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[2015] ZALCJHB 175
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Transport And Allied Workers Union of South Africa obo Matjila and Others v North West Parks And Tourism Board (JS881/09) [2015] ZALCJHB 175 (2 June 2015)
THE
LABOUR COURT OF SOUTH AFRICA, JOHANNESBURG
JUDGMENT
Case no: JS
881/09
DATE: 02 JUNE
2015
Not Reportable
TRANSPORT AND
ALLIED WORKERS UNION OF
SOUTH AFRICA obo
GUSTAF MATJILA AND 26
OTHERS
............................................
Applicant
And
NORTH WEST PARKS
AND TOURISM
BOARD
...........................................................
Respondent
Heard: 5 May
2014, 6 May 2014 and 23 June 2014
Delivered:
2 June 2015
JUDGMENT
TLHOTLHALEMAJE,
AJ
Introduction:
[1]
This matter came before this Court by way
of a statement of claim, in terms of which the individual applicants
alleged that their
dismissals were automatically unfair on the basis
that they took part in a strike that was lawful and protected. In the
alternative,
the individual applicants contend that their dismissals
were both substantively and procedurally unfair. They seek
retrospective
reinstatement, or alternatively compensation.
[2]
Transport and Allied Workers Union of South
Africa (TAWUSA) was cited as a party to the dispute. However, when
the matter came before
the Court, it no longer had any involvement in
it, since the individual applicants had approached their attorneys of
record for
legal assistance. The Court extends its gratitude to
Advocates G Fourie and M Sibanda for appearing
pro
bono
on behalf of the individual
applicants.
[3]
It was however common cause that at all
material times prior to the dismissals, the individual applicants
were members of TAWUSA
even though it was not a recognised union and
did not have any organisational rights within the workplace. The
respondent had at
all material times, a recognition agreement with
SACCAWU, which was the majority union.
Background and
common cause facts:
[4]
The
individual applicants were employed by the respondent as field
rangers, general workers and gate attendants. The respondent
dismissed them with effect from 14 December 2008 pursuant to
disciplinary enquiries held in their absence on 11 and/or 12 December
2008. The charges preferred against the individual applicants were
the following
[1]
:
4.1
“
Knowingly participating in an
illegal strike action on the 29, 30 November 2008 and 01 December
2008 thereby violating the Labour
Relations Act Section 64 subsection
{a} {i} {ii}, {b} and {d}.
4.2
Refusal to heed an advice from the employer
on the 27
th
November 2008 not to go on an illegal strike, and an ultimatum on the
29
th
November 2008 to go back to work. (Sic)
4.3
Intimidation of colleagues who were not on
strike.”
[5]
The respondent operates fourteen game
reserves in the North West Province. Its employees are required to
report for duty on public
holidays and weekends including Sundays.
Prior to January 2008 employees were paid overtime for work done on
Sundays and public
holidays. Towards the end of January 2008, the
respondent had discovered that there were numerous incidents of
employees submitting
fraudulent claims in respect of overtime, Sunday
and public holidays work. The respondent’s executive management
took a decision
to investigate the matter and immediately stopped
making such payments though the employees were required to work
shifts scheduled
on Sundays and public holidays.
[6]
A dispute pertaining to unilateral change
to the terms and conditions of employment was referred to the
Commission for Conciliation,
Mediation and Arbitration (the CCMA) by
TAWUSA, acting on behalf of its members. The dispute could not be
resolved at conciliation
and a certificate of outcome was issued on 7
August 2008, entitling the employees to embark on a protected strike.
§
[7]
The
strike commenced on 18 September 2008, and the dispute was thereafter
resolved between the parties in terms of a ‘memorandum
of
agreement’ signed on 25 September 2008. The agreement was
framed in the following terms and conditions
[2]
:
“
MEMORANDUM
OF AGREEMENT BETWEEN AGGRIEVED STAFF AND MANAGEMENT OF THE NORTH WEST
PARKS & TOURISM BOARD
This
memorandum of agreement (MOA) between management of the staff of the
Tourism Board (particularly those from Conservation Division)
emanated from a meeting held the boardroom Heritage house on 25
September 2008 at which the following issues were tabled:
1.
The suspension of payments for Sunday work done since January
2008
2.
The Suspension of payments for work done on public holidays
also from January 2008.
These
matters were thoroughly discussed and it was agreed that:
·
All staff who are being owned payments for work done on Sundays
and public holidays will be paid as per the stipulations of the Act.
(Sic)
·
That the payments for working done on these days need to be
separated from overtime payments work (which is work done beyond the
45 hour work week) as per the stipulations of the Act
(Sic
)
·
That payments for work done on Sundays and public holidays will be
affected by Tuesday the 30
th
September 2008
and that,
(Sic)
·
The payments will be effected from January to August 2008,
·
That aggrieved staff agreed to suspend the strike and to resume
duties with immediate effect”
(Sic)
This
agreement he signed on this 25th day of September 2 008 at Heritage
House in Mafikeng by the parties listed below”
[8]
It is common cause that the payments due to
the employees on 30 September 2008 were only made on 30 October 2008.
Again, the payments
due for the month of October 2008, which were due
to be paid to employees during November 2008, were also not paid. The
respondent
contended that it had administrative problems resulting in
the non-payments and had communicated this to the employees.
