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[2014] ZALCJHB 335
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Food and Allied Workers Union and Others v Fourie's Poultry Farm (Pty) Ltd t/a Chubby Chick (JS163/12) [2014] ZALCJHB 335 (8 July 2014)
REPUBLIC
OF SOUTH AFRICA
IN
THE LABOUR COURT OF SOUTH AFRICA
HELD
IN JOHANNESBURG
Not
reportable
Of
interest to other judges
CASE
NO: JS 163/12
In
the matter between:
FOOD AND ALLIED
WORKERS UNION
1
st
Applicant
DIPUO MATLOU &
OTHERS
2
nd
and further applicants
and
FOURIE’S POULTRY
FARM (PTY) LTD
T/A CHUBBY
CHICK
Respondent
Date
of trial:
10 -13 March; 31
March; 3, 16 and 17 April 2014
Date
of judgment:
8 July 2014
Summary:
Claim of unfair dismissal following mass dismissal for participation
in an unprotected strike. Claim of provocation rejected -
dismissal
substantively fair. Dismissal held to be procedurally unfair, on
account of employer’s failure to comply with the
provisions of
Item 6 of the Code of Good Practice in relation to proper ultimatum
and fair hearing. Compensation awarded, except
to those dismissed
employees identified as having participated in acts of strike-related
violence.
JUDGMENT
VAN
NIEKERK J
Introduction
[1] This
case concerns the dismissal of the individual applicants on 31 August
2011, after they participated in
an unprotected strike at the
respondent’s premises in Luitingh Street, Potchefstroom, North
West Province.
[2] The
strike that is the subject of these proceedings commenced on 30
August 2011. Early that morning, the individual
applicants gathered
outside the fence surrounding the respondent’s premises, and
refused to start work.
[3] The
fence that separated the parties serves as an appropriate metaphor
for the state of industrial relations
at the respondent’s
plant, and perhaps more generally. On one side, stood the management,
whose primary concern was to secure
a return to work and full
production. They thought that this was best accomplished by bellowing
through a loudhailer a series of
ultimatums to return to work or be
dismissed, and passing copies of each ultimatum through the fence.
All of these (predictably)
were ignored by the workers, who threw the
copies back over the fence. On the workers’ side of the divide,
a self-appointed
cheerleader in the form of a local political
activist led the individual applicants in chants that amounted, in
some instances,
to an incitement to commit murder. During the course
of the strike, at least some of the crowd engaged in acts of
gratuitous violence,
and at least some of those employees who chose
to work during this period were threatened with physical harm.
[4] The
next day, 31 August, before any meeting with the union, the
individual applicants, most of them with many
years’ service,
were dismissed. In subsequent discussions between management and the
union, when matters came down to the
proverbial wire, the respondent
recognised that its interests were best served by compromise and a
return to work of all of the
dismissed employees. But the respondent
required an immediate return to work before any discussions on
grievances could commence.
The individual applicants, on the other
hand, insisted that there be a written agreement listing their
grievances before they would
return to work. With the application of
a modicum of common sense, a solution might easily have been found.
But attitudes had hardened
to the extent that the gap was never
bridged, with the consequence that more than 750 employees lost their
jobs (with the resultant
loss in income for them and their
dependants) and a loss of millions of Rands for the respondent, which
hired a new and inexperienced
workforce. The cheerleader, of course,
gets to walk away with no consequences for his actions. The union was
left to institute
this litigation, which it has done on behalf of its
members and other employees dismissed by the respondent.
The
issue
[5] The
individual applicants contend that their dismissal was substantively
and procedurally unfair and seek an
order reinstating them into the
respondent’s employ, with retrospective effect.
The
material facts
[6] There
are a number of disputes of fact disclosed by the evidence, but as it
transpires, they are not particularly
material to the outcome.
[7] It
is common cause that the individual applicants embarked on an
unprotected strike on 30 August 2011, that
they gathered outside of
the respondent’s Chubby 1 plant on 30 and 31 August, and that
they were dismissed by the respondent
at 16:00 on 31 August 2011.
[8] While
Fourie testified that to this day he is not sure precisely what
caused the strike, events at the respondent’s
premises in
August 2011 have their roots in an incident that occurred in March
2011, when a Mr Christopher Moholeng, one of the
respondent’s
employees, claimed that he had been assaulted by members of the
applicant’s management, in particular,
by Callie van der Merwe
(the respondent’s human resources manager), and two
supervisors, Shane Dick and Peet Kruger.
[9] Although
Moholeng gave evidence and described an assault on him by the three
managers concerned, it is not
necessary for me to make a finding as
to whether Moholeng was in fact assaulted. Moholeng laid criminal
charges against the managers
concerned in March 2011. They were tried
and acquitted by the Magistrates’ Court on 29 August 2011. I
accept for present
purposes that the respondent’s employees
believed that Moholeng had been assaulted, and that they felt
aggrieved as a consequence.
