About SAFLII
Databases
Search
Terms of Use
RSS Feeds
South Africa: Johannesburg Labour Court, Johannesburg
SAFLII
>>
Databases
>>
South Africa: Johannesburg Labour Court, Johannesburg
>>
2015
>>
[2015] ZALCJHB 170
|
|
NUMSA obo Dali and Others v Twin Structures Steel Construction (Pty) Ltd (JS1051/2012) [2015] ZALCJHB 170 (28 May 2015)
THE LABOUR COURT
OF SOUTH AFRICA, JOHANNESBURG
JUDGMENT
Case no: JS
1051/2012
DATE: 28 MAY 2015
Not Reportable
In the matter
between:
NUMSA obo LAZARUS
DALI AND 27
OTHERS
................................................................
Applicant
And
TWIN STRUCTURES
STEEL CONSTRUCTION (PTY)
LTD
.......................................
Respondent
Heard: 11 –
13 and 15 May 2015
Delivered:28 May
2015
Summary:
Applicant alleges unfair dismissal following dismissal for
participation in an unprotected strike. Claim of provocation
upheld.
Dismissal procedurally fair but substantively unfair. Compensation
awarded.
JUDGMENT
PRINSLOO, AJ
Introduction
[1]
The Applicant on behalf of 28 members (the
employees) approached this Court for relief as they claim that their
dismissal was substantively
and procedurally unfair.
[2]
The Respondent opposed the matter.
[3]
A brief overview of the facts that are
common cause between the parties and those that are in dispute is as
follows:
The pleadings and
pre-trial minute
[4]
In their statement of case the Applicant
claimed that the employees were dismissed for participating in an
unprotected strike, whereas
they were not on strike but expelled from
the Respondent’s premises.
[5]
The challenge to the substantive fairness
of the employees’ dismissal is that the Respondent failed to
engage the union and
the employees on the issues in respect of which
they wanted a response and the Respondent’s conduct was a
significant contributory
factor in the underlying issues they wanted
to engage the Respondent on.
[6]
The Applicant’s case is that the
employees were not on an unprotected strike but were instructed to
leave the workplace following
their request for answers in respect of
their wages and overtime.
[7]
Procedural fairness was challenged on two
grounds firstly that NUMSA was excluded from the disciplinary
hearings held for the employees,
despite an agreement for
postponement. This aspect of the challenge to procedural
fairness was abandoned and does not
require any decision from this
Court. Secondly and in the event that the Respondent adopted the
approach that the employees were
on an unprotected strike it failed
to issue a fair and reasonable ultimatum to the employees.
[8]
The Respondent in its statement of defence
pleaded that the employees embarked on an unprotected strike and they
were requested
verbally on a number of occasions to return to work. A
written final ultimatum was issued which the employees were aware of,
yet
in defiance of the final ultimatum the employees left the
premises.
[9]
It appears from the pre-trial minute that
the following is common cause between the parties:
[10]
The Respondent’s core business is the
production and installation of steel structures.
[11]
The Respondent is a member of the Metal and
Engineering Bargaining Council (MEIBC) where a collective agreement
or main agreement
(the agreement) was signed in July 2011, after a
national strike in the metal and engineering industry. The agreement
was valid
for 3 years and prescribed minimum wages and wage increases
across the board.
[12]
The agreement was binding on the
Respondent.
[13]
The Respondent failed to comply with the
provisions of the agreement and did not pay the wages as prescribed.
[14]
The employees were paid fortnightly and in
July 2012 they were paid on the 6
th
and 26
th
and were off duty on 27 July 2012.
[15]
The strike action is disputed. The
Applicant’s case is that the employees were not participating
in an illegal strike but
were instead expelled from the Respondent’s
premises after they made enquiries about their wages. The
Respondent’s
case is that the employees embarked on an
unprotected strike when they failed to tender their services on 30
July 2012 and continued
to do so on 31 July 2012.
[16]
The relief sought by the Applicant is
compensation as the employees do not wish to be reinstated.
The evidence
adduced
[17]
The material facts are by and large a
matter of common cause. However the evidence adduced disclosed a
number of disputes of fact,
some material and relevant and some not
material to the outcome and the issue to be decided.
[18]
Mr Johann Smit (Smit) testified that he a
member of the Respondent.
[19]
The Respondent is a member of the MEIBC and
the agreement was binding on the Respondent, however it was not in
position to comply
with the agreement and to pay the prescribed
rates. The Respondent applied for exemption from the 2011/2012
agreement and he has
not received an outcome from the MEIBC. Pending
the outcome he paid wages much lower than the prescribed minimum
wages.
[20]
Smit adduced evidence in respect of his
application for exemption, which is not relevant to the issue this
Court has to decide.
Suffice to say that he applied for exemption and
was advised by the MEIBC on 25 March 2011 that his application did
not meet the
requirements for consideration as the following were
outstanding: no consultation with employees, contributions were not
paid up
to date and there were no financial reports submitted. On 25
October 2011 the Respondent submitted an application for condonation
to the MEIBC and Smit testified that up to date he has not received
an outcome form the MEIBC in respect of his application. This
testimony however does not accord with the Respondent’s plea as
per paragraphs 10.1, 13.1 and 15.3 of the statement of response
wherein the Respondent confirmed that the application for exemption
was dismissed.