[9]
TAWUSA had directed correspondence to the
Respondent on 21 November 2008 demanding that it resolve the issue of
payments as a matter
of urgency and threatened to issue a 48 hours
strike notice. The respondent did not respond to the correspondence
and a 48 hours
strike notice was issued on 27 November 2008 advising,
that a strike would commence on Saturday 29 November 2008. The
respondent
had responded to TAWUSA on the same day, informing it that
the intended strike action would be unlawful and unprotected as the
issue in dispute had been resolved, and that the provisions of the
LRA had to be followed if there was intention to embark on another
strike action.
[10]
The strike commenced on 29 November 2008,
and the respondent had issued an ultimatum to the employees to stop
the strike action
and to return to work by 13h00 on the same day
failing which they risked being disciplined for participation in an
unprotected
strike. It was common cause that this was the only
ultimatum that was issued during the course of the strike action.
[11]
The strike action had nevertheless
persisted until 1 December 2008 after the respondent had approached
this court under case number
J 2561/08 and obtained a
rule
nisi
calling upon the employees to show
cause on 26 February 2009 why a final order should not be granted
declaring the strike to be
unprotected and ordering them to return to
work. The
rule nisi
was eventually discharged on 1 September 2009.
[12]
The individual applicants’ contention
was that after the
interim
interdict was issued, they had returned to work on 2 December 2008
but were not allowed to resume their duties. They were then
issued
with notices of suspension on 3 December 2008.
[13]
TAWUSA
sent correspondence
[3]
to the
Respondent on 5 December 2008 objecting to the suspension of their
members, insisting on representing them at any disciplinary
proceedings to be held and further requesting that all further
correspondence be directed to its Mr Mankge.
[14]
The Respondent convened disciplinary
hearings on 11 and or 12 December 2008 pursuant to which the
applicants were summarily dismissed
for participating in an unlawful
strike, refusing to heed to an ultimatum, and intimidation of other
employees during the course
of the strike. It was common cause that
the individual applicants did not attend these hearings, and that of
the employees collectively
charged, only two had attended the
hearing. These two employees had on the respondent’s version,
pleaded guilty to the charges
against them, begged for forgiveness
and alleged that they were intimidated into joining the strike
action. The chairperson of
the disciplinary enquiry had recommended
that they should be issued with final written warnings and a
deduction of one month’s
remuneration.
The
issues for determination:
[15]
The dispute between the parties essentially
revolved around the status of the strike action and the fairness of
the subsequent dismissals.
In this regard the salient issues for
determination are firstly, whether the strike embarked upon
subsequent to the memorandum
of agreement of 25 September 2008 was
protected or not; secondly, whether the dismissal was automatically
unfair, and in the alternative,
whether the dismissals were
substantively and procedurally fair. In the light of the evidence
presented, and further in view of
the three central issues
identified, the Court proposes to deal with them individually to the
extent where it is necessary to do
so.
Was
the strike action of 29, 30 November and 1 December 2008 protected?
[16]
The respondent contends that the agreement
of 25 September 2008 effectively addressed and resolved the issue in
dispute, and was
accordingly implemented as the employees had
subsequent thereto, resumed their duties. It had called upon Messrs
Peter Moholo (Moholo)
and Sonwabo Shibane (Shibane) to testify on its
behalf. These witnesses were employed at the time of the strike as
the Human Resources
Manager and Employee Relations Manager
respectively.
[17]
When
the individual applicants discovered the non-payment in respect of
October 2008, they had approached TAWUSA and registered
a grievance.
TAWUSA in response had then addressed a letter to the respondent on
21 November 2008
[4]
, advising it
that despite the memorandum of agreement signed on 25 September 2008,
the certificate of outcome issued by the CCMA
was suspended pending
the payments. In ineloquent terms, TAWUSA effectively informed the
respondent that it would uplift the suspension
on the certificate of
outcome and issue 48 hours’ notice of its intention to embark
on strike action unless the matter was
resolved on an urgent basis.
[18]
According to Moholo’s testimony,
after TAWUSA had issued its strike notice on 29 November 2008, it was
advised in writing
on the same day that the intended strike action
was unlawful and would thus be unprotected as the issue in dispute
had been resolved.
TAWUSA had however ignored that correspondence.
[19]
Moholo’s testimony under
cross-examination was that he understood the applicants’
complaints leading up to the agreement
to be in respect of
non-payment then and for future purposes. In the same vein, he had
conceded that amongst the issues identified
in the agreement, no
provision was made for payments after the agreement was concluded. He
had further conceded that properly construed,
the agreement regulated
payments in respect of January to August 2008, and did not address
the issue of payments post the signing
of the agreement,
albeit
the strike embarked upon was over the same issues.
[20]
Moholo had further conceded that in
September and November, payments were not made in accordance with the
agreement even though
letters were sent to employees to explain the
problems encountered by the respondents in that regard. He further
conceded that
the employees were not notified in advance that they
would not be paid in November 2008.
[21]
The individual applicants on the other hand
alleged that their strike action on 29 November 2008 until 1 December
2008 was protected.
Two witnesses, Ms Gladys Pule and Mr Gustaph
Matjila who were employed as a Gate Attendant and Field Ranger
respectively prior
to their dismissal were called upon to testify on
their behalf.
[22]
Pule, was signatory to the memorandum of
agreement, and her evidence was that the employees had embarked on
the second strike after
receiving advise from TAWUSA following
non-payments in November 2008. She denied under cross-examination
that the agreement covered
payment of overtime for the future, and
contended that the second strike followed non-payments in September
and November 2008.