All that is relevant for present purposes
is the role of any assault (and the subsequent acquittal) as a
trigger and/or justification
for the strike.
[10] Fourie’s
evidence was that he and a human resources manager, Mulutsi,
investigated Moholeng’s
claim of assault, and that they had
concluded that there was insufficient evidence to convene a
disciplinary hearing. On 11 March
2011, Fourie issued the following
memorandum:
As you are aware there
have been some serious allegations made against employees at Chubby
Chick, as a result of which Coko Mulutsi
and Mr JA Fourie did a
thorough investigation as to assess the facts. Both Coko and JA
Fourie did all the interviews with all the
relevant people, and
together have come to the following conclusion:
1) Insufficient
evidence to take action against any employees.
The Company will under no
circumstances tolerate any disloyal, racialistic violent
disrespectful or dishonest behaviour by any of
its employees and any
employee found guilty of the above will be severely dealt with.
[11] The
incident had in the interim become the subject of criminal charges
against the managers concerned, and
Fourie took the view that he
would wait for the outcome of the trial. As I have indicated, on 29
August 2011, Van der Merwe, Dick
and Kruger were acquitted by the
Magistrates’ Court.
[12] On
30 August 2011, an organisation described as “Chubby Chick
Workers” applied to the Tlokwe City
Council to hold a gathering
on a public road. The proposed gathering was described as one that
would take place from 30 August
to 9 September, on each day, at 1
Luitingh St, outside the Chubby Chick taxi rank. On 31 August 2011 an
agreement was concluded
between the council, the South African Police
Services and what was described as the ‘Chubby Chick Workers’
to regulate
what was described as picketing by approximately 800
employees in a demarcated area north of the Chubby Chicks main
entrance.
[13] The
next morning, 30 August 2011, at about 7:15, Fourie says that he
received a call from his son, who told
him that there was a strike at
the processing plant. On his arrival, Fourie saw a man whom he did
not recognise, standing on a
drum, addressing the assembled workers.
After a short while, the man’s attention was drawn to him
(Fourie) and he stated
words to the effect that ‘
Fourie is
here – we have taken control of the farms and plant, we will
run the plant and farms’
.
[14] There
is a dispute about the timing and sequence of ultimatums that were
issued after the commencement of
the strike. The respondent’s
witnesses, Fourie and Van der Merwe, testified that Fourie addressed
a total of five ultimatums
to the crowd; two on 30 August, and three
on 31 August 2011. This evidence does not accord with the
respondent’s pleadings,
or the record of documents produced at
the trial, nor does it accord with the evidence of the applicants’
witnesses.
[15] The
record of documents produced at the trial reflects that on 30 August
2011, an ultimatum signed by Van
der Merwe was issued, requiring
employees to return to work by 7h30. The last two paragraphs of the
ultimatum read as follows:
5. That
is, you are warned that, unless you return to work by 07h30 today,
disciplinary action
will be taken against you, the result of which
could be dismissal.
6. Should
you fail to return to work by 07h30 notice of disciplinary hearings
will be issued
immediately.
[16] It
is not disputed that no employees returned to work, and that no
notices of disciplinary hearings were issued.
It not clear when the
next ultimatum was issued. The ultimatum is drafted in the form of a
letter to the union and to FEDCRAW,
but appears to address employees
directly. The ultimatum reads as follows:
1. At
05h30 today (30 August 2011) you and your colleagues employed at
Fourie’s poultry
farms t/a Chubby Chick, embarked on an
unprotected strike. At 06h15, the factory manager requests you and
your colleagues to return
to your workplace and resume work.
2. At
06h30 the factory manager again request you and your striking
colleagues in several times
to return to your workplace and resume
work.
3. At
06h49, the factory manager requests due to return to your working
place and explained that
will strike is unprotected from dismissal
because you embarked on a protected strike:
· before
attempting to have the dispute is settled by the CCMA as required by
law
· without
giving the statutory 48 hours advance notice
4. The
union further takes responsibility for the union members action and
behaviour
5. Union
will be responsible for any damage to company property and loss and
production income
6. The
union and union representatives will be responsible for a zero
tolerance intimidation
of workers reporting for duty
7. Any
misconduct during the and protected strike of your members will be
dealt with according
to the company disciplinary code
8. In
terms of management’s duty and legal right to the productive,
and interrupted and
peaceful continuation of the businesses
operations you are issued with a second ultimatum
9. That
is, you are warned that, unless you return to work at your normal
starting time tomorrow
morning (31 August 2011) disciplinary action
will be taken against you, the result of which could be dismissal
10. Should
you fail to return to work on 31 August 2011 at normal starting time,
the company will apply ACT
64 of the LRA No 66 of 1995 (Sic).
[17] On
31 August 2011, the following document, signed by Fourie, was
addressed to ‘striking workers’
and the unions-
Management herby give you
a final ultimatum to return to your workplace by 10h00 today (31
August 2011).