[21]
It is common cause that a meeting was held
between the Respondent and the employees on 10 February 2012. The
purpose and outcome
of the meeting is however disputed. Smit referred
to a document titled ‘Minutes of meeting 10/02/2010’ but
on a proper
perusal of the document it appears to be an agenda rather
than minutes. Be that as it may it was captured on this document that
the employees wanted to know about the exemption rates and that Smit
explained the exemption rates. Smit testified that he explained
the
rates the Respondent paid and that the employees accepted it. He
referred to an attendance list signed by the employees who
were
present at the meeting and another list ‘Twin Structures
employees attending the exemption rate meeting’. The
second
list has a handwritten note that purports to set out certain rates.
It is written on the list that the rate of 2011 plus
10% in 2011, 9%
in 2012 and 8% in 2013 and the Respondent confirmed that these were
the rates the Respondent was going to and were
able to pay. Smit
testified that the employees agreed to the rates set out in this
document. According to him the reason they never
complained since
July 2011 was because they knew that there was an agreement in place.
[22]
The employees on the other hand disputed
this version and testified that they indeed attended the meeting but
there was no consultation
about the rates they were to be paid. The
Respondent decided on the rates unilaterally and without consulting
them and at the meeting
he merely informed them about the rates he
was going to pay.
[23]
The document the Respondent wants this
Court to accept as proof that the employees agreed to the payment of
the rate that applied
in 2011 has 38 names on the list, of which six
employees attached their signatures. The evidence was that only the
ones who signed
the document had agreed to the payment of the rates
as decided by the Respondent.
[24]
On the evidence before this Court I can
hardly accept that the document the Respondent relies on constitutes
sufficient proof of
the fact that the employees were consulted about
the wages payable to them and that they indeed agreed to the lesser
wage being
paid. I am however prepared to accept that the issue of
wages and the rate at which it would be paid was discussed, not
agreed,
and that this was an issue of interest to the parties.
[25]
It is common cause that the employees would
normally arrive at work any time from 06:30 and started to work at
07:00. They were
required to wear safety gear and would change their
clothes before commencing work.
[26]
It is also common cause that the employees
were paid fortnightly and they were paid their wages on 26 July 2012
and that their next
working day was Monday 30 July 2012, when the
events material to this dispute started.
[27]
Most of the events of 30 July 2012 are
common cause. Smit testified that on Monday 30 July 2012 when he
arrived at work shortly
after 07:00 the employees were standing
inside the Respondent’s premises in front of the office but
they were not dressed
in their working clothes and they were not
working. The foreman, one Rassie, informed Smit that the employees
wanted to see him
about their wage increases before they would
commence work. Rassie was sent to tell the employees to go back to
work but they insisted
on seeing Smit before they would work. Smit
went to the employees but instead of engaging them, he told them that
he was busy and
could not attend to them and that they had to go back
to work and if they did not want to work, to move outside the
premises.
[28]
Smit persisted with his version that he was
too busy to engage the employees and to meet with them on 30 July
2012. The employees
confirmed this version and added that Smit said
that he gave them two minutes to go back to work or leave the
premises. It was
the employees’ testimony that whenever they
wanted to discuss issues with Smit, he told them he was busy and did
not have
time. I accept that Smit was a busy man who had little or no
time to engage his employees.
[29]
Smit explained that the reason why he asked
the employees to leave the premises if they were not working was
because of the safety
risks employees could face if they were not
wearing protective clothing and were standing around on the premises.
Mr Lazarus Dali
(Dali), one of the employees who testified, disputed
this version. It was however not disputed when Smit testified and the
Applicant’s
version was not put to Smit.
[30]
Smit denied that the employees were
expelled but stated that they were given a choice: either go back to
work or leave the premises
for their own safety. Although Dali
disputed the safety issue, he conceded that the employees were given
a choice: either go back
to work or leave the premises and they
decided to leave the premises.
[31]
I accept that the employees, although
present, were not working at 07:00 on 30 July 2012, as they wanted to
have a discussion with
Smit and were waiting to see him in front of
the office. Smit testified that the employees refused to work until
they could see
him and Dali testified that they reported for duty on
30 July 2012 and gathered to speak to Smit before starting to work,
as they
wanted an explanation about their wages.
[32]
It was put to Smit that the employees were
entitled to withhold their labour if they were not paid in accordance
with the main agreement.
Smit responded there was an agreement in
place to pay less than the wages in the main agreement and that the
employees had no appointment
with him regarding the issues. This
explanation Smit tendered as justification to pay the employees far
below the prescribed rate
and for his refusal to meet with them to
discuss the issues they wanted to raise about their wages.
[33]
Dali testified that if Smit had engaged
with them and spoken to them in the morning of 30 July 2012, they
would have gone back to
work. It was put to Smit that had he
addressed the employees on 30 July 2012, they would have gone back to
work. Smit disputed
that. I do not attach much weight to the fact
that Smit disputed that the employees would go back to work had he
addressed them
as he never made any effort to address them and he is
in no position to deny that they would have gone back to work.
[34]
At 07:20 on 30 July 2012 Smit’s
secretary, one Lillian, arrived at work and Smit sent her to speak to
the employees and to
tell them to return to work. It is common cause
that at this point the employees were standing outside the premises
and that Lillian
addressed them outside the premises. Lillian
reported back that the employees insisted on meeting with Smit before
they would start
working. Smit sent her back to the employees to tell
them that they should give him 48 hours to sort out the issues and
that the
shop stewards should make an appointment to meet with him.
Lillian once again reported back that the employees wanted to see
him.
It was at this point between 07:30 and 07:35 that Smit put up a
written final ultimatum (the ultimatum).