In the same vein, she testified that when the
agreement was signed, it was in respect of past and future payments.
She however
denied that the dispute was resolved. Matjila’s
testimony also followed a similar line to the effect that the second
strike was protected according to the advise the employees had
received from TAWUSA.
The legal
framework:
[23]
As
it was correctly pointed out on behalf of the respondent, the
employees’ right to strike is entrenched in the provisions
of
section 23 (2) of the Constitution
[5]
and section 64 (1) of the LRA. This right was emphasised by the
Constitutional
Court in
National
Union of Metal Workers of South Africa and Others v Bader Bop (Pty)
Ltd and Another
[6]
in the following terms;
“
In
section 23, the Constitution recognises the importance of ensuring
fair labour relations. The entrenchment of the right of workers
to
form and join trade unions and to engage in strike action, as well as
the right of trade unions, employers and employer organisations
to
engage in collective bargaining, illustrates that the Constitution
contemplates that collective bargaining between employers
and workers
is key to a fair industrial relations environment.... This case
concerns the right to strike. That right is both of
historical and
contemporaneous significance. In the first place, it is of importance
for the dignity of workers who in our constitutional
order may not be
treated as coerced employees. Secondly, it is through industrial
action that workers are able to assert bargaining
power in industrial
relations. The right to strike is an important component of a
successful collective bargaining system.”
[24]
Since the respondent’s contention was
that the strike was unprotected in the light of the memorandum of
agreement signed on
25 September 2008, the pertinent provision in
this regard is section 65(1) (a) of the LRA which provides that:
“
No
person may take part in a strike or a lock-out or in any conduct in
contemplation or furtherance of a strike or lock-out if –
(a)
that person is bound by a collective
agreement that prohibits a strike or lock-out in respect of the issue
in dispute; …..”
And
Section
(
65) (3) (a) of the LRA which provides
that;
“
Subject
to a collective agreement, no person may take part in a strike or
lock-out or in any conduct in contemplation or furtherance
of a
strike or lock-out –
(a) if that person
is bound by –
(i) any arbitration
award or collective agreement that regulates the issue in dispute ….”
[25]
It
was conceded on behalf of the applicants that the agreement concluded
on 25 September 2008 is a collective agreement as defined
in section
213 of the LRA
[7]
. It therefore
follows that if the issue in dispute that led to the initial strike
was resolved by way of the agreement of 25 September
2008, the second
strike embarked upon by the employees would have fallen foul of the
provisions of sections 64 and 65 (3) (a) of
the LRA. The provisions
of section 64 of the LRA requires t
he
issue in dispute to first be referred to a bargaining council having
jurisdiction over the dispute, or if there are no such council,
to
the CCMA
[8]
. Employees only have
the right to strike once a bargaining council or a Commissioner of
the CCMA have issued a certificate stating
that the dispute remains
unresolved or once a period of 30 days has lapsed since the referral
was received by the Council or the
Commission
[9]
,
and only if they have given the employer at least 48 hours’
notice of the intended strike action
[10]
.
[26]
In
further determining the lawfulness of the second strike action,
it
is also important in this case to determine what was the ‘
issue
in dispute’
[11]
that was referred for conciliation and ultimately resolved on 25
September 2008 in terms of the agreement.
The submissions:
[27]
The respondent’s contention was that
the applicants were engaged in an unprotected strike which was not in
compliance with
the provisions of Chapter IV of the LRA and thus
committed misconduct in that;
27.1The
main issue in dispute was resolved on 25 September 2008
27.2
The real issue in dispute between the parties related to the decision
by the respondent to stop payment for overtime work,
public holidays
and Sunday work due to allegations of fraud, which after a referral
to the CCMA was then resolved;
27.3
The memorandum of agreement could not be
interpreted to provide for the piece-meal resolution of the
underlying issue in dispute;
27.4
The applicants’ characterisation of
the issue in dispute as the delay in effecting payments was to be
rejected, as it was
a deliberate and desperate ploy to seek
justification for engagement in a strike without complying with the
provisions of Chapter
IV of the LRA.
[28]
The submissions made on behalf of the
applicants on the other hand were the following;
28.1
On a proper reading of the agreement,
future payments were not covered, and the agreement was silent on the
regulation of future
overtime payments;
28.2
Two issues were recorded in the agreement,
viz, (a) the suspension of payments for Sunday work done since
January 2008 and (b),
the suspension of payments for work done on
public holidays as from January 2008.
28.3
The manner with which the two issues were
phrased suggested that the issue of payment for Sunday and Public
Holiday work was limited
to what was already owed to the employees
between January and September 2008;
28.4
From a plain reading of the agreement,
nothing suggested that there was any agreement to restore the
status
quo
as nothing was mentioned about
future payments of overtime.
28.5
Since the referral to the CCMA pertained to
unilateral changes to terms and conditions of employment, which
dispute was wider than
the dispute settled, it was contended that the
applicants were entitled to embark upon a strike on the broader
issue;
28.6
Even if the issue in dispute was regulated
by the agreement, the strike was still protected in that the
agreement contemplated a
strike as the appropriate means by which to
resolve a breach of that agreement;
28.7
The strike could not be unlawful because
section 65 (1) of the LRA only applied where the agreement in
question actively prohibited
the strike, and that in this case, the
agreement contained no such provision;
28.8
The fact that the agreement made reference
to a ‘suspension of the strike’ did not imply a waiver or
cancellation of
the strike. The suspension of the strike could be
uplifted in the event that the employer failed to honour the
agreement, and if
the suspension was uplifted, there would be no need
to follow the provisions section 64 of the LRA.
