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[2015] ZALCJHB 224
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National Union of Metalworkers of South Africa (NUMSA) and Others v Timken SA (Pty) Ltd (JR 2475/09) [2015] ZALCJHB 224 (29 July 2015)
THE
LABOUR COURT OF SOUTH AFRICA,
IN
JOHANNESBURG
CASE
NO: JR 2475/09
DATE:
29 JULY 2015
Not
Reportable
In the matter
between:
NATIONAL UNION OF
METALWORKERS
OF SOUTH AFRICA
(NUMSA)
.....................................................................................
First
Applicant
(on behalf of its
members listed in Schedule One hereto
and cited as The
Second To Further Applicants)
JOHANNES MOHLALA
AND 32 OTHERS
........................................
Second
to Further Applicants
And
TIMKEN SA (PTY)
LTD
......................................................................................................
Respondent
Delivered: 29
July 2015
Summary: (Alleged
unfair dismissal for participating in an unprotected strike –
no justification for not following grievance
procedures or LRA –
strike unnecessarily prolonged in any event – employer taking
adequate steps in the circumstances
to involve the union –
strikers unresponsive to ultimatums and appeals by union officials –
selection of strikers for
dismissal fair – waiver of right to
dismiss not established)
JUDGMENT
LAGRANGE, J
Background
[1] This matter
concerns the fairness of the dismissal of 33 employees of the
respondent on 19 March 2009 who had participated in
an unprotected
strike in which approximately 80 employees were involved. As the
unprotected status of the strike is common cause,
the issue is
whether the strikers were unfairly dismissed for participating in it.
They maintain they were not fairly dismissed
for one or more of the
following reasons:
1.1 The company had
not handled their alleged grievances reasonably and had provoked the
strike.
1.2 The employer
failed to take reasonable steps to defuse a volatile situation.
1.3 The employer had
failed to contact the union officials at the earliest opportunity.
1.4 The various
ultimatums had not been properly communicated to the strikers.
1.5 The employer had
waived its right to dismiss employees on 26 February 2009.
1.6 To the extent
that the employer could rely on the previous disciplinary records of
striking employees when deciding on a sanction,
whether those records
were valid, correct and fair. This complaint concerns whether the
prior warnings, which appeared on the employees’
records, had
been issued to them individually and whether the employer had
previously said it would not take any disciplinary action
over
industrial action which arose in February and March 2008. The
employer dismissed all those strikers whom it claimed had previous
written warnings for their involvement in an unprotected industrial
action during the previous 12 months.
[2] Much of the
factual narrative is common cause, as set out below:
2.1 The dispute over
the dismissals was unresolved by 13 July 2009 and the referral to
this Court was filed five days late. The
applicants applied for
condonation for the late referral of the dispute which was not
opposed.
2.2 The strike
involving 83 employees began at approximately 10H30 on 25 February
2009. Whether the strike was spontaneous or not
is a matter of
dispute.
2.3 No prior notice
of the strike was given to the employer.
2.4 In the
interaction between the parties during the strike it was clear that
the strikers demanded that the employer should attend
to their
alleged grievances.
2.5 On the same
morning that the strike commenced, at either 11H15 or 11H55,
according to the respective version of the applicants
and the
respondent, the respondent issued its first ultimatum to the strikers
to return to work by 12H 25. On either version of
the timing of the
ultimatum, the strike continued. The ultimatum, on which the time was
recorded as 11:15, read:
“You are
hereby informed that you are engaged in unprotected industrial action
in that you have not followed the procedures
laid down by the Labour
Relations Act.
You have already
been given a verbal ultimatum to return to work, but you have chosen
to ignore this.
You are hereby
advised you are to return to work by:
12:25
The company reserved
[sic] the right to take disciplinary action against you. Should you
fail or refuse to return to work by the
above time, then such
disciplinary action could result in your dismissal.
Further take note
that the principle of no work, no pay will apply in the interim.”
(Uppercase font
ignored)
2.6 A fax
transmission slip indicates that the first ultimatum was conveyed to
them to the union at 11:54 the same morning under
cover of a letter
which read:
“SUBJECT:
ILLEGAL STRIKE: TIMKEN SA
Tshepo,
Please be advised
that NUMSA members have been on strike since 10:30.
An ultimatum to
return to work by 12:25 was issued to the NUMSA shop stewards.
Please find attached
a copy of the above ultimatum.
Regards,...”
2.7 Later, at 13H25
the employer issued a second ultimatum virtually identical to the
first requiring employees to return to work
by 14H25. That ultimatum,
bearing 13:25 as the time of issue, read:
“You are
hereby informed that you are engaged in unprotected industrial action
in that you have not followed the procedures
laid down by the Labour
Relations Act.
You have already
been given a written ultimatum to return to work, but you have chosen
to ignore this.
You are hereby
advised you are to return to work by:
14:25
The company reserved
[sic] the right to take disciplinary action against you. Should you
fail or refuse to return to work by the
above time, then such
disciplinary action could result in your dismissal.
Further take note
that the principle of no work, no pay will apply in the interim.”
(Uppercase font
ignored)
A copy of this
ultimatum was apparently transmitted to the union by fax at 13:13
under cover of a letter advising the union that
it had been issued.
2.8 A final
ultimatum dated 26 February 2009, stipulating the time of issue as
08:00, stated:
“You are
hereby informed that you are engaged in unprotected industrial action
in that you have not followed the procedures
laid down by the Labour
Relations Act.
You have already
been given two written ultimatums to return to work, but you have
chosen to ignore this.
You are hereby
advised you are to return to work by:
10:00
The company reserved
[sic] the right to take disciplinary action against you. Should you
fail or refuse to return to work by the
above time, then such
disciplinary action could result in your dismissal.
Further take note
that the principle of no work, no pay will apply in the interim.”
(Uppercase font
ignored).
A copy of this
ultimatum was sent to the union at 12:51 under cover of a letter
which is set out below at paragraph 2.10.
2.9 The strikers did
not return to work in accordance with the ultimatum, but the
applicants claim not to have been aware of the
existence of the
ultimatums.
2.10 During the
morning of 26 February, union officials had been in attendance at the
premises. In the afternoon, at 12H51, the
employer sent a letter to
the union asking it to intervene to secure the return of the
workforce and at the same time issued a
notice of a disciplinary
enquiry due to take place on 2 March 2009. The letter was addressed
to Lephoto and the body of the letter
reads:
“SUBJECT:
ILLEGAL STRIKE: TIMKEN SA Thsepo,
Please be advised
that NUMSA members have continued their illegal strike action, after
the final ultimatum was issued by Mrs Nel
earlier today requesting
that they return to work by 10:00.
We, therefore appeal
to you to urge your members to return to work and advise them of the
risk to their employment should they continue
on this course of
unprotected action.”
2.10.1 A few minutes
later, another letter bearing the same heading contained this
content:
“Please be
advised that a disciplinary hearing in respect of various NUMSA
members, in respect of the illegal strike action,
has been scheduled
for 11:30 on Monday, 2009-03-02.