[35]
The ultimatum reads as follows: “Final
notice of illegal strike. This is a final notice to return to work at
full capacity
before 08:00 30/07/2012. Any employee refusing to do so
or continue in an unlawful strike will face disciplinary action.”
[36]
It is common cause that the employees were
present when the ultimatum was put up, that they read it and
understood it but failed
to heed to it. Instead the left the premises
and went to the offices of their trade union.
[37]
Smit testified that after the employees
left, he informed NUMSA about their conduct by faxing the ultimatum
to the offices of NUMSA.
[38]
It is common cause that the NUMSA local
organiser, Mr Elias Mathuthu, responded and that a letter was faxed
to the Respondent on
30 July 2012 at around 8:30. In the letter NUMSA
stated that although the Respondent alleged that the employees were
participating
in an unprotected strike, the employees’ version
was that they were expelled from the premises after they complained
about
the non-increment of their wages and compulsory overtime.
[39]
I accept that the Respondent was aware what
the issues were the employees wanted to discuss with Smit, hence his
comment that he
should be afforded 48 hours to sort it out without
any engagement with the employees to find out what the problem was.
The Respondent
knew what the issues were. The employees’
testimony was that they wanted assurance from Smit that the issues
would be attended
to as they were of the view that the issues would
still remain after 48 hours.
[40]
NUMSA further recorded in the letter that
the non-compliance with the agreement was
inter
alia
a ‘direct ingredient to this
situation’.
[41]
NUMSA recorded that the employees were not
striking but were provoked when the Respondent ignored the issues
they wanted to raise.
NUMSA requested an urgent meeting with the
Respondent to deal with the issues and proposed a meeting for 1
August 2012 at 12:00
with a list of issues to be discussed. The
Respondent was requested to revert back urgently.
[42]
NUMSA also stated that the employees would
report back for duty on 31 July 2012 to render their services in line
with their contractual
obligations. That concluded the events for 30
July 2012.
[43]
Smit testified that on 31 July 2012 he
arrived at work at 07:10 and as it was after 07:00 he expected the
employees to be working.
There are some factual disputes regarding
the events of 31 July 2012 but what it common cause is that the
employees were present
on the Respondent’s premises and at the
time Smit arrived some employees were dressed, some were in the
change room and some
were sitting outside the change room. It is also
common cause that the change room is not big enough for all the
employees to be
inside at the same time and they take turns to change
their clothes.
[44]
Smit’s version was that when he
arrived at 07:10 the employees had not commenced work and he could
see that they were not
in the ‘mood’ to work. He conceded
that some were dressed for work and some were still in the changing
room, but insisted
that no one was working at 07:00. He confronted
the employees with the fact that there was an agreement that they
would work on
31 July 2012 and that a meeting was scheduled with
NUMSA for the following day. The employees insisted that they wanted
to meet
with him before commencing work. Smit told the employees that
he would not talk to them and he would meet with their union the next
day. At around 07:15 Smit told them to go to work or go outside the
premises. The employees left the premises and were standing
outside.
Dali conceded that they were given an option to either work or leave
the premises and that the employees who resumed duty
were not
expelled but were allowed to work. He however denied that they spoke
to Smit on 31 July 2012 as he chased them out shortly
after he
arrived at the workplace.
[45]
Dali explained the reason why the employees
were not working at 07:00 on 31 July 2012 was because the gates were
opened late. The
gates usually opened at 06:00 and employees would
arrive at 06:30 to change their clothes and start working at 07:00.
On 31 July
the gates were only opened at 06:55 and therefore by 07:00
some employees were still in the change room and others waiting to
change.
Although this explanation might be plausible, the difficulty
is that it was not raised in the Applicant’s statement of case,
it was not captured in the pre-trial minute and it did not form part
of the version put to Smit in cross-examination. This explanation
is
critical to the Applicant’s case and it is strange and
unfortunate that it never made its way to the pleadings or
cross-examination.
I cannot accept the explanation tendered only at
this late stage in the proceedings.
[46]
Dali testified that on 31 July 2012 they
knew and understood the consequences of the ultimatum that was issued
on 30 July 2012 and
that was the reason why they went back to work on
31 July 2012 to resume duty.
[47]
Between 09:00 and 10:00 on 31 July 2012 the
Respondent suspended the employees and issued them with notices to
attend disciplinary
hearings on 7 August 2012. The employees
thereafter left the premises.
[48]
It was put to Dali that no matter what the
Respondent told them on 30 and 31 July 2012, they would not return to
work as they decided
to withhold their labour. Dali disputed this and
testified that they wanted to speak to Smit and had he agreed to
speak to them
even just for five minutes or if he had agreed to
schedule a meeting, they would have gone back to work and resumed
duty. They
perceived Smit’s conduct as expelling them from the
workplace.
[49]
On 1 August 2012 Mathuthu wrote a letter to
the Respondent requesting a postponement of the disciplinary hearings
of the NUMSA members,
as he was not available to represent them on 7
August 2012 and the postponement was agreed to. In the same letter
Mathuthu requested
that the Respondent urgently revert to the
proposed request for a meeting with the objective of finding an
amicable solution.
[50]
Mathuthu testified that the meeting was
requested with the view to find a solution and to resolve the issues,
hence he requested
an urgent meeting. He testified that on 30 July
2012 he proposed 1 August 2012 for a meeting with the Respondent and
he expected
the Respondent to either confirm the date and time as
proposed or to make a proposal for an alternative date or time. He
had no
response from the Respondent and therefore he once again on 1
August 2012 requested that the Respondent urgently revert in respect
of the request for a meeting. Mathuthu’s testimony that the
meeting was never confirmed is supported by the letters he wrote
and
was in any event not disputed.