Evaluation:
[29]
The central issue in this case is whether the agreement of 25
September 2008 regulated the dispute that led to the initial
strike
action and also all future disputes. If not, then the strike would
have been protected. If however the agreement was disposive
of all
the issues in dispute, then the strike would have been unprotected.
[30]
It is trite that this Court lacks jurisdiction to interpret a
collective agreement
[12]
in
the light of the provisions of section 24(8) of the LRA
[13]
.
In order to determine whether the second strike was protected, it
would however be necessary to look at the terms and conditions
of
that agreement. An analysis or interpretation of this agreement is
however not pivotal and fundamental to the resolution of
the main
dispute. It is merely incidental to the resolution of the dispute
between the parties, and in particular, whether the
agreement
resolved the dispute between the parties that had led to the initial
strike action or not.
[31]
In
Ceramic
Industries Ltd t/a Betta Sanitaryware v National Construction
Building and Allied Workers Union & others
[14]
the Labour Appeal Court stated that it was necessary to look at the
real dispute between the parties and not just simply the parties’
own description of the dispute. In this regard, it further held that;
“…
.The
refusal of a demand, or the failure to remedy a grievance, always
needs to be examined in order to ascertain the real dispute
underlying the demand or remedy. The demand or remedy will always be
sought to rectify the real, underlying, dispute. It is the
nature of
that dispute that determines whether a strike in relation to it is
permissible or not…”
[15]
[32]
The above principles were reiterated in
Fidelity
Guards Holdings (Pty) Ltd v PTWU & others
[16]
where the Labour Appeal Court also held that a fundamental enquiry
needs to be conducted to establish what the demand, the grievance
or
the dispute was that formed the subject matter of the strike
[17]
.
In
Wardlaw
v Supreme Mouldings (Pty) Ltd
[18]
,
the Labour Appeal Court also held that the true nature of the dispute
is to be determined from an analysis of the facts and not
from the
parties’ characterisation of the dispute.
[33]
The dispute referred to the CCMA pertained to
unilateral changes to terms and conditions of employment. The Court
was not furnished
with a copy of the Form 7.11 referral to ascertain
the details of dispute referred to the CCMA. However, in the light of
the issues
addressed in the agreement itself, and further in the
light of it being common cause from the evidence presented in these
proceedings
that the dispute was precipitated by the suspension of
payment of overtime in January 2008, it can safely be concluded that
the
principal issue was the non-payment of overtime pay for Sunday
and Public work done since January 2008 following the suspension
of
those payments. These conclusions are fortified by the provisions of
the agreement itself, which state that;
“
This
memorandum of agreement (MOA) between management of the staff of the
Tourism Board (particularly those from Conservation Division)
emanated from a meeting held the boardroom Heritage house on 25
September 2008 at which the
following issues
(m
y
emphasis)
were tabled:
3.
The suspension of payments for Sunday work done since January
2008
4.
The Suspension of payments for work done on public holidays
also from January 2008.”
[34]
Notwithstanding the respondent's contention that the agreement
covered future payments, from the plain reading of the agreement
itself, no such intent can be gleaned nor is it explicit from its
terms. In terms of the issues agreed to in the agreement, it
was
recorded that;
“
All
staff who are being
owned
payments for work done
on Sundays and Public Holidays will be paid as per the stipulations
of the Act”
(Sic).
[35]
I am in agreement with the submissions made on behalf of the
applicants, and in reference to
Kubyana
v Standard Bank of South Africa Ltd
[19]
that where an agreement is silent on certain provisions, the evidence
of the parties as to what they thought the agreement covered
cannot
be of assistance, and that the Court cannot read anything into the
agreement that is not covered by the parties themselves
in explicit
terms.
[36]
It is clear that the agreement merely referred to what was
owned
(Sic) to the employees as a result of the suspension of payments from
January 2008. Therefore, nothing turns on the evidence that
sought to
impute any contrary meaning to the terms of this agreement. Moholo’s
attempts to give meaning or to explain the
intention of the parties
when the agreement was entered into are not of assistance since he
was not present when the agreement
was concluded. The fact that he
was briefed in his capacity as Human Resources Manager after the
agreement was concluded cannot
assist him or this Court in
understanding what the intention of the parties were at the time.
Having been taken through the agreement
during cross-examination, he
had reluctantly conceded that no provision was made for future
disputes relating to payment.
[37]
In the light of the common cause facts leading to the referral of the
dispute, the issues of dispute as identified by the parties
and
resolved in terms of the agreement, it follows that where the
respondent failed to meet its obligations in terms of that agreement,
the issue of non-payment of overtime pay, which had been referred to
the CCMA as a unilateral change to terms and conditions of
employment, remained unresolved.
[38]
Significant however to whether the strike was protected or not, is
the fact that a specific term and condition of that agreement
was
that the strike was suspended, which in my view implied that the
parties acknowledged that the dispute remained alive. There
is
no basis on the facts and on the interpretation of the agreement, for
a conclusion to be reached that by entering into the agreement,
the
employees had for all intents and purposes, abandoned any future
strike action on the issue. Any such argument in any event
would have
been countered by the principle enunciated in
Transportation
Motor Spares v National Union of Metalworkers of SA and Others
[20]
,
where this Court (per Zondo J as he then was) had held that if
employees who had already commenced striking temporarily suspended
the strike, there would be no need for them to issue a fresh notice
to strike or refer the dispute for conciliation again
[21]
.