You are kindly
invited to represent your members. Non-attendance will result in the
hearing proceeding and no postponement of the
hearing will be
allowed.”
2.11 The applicants
base their claim that the employer waived its right to dismiss them
for striking because when the employer sent
the letter to the union
asking it to appeal to members to return to work despite the expiry
of the final ultimatum it effectively
waived reliance on the final
ultimatum.
2.12 On the morning
of Friday, 27 February 2009 the striking workers returned to work.
2.13 The
disciplinary enquiry did convene on 2 March 2009 and continued on 4
March 2009.
2.14 A meeting
between management, the union, shop stewards and the union’s
legal representative took place on 18 March 2009.
There is a dispute
as to whether the Court can have regard to what was discussed at that
meeting because the applicants contend
that it concerned off the
record settlement discussions held without prejudice.
2.15 On 19 March
2009, the respondent dismissed employees who had been involved in
similar misconduct in the previous 12 months
and issued final written
warnings to the remaining employees who had participated in the
strike.
2.16 On 18 March
2009, an appeal hearing in which the employees were represented by
the union was held but the appeal was unsuccessful.
The evidence
[3] Oral evidence
for the respondent was given by the current manager, Mr K J Holloway
(‘Hollaway’), who was plant manager
at the time of the
strike. Mr J A Kunene (‘Kunene’) and Mr E Diraditsele
(‘Diraditsele’), who were both
NUMSA shop stewards at the
time gave evidence for the applicants. An affidavit of Mr Pillay
(‘Pillay’), the former
manager, was admitted as evidence
with the agreement of the applicants, but without conceding the
correctness of its contents.
The affidavit dealt with a very limited
issue and is discussed in the analysis below. There was also limited
video footage viewed
in the course of the evidence concerning some of
the events during the strike.
[4] The firm
operated a three shift system of eight hours each shift, with the
bulk of the workforce engaged on the day shifts.
The shift times were
06:00 to 14:00; 14:00 to 20:00, and 20:00 to 06:00.
[5] Hollaway
described relations between the union, which represented
approximately 90% of the workforce, and the company as ‘generally
good’. There were regular engagements between management and
shop stewards in monthly meetings at plant level. Relations
between
the union and the firm were regulated by a recognition agreement
which provided for monthly shop steward and management
meetings. The
agreement also made provision for an extension of the duration of
ordinary monthly meetings and for the calling of
extraordinary or
urgent meetings by agreement between the parties if required. The
union and the company had also concluded a detailed
grievance
procedure which permitted employees to escalate grievances to the
level of a meeting with the general manager within
10 working days.
[6] Hollaway’
s earliest recollection of the strike was that it started at about
10:30 on 25 February 2009 when workers gathered
between the
administration and manufacturing plant buildings and were stamping on
the steel grating in front of the administration
building. He and Mrs
Nel, the HR manager, met the strikers. The strikers were ‘very
angry’ and were accusing Mrs Nel
of not doing her job and
demanded a meeting there and then. Hollaway told them that they would
address the issues in an orderly
fashion and they should return to
their workstations that they remained implacable and proceeded to the
area in front of the canteen
which was the designated area for
industrial action. Diraditsele agreed that there had been an incident
involving two of the strikers
during the interaction in the corridor
but apart from this, the strike had proceeded peacefully.
[7] Hollaway
confirmed that the first ultimatum had been issued by the company but
could not personally confirm that it had been
given to the strikers.
In the written representations made by Mr T Nel, the HR Manager
(‘Nel’) to the disciplinary
enquiry, on which the
applicants placed great reliance when cross-examining Hollaway, Nel
recorded in relation to the first ultimatum:
“I immediately
typed up and ultimatum, instructing the workers to return to work by
12H25. The shop stewards asked if I could
just give them the
opportunity to address the workforce themselves, before I issued the
ultimatum. I said they could do that with
pleasure. I instructed to
shop stewards to address the workers and explained that we were busy
discussing the issues at hand and
that the strike was unlawful and
unprotected. I said that the shop stewards need to explain that there
are a number of employees
previous warnings on the files, for this
selfsame thing and that such behaviour could lead to disciplinary
action.”
Hollaway agreed that
at this stage Nel had not mentioned the prospect of dismissal as
such. Hollaway’s understanding was that
the ultimatum had been
given to the shop stewards, but he agreed that it appeared that the
shop stewards had asked Nel not to issue
the ultimatum until they had
addressed the strikers. It was common cause that the first ultimatum
had been sent to the union just
before 12:00 that day. Kunene claimed
that Nel had agreed to their request to hold back the ultimatum and
they had gone to address
workers to persuade them to return to work,
but the workers rejected their efforts because they were so angry by
that stage. They
insisted that Nel should address them in the canteen
and when they reported this to Nel, she reiterated that she had no
time to
meet with them. At that stage most of the strikers had
gathered in the passage near the pavement block and he maintained
that they
were peaceful. Kunene distanced himself from the pleaded
case by the applicants where it was stated that the ultimatum was
issued
at about 11h15 because he had never seen the document again
after they had asked Nel to hold off issuing it.
[8] Hollaway
confirmed some of the events described in a document used by Nel in
presenting the company’s account of the strike
at the
disciplinary enquiry where she gave evidence. In particular, Hollaway
confirmed contacting Nel at 12:42 to arrange a meeting
with shop
stewards who demanded to meet with her. Kunene said that they had
approached Hollaway because they could not get Nel’s
attention
so they had gone to him to convene a meeting.
[9] The meeting took
place just after 07:30 on the morning of 26 February and was attended
by four shop stewards, including a local
union organiser, Mr T
Lephoto (‘Lephoto’).
[10] Hollaway also
confirmed receiving a handwritten notice dated 26/02/2009 on that
day, which contained a list of approximately
16 grievances grouped
under the headings of ‘Transparency’, ‘Prestige
guys working with components’, ‘SEIFSA
rate vs Timken
Rate’ and ‘Discrimination’ with most of the
grievances grouped under the last heading.
[11] With reference
to the way these grievances were reformulated in the applicant’s
statement of case, Hollaway responded
in detail to each allegation.
In answer to the claim that there was discrimination when it came to
promotions, Hollaway referred
to the company’s record of
promotions since 2007 which showed that 19/33 persons promoted in the
period came from historically
disadvantaged groups the vast majority
of whom were black Africans and no grievances were lodged over any of
the promotions nor
were any specific cases raised in shop steward
meetings. Kunene identified the key issue in the grievances as being
the alleged
failure not to promote black employees supposedly because
of their limited education and said that the information provided was
not known to him at the time of the strike and that they might have
understood the situation better if they had it at the time.
However,
he could not explain how the workers could not have been aware that
half the workers promoted were black. He also could
not explain why
no grievance had been filed by anyone about this issue if workers
were so aggrieved about it, nor why a dispute
had not been declared.
Diraditsele also could not dispute the information but said that even
if they had been wrong about the promotions,
management had never
given them the information, though he could not dispute that they had
never really asked for it. They had
not ever lodged a grievance over
the issue because they did not “deem it necessary”.