[51]
Although the Respondent sent correspondence
to NUMSA on 1 August 2012, no mention is made of a meeting to take
place on 1 August
2012 or any other date. Smit was unable to state
who confirmed the meeting with NUMSA and I accept that the meeting
was never confirmed
and NUMSA was expecting the Respondent to confirm
the meeting as proposed or to reschedule the meeting.
[52]
Smit testified that on 1 August 2012 Mr
Gerhard Lombaard of his employer’s organisation, NOESA, was
present at the Respondent’s
premises for the meeting with NUMSA
and they waited for Mathuthu to show up. NUMSA however did not show
up and the meeting never
happened.
[53]
I do not accept Smit’s version that
he was waiting to meet with NUMSA on 1 August 2012. Mathutu wrote two
letters requesting
the Respondent to revert regarding the proposed
meeting, which was never responded to. I accept Mathuthu’s
version that the
Respondent did not confirm the meeting and he was
still awaiting a response. I find it strange that a person as busy as
Smit would
be waiting patiently to meet with NUMSA and when Mathutu
failed to show up, he would not make any enquiries or any attempt to
phone
NUMSA or Mathutu to find out if he was still on his way to the
meeting or what the position was. The version put forward by Smit
is
in view of his evidence that he was a very busy man, that he needed
48 hours to resolve the issues and that he was eager to
resolve the
dispute with NUMSA so improbable that it has to be rejected.
[54]
Between 1 August and 7 August 2012 Smit,
who requested 48 hours to sort out the issues and who stated that he
was eager to sort
out the issues with NUMSA, did nothing to either
resolve the issues he was well aware of or to set up a meeting with
NUMSA.
[55]
The disciplinary hearings proceeded on 7
August 2012. The employees insisted on proceeding on that date
without representation,
despite the agreement to a postponement. The
employees were subsequently dismissed.
[56]
On the issue of ultimatums it was the
Respondent’s case that three ultimatums were given on 30 July
2012. Smit gave the first
ultimatum early in the morning, Lillian
gave the second ultimatum at around 07:20 and the final written
ultimatum was given between
07:30 – 07:35. Smit testified that
he gave another ultimatum on 31 July 2012. This was however not
pleaded and I do not accept
that another ultimatum was given on 31
July 2012.
[57]
It is evident from Smit’s testimony
that the three ultimatums given on 30 July 2012 were given over a
period of 30 –
35 minutes. The first ultimatum by Smit gave the
employees two minutes to return to work and the final ultimatum gave
them 25 –
30 minutes to return to work.
[58]
Smit confirmed that from July 2011 when the
agreement came into force until 30 July 2012 he never received any
correspondence or
complaint from the employees or the union. The
first correspondence he received was the letter from Mathuthu on 30
July 2012 requesting
a meeting for 1 August 2012. This was
undisputed.
[59]
Dali testified that the reason why they
never filed a complaint with the MEIBC or filed any grievances via
their trade union was
because they were scared of Smit and were of
the view that he would dismiss or manhandle them should he knew that
they were involved.
I do not accept this version. On 30 and 31 July
2012 the employees confronted their employer and demanded to speak
with Smit and
refused to work until he had spoken to them. This is
not the conduct of individuals who fear dismissal or manhandling.
[60]
Smit testified that it was crucial to have
a full compliment of staff during June and July 2012 as the
Respondent was still a growing
business and was in the process of
securing new business and the potential new client was waiting on
delivery. It was critical
to deliver on time to secure future
business. Smit testified that he was under pressure and he wanted the
employees to return to
work. The employees insisted on talking to him
and he insisted that he could not talk to them. Apart from stating
that he was busy
no other explanation is given why Smit did not talk
to the employees on 30 July 2012. I find it odd that a person who was
under
pressure to deliver and who insisted that he wanted the
employees back at work, would not make any effort whatsoever to
engage
them and talk to them, as all indications are that it could
have alleviated the situation.
Closing arguments
[61]
In
closing argument Mr Geldenhuys on behalf of the Respondent submitted
that on 30 July 2012 there was a strike as defined in the
Labour
Relations Act
[1]
(the Act), it
was unprotected, persisted with on 31 July 2012 and that dismissal
was fair.
[62]
In respect of the Applicant’s
challenge to the ultimatum that was issued on 31 July 2012, Mr
Geldenhuys submitted that the
timeframe set out in the ultimatum is
immaterial but what is required is that the ultimatum should be
understood by the employees,
the consequences of not adhering to it
should be understood and the employees should be given sufficient
time to consider it and
decide what to do.
In
casu
the employees understood the
ultimatum and the decision they took was to go to the offices of the
union. Had they reported for duty
and resumed work on 31 July 2012,
the issue would have been resolved. It was also submitted that the
employees persisted with their
refusal to tender their services until
they spoke to Smit and despite what they were told by the Respondent
and their trade union,
they persisted with their conduct. On 31 July
2012 the employees were given the option to work or to leave and the
left in pursuance
of their strike.
[63]
On the conduct of the Respondent Mr
Geldenhuys submitted that the Respondent could not comply with the
main agreement and he tried
to get exemption, the Respondent could
not be blamed for the events of 30 July 2012, more so in view of the
fact that Smit requested
48 hours to sort out the issues.