[39]
Furthermore, since the agreement did not make any reference to
the resolution of the issues being in full and final settlement of
all disputes future and past on the same issue, and further since no
provision was made as to how to resolve any disputes arising
from
that agreement, the applicants’ resort to strike action was
protected, and could not have fallen foul of the provisions
of
sections 64 and 65 (1) (a) of the LRA. As also correctly pointed out
on behalf of the applicants, even if the issue was regulated
by the
agreement, the strike was protected in that section 65 (1) of the LRA
only applied where the agreement in question actively
prohibited the
strike, which was not the case in this matter.
The
claim in respect of automatically unfair dismissal:
[40]
Having
established
that
the strike action embarked upon by the applicants on 29, and 30
November, and 1 December 2008 was protected, the next issue
for
consideration is whether the dismissal of the individual applicants
was automatically unfair. In terms of Section 187(1), a
dismissal is
automatically unfair if the employer, in dismissing the employee,
acts contrary to section 5, or if the reason for
the dismissal is-
‘
(a)
that the employee participated in or supported, or indicated an
intention to participate in or support, a
strike
or
protest action
that complies with the provisions of Chapter IV.’
[41]
The principles surrounding automatically unfair dismissals as
contemplated in section 187 (1) of the LRA were set out in In
SACWU
and Others v Afrox Ltd
[22]
where
the Labour Appeal Court held that:
‘
The
enquiry into the reason for the dismissal is an objective one, where
the employer’s motive for the dismissal will merely
be one of a
number of factors to be considered. This issue (the reason for the
dismissal) is essentially one of causation and I
can see no reason
why the usual twofold approach to causation, applied in other fields
of law, should not also be utilized here….
The first step is
to determine
factual
causation:
was participation or support, or intended participation or support,
of the protected strike a sine qua non (or
prerequisite) for the
dismissal? Put another way, would the dismissal have occurred if
there was no participation or support of
the strike? If the answer is
yes, then the dismissal was not automatically unfair. If the answer
is no, that does not immediately
render the dismissal automatically
unfair; the next issue is one of
legal
causation,
namely whether such participation or conduct was the 'main' or
'dominant', or 'proximate', or 'most likely' cause
of the dismissal.
There are no hard and fast rules to determine the question of legal
causation (compare
S v Mokgethi
at
40). I would respectfully venture to suggest that the most practical
way of approaching the issue would be to determine
what the most
probable inference is that may be drawn from the established facts as
a cause of the dismissal, in much the same
way as the most probable
or plausible inference is drawn from circumstantial evidence in civil
cases….’
[42]
In line with the principles set out in
Afrox
,
the Labour Appeal Court again in
Kroukam
v SA Airlink (Pty) Ltd
[23]
,
held
if the ‘
dominant
or principal
reason or reasons’ for the dismissal was a reason listed
in section 187(1), the dismissal would be automatically unfair,
and
further added that;
‘…
.
even
if the reasons that I have found to constitute the dominant or
principal reason or reasons for the dismissal did not constitute
the
principal or dominant reasons for the appellant's dismissal, I would
still find that the dismissal was automatically unfair
if such
reasons nevertheless played a significant role in the decision
to dismiss the appellant. In my view for policy considerations,
where
such reasons have influenced the decision to dismiss to a significant
degree, the dismissal should be dealt with as an automatically
unfair
dismissal in order to deter as many employers as possible from
entertaining such illegitimate matters as, for example, racism
and
the exercise of rights conferred by the Act as factors in their
decisions to dismiss employees.”
[24]
[43]
There is no doubt in this case that the main reason for the dismissal
of the individual applicants was their participation
in the strike
action and refusal to heed the ultimatum as confirmed by Moholo his
during cross-examination and also as gleaned
from the first charge,
which read;
“
Knowingly
participating in an illegal strike action on the 29, 30 November 2008
and 1 December 2008 thereby violating the Labour
Relations Act
Section 64 {a} {i} {ii}, {b} and {d}”
(Sic),
and the second
charge which read;
“
Refusal
to heed an advice from the employer on the 27
th
November 2008 not to go on an illegal strike, and an ultimatum on the
29
th
November 2008 to go back to work.”
[44]
As
the strike turned out to be protected, it follows that the dismissals
of the individual applicants were automatically unfair.
Ordinarily,
once it is accepted that the main or real or dominant reason for
dismissal was, or related to participation in a protected
strike,
there is no room for a conclusion that the dismissal was not
automatically unfair but only substantively unfair
[25]
,
and thus it would be the end of the matter.
[45]
It is however trite that an employer is entitled to discipline and/or
dismiss striking employees even if they had embarked
on a protected
strike. The relevant provisions in this regard are section 67(4) of
the LRA, which state that;
“
An
employer may not dismiss an employee for participating in a protected
strike or for any conduct in contemplation of or in furtherance
of a
protected strike.”
and section 67(5)
which provide that;
“
Subsection
(4) does not preclude an employer from fairly dismissing an employee
in accordance with the provisions of chapter VIII
for a reason
related to the
employee’s
conduct during the strike, or for a reason based on the employer's
operational requirements”
[46]
In
South
African Transport and Allied Workers Union and Others v Collett Armed
Security Services
[26]
,
this Court per Snyman AJ held that;
‘
Where
it has been shown in evidence there is a nexus between the dismissal
of employees and participation in a protected strike,
it then becomes
for any employer not wishing to be struck with section 187(1)(a) to
show that despite this nexus, the actual reason
for dismissal is
something else, being either operational requirements or misconduct.
