempt to resolve the matter.
Mpofu was
not called to give evidence. On the respondent’s own version
however, Mpofu presented herself at the gate at the
time she
indicated she would be present but her access to the premises was
frustrated on account of the conduct of the group assembled
at the
gate. Mpofu clearly wished to gain admittance to the respondent’s
premises in order to discuss the situation. Claasens
did not seek to
engage with her at the gate, nor did it occur to him that a meeting
with Mpofu might be possible that some other
suitable venue. Claasen
was content to leave Mpofu outside the premises and simply wait for
the ultimatum to expire. In these circumstances,
it cannot seriously
be suggested that there was any attempt on the part of the respondent
to discuss with the union the course
of action that it intended to
adopt or, more fundamentally, to attempt to resolve the dispute that
had arisen. The procedure adopted
by Claasen was mechanical - as far
as he was concerned, a three-hour ultimatum had been issued and a
failure to comply with that
ultimatum would necessarily and
automatically result in dismissal. He had notified the union of the
ultimatum and in his view,
that was the extent of the respondent’s
obligation. The situation was one that cried out for a commonsense
approach –
the employees were clearly upset by the dismissal of
their leadership, and they sought an explanation for the respondent’s
conduct. A union official who had indicated a willingness to
intervene to resolve the dispute was standing (literally) at the
respondent’s gates. The employees were willing to enter the
premises provided that the shop stewards were admitted and there
was
a discussion on the previous day’s events. Sage intervention
would no doubt have brought reason to bear. Instead, the
clock was
allowed to tick toward the magical hour when the respondent
considered that the employees would be dismissed automatically
and
without further consequence. In these circumstances, in my view, the
respondent’s conduct was the cause of the strike,
it failed to
engage in any meaningful endeavor to resolve the crisis that it had
brought about and its decision to dismiss was
precipitate. It follows
that the employees’ dismissal was substantively unfair.
[25]
In relation to procedural fairness, the respondent (on its own
version) failed to afford the employees the right to be heard
after
issuing the ultimatum but before dismissing them. The respondent
appears simply to have regarded the expiry of the ultimatum
is in
itself a sufficient basis to dismiss. While at one stage the issuing
of a fair ultimatum was considered to be sufficient
to satisfy the
requirement of procedural fairness in a strike-related dismissal,
some 15 years ago, in
Modise v Steve’s Spar Blackheath
[2000] 5 BLLR 496
(LAC), the Labour Appeal Court placed a
construction on item 6(2) of the Code that requires an employer to
provide workers who
participate in an unprotected strike with both an
ultimatum as well as a right to be heard before any dismissal is
effected. The
court stated that the hearing may be of a collective
nature and that its form and formality would largely be dictated by
the context.
This reading of the Code was discussed and applied in
NUM v Billard Contractors CC
[2006] BLLR 1191
(LC), where this
court held that the purpose of an ultimatum is to provide a
cooling-off period before a final decision to dismiss
is taken, and
that there is a discrete right to be heard after the ultimatum has
expired. The court was not specific on the nature,
form and extent of
this right but it is clear from that decision that an employer cannot
simply issue an ultimatum and thereafter,
without more, effect a
dismissal. These decisions were recently affirmed by the LAC in the
CBI
judgment referred to above. In the present instance, as I
have indicated, the respondent regarded dismissal as the automatic
consequence
of a failure to heed the ultimatum. It did no more after
the expiry of the ultimatum than prepare letters of dismissal and
distribute
them to the striking employees. In doing so, it failed to
afford the employees the hearing to which they were entitled. It
follows
that the dismissal of the employees was procedurally unfair.
[26]
To the extent that the respondent seeks to rely on misconduct
committed by employees during the course of the strike and afterward,
the spectre of scenes of large scale intimidation and violence raised
during the course of the cross-examination of the applicant’s
witnesses largely failed to materialise. It was not disputed
however that during the course 16 and 17 October, Tau made
threatening remarks as he left the premises on 16 October, as did
Fenyane. There was also evidence that on 18 October 2012 Tau and
Fenyane threatened to burn vehicle belonging to a non-striking
employee. Evidence was also led that Ali (or Bahle) Mchobukhozi
was
convicted of malicious damage to property after having been arrested
in front of the factory gate after he had damaged motor
vehicles.
[27]
Once this court comes to the conclusion that a dismissal was both
substantively and procedurally unfair, the provisions of
s 193(2) of
the LRA require the court to order reinstatement unless continued
employment would be intolerable, the employees do
not want
reinstatement, or the remedy of reinstatement is not reasonably
practicable in the circumstances. The respondent presented
no
evidence to support the contention that continued employment would be
intolerable, or that reinstatement would not be reasonably
practicable. The applicants specifically sought the reinstatement of
the employees. In these circumstances, the employees are entitled
to
the relief they seek. I intend to make two exceptions. As I have
indicated, it was not disputed that Ali (or Bahle) Mchobukhozi
was
convicted of malicious damage to property after having been arrested
outside the respondents premises during the course of
the strike, nor
was it disputed that Tau and Fenyane had twice made threatening
remarks directed to the respondent and non-striking
employees
respectively. Employees who misconduct themselves during a strike,
protected or unprotected, ought not to expect this
court to come to
their assistance in any subsequent litigation, let alone order their
reinstatement. Regrettably, intimidation,
assault and damage to
property have come to characterise strikes to the extent that they
appear to be considered an inevitable
consequence and an integral
component of the exercise of the right to strike. This court should
express its disapproval of any
acts of misconduct committed during
the course of a strike and which impact materially and negatively on
the rights of the employer
and those employees who elect not to
participate in the strike. Tau is not one of the individual
applicants, but for the above
reasons, I intend to make no order of
reinstatement or compensation in respect of Fenyane and Mchobukhozi.
Their remedy will be
limited to an order declaring that their
dismissal was unfair.
I
make the following order:
1. The
dismissal of the employees listed in annexure 1 to the statement of
claim was substantively and procedurally
unfair.
2.
Those employees whose names appear in the annexure, with the
exception of Amos Fenyane and Bahle Mchobukhozi,
are reinstated into
the respondent’s employ on the same terms and conditions of
employment that prevailed on the date of
the dismissal.
ANDRE
VAN NIEKERK
JUDGE
OF THE LABOUR COURT
APPEARANCES
For
the applicants: Union official
For
the respondent: Adv. Swanepoel instructed by Messina Inc.