Diraditsele also could not recall
anyone having complained to the
shop stewards about discrimination, nor could he remember it being
raised with NUMSA. He too suggested
that the reason for the strike
had been Nel’s alleged remark.
[12] When asked
about the handwritten list of demands dated 26 February, Diraditsele
could not say who had drafted it. Initially
he also had no
explanation why the alleged offensive remark of Nel had not been
mentioned even though this was supposedly the central
issue in the
strike. He then sought to suggest that it was ‘spread’
over some of the other items mentioned in the list
of demands, but
was compelled to concede that nowhere was the offensive statement
referred to in the demands. He then said that
if management had
provided clarity on all the issues listed and addressed them, workers
would have returned to work. He further
agreed that on the morning of
26 February when management agreed to engage on the issues, the
demand had been met but could not
explain why workers stayed out on
strike. When confronted with this line of questioning, Diraditsele
again reverted to the stance
that the core issue in the strike was
that Nel should address the strikers. When they met with management
on the morning of 26
February it did not though occur to him that
they should tell Hollaway that it would have gone a long way to
settling the strike
if Nel had spoken to the workers, because he
thought Hollaway knew by then. He said it could not be raised when
they met Hollaway
and Nel around 12H00 in the corridor between the
buildings on 25 February. He could not say why it had not been raised
with Hollaway
in the meeting in his office shortly thereafter as the
key to ending the strike, or at any time thereafter until the
commencement
of the trial.
[13] The applicants
claim that the firm had two ratings systems for determining
remuneration for the same work and that the basis
for the
differentiation was on racial lines. Hollaway had agreed that there
was a dual wage structure but this was because since
2006 new
employees had been paid on the wage scales determined in the
bargaining Council, whereas longer serving employees were
retained on
the previous scales. Eventually all employees would be working at
bargaining Council rates. This had been raised previously
as an issue
but no dispute had been declared over it. Kunene conceded that there
was no racial character to this differentiation
and could not explain
why the union had made this claim. He maintained that it was one of
the issues leading to the strike but
not the big issue.
[14] The complaint
relating to limited duration contracts concerned the non-renewal of
approximately 10 employees on such contracts
of who were members of
the union. It was also contended that there was a tendency to keep
extending the limited duration contracts
of black employees whereas
white employees were made permanent on the expiry of their contracts.
Hollaway conceded that it was
true that 10 of the union’s
members did not have their contracts renewed and that contracts had
been extended but not to
the extent alleged by the applicants. Kunene
confirmed that this too was an issue, but not one that led to the
strike. A further
complaint was that there was a practice of white
workers who had previously resigned but not Black former employees.
Hollaway denied
that there was any policy in this regard and that if
there had been a need to employ machine operatives the company would
have
done so. No specific complaint of such disparate treatment was
raised with the company. Kunene was unable to identify any of those
who had been supposedly unfairly treated in this way. He thought the
white employee who had been re-employed was Mr I McDonald,
a manager
from another facility (‘McDonald’). McDonald who had been
re-engaged by Timken before 2000, but he himself
had only joined
Timken in January 2003. As with other issues, Kunene was reluctant to
say that this was anything more than an issue
the workers had and not
the issue which led to the strike. He would not comment when he was
asked how any of the above issues could
have justified unprotected
action.
[15] A further
complaint concerned a perception that psychometric testing was used
to prefer white employees for promotion as opposed
to black
employees. Hollaway disputed this contention and said that the test
were aptitude tests designed to test abilities of
a candidate against
the skills required for the job they were applying for and was not
racially biased. As in the case of the other
complaints no referral
of any dispute had been made and Kunene could not explain why this
was not done despite it being a long
standing issue. The only
rationale offered by Kunene was that the workers had a belief that
management would resolve it. He was
even reluctant to say that
management’s alleged failure to resolve the issue was one of
the issues that prompted the strike.
[16] One specific
complaint raised was that the firm had upgraded the position of a
white handyman based on an increase in his responsibilities
without a
commensurate adjustment made in respect of his black assistant.
Hollaway’s explanation for this was that the handyman
had been
given additional responsibilities as the site caretaker in addition
to his duties as a handyman. No grievance had been
lodged on this
issue either. Kunene also expressed the view that workers would not
have gone on strike over an issue dating from
2007, which is when the
handyman was promoted. By way of explaining the delay, Kunene
suggested that it was possible that workers
only learnt of the
assistant’s situation in 2009, but conceded that the assistant
would have known about the issue in 2007.
[17] Lastly, it was
alleged that there was a complaint about study loans not been
provided to black employees. Hollaway confirmed
that the company did
provide study loans provided these related to the job the employee
performed and it was possible that some
had been declined on this
basis. As with other complaints, Kunene could not recall any specific
individuals who had been denied
loans nor could he substantiate the
allegation of racial bias in the provision of such loans.
[18] Hollaway agreed
under cross-examination that the relationship between employees and
Nel was more strained than his relationship
with employees and that
Nel was aware that there were issues which needed to be addressed. He
stressed though that an agreement
had been reached on dates for
discussions. He also agreed that two previous shop steward meetings
had been boycotted by shop stewards
but according to his
understanding the reason for the boycott was that they did not accept
the chairmanship of a third party who
had been called into chair the
meetings not because the shop stewards were unhappy with Nel. Kunene
claimed that meetings had been
boycotted in February 2009 because
most of the issues raised in monthly meetings were not attended to
and the boycott was a ‘cry
for help’. This reason had not
been expressly put to Hollaway during his cross-examination, and
under cross-examination when
Kunene was confronted with the minutes
of the 6 February 2009 he could not explain why the minuted reason
given for boycotting
the meeting was because they objected to a third
party chairing the meeting and not because management was not
addressing their
issues. Likewise, he could not offer an explanation
why the boycott of monthly meetings because management was allegedly
not dealing
with issues would not been mentioned in the statement of
claim. He conceded that the union ought to have been told if things
had
deteriorated so much that meetings were not taking place.
[19] On 17 and
February 2009 a handwritten request was directed to Nel by shop
stewards for a meeting to discuss: “(i) practice
of employment
and (ii) disclosure of information.” Kunene agreed that it was
not entirely clear what issues would be discussed
and agreed that Nel
had agreed to the meeting despite shop stewards walking out of the
previous monthly meeting.