Where there is a protected strike and employees
are then dismissed
for circumstances that arose in or flowed from this strike and the
employees’ participation therein, then
there has to be at least
on a
prima facie
basis
as a matter of principle a nexus between the dismissal and
participation in a protected strike. Also, the closer the
temporal
nexus between the strike and the dismissal, the stronger the
inference that the dismissal has something to do with participation
in the protected strike. It is then, under these circumstances, up to
the employer to place convincing and credible evidence before
the
Court to show that despite this nexus, it was, for example, because
the employees committed assault during the strike that
they were
dismissed or as another example, it was because the employer lost an
important customer during the strike which necessitated
the employer
to cut back on jobs that caused the employees to be retrenched….’
[47]
Having disposed of the first two charges as they related to the
lawfulness or otherwise of the strike action, the issue in
this case
is whether there was a basis for dismissing the employees on account
of the charge of intimidation of other employees
during the course of
the strike action as alleged by the respondent.
[48]
In alleging that the individual applicants had intimidated other
non-striking employees, the evidence of Moholo was that the
two other
employees who were not dismissed had during the course of the
disciplinary enquiry, testified that they were intimidated
by other
striking employees into joining the strike. Not much turns on this
hearsay evidence even if one wanted to consider and
apply the
provisions of section 3 of the Law of Evidence Amendment Act
[27]
.
[49]
Shibane’s testimony on the other hand was that even though he
was based at the Mafikeng range, during the course of the
strike
action, he had visited the Pilanesburg Park on 29 November 2008 and
had witnesses the strikers impeding the main entrance
to the park. On
30 November 2008 the strike had continued and the police had to be
called in as the strikers were causing a disturbance.
Shibane
testified that although he could not remember the names or details of
all of the employees who were gathered he had spoken
to one of the
applicants being Pule, who acted as a representative/ spokesperson of
the other employees. He testified further that
the employees were
requested to identify among themselves who had participated in the
strike and those who had not. Once this was
done, the
non-participants in the strike action were not charged or dismissed.
[50]
As it was correctly submitted on behalf of the applicants, save for
some bald allegations of disturbances or violence, no particulars
or
evidence was led in regards to the charge of intimidation, for a
finding even on a balance of probabilities to be made that
indeed the
individual applicants had intimidated the non-striking employees. It
is not known which non-striking employees were
intimidated, in what
manner if so, and by whom of the individual applicants.
On
a proper consideration of the evidence as led on behalf of the
respondent on this charge, nothing points to it being sustainable.
[51]
In the light of the above, the only conclusion to be reached is that
the
main
,
real, proximate
or
dominant
reason for
the dismissal of the individual applicants was for their
participation in the strike action and also for failing to
adhere to
the ultimatum issued on 29 November 2008 to cease the strike and
return to work. The dismissals were therefore contrary
to the
provisions of section 67(4) of the LRA in view of the finding that
the strike was protected, and thus were automatically
unfair as
contemplated in section 187(1) (a) of the LRA.
Relief:
[52]
The individual applicants seek retrospective reinstatement. Moholo on
behalf of the respondent had testified that the individual
applicants
were replaced in January 2009. He had further testified that even if
reinstated the applicants would not enjoy a cordial
relationship with
the employer.
[53]
Section 193(2) of the LRA obliges the Labour Court to require the
employer to reinstate an employee whose dismissal has been
found to
be automatically unfair or substantively unfair unless one of four
considerations listed therein are present.
[28]
.
Ultimately, and as the Constitutional Court had stated in
Equity
Aviation Services (Pty) Ltd v Commission for Conciliation, Mediation
and Arbitration and Others
[29]
;
“
It
is trite law that the power to grant a remedy in section 193 is by
its nature discretionary and that the discretion must be exercised
judicially by a court that enjoys that unfettered discretion”.
[54]
It was submitted on behalf of the applicants that they were entitled
to the order of reinstatement in that the respondent was
still
operational; that the sole objection to a reinstatement order was
that there was a new workforce and further that absent
compelling
reasons to justify any deviation, the court should apply the primary
remedy. It was acknowledged on behalf of the applicants
that the
dismissals took effect some six and a half years ago. It was
nevertheless contended that the applicants were not responsible
for
the delay in the hearing of this matter.
[55]
I accept from the wording of section 193 (2) of the LRA and also
established in
National
Union of Public Service & Allied Workers obo Mani and Others v
National Lotteries Board
[30]
that the primary remedy is that of reinstatement. In addition to
these provisions, section 193 (3) of the LRA further provides
that;
“
If
a dismissal is automatically unfair, or if a dismissal based on the
employer’s operational requirements is found to be
unfair, the
Labour Court in addition may make any other order that it considers
appropriate in the circumstances”
[56]
I understand these provisions to imply that even though primary
remedy should be invoked, in the event that a dismissal has
been
found to have been automatically unfair, the Labour Court has
discretion to determine
inter
alia
,
the retrospective nature of the order of reinstatement
[31]
. This
is also in line with
dictum
in
National
Union of Public Service & Allied Workers obo Mani and Others v
National Lotteries Board
[32]
where it was held that this Court has a discretion in making any
other order attached to that primary remedy.