[64]
Mr Geldenhuys submitted that the employees’
dismissals were procedurally and substantively fair.
[65]
Mr Phukubje on behalf of the Applicant
conceded that the conduct of the employees on 30 July 2012 might fall
within the definition
of a strike as set out in the Act. Having
conceded that he submitted that this Court has to consider the
conduct of the parties.
There was a wage agreement setting out the
minimum wages and the Respondent did not comply with that agreement.
The Respondent
applied for exemption with the MEIBC on 21 March 2011
and in a letter of 25 March 2011 the MEIBC rejected the application
for exemption,
as it was defective. On 25 October 2011 the Respondent
made another application for exemption and to date there is no
outcome and
the Respondent did nothing to follow up on the outcome of
the application.
[66]
Mr Phukubje further submitted that there
was no agreement on reduced rates to be paid and the Respondent did
not engage or consult
the employees and the trade union in good faith
when he applied for exemption. Whenever the employees tried to engage
the Respondent
on the issue, Smit always said that he had no time.
[67]
It was submitted that exemption is applied
for and obtained annually. The exemption the Respondent applied for
was for the period
1 July 2011 – 30 June 2012 and on 1 July
2012 a new period started, for which the Respondent never applied for
exemption
and he had to pay employees higher wages with effect from
July 2012.
[68]
Mr Phukubje submitted that the Respondent
was well aware what the issues were and that Smit had no intention of
sorting out the
issues in 48 hours or at all, he had no intention to
speak to the employees or to resolve the issue in any manner
whatsoever. On
30 July 2012 the employees were expecting an increase
for the new wage period that commenced on 1 July 2012 and when they
received
the same wages, they wanted to discuss that with their
employer. On 30 July 2012 the conduct of the Respondent in issuing
the ultimatums
were not reasonable. Firstly, it was not reasonable to
issue ultimatums when the employees were merely seeking to engage
Smit about
their wages and secondly the first ultimatum issued by
Smit that gave the employees two minutes to report for work was not
reasonable.
The employees considered the final written ultimatum and
went to their union for advice and they were told to report for duty
on
31 July 2012.
[69]
On 31 July 2012 when the employees were
still changing their clothes, Smit told them to leave the workplace,
as they were not working
at 07:00. It was submitted that Smit simply
assumed that the employees were not going to work as they had not
started work at 07:10.
Smit never proposed a meeting with the union
and never responded to the proposal from NUMSA to meet, despite a
follow up letter
from NUMSA on 1 August 2012 requesting a response to
the proposal. Smit made no efforts whatsoever to contact the union.
The conduct
of the employees on the other hand merely sought to
engage Smit, who refused to engage.
[70]
The employee’s conduct was justified
and the Respondent was hasty to dismiss.
[71]
The employees are seeking compensation, as
they do not want to work for the Respondent again. Both
representatives submitted that
costs should follow the result, as
there is no longer an existing relationship between the parties.
The issues this
Court has to decide:
[72]
The Court is to determine the substantive
and procedural fairness of the employees’ dismissal.
Was there a
strike?
[73]
The point of departure would be to
determine whether the employees embarked on strike action on 30 July
2012 and whether they persisted
with strike action on 31 July 2012.
[74]
The Act defines a strike as:
‘
The
partial or complete concerted refusal to work, or the retardation or
obstruction of work, by persons who are or have been employed
by the
same employer or by different employers, for the purpose of remedying
a grievance or resolving a dispute in respect of any
matter of mutual
interest between employer and employee’.
[75]
On 30 July 2012 the employees gathered in
front of the office and demanded to speak to Smit about the
non-payment of wage increases
and compulsory overtime. The evidence
was that they were not working and would only start working after
they spoke to Smit, as
they wanted an explanation as to why they were
not paid wage increases.
[76]
In my view the conduct of the employees on
30 July 2012 falls within the definition of a strike. Mr Phukubje in
argument also conceded
this.
[77]
There was no compliance with the provisions
of section 64 of the Act therefore the strike action was unprotected.
Was the dismissal
fair?
Applicable legal
principles:
[78]
Having found that there was indeed a
strike, the next issue to be decided is whether despite the
unprotected nature of the strike,
the employees’ dismissal was
substantively and procedurally fair.
[79]
The legal principles to be applied in 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 of the Act (the Code) reads as follows:
‘
Dismissals
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 these 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 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
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 employees in question, the employer may dispense
with them.’
[80]
The
Labour Appeal Court in
NUMSA
v CBI Electric African Cables
[2]
observed
that it is clear from the provisions of section 68(5) of the Act that
a Court 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.
[81]
Item 7 regulates dismissal for misconduct
more generally and as participation in unprotected strike action is
misconduct, it should
logically applies. Item 7 requires the
determination of whether dismissal was an appropriate sanction for
contravention of the
relevant rule or standard.
[82]
The determination of the substantive
fairness of a strike related dismissal must therefore take place in
two stages. Firstly under
Item 6 when the strike related enquiry
takes place and secondly under Item 7.
Analysis:
procedural fairness:
[83]
The Applicant’s challenge to
procedurel in respect of fairness is limited to the ultimatum the
Respondent issued.
[84]
It is the Applicant’s case that the
Respondent failed to issue a reasonable ultimatum in accordance with
the Code, setting
out the time within which they were required to
return to work, the implications if they failed to comply with the
ultimatum and
time to reflect on it and to either accept or reject
it.