Employees not at their
workplace by 10h00 will be summarily dismissed as per Company
Disciplinary Code of the Company for taking
part in an unprotected
strike and re-employment of casuals will start with immediate effect.
Dismissed employees will
be eligible for re-employment.
[18] On
the same day, a further ultimatum signed by Fourie was issued. It
reads as follows:
1. This
serves as another ultimatum to all employees of Fourie’s
Poultry Farms t/a Chubby
Chick who are participating in unprotected
and unlawful strike action to return to normal work and comply with
their conditions
of employment by not later than 13:00 on 31/08/2011.
2. The
Union, Shop Stewards or Employees have until 13:00 on 31/08/2011 to
submit reasons:
2.1 Why
they view the strike action as being protected and/or lawful. We
reiterate our view that the strike
action is unlawful and
unprotected.
2.2 Why
the employees participating in the aforesaid strike should not be
dismissed. It is the company’s
intention to dismiss all
employees who are participating in the strike, unless the employees
comply with this ultimatum.
2.3 The
Union, Shop Stewards or Employees must inform the Employer, Chubby
Chick, in writing of their demands
for negotiations.
3. All
employees are instructed to return to work and the Shop Stewards are
then invited to discuss
the demands with Management in a normal
working environment.
4. All
the companies’ rights remain strictly reserved (sic).
[19] That
afternoon, the following notice was issued and appears to have been
telefaxed at to the union at 16h10:
DISMISSAL OF EMPLOYEES
1.
According to the final ultimatum presented to the shop stewards,
union and employees at 13:00 today,
all employees who did not return
to their normal duties by 16:00 on 31 August 2011, would be
automatically dismissed.
2.
It is now 16:00 and this letter serves as a letter of dismissal to
all the striking day shift workers
who have not returned to their
work by now.
3.
Individual letters of dismissal will be issued in due course.
4.
All employees who apply for their old positions by 17:00 on 1
September 2011 will be re-appointed by
the company, after which no
applicants will be considered.
[20] During
the course of 30 and 31 August, a number of communications were sent
to the union office. The first
of these is the letter addressed to
the union on 30 August, which incorporates the ultimatum to return to
work by the morning of
31 August. The ultimatum requiring employees
to return to work by 10h00 on 31 August was faxed to the union, as
was the later ultimatum
requiring a return to work by 13h00 on the
same day. The notice of dismissal was also telefaxed to the union
office.
[21] During
this period, there was an exchange of correspondence between the
union and the respondent. On 30 August
2011, Tau addressed a letter
to the respondent in which he proposed meeting on 31 August 2011 at
11h00. On 31 August, and in the
absence of a response to his first
letter, Tau sent a second letter, proposing a meeting on 1 September
2011 at 10h00. On the same
day, Fourie replied, agreeing to meet at
11h00 on that day.
[22] It
is not disputed that on 30 and 31 August, the individual applicants
gathered outside the respondent’s
plant, sang songs and
chanted. A video recording was admitted into evidence, with a
transcription of what was said. The statements
include the following,
taken from an transcript of the recording:
Kill the boer/farmer. The
type of leader coming here today asked me why not stab the boss in
the stomach, You musty stab them in
the fucking stomach, How do you
let someone hit you, meanwhile you work with a knife? You must stab
them so that the fucking bastards
must understand that hitting
someone is not good, so that when we go to court there can be two
cases: that he beat you, that you
stabbed him. That is the type of
leader that I am sending inside there today; Callie could have been
stabbed the time he was doing
this in this building, He deserves not
to live, Callie must be killed as we have done with Terrblanche, who
is dead today because
of shit. Why can we not do the same with
Callie?
Dear Callie you are a
traitor, you will die in the arms of Coko.
[23] It
is common cause that on 1 September 2011, at about 12h30, Tau and
Marwele (a union official) met with Fourie
and his two sons, Van der
Merwe and a Ms Swanepoel from the respondent’s human resources
department. It is also common cause
that at the meeting, Tau raised
the issue of salaries and bonuses as some of the employees’
concerns. Fourie replied that
the employees had been dismissed, and
that these issues were not relevant. Although the content of the
minute of the meeting (prepared
by Van der Merwe) is disputed, it is
not in dispute that Fourie reiterated the offer reflected in the
dismissal notice issued the
previous afternoon, i.e. that employees
would be reinstated if they presented themselves for work by 17h00
that afternoon, on penalty
only of forfeiting wages for the three
days of the strike. Tau undertook to take this offer to the workers.
[24] Tau
testified that after the meeting, he reported back to the striking
employees and conveyed Fourie’s
offer of reinstatement. This
evidence is consistent with that given by Matlou, a shop steward, who
testified that Tau had reported
that if workers returned to work
before 17h00, they would be reinstated but that if they failed to
return, new workers would be
hired. It is not disputed that the
workers rejected Fourie’s offer, and insisted on an agreement,
in writing, recording their
specific grievances and an undertaking to
address them, as a condition for a return to work.