[20] The meeting had
started on 24 February but could not conclude and continued the
following day. Kunene thought that the issues
which had been
discussed on the first day concerned promotion and as far as he
recalled that they had finished discussing this
item. Between the two
meetings they reported back to workers about what Nel had allegedly
said black workers had not been able
to be promoted because they were
uneducated. Kunene said that it was when the meeting resumed the
following morning at 10 H30 that
workers went on strike. He claimed
that the shop stewards had tried to persuade workers that they would
raise their complaint with
management, but the workers insisted that
Nel must speak to them herself and explain her alleged comments. He
insisted that Nel
could still have addressed workers during the
lunchtime if she had gone to the canteen at 10H20 after they had
reported to her
what the workers were saying. Diraditsele
corroborated the solution in broad terms. When asked why the shop
stewards did not suggest
that Nel should go with them to the canteen
to address workers instead of continuing with the scheduled meeting
with the shop stewards
at 10H30, Kunene said that they did not think
about it and did not talk about that. He agreed that it could be
correct as reflected
in Nel’s representations to the
disciplinary enquiry that McDonald had entered the meeting at about
11H00 to announce that
the workers were striking. Kunene said that
between 10H20 and 11H00 they were trying to persuade her to go to
address the workers
but they thought that the workers were back at
work.
[21] Kunene agreed
that after McDonald entered the meeting, Nel started to type the
ultimatum and they continued to engage her to
go and speak to the
workers. They persuaded her not to issue the ultimatum and went to
speak to the workers themselves but the
workers were very angry and
would not go back to work, demanding that Nel must come and address
them. Diraditsele corroborated
the shop stewards attempts to persuade
workers to return to work and that Nel typed the ultimatum though he
never read it. He said
that they tried to urge them to return to work
because they were on an unprotected strike.
[22] Thereafter the
shop stewards phoned the local union organiser Lephoko, and informed
him that workers were on strike. He arrived
that afternoon and tried
to persuade workers to return to work. When cross-examining Holloway,
it had been suggested that a union
organiser had come to the
premises, but it was never specifically mentioned that he had arrived
in the afternoon of 25 February.
According to Kunene, the strikers
were still angry and wanted to see Nel before they would be prepared
to go back to work. During
the course of his testimony in chief,
Diraditsele mentioned that Lephoto had attempted to persuade workers
to return to work at
10H00 on 26 February and at 15H00. He agreed
that he had assisted Lephoto in speaking to the strikers on the first
occasion, which
was after the meeting in which management and the
union had agreed that the grievances would be discussed on 3 and 4
March. He
could not say why the workers would not return to work
after they spoke to them about the agreement, except to state that
they
were still angry.
[23] In his evidence
in chief, Kunene claimed that it was at the meeting with shop
stewards on 25 February that the issue arose
when Nel said that
blacks were uneducated and could not be promoted. The shop stewards
had gone back to the workers at 10 H00 and
reported on what Nel had
said, to which they responded she should be called to explain to them
what she meant in the canteen. They
returned to Nel and reported the
workers’ demand during the lunchtime and she responded that she
did not have time to go
to the workers. It was then that McDonald
came into the meeting and advised that a strike was in progress. The
shop stewards had
not been aware that workers had not returned to
work. In relation to the alleged immediate provocation in which Nel
was said to
have told shop stewards at the meeting she held with them
on the morning of 25 February 2009 that black people were not
educated
and could not get promoted, Hollaway could not say what Nel
had said in the meeting nor could he comment on the suggestion that
the strike had only started after shop stewards had reported back to
employees during the morning lunch break what she had allegedly
said.
However when he had interacted with shop stewards immediately after
the strike had commenced and in the meeting he held with
them on 26
February her alleged statements were not mentioned then, nor on any
subsequent occasion. Kunene could not say why the
shop stewards had
not asked Hollaway to get Nel to speak to the workers for a few
minutes, but he conceded that if they had done
so that might have
brought the strike to an end.
[24] Hollaway did
not agree with the suggestion that if Nel had gone to speak directly
with the workers as demanded by the shop
stewards that would have
helped. He disagreed that it would have been appropriate for her to
address the whole workforce because
it was not in keeping with the
agreed procedures and would not have been a normal method of
interaction for the HR manager. He
would not agree that if she had
gone to address the workers the strike would not have occurred
because it had already started while
she was in a meeting with shop
stewards. He also did not agree that it was inappropriate for Nel to
issue an ultimatum rather than
going to address the strikers directly
as they demanded. It was suggested in cross-examination that the
strikers felt they had
no option but to down tools in order to get
management’s attention as evidenced by the representations made
by Nel to the
disciplinary enquiry in which she recorded this being
expressed by workers when she and Hollaway went to speak to the
strikers
after the first ultimatum had been given to shop stewards.
Hollaway agreed that the strikers had been angry and felt that they
were not getting proper attention from Nel but insisted that they
told them that they would make an arrangement to discuss issues
and a
commitment was made to meet with shop stewards for this purpose but
the strikers should have returned to work. In Nel’s
representations, which the applicants relied on heavily for their
cross examination of Hollaway, she recorded that Hollaway had
explained to them that their grievances would be put on the table and
addressed but this would take time and could not be resolved
in a day
but the workers were ‘insulted’ that management was not
willing to stop everything to sit down with them until
the matter was
resolved. Kunene testified under cross examination that Hollaway’s
commitment to meet to resolve the issues
was not enough unless Nel
spoke to the workers. When it was further suggested to Hollaway that
Nel did not adopt a constructive
approach in the circumstances,
Hollaway responded that he did not think a constructive discussion
was possible in the circumstances.
He had assured strikers that the
company would address the issues but they could not deal with an
angry crowd.
[25] In Nel’s
representations it was recorded that after she and Hollaway had
interacteds with the strikers, they asked to
be given time to discuss
the matter and she left to attend the next meeting. When she was
called by Hollaway at 12:42 and was told
that shop stewards demanded
to meet with her she said she would meet them early the following day
at 07:30. The afternoon shift
which reported for work had then joined
the strikers. Hollaway could not comment on Nel’s availability
or whether her conduct
in not making herself available that afternoon
was irresponsible and it was the sole reason for the escalation of
matters. On the
other hand, Kunene could not explain why, when shop
stewards approached Hollaway for a meeting ,they did not tell him
that a meeting
between them and the company could not resolve things
unless Nel went to address the workers.
[26] Some video
footage was shown of a man and a woman approaching a group of
approximately 10 workers gathered at the entrance
of a building.
Hollaway identified them as Mrs Nel and McDonald. The pair can be
seen stopping in front of the workers seated in
the entrance of the
building and after a while giving some papers to a couple of them in
the course of a discussion, which they
start to move off towards
another group of more lively strikers chanting and dancing about 5 m
away, but on their way stopped by
one of the employees they had
previously given a paper to and some discussion ensues between the
three of them. The employee then
leaves them and moves off towards
the group of toyi-toying workers, whom he joins as they move in a
circular motion on a round
paved area. The two managers appear intent
on moving closer to the group at about the same time that the tempo
of the charting
and dancing starts to rise and become more audible.
They soon come to a standstill at a couple of metres from where the
crowd is
toyi-toying in a circle. A couple of demonstrators
brandishing large cardboard placards individually approach them and
brandish
the placards at them defiantly. Shortly after this, the
managers turned around and walk in the direction of the building from
which
the video footage appears to be taken. Hollaway accepted that
perhaps the conduct of strikers seen in the footage was not
intimidating
but he still felt it was disrespectful and aggressive.