[85]
In the pre-trail minute it was recorded
that the Respondent issued a final ultimatum to return to work at
08:00, yet the ultimatum
was issued after the employees left the
Respondent’s premises and it was only faxed to NUMSA at 08:04,
wherefore the ultimatum
did not provide sufficient time for the
employees to consider their options and to return to work.
[86]
The employees’ evidence however did
not accord with this statement and the evidence adduced did not
support the complaint
in respect of procedural unfairness.
[87]
The evidence showed that at 07:20 on 30
July 2012 Smit’s secretary, one Lillian, arrived at work and
Smit sent her to speak
to the employees and to tell them to return to
work. It is common cause that at this point the employees were
standing outside
the premises. Lillian reported back that the
employees insisted to meet with him before they would start working.
Between 07:30
and 07:35 Smit put up the ultimatum.
[88]
The ultimatum reads as follows: “Final
notice of illegal strike. This is a final notice to return to work at
full capacity
before 08:00 30/07/2012. Any employee refusing to do so
or continue in an unlawful strike will face disciplinary action.”
[89]
Despite what was pleaded and recorded in
the pre-trial minute, it is common cause that the employees were
present when the ultimatum
was put up, that Smit specifically drew
their attention to it, that they read and understood it and discussed
it amongst them but
failed to heed to it. Instead the employees left
the premises and went to the offices of their trade union.
[90]
Smit testified that after the employees
left, he informed NUMSA about their conduct by faxing the ultimatum
to the offices of NUMSA.
It is common cause that the NUMSA local
organiser, Mr Elias Mathuthu, responded and NUMSA
inter
alia
requested an urgent meeting with
the Respondent to deal with the issues and proposed a meeting for 1
August 2012 at 12:00 with a
list of issues to be discussed. The
Respondent was requested to revert back urgently.
[91]
NUMSA also stated that the employees would
report back for duty on 31 July 2012 to render their services in line
with their contractual
obligations. That concluded the events for 30
July 2012.
[92]
Dali testified that on 31 July 2012 the
employees knew and understood the consequences of the ultimatum that
was issued on 30 July
2012 and that was the reason why they went back
to work on 31 July 2012 to resume duty.
[93]
The requirement in Item 6 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 duty 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 respond to
it.
[94]
It is trite that when the ultimatum has
gone unheeded, an employer must initiate further steps to afford the
right to be heard,
which usually takes the form of a disciplinary
enquiry. An ultimatum and disciplinary hearing serve two separate and
distinct purposes.
The fairness of the disciplinary hearing process
is not disputed.
[95]
In casu
I
am satisfied that the ultimatum that was issued stated in clear and
unambiguous terms that is was required of the employees to
return to
work at full capacity before 08:00 on 30 July 2012 and that
disciplinary action would follow if they did not comply with
the
ultimatum. The ultimatum was issued between 07:30 and 07:35, calling
the employees to report for work at 08:00. Whether 25
– 30
minutes is sufficient time to reflect is debatable but the evidence
showed that in the time allowed the employees were
able to read,
understand and discuss the ultimatum and after doing that, they
decided to go to their union, rather than to heed
the ultimatum.
[96]
In my view the ultimatum complied with the
provisions of the Code and the employees had sufficient opportunity
to reflect on it.
They decided to reject it and to go to the offices
of their trade union.
[97]
NUMSA was also notified and was afforded an
opportunity to persuade the employees to resume duty. NUMSA wrote a
letter to the Respondent
stating that the employees would return to
work on 31 July 2012 and requesting a meeting with the Respondent on
the relevant issues
with the aim of resolving the dispute.
[98]
It is common cause that the employees,
after leaving the workplace and going to the union offices, did not
report for duty on 30
July 2012 and an undertaking was given that
they would report for duty on 31 July 2012 and the employees
understood the meaning
and consequences of the ultimatum. No further
action was taken against the employees on 30 July 2012.
[99]
Insofar as the Applicant challenged the
procedural fairness of the employees’ dismissal, I am not
convinced that a case was
made out.
[100]
The dismissal of the employees was
procedurally fair.
Analysis:
substantive fairness:
[101]
The substantive fairness of the employees’
dismissal is challenged. It is the Applicant’s case that the
Respondent failed
or refused to engage the employees and NUMSA on the
issues they wanted to raise. The Respondent ordered the employees
back to work
without addressing their concerns and when they waited
to talk to Smit, they were ordered to leave the premises. The
conduct
of the Respondent provoked the employees and was a major
contributor to the strike action.
[102]
It is further the Applicant’s case
that the employees were entitled to wage increases on 26 July 2012
and when the increase
was not paid, they rightfully demanded an
explanation from the Respondent. The sanction of dismissal was
inappropriate.
[103]
The Respondent disputed this.
[104]
The evidence shows that the Respondent paid
the employees far below the minimum wages as provided for in the main
agreement. The
Respondent’s case is that he could not afford to
pay the minimum wages and he applied for exemption from the MEIBC.
[105]
It is common cause that the exemption
applied for in respect of 2011 / 2012 has not been granted and
according to Smit he is still
awaiting an outcome. As already stated
the Respondent’s statement of response confirmed that the
application for exemption
was dismissed and Smit was aware of that.
In 2015 Smit wanted this Court to believe that he has not obtained an
outcome from the
MEIBC and was still awaiting an outcome. This is not
honest as he knew that the exemption application was dismissed and
that is
why he was not bothered about the outcome he already knew. In
2011 and 2012, without exemption, Smit unilaterally decided on the
rate he would pay his employees. The rate was far below the
prescribed minimum wage.