[25] Fourie
testified that on the afternoon of 2 September, he met with Tau. He
was informed that if he wished
to resolve the dispute he should ‘get
rid of van der Merwe’. If he did so, there would be a return to
work. Fourie
took the view that the counterproposal was unacceptable.
Tau denies that such a meeting took place. He testified that he met
with
Fourie once, on the afternoon of 1 September.
[26] After
1 September, the crowd continued to gather outside the respondent’s
premises. Fourie testified
(and this was not challenged) that various
acts of intimidation and damage to property occurred. On 8 September
2011, the respondent
filed an urgent application in the North Gauteng
Division of the High Court. A rule
nisi
was issued on the same
day, with a temporary interdict in terms of which the union and a
number of individual respondents (who
are among the individual
applicants in these proceedings), were interdicted from assaulting
and intimidating employees, preventing
clients, customers and
suppliers from entering the respondent’s premises, erecting
barricades and obstacles at the entrances
to the respondent’s
plants, damaging the respondent’s assets (including buildings,
fences, vehicles and equipment)
or congregating within a radius of
100 metres from the plants. These proceedings were not opposed by the
union or any of the individual
applicants in the present matter. The
rule
nisi
was later confirmed, without opposition, by the High
Court, on 19 September 2011.
[27] In
the founding affidavit deposed to in support of the urgent
application, Fourie recorded the events that
had occurred outside the
respondent’s premises from 31 August 2011. In particular, he
stated that a vehicle driven by a foreman
Thom was stopped by a group
of people and that Thom was assaulted by Hendrik Madiele and Jimmy
Mabaso. They later visited his home,
on 1 September 2011. On the
afternoon of 5 September 2011, Fourie states that Andries Jantjie and
Petrus Dlamini informed Thom,
Oliphant and Mathela (the latter being
foremen) that they had better sleep at the plant, a remark which the
foremen construed as
a threat. On 1 September, Fourie states that
while Oliphant was waiting in his vehicle at the main gate, Mapule
Skosana damaged
the mirror of one of the vehicles. He states that
Nana Manailane, Abraham Konzane were also involved in the incident.
On the evening
of 1 September 2011, the home of a foreman Petrus
Matela was visited by a group, who advised him not to go to work the
next day.
Joseph Nyabanyaba was identified as a member of this group.
On 30 August 2011 Innocentia Mulutsi, the respondent’s human
resources officer, was threatened by one of the leaders of the
protest then underway in front of the gate, one James Gadinabokao
was
part of a group that shouted that they were going to burn Mulutsi’s
house. He was holding a knife or panga that he pointed
in her
direction. Fourie also referred to an incident witnessed by Jan
Hendrik Botha, when on the afternoon of 31 August he saw
a bus full
of casual workers stopped by a group of 150 ex-employees of the
respondent. The group threw stones at the bus and damaged
several
windows. Members of the group assaulted Coert Erasmus and stole his
watch. All of this evidence was supported by confirmatory
affidavits,
and none of it challenged.
[28] In
the present proceedings, Botha gave evidence regarding damage to
vehicles outside of the respondent’s
plant. He also testified
about an incident in which a petrol bomb was thrown at a
vehicle loaded with live chickens. A series
of photographs were
introduced into evidence, recording these scenes. Botha also
testified regarding the incident on 31 August
when a bus carrying
causal workers was damaged, and when Erasmus was assaulted. Both Thom
and Oliphant testified as to the incidents
of intimidation and
violence that had been directed against them. Their evidence accorded
with that in the founding affidavit filed
in the urgent application,
and confirmed the identity of those persons alleged to have committed
acts of misconduct. None of this
evidence was seriously called into
question during cross examination, nor were any of the individual
respondents identified as
having committed acts of violence and/ or
intimidation called to give evidence to deny the allegations made
against them.
[29] It
was not disputed that the losses sustained by the respondent on
account of the strike were significant.
Fourie testified that in his
estimation, the respondent suffered a loss in profits of some R9.5m
to R10m on account of the strike.
It was put to Fourie that most of
these losses were occasioned not by the strike itself but by his
decision to replace those employees
whom he had dismissed with new
and unskilled recruits. Fourie did not dispute this proposition, and
an exact quantification of
the damages suffered directly on account
of the strike remains elusive. However, for present purposes, the
losses are clearly significant,
running as they do into millions of
Rand.
[30] On
1 October 2011, the union referred a dispute to the CCMA. The
referral was prepared by Tau. In his description
of the dispute, Tau
summarised the dispute in the following terms: ‘
Employees
embark on unprotected strike for assaulted employee by supervisors.
’
The dispute remained unresolved of the conciliation meeting held on
18 November 2011, and was thereafter referred to this
court for
determination.
[31] The
identity of the individual applicants to the present proceedings was
initially the subject of some uncertainty.