[57]
In this case, other than relying on the argument that the individual
applicants have since been replaced, nothing was placed
before the
Court as contemplated in section 193 (2) of the LRA to militate
against the primary remedy. It is trite that the mere
fact that the
dismissed employees have since been replaced is not a bar to an order
of reinstatement. Furthermore, it is not sufficient
for the employer
to simply allege that once reinstated, the dismissed employees would
not enjoy a cordial relationship. A basis
for that inference or
conclusion must obviously be laid.
[58]
In
considering the nature of relief to be granted, regard is also had to
the following principles set out in
Hoffmann
v South African Airways
[33]
,
where
it was held that:
“
The
determination of appropriate relief, therefore, calls for the
balancing of the various interests that might be affected by the
remedy. The balancing process must at least be guided by the
objective, first, to address the wrong occasioned by the infringement
of a constitutional right; second, to deter future violations, third,
to make an order that can be complied with; and fourth, of
fairness
to all those who might be affected by the relief. Invariably, the
nature of the right infringed and the nature of the
infringement will
provide guidance as to the appropriate relief in the particular case.
Therefore, in determining the appropriate
relief, 'we must carefully
analyse the nature of [the] constitutional infringement, and strike
effectively at its source'”.
[59]
In the light of the above principles, in considering the appropriate
relief, it is my view that the following factors, (
albeit
they
were not raised by the respondent), should be taken into account;
59.1 Despite the
submissions made on behalf of the applicants that they were not the
cause of the delay in finalising this matter,
this is not so when
regard is had to the protracted history of this matter. In this
regard, it was common cause that;
59.2 The applicants
were dismissed on 14 December 2008. Having referred the dispute to
the CCMA, a certificate of outcome was issued
on 18 February 2009.
59.3
Rather than referring the dispute for adjudication to this Court, it
was then referred to the CCMA for arbitration. The respondent
having
properly raised an objection to the
jurisdiction
of the CCMA, a jurisdictional ruling was issued on
20 May 2009.
59.4 The statement
of case was only served on the respondent on 2 October 2009, or was
filed with the Court at least some four months
later, necessitating
an application for condonation which was filed on 11 November 2009
and opposed.
59.5 The application
was considered and granted by the Honourable La Grange J on 19 May
2011. Thereafter, the matter was set down
for a hearing on no less
than three times and was either postponed or removed from the roll
for a variety of reasons. This included;
59.5.1
On 20 February 2002 when it was postponed
with costs to allow some of the individual applicants to obtain legal
representation,
and also due to the fact tht the applicants had not
attended to the pagination and indexing of the court’s file;
59.5.2
On 29 October 2012 when it was removed from
the roll, and also
59.5.3
On 3 February 2014 for reasons that remain
unclear;
59.6
Other than these postponements or removals,
until the applicants’ current attorneys of record came on
board, they had changed
attorneys on no less than three occasions.
[60]
In addition to the above considerations, it is further my view that
the individual applicants’ refusal to participate
in the
internal disciplinary hearings did not assist their cause. It has
repeatedly been stated by this Court that an employee
cannot complain
of procedural unfairness of an internal disciplinary hearing held in
his or her absence if he or she had wilfully
and voluntarily refused to attend the hearing.
In
this regard, the Supreme Court of Appeal in
Old
Mutual v Gumbi
[34]
held
that;
“
The
right to a pre-dismissal hearing imposes upon employers nothing more
than the obligation to afford employees the opportunity
of being
heard before employment is terminated by means of a dismissal. Should
the employee fail to take the opportunity offered,
in a case where he
or she ought to have, the employer’s decision to dismiss cannot
be challenged on the basis of procedural
unfairness (
Reckitt &
Colman (SA) (Pty) Ltd v Chemical Workers Industrial Union &
Others
(1991) 12 ILJ 806 (LAC) at 813C-D)
[61]
Thus even if there might be genuine concerns about the fairness of
the intended enquiry, including factors surrounding representation,
requests for documents or postponements, perceptions of bias on the
part of the chairperson of the enquiry, or any other factor
that an
employee views as potentially impeding the fairness of a hearing
before it starts, the employee is still obliged to attend
such a
hearing, register his or her concerns or requests, and then let the
chairperson of the enquiry make a decision on those
issues.
[62]
However, where an employee blatantly refuses to attend a disciplinary
hearing even if
prima facie
there might be justifiable reasons
for refusing to do so, that employee in the end should be regarded as
having waived his or her
rights to that hearing, and the employer is
entitled to proceed with that hearing in the employee’s
absence.
[63]
More disconcerting in this matter however is that those employees who
attended the internal disciplinary hearings are still
employed. Worst
still, some of the individual applicants were incorrectly identified
as having participated in the protected strike
action; whilst some
were officially on leave or sick leave during the course of the
strike action. In some instances the notices
to attend the
disciplinary enquiry were not properly served or the applicants may
have received short notice. Be that as it may,
by refusing to attend
the internal enquiry when at the very least they knew about it
notwithstanding these problems, they unfortunately
invited a
dismissal in their absence.
