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[2015] ZALCJHB 459
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LEWUSA obo Members v Clear Water Farms (JS861/10) [2015] ZALCJHB 459 (25 November 2015)
THE LABOUR COURT
OF SOUTH AFRICA, JOHANNESBURG
JUDGMENT
Not Reportable
CASE NO: JS 861/10
In the matter between:
LEWUSA
obo MEMBE
RS
(LISTED
ATTACHED MARKED “B”)
Applicant
and
CLEAR
WATER FARMS
Resp
ondent
Date
heard
:
31 August 2015
Date
delivered
: 25
November 2015
Summary
:
Automatically unfair
dismissal, real reason for dismissal based on employees’
refusal to resign from trade union.
JUDGMENT
BALOYI AJ
[1]
Twenty-four Individual Applicants
(Applicants)
approached this court following unsuccessful conciliation of their
alleged unfair dismissal dispute. They are seeking an
order
that their dismissal be declared automatically unfair, alternatively
substantially and procedurally unfair. Reinstatement
and/or maximum
applicable compensation being the ultimate relief sought.
Background
to the dispute
[2]
The Applicants were employed by the Respondent on various dates as
farm labourers. The 7
th
June 2010 was their last working date. The circumstances
leading to their departure are in dispute. They allege being
dismissed by the Respondent through Mr Steven Calaca Senior
(Calaca
Senior)
while the Respondent denies ever dismissing them. On 08 June
2010 with assistance of their trade union, LEWUSA referred unfair
dismissal dispute to the CCMA. On 20 August 2010 the
conciliating Commissioner issued a certificate of outcome to the
effect
that the dispute remained unresolved. The conciliator
recorded in the certificate of outcome that the dispute was about
automatically
unfair dismissal of the Applicants. The Respondent did
not attend conciliation proceedings. The union official who assisted
the
Applicants was identified as Mr Msimanga. The Applicants
did not know the name of their trade union except that it belonged
to
Msimanga. At the time of referral of the dispute for
adjudication Msimanga and the trade union did not participate in
the
matter though the trade union was cited as a party acting on behalf
of Applicants. The Applicants eventually obtained services
of firm of
attorneys, Ndumiso Voyi Incorporated on
pro
bono
basis. During trial proceedings they were still utilizing the
services of the said attorneys.
[3]
Since the parties are not in agreement on how the employment
relationship between themselves came to an end, the court is as
such
required first to determine the existence of dismissal. The
parties further required the court to rule on whether the
Applicants’
dismissals were automatically unfair should the existence of
dismissal be found. Furthermore whether relief
should be
awarded to the Applicants should there be a finding on unfairness of
the dismissal. It is worth mention that certain
parts of
Respondent’s bundle of documents were after objection to their
production excluded. In other words, the Respondent
was barred
from using them in the light of having been handed to the Applicants’
representative on the morning of the trial.
Such handing of
documents did not comply with discovery procedures as set out in the
pre-trial minutes. They were rejected
on this basis, coupled
with consideration of prejudice.
[4]
A total of fourteen Individual Applicants were present at court
during trial. Their presence indicated their interest
in
pursuing the matter. They were identified as: (1) LV
Mahundla, (2) MJ Mokwena, (3) S Ndlovu, (4) CA Samuel,
(5) MJ
Nkanyane, (6) JM Nkanyani (7) KT Radau, (8) M Moreko (9) M
Mosamane, (10) NS Baloyi, (11) M Tsolele, (12) A Ramulongo,
(13) N
Mabudo, (14) BA Nokhunka.
[5]
It was reported that two Individual Applicants passed away after
institution of these proceedings. No letters of appointment
of
their respective estates’ representatives were furnished.
Their position is thus treated as that of the rest of
Individual
Applicants who did not attend court. The only conclusion to be
drawn is that there is no longer interest of pursuing
litigation on
their side and their claims are accordingly dismissed. I have
condoned the late arrival of BA Nokhunka as it
was satisfactorily
demonstrated to the court that her travelling from Mozambique caused
an unavoidable delay for her timeous arrival
at court.
The
Evidence
Applicants’
case
[6]
Klara
Tjiane Radau
(“Radau”)
tendered evidence in support of the Applicants’ case that she
was one of the dismissed Applicants. She started working
for
the Respondent in 2002. Her duties included cultivation of
cabbage, beetroot and carrots. Radau worked throughout
each
year for the entire period she worked for the Respondent that is
since 2002 until 7 June 2010 with no interruptions.