Hollaway agreed that two individuals who had been identified for
their verbally
abusive conduct towards Nel when she and McDonald
first engaged with the group of strikers earlier in the morning had
not been
dismissed, because workers had been selected for dismissal
on the basis of the prior warnings.
[27] As far as
Hollaway could recollect the footage was taken some time after 13:00
on 25 February 2009 after lunch. However it
had been pleaded by the
company that shop stewards were supposed to report to the HR
Department to collect the ultimatum but refused
to do so. In fact a
handwritten note appears on a copy of the second ultimatum stating
that:
“Eddie, NUMSA
shop steward, did not arrive at my office when paged or called on his
cell.”
Diraditsele said
that he would not have heard himself being paged as he was outside
but could not comment on being notified by cellphone.
Kunene
testified that the reason he could not respond to any requests on
that day was because he was not present on the second
day of the
strike as he had taken his child to the doctor. However, the
ultimatum referred to was issued on the previous day and
it was never
suggested to Hollaway that Diraditsele did not respond to being paged
because he was not at the workplace.
The applicants’
version was that the video could only have been taken of the issuing
of the final ultimatum on the morning
of 26 February. However
Hollaway was emphatic that the final ultimatum had been issued during
the meeting with the shop stewards
and the union organiser on the
morning of 26 February 2009. Hollaway was a little bit equivocal
about whether he had witnessed
what was depicted on the video or that
his recollection of the event was based entirely on the video. His
explanation for an inscription
on the video indicating the date of 26
February 2009 and a time of 07H26 was that this was the time that the
video had been transcribed
from the camera format to an MPG format.
In explaining the discrepancy between Nel’s account of the
issuing of the second
ultimatum contained in the representations she
made at the disciplinary enquiry which clearly stated that the shop
stewards had
not come to the office to collect the ultimatum,
Hollaway said he did not think it was inconsistent that she might
have made an
attempt to give the ultimatum to the remaining shop
stewards by paging them. Kunene did not testify about the video
footage as
such, but Diraditsele in his evidence in chief said he was
certain that it was around midday on 26 February. Although the timing
of the second ultimatum fitted the time management alleged the video
was taken, Diraditsele said the video was taken the following
day. He
could not explain why the video would reflect a time of creation that
was before lunchtime on 26 February which is when
the final ultimatum
was issued. To confuse matters further, Diraditsele said he was one
of those who were shown on the video being
handed the ultimatum. He
never got a chance to speak to workers who had continued singing and
dancing until the organiser came
later that afternoon at around
15H00. He said that workers did not want to listen to him and would
not give him an opportunity
to address them.
[28] It was also
suggested to Hollaway that the final ultimatum had not actually been
issued because an agreement had been reached
in the meeting, but he
denied this because shop stewards had to report back to members on
the firm’s commitment which was
limited to a commitment to
resolve the issues and to meet on the agreed dates. It was not a
resolution of the issues per se which
allegedly gave rise to the
strike and the workers were still on strike. Hollaway agreed that a
union official had attempted to
persuade strikers to return to work
on the morning of the following day, 26 February 2009.
[29] At 15H08 that
same day, after the final ultimatum and notice of the disciplinary
enquiry had been issued (according to the
respondent) , Nel recorded
that the union had requested a meeting with her that she was in a
telephone consultation and could only
meet with them afterwards at
17:00 or the following morning at 08:00. Hollaway could only surmise
that the telephone conference
had been with the firm’s
management in the USA because it was not uncommon to communicate with
them at that time and such
telecoms could be lengthy. He would not be
drawn on whether she should have prioritised resolving the strike.
[30] At the morning
meeting of 26 March, which was minuted, agreement was reached that
issues would be discussed on 3 and 4 March
on agreed times. The main
issue raised in the meeting concerned employees on limited duration
contracts many of whom had allegedly
failed psychometric tests, which
the workers believed were racially discriminatory in nature and
should be re-evaluated. The minute
records that the final ultimatum
was issued during that meeting at 08:45 for the workforce to return
to work by 10:00. Hollaway
claimed that it had been agreed the
ultimatum would be read to strikers. He therefore expected that
following the lunch break at
10:00 to 10:30 that workers would return
to work but they did not. It was put to him in cross-examination
that, properly interpreted,
the final ultimatum meant that the
company was conveying that it had reserve the right to take
disciplinary action but would only
dismiss strikers if they failed to
comply with the ultimatum. Hollaway’s response was that the
company had no desire to dismiss
anyone and was willing to work
through the grievances but the situation changed when they failed to
comply with it. The letter
sent to the union the same day urging it
to persuade them to return to work or risk their jobs was similar. D
[31] Diraditsele’s
recollection of the issuing of the final ultimatum was somewhat
muddled and he appeared to have confused
the meeting when it was
handed to the shop stewards and the organiser with the first meeting
between the shop stewards and Nel
when they had asked her to hold
back on issuing the first ultimatum. Mr B Mkhandwana (‘Mkhandwana’)
said that even
though the letter had been sent to the local
organiser, he understood that it was conveying that members might be
dismissed and
that opportunity presented itself to persuade them to
return to work so they would not be. On the basis of the letter he
persuaded
them to return. As far as he could recall he got the letter
in the afternoon and went to Timken sometime after 14h00 that
afternoon.
He also saw the other letter announcing the disciplinary
enquiries before he went to the company. He understood the letter
only
to be expressing an initial intention to embark on disciplinary
enquiries because he received that letter before he saw the letter
calling on the union to intervene, but his view was no different
after learning of the correct sequence of letters. After he addressed
the strikers and they agreed to go back to work and it was agreed
that work would only commence the following day and the afternoon
and
evening shifts would not resume work until 27 February as well. The
reason for this decision was that all workers would lose
the same
amount of pay and it was a question of solidarity.
[32] Mkhandwana said
that the alleged waiver of the right to take disciplinary action had
not been raised during the appeal against
the dismissals on 3 April
2009 because he was not present. He could not offer an explanation
why his name would have been specifically
referred to in the
handwritten minutes of that meeting as arriving late during the
proceedings. He claimed he had not raised this
before the appeal
hearing because he was not in the legal unit of the union and
eventually explained the union’s failure
to take up this point
at the appeal proceedings as an oversight.
[33] Hollaway agreed
that no time limit was given to the union in the letter to persuade
workers to return to work by a particular
time and that the following
day, after a regional official addressed the strikers they did return
to work. It was put to Hollaway
that the letter had achieved its
purpose and accordingly the company had waived its right to dismiss
the employees. Hollaway did
not respond to this. However, it was
never suggested at the disciplinary hearing or indeed at the meeting
with the union to discuss
the recommended sanction on 18 March 2009
that the union was of the view that the company had waived its right
to dismiss strikers
on the basis that they had returned to work on 27
February 2009. Kunene said he understood that when the strikers
returned to work
that day that the issue regarding the grievances had
been resolved because dates have been set for meetings and that the
issue
of disciplinary action was also resolved on the basis that if
workers return to work no disciplinary action would be taken.