[106]
In July 2012 the employees expected to be
paid an increase in accordance with the main agreement, but when they
received their salary
advices it became clear that the Respondent did
not pay an increase.
[107]
Not surprisingly this caused unhappiness
and gave rise to questions. On the morning of the next working day
after payday the employees
wanted to meet with Smit as they wanted an
explanation as to why they were not paid any wage increases.
[108]
It is common cause that throughout the
demand was to speak to Smit about the wage and overtime issue and
that the employees would
not start work until they had an opportunity
to speak to Smit.
[109]
On 30 July 2012 Smit did not engage the
employees and made no attempt to talk to them, apart from telling
them to go back to work,
which they did not do on 30 July 2012.
[110]
On 31 July 2012 the employees reported for
duty and it is common cause that when Smit arrived at the workplace
at 07:10, some employees
already changed and were dressed in their
working gear, some were still inside the change room busy getting
dressed while some
were outside the change room.
[111]
A number of issues call for decision. Item
6 of the Code provides that the substantive fairness of dismissal
must be determined
in the light of the facts of the case, including
the seriousness of the contravention of the Act, attempts made to
comply with
the Act and whether or not the strike was in response to
unjustified conduct by the employer.
[112]
The distinction between a protected and
unprotected strike is not an academic one. It is one that ought to
have consequences. The
Act establishes dispute resolution procedures
that are inexpensive, expeditious and efficient. If the employees
felt aggrieved
by the fact that they were not paid in accordance with
the main agreement, they could surely have lodged grievances, sought
the
intervention of NUMSA or referred the matter to the MEIBC. During
the presentation of the Applicant’s case none of the witnesses
could give a cogent and satisfactory explanation why the issues the
employees wanted to discuss on 30 July 2012 had not been raised
previously by the shop stewards, why it was not raised by NUMSA or
referred to the MEIBC as it constituted a clear contravention
of the
main agreement. The explanation that they feared Smit and the
possibility of dismissal has been rejected, as their conduct
on 30
July 2012 was not consistent with the fear they alleged.
[113]
The employees embarked on an unprotected
strike with no attempt to comply with the provisions of the Act and
without exercising
any of the other remedies available to them.
[114]
Having said that, it is not the end of the
enquiry. Item 6 and 7 of the Code requires this Court to consider the
conduct of the
employer and the appropriateness of the sanction.
Was the strike
action justifiable:
[115]
This Court has previously come to the
assistance of employees in circumstances where the conduct of the
employer provoked them into
conduct that amounted to unprotected
strike action.
[116]
At one level it might be so that
participation in an unprotected strike is never justifiable, since
the Act provides avenues for
the resolution of disputes, whatever
their nature. However, justifiability in relation to an assessment of
substantive fairness
is a rather different concept. The Code
specifically acknowledges that the 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 and
the conduct of the employer
must be considered.
[117]
I already found that the Respondent was
well aware on 30 July 2012 why the employees wanted to see Smit and
what they wanted to
discuss with him.
[118]
Instead of engaging the employees, Smit
merely told them to go back to work and repeatedly said he was busy
and did not have time
to speak to them. Smit later said he needed 48
hours to sort out the issues, which was nothing but an empty promise
not to be believed
by the employees.
[119]
In my view the cause of the strike was the
Respondent’s non-compliance with the main agreement. Although
the employees could
have employed alternative remedies to address the
issue, I find that their conduct on 30 July 2012 was justified and
caused by
the Respondent’s non-adherence to the main agreement
and this strongly mitigates the employees’ conduct.
[120]
The Respondent’s refusal to engage
with the employees at all, aggravated the situation. The conduct of
Smit is lamentable
and inexcusable. He knew what the issues were, he
was in a position to resolve the situation on 30 July 2012 by simply
engaging
the employees, yet he chose to instruct them back to work
without addressing their legitimate complaints. Worse is that he used
the receptionist and the foreman to convey his instructions. He
constantly told them and this Court how busy he is and how little
time he has. That is true for most working individuals but cannot be
justification for not attending to pertinent and burning issues
when
called upon to face and address those issues.
[121]
The employees were dismissed for
participating in an unprotected strike on 30 July 2012 that continued
on 31 July 2012.
[122]
It is common cause that the employees did
not tender services on 30 July 2012. On 31 July the employees
reported for duty and it
is common cause that when Smit arrived at
the workplace at 07:10, some employees already changed and some were
still changing..
Smit’s testimony was that the employees once
again requested to talk to him, which request he refused and told
them to go
back to work or leave the workplace. They left and were
suspended from 09:00 on 31 July 2012
[123]
The conduct of the employees on 31 July
2012 is not indicative of a continuation of the unprotected strike.
It was common cause
that they reported at the workplace and by 07:10
some were already changed and others were still changing. This
indicates an intention
to work. Smit however decided by 07:10 that
they were not in the mood to work and without engaging them, he
regarded their conduct
as a continuation of the strike.
[124]
The only question remaining is to determine
whether the dismissal for participation in unprotected strike action
was substantively
fair and whether dismissal was an appropriate
sanction.
[125]
The fact that the strike was unprotected
does not automatically render the dismissal of the striking employees
fair. The employer
still bears the onus to prove that the dismissal
is fair.