The parties have agreed
that they are the persons whose names appear on the schedule filed at
pages 258 to 291 of the bundle. These
include 347 employees who were
members of FAWU, 223 who were members of FECRAW, and 198 employees
who had no union affiliation.
Applicable
legal principles
[32] 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.’
[33] 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).
[35] 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.
[36] 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.
When an employer issues an ultimatum,
it should meet the requirements
of the Code, and in particular, must ensure that it allows employees
sufficient time to reflect
on the ultimatum and to respond to it
(paragraph [35] of the
CBI
judgment). This court has long held
that the requirements of procedural fairness incorporated in Item 6
do not constitute a series
of steps with which the employer must
comply for the sake only of compliance. The purpose of contacting a
trade union regarding
an unprotected strike is not a formal
requirement of notice – it is to afford the union an
opportunity to intervene and bring
its influence to bear on the
situation before any dismissal is effected, and to afford the union
the opportunity to make representations
to the employer.
[37] Further,
the courts have for some years made clear that the
audi alteram
partem
principle applies in the case of a dismissal for
participation in an unprotected strike, irrespective of whether there
has been
a failure to comply with an ultimatum. In
Modise v &
others v Steve’s Spar Blackheath
(2000) 21
ILJ
519
(LAC), the LAC held that an ultimatum and a hearing serve two
separate and distinct purposes. A hearing serves the purpose
ultimately of affording employees or a union acting on their behalf
the opportunity of stating why they should not be dismissed,
notwithstanding their failure to comply with an ultimatum. In short,
the requirements of procedural fairness relevant to dismissal
for
participation in an unprotected strike are not discharged only by the
issuing of an ultimatum. When an ultimatum has gone unheeded,
an
employer must initiate further steps to afford the right to be heard
in a manner that is appropriate to the circumstances.
Analysis
- substantive fairness
[38] The
substantive fairness of the individual applicants’ dismissal
must necessarily be determined in the
light of all of the relevant
facts, having regard to those factors referred to in item 6 (1) of
the Code. In so far as the seriousness
of the contravention of the
Act is concerned, it is not disputed that the applicants made no
attempt whatsoever to comply with
the provisions of the LRA. This
must weigh heavily against them.
[39] The
LRA establishes dispute resolution procedures that are inexpensive,
expeditious and efficient. If the
individual applicants felt as
aggrieved as Matlou now claims they did by the respondent’s
labour practices or the conduct
of its management, they would surely
have lodged grievances and referred disputes to the CCMA.
[40] In
her evidence, Matlou, gave identified a number of grievances. These
ranged from deductions from bonuses,
the maintenance of racially
segregated parking and ablution facilities, insulting behaviour by
senior managers and the like. However,
Matlou could give no cogent
explanation as to why none of these issues had been raised by the
shops stewards, or why none of them
had been referred to the CCMA. In
particular, she could not explain why none of these issues had been
so referred in the period
prior to the strike, and in particular in
the period from March to August 2011. Under cross-examination, she
was left to suggest
that the shop stewards did not have the time to
refer any disputes, an explanation that is mendacious to say the
least. Similarly,
Tau could not explain why no grievances had been
lodged and why no disputes had been referred to the CCMA especially
in the period
March to August 2011. I accept that he was not as close
to the respondent’s operations and the conduct of its
management
as was Matlou, but the fact remains that if
[41] It
is common cause that on the night of 29 August 2011, a meeting of the
respondent’s employees was
held at which it was resolved that
they would strike at the respondent’s premises on the following
morning. Matlou was present
at the meeting. She conceded the strike
would be unprotected and that Ponyane, a union official at the
meeting, had warned employees
that by engaging in an unprotected
strike, they would place their jobs at risk. This is consistent with
the undisputed terms of
the application submitted to the Tlokwe
Council to hold a gathering, in which a protracted strike is
foreshadowed. It should be
recalled that the application was filed on
the same date as the strike commenced.
[42] It
is clear from the evidence that the applicants clearly never had any
intention of making a demand of the
respondent, or affording the
respondent a reasonable time within which to respond to any demand or
grievance before declaring a
dispute. The applicants, for reasons
that they failed fully to articulate in these proceedings, simply
decided to ignore the provisions
of the Act.
[43] Conduct
that may have been justifiable in a non-democratic society is not
justifiable in a democracy where
the right to strike is
constitutionally recognised, as are the reasonable limitations on
that right reflected in s 64 and s 65
of the LRA. It is disturbing
that 20 years after the advent of democracy and the negotiation of
labour legislation that gives full
expression to international and
constitutional rights and which establishes an easily accessible
dispute resolution system, the
applicants preferred to engage in the
politics of protest rather than seek recourse through statutory
dispute resolution structures.
[44] The
distinction between a protected and an unprotected strike is not an
academic one – it is one that
ought to have consequences,
especially in a case, such as the present, where workers take a
conscious decision to ignore the LRA.