Diraditsele
said that the regional organiser succeeded in persuading
workers to return to work because he read the ultimatum which said if
they returned to work there would be no disciplinary action and he
told them he would engage with the company on their grievances.
Mkhandwana gave a cryptic explanation why the supposed to promise not
to take disciplinary action had not been raised at the meeting
on 18
March 2009, which he had attended. He said that being arrogant at
that point when they had their backs to the wall would
not have
helped and he saw his role as pleading with the company not to
dismiss the strikers. In that meeting he believed he was
arguing from
a perspective of fairness and not from a legal point of view. He
conceded that the union was seeking a sanction short
of dismissal at
that meeting.
[34] Hollaway
testified that this led the company to issue a letter sent to the
union at 12:51. He denied that the company intended
to convey that if
they heeded the letter, the strikers would not have been disciplined,
but agreed that if workers had returned
to work immediately the
employer might have viewed the matter differently. The letter
announcing the disciplinary enquiries were
sent a few minutes later
because at that point there was no indication that employees were
going to return to work. Diraditsele
testified that when the
organiser addressed workers that afternoon at about 15H00 he had told
them to return to work and if they
did there would be no disciplinary
action taken against them, but if they did not there would be. As he
understood it, it was agreed
they would return to work and the other
issues would be dealt with the following day because of the ‘promise’
made
by management. He also struggled to explain why this promise was
not raised at any stage afterwards if indeed it had been made and
given that it was so fundamental, but he still insisted that workers
would not have gone back to work if it had not been made.
[35] Hollaway also
gave evidence that the company lost two days production amounting to
approximately 400 units of output valued
at 1 million Rand, to which
had to be added the cost of overtime to recover the lost production
and the reputational damage occasioned
by letting the customers down.
[36] After the
disciplinary enquiry, the chairperson recommended the dismissal of
all employees who had participated in the strike,
but a meeting was
held on 18 March 2009 between the parties at which NUMSA appealed to
the firm not to dismiss all the strikers.
The applicant objected to
the introduction of the minute of this meeting on the basis that it
constituted a privileged document
recording without prejudice
discussions in the course of a settlement. Hollaway nevertheless
explained that the company had gone
through a lengthy exercise with
its local and international team and have considered dismissing all
of the strikers, issuing them
with a final written warning or
dismissing those with previous final written warnings for industrial
action. If they had proceeded
to dismiss all strikers would have
brought operations to a standstill as to between 3 to 6 months to
train operators and the company
could not afford to do that. On the
other hand there was a history of work stoppages and it was necessary
to take action.
[37] The first
previous written warning which existed related to respect of an
unlawful gathering on 17 March 2008. Another warning
taken into
account was issued in respect of a similar gathering on 18 March. In
both instances it was alleged that 18 employees
had refused to return
to work despite being instructed more than once to do so. The third
warning which existed against the records
of 29 employees concerned
their alleged participation in an unlawful strike on 15 May 2008.
Hollaway agreed that not all those
dismissed had final written
warnings but they all had at least two written warnings for
participating in this type of misconduct.
[38] Hollaway also
accepted that it was not sufficient to send a letter to the trade
union and conceded that individual warnings
had only been issued in
one department and he could not say that each employee was aware of
the warning issued on 25 March 2008.
He also agreed that in order to
challenge the warning as employees were invited to do, they needed to
be aware of the warning in
the first place. He was unable to say if
either the first or second warnings were received, nor could he say
who had written an
inscription dated 17 May 2008 appearing on one of
the warning forms issued for the unprotected strike action on 15 May
2008 which
stated:
“Advised not
to sign by union members pending final negotiations”
[39] There was also
evidence of a letter from the company sent to NUMSA on 22 May 2008 in
which the company conveyed its decision
to issue a written warning to
all employees who had participated in the strike on 15 May 2008
despite the union’s request
that no warnings should be issued.
Hollaway could not say categorically that the warnings had been
issued or if there had been
incidents where workers had refused to
accept the warnings. However, he found it was an unbelievable
suggestion that the firm had
prepared written warnings for each
individual striker and had placed them in their personnel files but
never issued any. On the
other hand, Kunene testified that workers
had not been aware of the warnings allegedly issued in March and May
2008 because they
had not been given to them. Later, he agreed that
when he had joined the strike on 25 February he had known he had a
warning at
that stage. Diraditsele claimed that the warnings in March
and May 2008 had not been received. He disputed the averments in the
affidavit of Pillay that he would never have said there would be no
disciplinary action at the time. According to Diraditsele,
the issue
was resolved quickly and Pillay had said he would not take
disciplinary action against anybody. There was evidence that
three
employees in the heat treatment department had signed for written
warnings. Diraditsele suggested that they had probably
signed under
duress but he could only speculate why they had been issued and
signed for warnings if an undertaking had been given
as he claimed
that none would be issued. As far as he was aware shop stewards ought
to have been present when any warnings were
issued, even though the
disciplinary procedure did not require that. One of the employees in
the heat treatment department, Mr
L Nkosi, testified that they had
been called in individually by their supervisor to his office had
told them that everyone who
was in the canteen must sign for a
warning.
[40] Diraditsele
agreed that the union had been involved in discussions with
management about the sanction that would be imposed
for the
unprotected strike action in May 2008, but he could not say if
management had communicated that it was going to issue warnings.
He
also could not say why there was no response from NUMSA to the letter
announcing the company’s intention to issue the
warnings and he
remembered the local union organiser reporting back that there would
be no warnings issued. Diraditsele also claimed
not to be aware of
the letter sent by Timken to the union on 22 May 2015, which confirms
its intention to issue written warnings
to all employees involved in
the 15 May 2008 stoppage, despite the union’s representations
made at a meeting the previous
day.
[41] Hollaway’s
interpretation of the table summarising the warnings issued was that
where it stated ‘final written
warning’ that was a
reference to the second written warning. When the question of an
appropriate sanction was discussed with
the head office management,
the selection of candidates for dismissal was based on whether they
had a second written warning which
was treated as a final written
warning. The intention of the firm was not to make an example of
those dismissed but it had faced
a number of incidents of this kind
and had to take a stand on the matter. He denied the accusation that
poor HR management was
to blame because there were procedures which
could have been followed. Even though Nel had not contacted the union
before issuing
an ultimatum there was interaction with the union,
though he could not deny that it was the workers who had summonsed
the trade
union organiser to the plant on 26 March 2009. He also
testified that at no stage had any requests being made by the union
for
Nel’s removal.
[42] Towards the end
of his cross-examination, Kunene agreed that it was not reasonable
for the workers to have continued striking
for two days over a demand
that the HR manager should speak to them. He also conceded that there
were procedures which were not
followed but they were not in a
position to control the strike.
Evaluation
[43] Section 68(5)
of the Labour Relations Act, 66 of 1995, (‘the LRA’)
states:
“(5)
Participation in a strike that does not comply with the provisions of
this Chapter, or conduct in contemplation or in
furtherance of that
strike, may constitute a fair reason for dismissal. In determining
whether or not the dismissal is fair, the
Code of Good Practice:
Dismissal in Schedule 8 must be taken into account.”