[64]
In considering the appropriate relief, and in further exercising its
discretion under the provisions of section 193 of the
LRA, the Court
as implored in
Hoffman
has in the light of all the
considerations as stated from paragraph 59 of this this judgment,
balanced the various interests that
might be affected by the remedy
to be granted. It has also been taken into account that the dismissal
of the applicants was automatically
unfair, and that there is a need
to address the wrong occasioned by the infringement of the individual
applicants’ constitutional
rights and to deter future
violations. Most importantly, fairness to both parties has been taken
into account.
[65]
In these circumstances, and constraint as I might be, fairness and
equity dictates that the individual applicants should be
reinstated
because this is what the provisions of section 193 (2) of the LRA
requires in the light of a finding of automatically
unfair dismissal.
It is nevertheless my view that in the light of the considerations
stated above, and my firm belief that to a
large extent, the
applicant are blameworthy for the invidious position they find
themselves in six and a half years since their
dismissal, they should
not be entitled to full retrospective reinstatement. To this end,
equity dictates that any back-pay consequent
upon retrospective
reinstatement should be limited to six months’ salary.
Costs:
[66]
In the written closing submissions, it was contended on behalf of the
applicants that the Court should grant a cost order in
their favour
in the event that they were successful. Having had regard to the
considerations of law and fairness, and further taking
into account
that the applicants were represented
pro bono
, I do not deem
it appropriate to make any order as to costs.
Order:
i.
The dismissal of the individual applicants
as identified in paragraph 1 of their statement of claim is declared
to have been automatically
unfair as contemplated in section 187 (1)
(a) of the Labour Relations Act.
ii.
The respondent is ordered to reinstate the
individual applicants in its employ, retrospective from 14 December
2008, and on the
same or similar terms as applicable to their
employment at the time of their dismissal.
iii.
The respondent is ordered to pay to each of
the individual applicants as back pay, an amount equal to six months’
salary calculated
at their rate of pay as at 14 December 2008.
iv.
The individual applicants are to report for
duty within 21 days of the date of handing down of this judgment.
v.
There is no order as to costs.
Tlhotlhalemaje,
AJ
Acting
Judge of the Labour Court of South Africa
APPEARANCES:
On
behalf of the Applicants: Adv G Fourie and Adv M Sibanda
Instructed
by: Howes Inc (
Pro Bono
)
On
behalf of the Respondent: Adv O Chwaro
Instructed
by: Kgomo Mokhetle & Tlou Attorneys
[1]
At page 24 of Bundle A
[2]
At page 109 of bundle B
[3]
At page 16 of Bundle A
[4]
Page 22 of the Applicants’ bundle
[5]
Constitution of the Republic of South Africa, 1996
[6]
[2002] ZACC 30
;
[2003] 2 BLLR 103
(CC) at para 13.
[7]
Section
213 provides that;
A collective
agreement is a written agreement concerning terms and conditions of
employment or any other matter of mutual interest
concluded by one
or more registered trade unions, on the one hand, and on the other
hand-
(a)
one or more employers
(b)
or one or more registered employer’s organisations or one or
more employers and one or
(c)
more registered employers’ organisations
[8]
Section 64 (1) (a)
[9]
Section 64 (1) (a) (i) and (ii)
[10]
Section 64 (1) (b)
[11]
An issue in dispute is defined in section 213 as;
“
... in
relation to a strike or lock-out ... the demand, the grievance, or
the dispute that forms the subject matter of the strike
or lock-
out”
[12]
South
African Post office Ltd v CWU obo Permanent Part-Time Employees
(2014) 35 ILJ 455 (LAC)
[13]
Which
provide that;
“
If
there is a dispute about the interpretation of application of a
settlement agreement contemplated in either section 142A or
158(1)(c), a party may refer the dispute to the council or the
Commission and subsections (3) to (5), with the necessary changes,
apply to that dispute.”
[14]
(1997) 6 BLLR 696 (LAC)
[15]
At para 703F-H
[16]
(1997) 9 BLLR 1125
(LAC)
[17]
See also
Coin
Security Group (Pty) Ltd v Adams & others
[2004] 4 BLLR 371 (LAC)
[18]
[
2007]
6 BLLR 487 (LAC)
[19]
2014
(3) SA 56
(CC) at para [78]
[20]
(1999)
20 ILJ
690
(LC) at para [28] to [32]
[21]
The same principle was approved in
SA
Clothing & Textile Workers Union v Stuttafords Department Store
(1999) 20 ILJ 2692) (LC) at para [33]
[22]
(1999)
20 ILJ 1718 (LAC) at para 32
[23]
2005)
26 ILJ 2153 (LAC) at para [96]
[24]
At
para [103]
[25]
National
Union of Public Service & Allied Workers and Others v National
Lotteries Board at para [202]
[26]
(JS
1280/09) [2013] ZALCJHB 239 (3 October 2013) at para [40]
[27]
Act 45 of 1988
[28]
(a)
the
employee does not wish to be reinstated or re-employed;
(b)
the circumstances surrounding the dismissal are such that a
continued employment relationship would be intolerable;
(c)
it is not reasonably practicable for the employer to reinstate or
re-employ the employee; or
(d)
the dismissal is unfair only because the employer did not follow a
fair procedure
[29]
(2008)
29 ILJ 2507 (CC) at para [48]
[30]
supra
[31]
National
Union of Public Service & Allied Workers obo Mani and Others v
National Lotteries Board
2014
(6) BCLR 663
(CC) at para [206].
[32]
supra
[33]
2000
ILJ 2357 (CC) at para 45
[34]
[2007] SCA 52 (RSA) at para [8]