There is an irony in the act of
appealing to this court for reinstatement into employment (as the
applicants do) where the loss
of that employment is the consequence
of a considered and deliberate decision to flout the provisions of
the LRA. It is not often,
I would venture to say, at least in
relation to substantive fairness, that this court will find a
dismissal unfair where the decision
to ignore the relevant statutory
requirements is considered and deliberate.
[45] This
court has previously come to the assistance of employees in
circumstances where the conduct of the employer
provoked a response
from them that amounted to unprotected strike action (see, for
example,
National Union of Metalworkers of South Africa v
Lectropower (Pty) Ltd
, where the court accepted that the summary
dismissal of shop stewards provoked a unprotected strike that
commenced immediately
thereafter). In the present instance, the
applicants have made much of the fact that the strike was called in
response to unjustified
conduct by the respondent or to repeat
Matlou’s monotonous and fatuous refrain, the ‘working
conditions’. The
case for what the union referred to as a
‘climate of discontent’ at the respondent’s
business was foreshadowed
in the statement of claim in which it was
averred, by way of example, that employees would not be paid when
they took sick leave
their female employees who fell pregnant and
took maternity leave were not paid and were penalised on their return
to work with
a reduction in their bonuses, that shop stewards were
not permitted to speak in behalf of employees at disciplinary
hearings, that
they were abused and that black employees were
subjected to several practices that the amounted to discrimination on
the grounds
of race. Some of these allegations were never put to the
respondent’s witnesses for comment, and as I have indicated,
the
union failed in any event to lodge any grievance or refer any of
these issues to the CCMA
[46] The
only reasonable conclusion to be drawn from these facts is that the
case of ‘working conditions’
is a belated and contrived
attempt to provide a justification for the decision to embark on an
unprotected strike. Ultimately,
the ‘working’ conditions’
and the ‘oppression’ referred to by Matlou amount to
nothing more than
a construct by the applicants in an attempt to
build a case of justification, where no such case exists. All of the
evidence points
to the acquittal of Van der Merwe and his co-accused
by the Magistrates’ Court on 29 August 2011 as the trigger for
the strike.
But for the acquittal, there would have been no strike on
30 August. Indeed, Tau conceded as much under
cross-examination.
[47] As
I have indicated, it is not necessary for me to make any finding in
relation to the alleged assault on
Moholeng. For present purposes,
all that is relevant is that there was a degree of discontent with
the respondent’s decision
not to proceed with a disciplinary
enquiry at the time, and to await the outcome. To the extent that the
applicants rely on what
they believed to be an assault on Matlou to
justify their conduct, the evidence does not support that
justification. First, the
events complained of occurred in March
2011, some six months before the strike. Matlou reluctantly conceded
as much under cross-
examination, when she acknowledged that all of
the issues that she said caused the strike had happened by 11 March
2011. At that
stage, Fourie had conducted an investigation and
concluded that there was insufficient evidence to convene a
disciplinary hearing.
He was content to allow the criminal
proceedings that had been initiated to take that course. It might be
suggested (As Adv. van
der Riet did) that with the benefit of
hindsight, Fourie’s decision was a poor one and that had he
dealt with the situation
differently, the strike might never have
occurred. Even if that is so, it does not necessarily follow that a
strike called in breach
of any provision of s 64 the LRA is
justifiable. All of the facts and circumstances in the period leading
up to the strike need
to be considered. By 11 March, the respondent’s
workforce knew that the respondent’s management did not intend
to take
any immediate action. The union that first drew the issue to
Fourie’s attention, FEDCRAW, of which Moholeng was then a
member
did not pursue the issue.
[48] It
was only after the acquittal of the managers on 29 August 2011 that
there was any real sign of discontent
amongst the respondent’s
employees. The acquittal was obviously something over which the
respondent had no control. To the
extent that the applicants may have
been dissatisfied at the manner in which the trial was conducted, and
in particular with the
failure to call certain witnesses, this was
none of the respondent’s doing. The applicants could have
directed their anger
at the National Prosecuting Authority. Instead,
they deliberately chose to target the respondent.
[49] What
is also clear from the evidence is that the industrial action that
occurred on 30 and 31 August was hardly
spontaneous. It was not
disputed that a meeting was held in Potchefstroom on the night of 29
August and that the meeting resolved
to commence a strike the
following morning. The submission of the application to the local
council is further evidence of what
appears to have been an intention
to call and continue a protracted strike at the respondent’s
plant, and deliberately to
flout the LRA.
[50] To
the extent that the union’s statement of claim foreshadows a
case of provocation based on a celebration
that took place after the
acquittal of van der Merwe and that black employees were openly
mocked and became particularly angry,
this is not a case that was
made in the evidence presented by the applicants.
[51] In
summary: the reason for the strike was the acquittal of Van der
Merwe, Dick and Kruger on 29 August 2011.
In these circumstances, in
my view, it cannot be said that the respondent had any control over
the issue giving rise to the strike,
or that it provoked the
industrial action that occurred. For these reasons, the individual
applicants’ resort to unprotected
strike action was not
justifiable, and I find that their dismissal was substantively fair.