[44] The Code of
Good Good Practice: Dismissal says the following about unprotected
strikes:
“6. 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.
The seriousness of
the contravention of the Act and whether the strike was provoked by
unjustified conduct by the employer
[45] It is common
cause that the strike which endured for the best part of two days was
unprotected. Not only was no dispute referred
for conciliation prior
to the strike commencing, but it also took place without any prior
warning. Leaving aside for the moment
the alleged derogatory remarks
of Nel as a cause of the strike, the other causes all related to
complaints having a common element
of alleged racial discrimination
at their core. None of these issues have even been articulated as a
grievance at the time the
strike took place. At best, a few of them,
like the complaint about a discriminatory promotion policy were the
subject matter of
discussions between management and shop stewards at
the time of the strike. The handwritten list of complaints only
surfaced on
the second day of the strike. On the face of it, the
lawful process for pursuing most of those complaints if they could
not be
resolved in the course of discussions between management and
shop stewards, or if they could not be resolved after invoking the
grievance procedure, would have been to refer a claim of unfair
discrimination under section 6 of the Employment Equity Act, 55
of
1998, (‘the Equity Act’) to conciliation and ultimately
adjudication. It is possible that if some of the issues
have been
reframed in the form of proposals, such as a demand relating to
psychometric testing, they might conceivably have provided
the basis
for pursuing a dispute of interest which could have led to a
protected strike action.
[46] However, even
allowing for the latter possibility, no effort was made by the
workers or shop stewards to even initiate the
in-house dispute
resolution mechanisms which had been negotiated on their behalf, let
alone to escalate matters using the processes
provided by the LRA. An
alternative explanation for the strike was the alleged provocative
remarks made by Nel to the effect that
black workers were not
educated and therefore could not be promoted. The difficulty with
this explanation is that it does not gel
with the absence of this
being expressly articulated at any time when the issue was supposedly
a burning one. It also did not find
expression in the handwritten
list of issues, nor in the identification of issues that would be
discussed between management and
the union after the strike.
Diraditsele could not provide a satisfactory explanation why this
supposedly central issue was not
raised at the time.
[47] It may be that
Nel might not have had the necessary experience or expertise to
address the issues with the shop stewards on
her own, but the
contention that the strike was primarily sparked by her alleged
remark and that this was a key issue in resolving
the strike and the
obvious explanation for the strikers anger does not find support in
the evidence. In particular, it is a mystery
why Holloway was never
advised that Nel needed to address the strikers to explain or
apologise for her comment and why it was never
even a demand that she
must apologise and retract such remark in order for workers to return
to work. Holloway met strikers on
the morning of 25 February and was
not challenged when he testified that they had only accused Nel of
not doing her job, but without
any mention of the alleged offensive
remark. Kunene also did not explain why, when the strike commenced,
the shop stewards did
not tell Nel that she needed to go and address
the workers. If indeed that was the burning issue, why did they focus
on persuading
her not to issue an ultimatum and offer to address
workers themselves?
[48] In assessing
the evidence it seems more probable that the alleged provocation by
Nel was added as a reason for the strike in
order to try and justify
the fact that it took place without warning and because it was
difficult to provide a legitimate explanation
for a two-day strike at
a time when the grievance procedure had not even been invoked in
respect of one of the issues about which
the workers were unhappy. I
am satisfied that management did not commit unjustified conduct which
provoked the strike.
[49] The
respondent’s evidence of economic loss suffered as a result of
the strike was not disputed. The impact was material.
A further
consideration is that, even if there had been some ground of
understandable aggravation which sparked the strike and
even if Nel
had been reluctant to meet shop stewards again during the afternoon
of 25 February, there was no real justification
for the strike
continuing beyond the morning of 26 February when management agreed
to engage with the union on the issues articulated
in the handwritten
note.
[50] In light of the
above I am satisfied that the unprotected strike lacked redeeming
justification and in any event was unnecessarily
prolonged.
Efforts made to
comply with the Act by the strikers and the company’s response
to the strike
[51] It has already
be mentioned that no effort was made to invoke the agreed dispute
resolution procedures and no attempt was made
to direct the dispute
to the channels provided by the LRA. A related question is whether
the workers responded to efforts to correct
their unprocedural action
by returning to work. Quite apart from the issue of the ultimatums,
it is apparent even on the evidence
of the applicants that the shop
stewards and the local organiser did attempt on more than one
occasion on 25 and the morning of
26 February to persuade workers to
return to work. These pleas fell on deaf ears. It took two days for
the workers to return to
work so that matters could be discussed in
the appropriate forum while work continued as normal. On the face of
it, no blame can
be attached to the conduct of the shop stewards or
the organiser if strikers were not receptive to their attempts.
[52] The company’s
first response to the situation was for Nel to issue an ultimatum. On
balance, it seems most probable that
she did so by conveying the
ultimatum to the shop stewards in the expectation that they would
relay at to the strikers. It may
be so that shop stewards persuaded
her not to issue the ultimatum directly to the workers on the basis
that they would speak to
them, but it seems unlikely that they could
have gone back to the workforce without an understanding that the
workers were expected
to return to work by 12:25. It is only
reasonable that the respondent could have expected them to convey
that message and that
Nel believed they would do this as evidenced by
the covering letter to the union in which it was mentioned that the
ultimatum had
been issued to the shop stewards. Although the company
did not expressly call upon the union to intervene, it timeously
advised
it of the situation and that it had issued the first
ultimatum. The first ultimatum also warned of disciplinary action.
Accordingly,
the union was apprised early on of the unfolding
situation and that management expected a return to work.
[53] The evidence of
the video footage seems more consistent overall with it being a video
of the second ultimatum being issued
by Nel and McDonald after
shop-stewards failed to respond to being paged and called to collect
the video. The timing recorded
on the video footage is not
consistent with either the second ultimatum or the final ultimatum.
Moreover, on the version that the
respondent’s representative,
Mr Niehaus, the final ultimatum never issued because agreement was
reached on how the complaints
would be addressed. So, it was not the
applicants’ version that the final ultimatum was issued to
anyone. It seems most
likely that the company had tried to convey
the ultimatums through the shop stewards and that when no shop
stewards responded to
the call to come to the office to receive the
second ultimatum, Nel and McDonald took the step of approaching them
directly.
[54] On the morning
of 26 February, the company met not only with shop stewards, but also
the local organiser. It is unlikely, given
the advanced state of the
strike that no effort would have been made to convey the ultimatum
particularly as the threat of dismissal
was now being mentioned.
