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[2015] ZALCJHB 424
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SATAWU obo Selaole and Others v Reno Carriers (Pty) Ltd (JS394/09) [2015] ZALCJHB 424 (1 October 2015)
REPUBLIC OF SOUTH
AFRICA
IN THE LABOUR COURT OF
SOUTH AFRICA, JOHANNESBURG
JUDGMENT
Not Reportable
Case no: JS 394/09
In the matter between
SATAWU OBO L SELAOLE
AND 31 OTHERS
Applicant
and
RENO CARRIERS (PTY)
LTD
Respondent
Heard: 29 April 2014
Delivered:
1 October 2015
Summary:
Participation in an unprotected strike does not necessarily justify
dismissal. The respondent has to
prove the substantive and procedural
fairness of the individual applicants’ dismissal for
participating in an unprotected
strike.
JUDGMENT
LALLIE J
[1]
The
respondent employed the individual applicants in different positions.
In 2008, it informed them of its intention to downsize.
In December
of the same year it allowed the drivers’ red ticket fitness
certificates to expire thus rendering them incapable
of being
utilised as drivers before undergoing the necessary tests. Most
drivers had to work at the workshop. The respondent changed
the shift
roster affecting the earnings of the individual applicants
substantially. It was the respondent’s practice to notify
drivers of the need to be tested before their fitness certificates
expired. In January 2009, it ceased to ferry the individual
applicants to and from work, conduct which was met with a work
stoppage by the latter. The referral of a dispute to the bargaining
council and a threat of a protected strike persuaded the respondent
to desist from its conduct. The parties agreed that no further
unilateral changes would be effected to the individual applicants’
terms and conditions of employment.
[2] On 18 February 2009,
the applicants’ transport to work arrived late leaving them
with the impression that the respondent
had once more withheld it
unilaterally. They refused to perform their duties and sought an
audience with Mr Kruger (“Kruger”),
the respondent’s
owner as they wished to air their complaints. He did not avail
himself but issued an ultimatum for the individual
applicants to
return to work within 45 minutes or face disciplinary action. They
failed to heed the ultimatum prompting the respondent
to issue them
with disciplinary notices through their shop stewards. The respondent
informed the union of its intention to take
disciplinary action
against the individual applicants. It further gave the
applicant union notice of its intention to take
disciplinary action
against shop stewards for failure to carry out lawful instructions
and contravening rules and regulations.
The individual applicants
other than the shop stewards were subjected to a disciplinary enquiry
on 23 February 2009 and dismissed.
They were unrepresented as their
union’s request for a postponement was unreasonably refused.
The shop stewards’
disciplinary enquiry was held on 12 March
2009 in the absence of their trade union official whose request for a
postponement to
seek legal advice had been refused. They were
dismissed.
[3] The applicant
submitted that the respondent failed to notify an official of the
applicant union of the work stoppage of 18 February
2009 thus denying
the union of the opportunity to persuade the individual applicants to
attend to work. The applicant attacked
the manner in which the
ultimatum was issued and submitted that the respondent’s
conduct provoked the strike which endured
for no longer than one
shift. It sought an order reinstating the individual applicants on
the basis that the dismissal was substantively
and procedurally
unfair. The respondent responded to the applicant’s statement
of claim by filing an answering affidavit.
[4] When this matter was
set down for trial on 24 February 2014, the following agreement
between the parties was made an order of
court:
‘
1
The matter is postponement
sine
die
.
2
The respondent, through Mr Rudi Kruger, is ordered to serve with the
applicant’s
attorneys and file with this Court, an original or
certified copies of the Court Order in terms of which the respondent
was placed
under final liquidation, within 30 days of this court
order, that is, on or before 31 March 2014.
3
In the event of the respondent, through Mr Rudi Kruger, failing to
deliver the final
liquidation Order on or before 31 March 2014, the
matter may proceed in default and default judgement may be granted
against the
respondent in Chambers.
4
The respondent is ordered to pay the wasted costs only in the event
that it fails to
submit proof of liquidation by 31 March 2004’.