Analysis
-procedural fairness
[52] As
I have indicated, Fourie’s evidence that he issued two
ultimatums on 30 August and three on 31 August
is not consistent with
either the statement of defence or the record of documents. For the
purposes of determining the respondent’s
compliance with the
requirements of fair procedure, I intend to have regard to the
ultimatums that are the subject of the record.
What these disclose is
a failure to comply with both the spirit and the letter of Item 7.
First, the ultimatums obviously did not
disclose any serious
intention to dismiss, not initially, at least. It is difficult to
appreciate how the intention of the ultimatum
(amongst other things,
to provide an opportunity to reflect on what is required of an
employee) is met when a string of ultimatums
is issued, each
requiring a return to work at a different time. It is also difficult
to appreciate quite how an employee is required
to take the employer
seriously in these circumstances, and quite when an ultimatum is
intended to be any less tentative than the
last. Further, the
respondent ought to have appreciated after issuing the first
ultimatum on 30 August and in the face of
the derision with which it
was met, that little purpose would be served in churning out
ultimatum after ultimatum, or reading each
ultimatum over a
loudhailer in circumstances where none of the employees for whom it
was intended could hear what was being said.
This smacks of a
mindless going through the motions, with the intent perhaps of
ensuring compliance with what were perceived to
be a series of
procedural obligations. The requirements of Item 6 are largely
instrumental – they are intended to secure
an engagement
between management and the union and/or employees before a decision
to dismiss is taken.
[53] In
the present instance, while the union had been called to the scene
and had offered to deal with the issues
giving rise to the strike as
early as 30 August 2011, Tau’s evidence was in effect that he
spent fruitless hours outside
of the respondent’s premises on
both 30 and 31 August, only to be received by Fourie and the members
of the respondent’s
management team at 11h00 on 1 September,
after the individual applicants had been dismissed. This is not
conduct that is conducive
to any earnest attempt to resolve the
dispute that had arisen.
[54] In
any event, on its own version, the respondent did not afford the
individual applicants a hearing prior
to dismissal, not even through
the agency of the union. As I have indicated, the first meeting that
the respondent agreed to have
with union officials occurred almost
exactly two days after the union first indicated its willingness to
intervene, and a day after
the individual applicants had been
dismissed. The respondent has therefore manifestly failed to comply
with the requirements of
fair procedure.
[55] There
is a dispute of fact concerning what Fourie testified was a meeting
between him and Tau on 2 September,
when Fourie says that Tau stated
that the individual applicants would return to work on condition that
Van der Merwe was removed
from his post. Tau denies that any such
meeting took place. In my view, Tau’s version is the more
probable. His clear recollection
was that he left Potchefstroom on
the evening of 1 September to prepare for the union’s national
congress. Fourie could produce
no record of the meeting, nor was
there any other witness to it. Matlou at no stage in her evidence
raised the issue of Van der
Merwe being removed, certainly not as a
core demand. It is probable then that no meeting between Tau and
Fourie took place on 2
September at which a demand for the removal of
Van der Merwe was tabled. This conclusion is not of any major
consequence –
what is undisputed and confirmed by the evidence
of Fourie, Tau and Matlou is that on 1 September, Fourie was prepared
to reinstate
all of the employees who had been dismissed, conditional
only on a return to work by 17h00 on 1 September 2011 and the
application
of the no work, no pay principle for the three days of
the strike.
Remedy
[56] If
a dismissal is found to be only procedurally unfair, the court may
not order reinstatement. Any amount
of compensation to be awarded for
a dismissal that is procedurally unfair is the subject of a
discretion to be exercised by the
court. The LRA requires that any
award of compensation be reasonable. It is a well-established
principle that all relevant facts
and circumstances must be taken
into account. In the present circumstances, I must take into account
the fact that despite the
fact that Fourie in effect refused to meet
with Tau on 30 and 31 August. I must also take into account that the
ultimatums variously
issued by the respondent on 30 and 31 August
were not unequivocal. By 31 August, even for an individual applicant
who had been
prepared to read the series of ultimatums issued and
seriously contemplate their contents, it was not clear what the
degree of
departure from the procedural requirements prescribed by
item 6 are therefore not insignificant.
[57] I
must also take into account the conduct of the individual applicants.
They took a conscious decision to
commence the strike without
invoking any of the dispute resolution mechanisms in the Act. This is
not a case in which the protected
or unprotected nature of a strike
was dependent on some legal technicality – the individual
applicants took a considered
to disregard the provisions of the LRA.
Further, they were warned by their union official of the consequences
of doing so. Despite
that warning, they elected to take the law into
their own hands.
[58] More
fundamentally, on their own version, the individual applicants were
offered the opportunity to return
to work on conditions that were
more than reasonable and that would have involved minimal prejudice
to themselves. The offer made
by Fourie to Tau amounted to a return
to work, conditional only on the loss of pay for the three days of
the strike, an amount
to which they were in any event not entitled.