There was evidence of the organiser unsuccessfully persuading workers
to return to work that morning,
but it was only after the regional
organiser addressed them in the afternoon that they agreed to return
to work and then only on
the following morning. If the ultimatum was
not issued, oddly the union did not dispute it at the time. It is
evident the workers
were not listening to their own organiser or shop
stewards even after agreement was reached on how their complaints
would be dealt
with. The only person they eventually listened to was
the regional organiser. Even then, they were only prepared to start
work
the following day solely to ensure that all workers bore the
loss of pay occasioned by the strike equally, thereby costing the
respondent another lost shift. The fact that the respondent only
appealed to the union in writing after the final ultimatum was
ignored was not evidence that it had not sought the union’s
intervention previously: it had already reached an agreement
in a
meeting attended by a union official and the official had addressed
workers. The union had been advised the previous day of
the situation
and was clearly aware of it. The union was already involved and
dealing with management, so it ought hardly to have
been necessary on
the afternoon of 26 to bring the matter to its attention and request
its further assistance especially when the
basis for dealing with
worker’s complaints had been agreed to. If anything, it was for
the union to report back on whether
workers had accepted that their
issues would be dealt with and would now return to work. Instead the
respondent had to take the
initiative of contacting the union again.
The company might have been more insistent in pressing the union to
make a greater effort
to resolve the situation, but it cannot be said
that it simply let matters drift. When workers did not respond
reasonably to the
company’s undertakings to deal with their
complaints, or to the final ultimatum, it did contact the union
again. In circumstances
where the union has already apprised itself
of the situation and has been directly involved in efforts to resolve
matters but the
situation has not been normalise, the company is not
obliged to repeatedly ask it for further assistance. The company
took reasonable
steps to alert the union and engaged with it. The
strikers were reluctant to respond positively to steps taken by
management to
address their issues or to respond to exhortations of
their own organiser to return to work and, when they eventually
decided
to do so, did so on terms solely convenient to their own
concerns about sharing the strike burden between themselves.
Did the company
waive the right to take disciplinary action including dismissal?
[55] Firstly, both
the second and final ultimatums clearly intimated that disciplinary
action which could include dismissal was
a real possibility outcome
if they were not heeded. Secondly, the letter to the union calling
upon it to appeal to members to return
to work and advise them of the
risk to their employment if they continued with their action did not
necessarily mean that their
employment was not already at risk as a
result of ignoring the previous ultimatums. It could be interpreted
as simply reiterating
the earlier warnings that their failure to heed
the ultimatums was jeopardising their employment. It was certainly
not an undertaking
in the form that was given in Administrator,
Orange Free State & others v Mokopanele & another , in which
the employer
had unambiguously told striking workers that “unless”
they returned the following day they would face dismissal, but
then
proceeded to dismiss them a few weeks later. Even if the letter to
the union might conceivably have been interpreted as an
unequivocal
revocation of the threats in the second and final ultimatums, it was
followed almost immediately by the letter announcing
the intention of
the respondent to take disciplinary action. No reasonable person
having read those two letters issued almost simultaneously
could have
confidently assumed the letter announcing disciplinary action was not
seriously intended. Not only is evidence lacking
of an unambiguous
election by the respondent to waive its right to rely on the earlier
threats of disciplinary action, but it is
unlikely it was ever
seriously understood by the union organiser who persuaded workers to
return to work that way. If that had
been his understanding and if
the strikers had acted in accordance with an understanding that they
were effectively indemnified
from dismissal by the letter to the
union, notwithstanding the virtually contemporaneous one announcing
disciplinary hearings,
then it is inexplicable that this was never
vocally raised in either the disciplinary enquiries, the meeting with
the union to
discuss the recommended sanction of dismissal or in the
appeal against the dismissal. This also means that it is improbable
that
it was the alleged inducement of no disciplinary action which
led to the return to work and on which the workers relied. In my view
it is more probable it was the expression of the respondent’s
resolve to proceed with disciplinary action which focussed
the
strikers’ minds. Consequently, I do not think the applicants
succeeded in establishing a waiver of the right to dismiss
the
strikers on the part of the respondent.
Was it fair to
dismiss strikers on the basis of their disciplinary history in
relation to unprotected strike action
[56] Firstly, it
must be emphasised that this was not a strike action in response to
provocation or because normal channels of processing
complaints were
blocked. Even if that had been so, there was no justification of any
kind for prolonging the strike a further day
once specific
commitments were made to address the issues identified. It was a
gratuitous infliction of further economic harm on
the employer
without any attempt to follow the correct procedures. This is not
just a lapse in formalising industrial action.
The law permits
workers to inflict economic damage on an employer, but provided they
have given it a reasonable opportunity to
evaluate their crystallised
demands, engage with them in an effort to resolve it, and to
contemplate their willingness to suffer
such harm. An unprotected
strike that could not be foreseen is like a boxer punching his
opponent before the fight has begun. In
the circumstances, the
employer would have been entitled in my view to dismiss all the
strikers for participation in the two day
strike. However, it
decided, mainly for pragmatic reasons to dismiss those it considered
had prior warnings. It is debatable whether
the warnings for the
three separate incidents of unprotected strike action in 2008 were
issued to individual workers. There was
no dispute the warnings were
in their files. There was also evidence in relation to the May 2008
strike that there was no appeal
or objection raised by the union on
behalf of members when the respondent announced its intention to
issue all participants in
that strike with written warnings despite
the union’s appeal to it not to. The evidence suggests that
these warnings were
the subject matter of collective discussions
between the union and the respondent and that the decision to impose
warnings was
one that would have been conveyed to the union. It seems
somewhat unlikely that if Pillay had agreed not to take disciplinary
action
against strikers the warnings would be in the individual
applicants’ files.
[57] It does seem
likely that individual warnings were not physically issued to most of
the applicants and there might have been
cases where an individual
would have appealed on grounds which would have distinguished their
conduct from others, for example
if they were absent from work on
account of illness rather than participation in a strike. The union
contested that the warnings
should not have been taken into account
because they had not been formally issued to each individual and
therefore they had not
had the opportunity to appeal against them,
but advanced no reasons why the warnings would most probably have
been overturned for
substantive reasons in the event of a right of
appeal being exercised. No evidence was advanced that any of the
individual applicants
whose record was taken into account had not
participated in unprotected strike action on those previous
occasions. The net effect
of the respondent’s actions in
deciding to dismiss the individual applicants rather than all the
participants in the February
2009 strike was that it only dismissed
persons with a previous history of participation in unprotected
strike action within a twelve
month period prior to that strike.
Given that it would have been entitled to dismiss them even on the
basis of the February 2009
strike, I do not think that dismissing
those who had previously participated in at least two other instances
of unprotected strike
action, and issuing final warnings to others,
was unfair.
Costs
[58] The union and
the respondent appear to have a mainly constructive and ongoing
relationship and I do not think the union was
vexatious in
challenging its members’ dismissal notwithstanding the merits.
In the circumstances, a cost order would not
be appropriate in my
view.
Order
[59] The applicants’
late referral of the dispute is condoned.
[60] The second to
further applicants’ dismissal for participation in unprotected
strike action was not unfair.
R LAGRANGE, J
Judge of the
Labour Court
Appearances:
For the
Applicants: M Niehaus of Minnaar Niehaus Attorneys
For the
Respondent: C Orr
Instructed by:
Bowman Gillfillan Inc.