[126]
There was no history of unprotected
industrial action directed against the Respondent, nor was there any
testimony that the disciplinary
records of the employees disclosed
warnings for misconduct of that nature. There was no evidence that
the strike action was planned
or organised, it was merely a
withdrawal of labour in response to non-payment of wage increases and
the Respondent’s subsequent
refusal to engage.
[127]
On 30 and 31 July 2012 the employees were
concerned about the non-payment of wage increases and overtime and
their interest was
to discuss those issues with the Respondent. The
Respondent on the other hand had no interest in discussing the issues
with the
employees and its main concern was to secure a return to
work and full production.
[128]
In my view and with the application of a
modicum of common sense, a solution might have been found, but the
gap between the interests
of the employees and the interests of the
Respondent was never bridged with the consequence that the employees
lost their jobs
and the Respondent lost production.
[129]
On 31 July 2012 Smit arrived at the
conclusion that the strike was continuing when the employees were not
working at 07:10. That
was 10 minutes after the normal starting time.
Without engaging them, Smit told them to work or leave. This
situation was one that
called out for a common sense approach. There
was no attempt to find out why they were not working at 07:10, but
still in the change
room, there was no appreciation for the reality
that the employees were still aggrieved about the non-payment of wage
increases
and there was no leniency towards the employees for not
commencing work 10 minutes after normal starting time.
[130]
In my view Smit took a hasty approach when
he concluded by 07:10 that the strike was continuing. He took an
approach not consistent
with his interest to ensure a return to work
and an intention to resolve the issues. Shortly thereafter the
employees were suspended
and charges of misconduct levelled against
them.
[131]
NUMSA proposed a meeting to be held on 1
August 2012 and requested the Respondent on two occasions to confirm
the meeting. The Respondent
never confirmed the meeting and the
meeting never took place. The Respondent did nothing further to meet
with the union. I reiterate
that the conduct of the Respondent was
not consistent with or conducive to any earnest attempt to resolve
the dispute.
[132]
The
Labour Appeal Court
[3]
approved
the view that Item 6 is neither exhaustive nor rigid and that other
factors including the duration of the strike, the legitimacy
of the
strikers’ demands, the timing of the strike and the conduct of
the strikers are all relevant. Therefore I have
to consider the
provisions of Item 6 and 7 of the Code as well as further relevant
factors to determine the fairness of the strike
related dismissal.
[133]
Firstly, I have to consider the duration of
the strike. It is common cause that the employees commenced strike
action on 30 July
2012 at the commencement of their normal shift and
that they returned to work on 31 July 2012 and were suspended at
09:00 on 31
July 2012. The duration of the strike was one day.
[134]
I have to consider the harm caused by the
strike. No evidence was adduced as to the actual harm caused by the
strike and I accept
that apart from the obvious loss in production,
there was no other harm caused or any damage to property or injury to
persons.
[135]
The legitimacy of the strikers’
demands is another consideration. I already found the demands to be
legitimate.
[136]
The timing of the strike is of no
significance. The employees did not plan to strike at a time that
would harm the employer and
that was critical to the business
operations. The strike happened on the first working day after payday
and the cause of the strike
was the fact that no wage increases were
paid and the employees wanted an explanation. 30 July 2012 was the
first opportunity for
them to demand such an explanation from their
employer.
[137]
Another pertinent factor is the conduct of
the employees. There was no evidence adduced that the employees did
more than to gather
in front of the office and wait to see Smit.
There was no evidence or suggestion that they were violent or that
they damaged property.
The conduct of the employees was peaceful and
seeking no more than an engagement with the Respondent.
[138]
Considering Item 6 and 7 of the Code and
the above factors, I am of the view that dismissal was not
appropriate in the circumstances.
[139]
In conclusion, the Respondent’s
conduct was the cause of the strike, it failed to engage in any
meaningful endeavour to resolve
the issues that caused the strike, it
had no intention to resolve the issues and its decision to dismiss
the employees was precipitate.
[140]
It follows that the employees’
dismissal was substantively unfair.
Costs
[141]
Costs should be considered against the
provisions of section 162 of the Act and according to the
requirements of the law and fairness.
[142]
The requirement of law has been interpreted
to mean that the costs would follow the result.
[143]
In considering fairness, this Court has
held that the conduct of the parties should be taken into account and
that
mala fide
,
unreasonableness and frivolousness are factors justifying the
imposition of a costs order. Another factor to be considered is
whether there is an ongoing relationship that would survive after the
dispute had been resolved by the Court. If so, a costs order
may
damage the ongoing relationship.
[144]
Both parties submitted that costs should
follow the result. There is no ongoing relationship between the
parties.
[145]
Insofar as the result is concerned, the
Applicant was only partially successful in their claim and the
Respondent was only partially
successful in defending the claim.
[146]
In my view the interest of fairness are
best served by making no order as to costs.
[147]
In the premises, I make the following order:
Order
1.
The dismissal of the individual applicants
is procedurally fair but substantively unfair;
2.
Each of the individual applicants is
awarded compensation in a sum equivalent to 6 (six) months’
salary, to be calculated
at the rate of remuneration on date of
dismissal;
3.
No order as to costs.
Prinsloo
AJ
Acting
Judge of the Labour Court of South Africa
Appearances:
For
the Applicant: Mr Phukhubje
Finger
Phukhubje Inc Attorneys
For
the Respondent: Mr Geldenhuys
Geldenhuys
C J at Law Attorneys
[1]
Act 66 of 1995.
[2]
(2014) 1 BLLR 31
(LAC).
[3]
(2014) 1 BLLR 31
(LAC) at paragraph 30.