In this sense, the offer was one of unconditional reinstatement. Had
the individual
applicants accepted the offer on 1 September, the
employment relationship would have been fully restored, with their
rights intact
to pursue whatever grievances they had against their
employer both in an internal discussion that had been agreed, and by
recourse
to the LRA if necessary. For reasons that remain largely
inexplicable, the individual applicants chose not to accept the
offer,
and they must bear the consequences of that decision. It would
not be equitable to visit the respondent with a hefty award of
compensation
in circumstances where had the individual applicants
acted more prudently, these proceedings would have been avoided.
[59] Finally,
there is the issue of violence and participation in acts of violence.
Despite Matlou’s bland
but implausible denial of any acts of
violence perpetrated by those gathered outside of the respondent’s
premises, the evidence
regarding damage to motor vehicles, the damage
to the bus carrying casual workers, the assault on Erasmus and the
abortive petrol
bombing of a truck carrying live chickens was not
seriously called into question. There is also the issue of the
content of the
songs and chants some of which, as I have indicated,
amounted to nothing less than an incitement to murder.
[60] Acts
of gratuitous violence have regrettably become endemic in strike
action in South Africa, to the extent
that the court might question
whether those who participate in acts of strike-related misconduct
should forfeit any right to a
remedy to which they might otherwise
have been entitled by an employer’s lapse in procedure. For
this court to reward those
who resort to violence or the threat of
violence is to surrender to the tyranny of the mob. Neither the union
nor any of the individual
applicants disassociated themselves from
the conduct of the mob, a factor that must necessarily weigh heavily
against them when
a fair quantum of compensation is assessed. Indeed,
as I have indicated, in her evidence, Matlou persisted with a denial
that any
acts of violence had taken place. There were a number of
identified individuals against whom specific allegations of serious
misconduct
were raised, and not specifically disputed. In my view,
none of them should be entitled to compensation; they will have to be
content
with what will amount to a declaratory order that their
dismissal was procedurally unfair.
[61] The
most recent precedent concerning compensation for a procedurally
unfair dismissal in the context of an
unprotected strike is the
CBI
judgment referred to above. In that case, the LAC increased the
sum awarded by the court
a quo
to an amount equivalent to 12
months’ remuneration. I am not persuaded that a similar amount,
or anywhere near it, is appropriate
in the present circumstances. In
the present instance, as I have indicated, the fact that strike was
accompanied by acts of gratuitous
violence must weigh heavily against
all of the individual applicants, not only those directly identified
as having perpetrated
specific acts of violence and damage to
property. The union and its members assumed no responsibility for the
acts of those who
were clearly guilty of misconduct and through
Matlou, persisted with the implausible denial that there was no
violence, despite
the graphic evidence to the contrary presented by
Botha. Secondly, the issue over which the strike was called (unlike
the situation
in
CBI
) was one over which the respondent had no
control. Thirdly, and fundamentally, in the present instance the
applicants spurned an
offer made within 24 hours of their dismissal
for what amounted to unconditional reinstatement. On this basis
alone, there are
cogent grounds for denying the individual applicants
any compensation at all. However, I must necessarily take into
account what
amounts to a serious breach by the respondent of the
requirements of fair procedure. In my view, compensation in a sum
equivalent
to two months’ remuneration for each of the
individual applicants, but for those specifically identified as
having committed
acts of strike-related misconduct, is fair and
reasonable.
[62] Costs
are an issue that in terms of s 162 of the LRA is the subject of a
discretion to be exercised by the
court, having regard to the
requirements of the law and fairness. In so far as the result is
concerned, the applicants have been
only partially successful in
their claim. It is not clear to me from the evidence whether a
collective bargaining relationship
between the parties remains in
existence, nor am I able to determine the extent to which (if any)
any relationship between the
parties may be prejudiced by any costs
order. In the circumstances, and given that the applicants have
succeeded only partially
in their claim, in my view, the interests of
fairness are best served by making no order as to costs.
For
these reasons, I make the following order:
`1. The
dismissal of the individual applicants was substantively fair, but
procedurally unfair.
2. Each
of the individual respondents, but for Hendrik Madiele, Jimmy Mabaso,
Andries Jantjie,
Petrus Dlamini, Mapule Skosana, Nana Manailane,
Abraham Konzane, Joseph Nyanbanyaba, James Gadinabokao, is awarded
compensation
in a sum equivalent to 2 (two) months’ salary, to
be calculated at their rate of remuneration on the date of dismissal.
ANDRE
VAN NIEKERK
JUDGE
OF THE LABOUR COURT
REPRESENTATION
For
the applicants: Adv. JG van der Riet SC, instructed by Cheadle
Thompson and Haysom Inc.
For
the respondents: Adv. A Snider, instructed by DLA Cliffe Dekker
Hofmeyr