[5] The respondent failed
to comply with the court order and the applicant filed the individual
applicants’ affidavits confirming
the correctness of the
statement of case as well as their remuneration on dismissal. Item 6
of schedule 8 to the
Labour Relations Act 66 of 1995
, as amended
(“the LRA”) provides guidelines for dismissal for
participating in unprotected strikes. It makes
it clear that
participation in an unprotected strike constitutes misconduct which
does not always deserve dismissal. Substantive
fairness of dismissals
for this kind of misconduct must be determined on the facts of each
case which include the seriousness of
the contravention of the LRA,
attempts made to comply with the LRA and whether the strike was in
response to an employer’s
unjustified conduct. Item 6 (2)
requires an employer, before dismissing employees for participating
in an unprotected strike to
contact a trade union official at the
earliest opportunity in order to discuss action it intends adopting.
It should issue an ultimatum
that should state what is required of
the striking employees and what sanction would be imposed for failure
to comply with the
ultimatum. Employees should be allowed sufficient
time to reflect on the ultimatum, respond to it by either complying
with it or
rejecting it.
[6]
The determination of the substantive fairness of a dismissal for
participating in a strike involves a two-staged enquiry which
is
based on item 6 and 7 of schedule 8 to the LRA.
NUMSA
v CBI electric African Cables
[1]
.
The applicant made no attempt to comply with provisions of
section 64
of the LRA. The strike was triggered by the respondent’s
unjustified conduct which manifested itself in Kruger’s refusal
to listen to the individual applicants’ concerns. The concerns
were serious and consisted of conduct by the respondent which
affected their remuneration and job security. Contrary to its
practice, the respondent failed to notify drivers to be tested for
fitness leading them to qualify for jobs which paid less. By changing
the roster system the respondent reduced the income of the
individual
applicants who it even threatened with dismissal. The refusal to
address such concerns constituted unjustified conduct
by the
respondent. The applicant’s failure to comply with
section 64
of the LRA is not serious in the circumstances of this matter.
[7] The respondent failed
to contact an official of the applicant union to discuss the course
of action it intended to adopt when
the unprotected strike broke out.
Scheduling a disciplinary enquiry for the individual applicants
before their dismissal did not
exonerate the respondent from
consequences of the omission because the purpose of the discussion is
to afford the union an opportunity
to prevent dismissal by persuading
employees to stop the unprotected strike.
[8]
The following
dictum
in
Plaschem
(Pty) Ltd v Chemical Workers Industrial Union
[2]
is still relevant in determining whether the individual applicants
were afforded sufficient time to react to the ultimatum: “He
must give a fair warning or ultimatum that he intends to dismiss so
that the employees involved in the dispute are afforded a proper
opportunity of obtaining advice and taking a rational decision as to
what course to follow. Both parties must have sufficient
time
to cool off so that the effect of anger on their decisions is
eliminated or limited.” The 45 minutes’ ultimatum
the
respondent gave the individual applicants was insufficient for them
to reflect and decide whether to comply with it or to seek
advice
from their union. There were no valid reasons for the respondent’s
failure to comply with item 6 (2) of schedule 8
to the LRA.
[9] The individual
applicants other than shop stewards were charged with and dismissed
for gross negligence for participationg in
an illegal work stoppage
on 18 February 2009 and refusal to return to work. When the
misconduct is considered against the
guidelines in item 7 of Schedule
8 it becomes clear that they breached the rule against
participating in an unprotected strike
and refusal to resume their
duties when ordered by the respondent. Dismissal is not
necessarily the appropriate sanction
for breaching the rules.
The breach is justified when cognizance if the respondent’s
conduct which triggred the misconduct
of taken into account. The
applicant unions request for the postponement of the disciplinary
enquires was unreasonably refused.
For these reasons the dismissal of
the individual applicants was both substantively and procedurally
unfair.
[10] The applicant sought
an order reinstating the individual applicants.
[11] There are no reasons
both in law and fairness for the respondent not to pay the
applicant’s costs and protect the applicant
from being out of
pocket as a result of the respondent’s unfair conduct.
[12] In the premises the
following order is made:
12.1
The dismissal of the individual applicants was substantively and
procedurally unfair.
12.2
The respondent is ordered to reinstate the individual applicants
retrospectively from the
date of their dismissal.
12.3
The respondent pay the applicant’s costs including the wasted
costs 24 February 2014.
________
Lallie J
Judge of the Labour Court
of South Africa
Matter
considered in Chambers
For
the Applicant: Ruth Edmonds Attorneys
[1]
[2014] 1 BLLR 31
(LAC) at para 29.
[2]
(1993_ 14 ILJ 1000 (LAC)