According
to their routine, the Applicants were rostered to perform their
duties from Monday to Saturday between January and May
of each year,
three to four days between June and July of each year as well as
Monday to Saturday between August and December of
each year.
They were each earning R380-00 per week except during the months of
June and July wherein they each earned R300-00
per week.
[7]
On
Friday 14 May 2010 the Respondent’s workforce at their knock
off time was taken from the fields to the farm where they
were
introduced to a
white
man,
whom according to Calaca Senior was from a trade union. The
Respondent required employees to join this
white
man’s
union. His son Steven Calaca
(Calaca
Junior)
and other Calaca family members were present. The
white
man
in question was subsequently identified as Wighton Leon Roode
(Roode).
Twenty-four
of the employees refused to join Roode’s trade union and also
refused to resign from LEWUSA. They
were told that they would
not work for the Respondent if they did not join the trade union
introduced by the Respondent.
They were separated from
employees who signed new trade union’s forms.
[8]
On
07 June 2010 Calaca Senior after paying their wages told them to
leave. They were never summoned for disciplinary hearing.
They had a good relationship with Calaca Senior and are seeking
reinstatement with proviso that they be given their back pay before
starting to work. They were further told by Calaca Senior
that there was no longer work for them and he did not want
to see
them in his farm anymore. As a result they referred the unfair
dismissal dispute to CCMA and ultimately to this court.
They
did not hear from the Respondent after their dismissal.
[9]
It
was further established on cross-examination that Roode was the
Respondent’s HR Consultant. Radau did not know that
the
union, LEWUSA had 188 members but a lot of employees signed forms to
join Roode’s new trade union. Radau persisted
that
employees were told that Roode was from the trade union. She
conceded when put to her by the Respondent’s counsel
that they
were told that Roode was a lawyer. She confirmed that LEWUSA
subscriptions were also discussed. She however, denied
that employees
expressed unhappiness about the said subscriptions. She did not
know about the organizational rights dispute
referred by LEWUSA after
their dismissal and that LEWUSA still had members in the workplace
after 07 June 2010. No lay off
was ever discussed. The
content of the affidavit she signed was based on the fact that Calaca
Senior told them that Roode
was a lawyer.
[10]
Her
further evidence revealed that she did not know that the purpose of
the meeting was one way of Respondent’s intervention
on
employees’ complaints about union deductions. She did not
know about Roode’s letter stating that some people
needed to
work during lay off. Msimanga was handling their unfair
dismissal case and the Department of Labour matter until
his
disappearance. The affidavit she signed was compiled by Msimanga. The
Respondent discriminated them by separating them from
those who
joined a new union. She maintained that there was indeed a new
union introduced in their workplace on Friday 14
May 2010 during
which they were told to join it, failing which their jobs would no
longer be secured as they would be dismissed
for not joining such
union of Roode. She would not have left her job had she not
been the dismissed.
Respondent’s
case
[11]
In
his evidence Wighton Leon Roode
(“Roode”)
testified that he was at all material times a Labour Consultant with
B Iuris and LLB degrees. On 14 May 2010 he was present
at the
meeting in his capacity as Respondent’s HR Practitioner.
The meeting was necessitated by various problems including
a strike
over organizational rights called by LEWUSA which started organizing
in March 2010. The number of employees used
to fluctuate as
Respondent’s operations were seasonal. Although the main
issue was employees’ complaints over
union deductions, he held
a view that the meeting was over verification of LEWUSA membership.
The common complaint was that
varying amounts were deducted to cover
LEWUSA subscription. The Respondent’s concern was that
the employees were illiterate
and it was established that some of
them acknowledged having signed authorization for deductions but did
not know the consequences
thereof.
[12]
As
a result the Respondent found itself with no option but to inform
employees that they were at liberty to state if they were not
interested in the union. At no stage was it suggested to
employees to join an alternative union as he did not belong to any
union. The forms produced were LEWUSA membership forms aimed at
verifying the identity of concerned employees and to confirm
if they
signed. Employees who consented to deductions signed
accordingly. The relationship with the union was on going.
He did not hear from the union after 07 June 2010. He was
concerned with formalizing the Respondent’s relationship
with
the union particularly in handling the seasonal operations to
eliminate possible suggestions of unilateral change to terms
and
conditions of employment. He learnt about Applicant’s
dismissal when Department of Labour contacted him over UIF
claims and
he duly informed the department that they were not dismissed.
The notice of set down for conciliation was not
received hence the
Respondent’s non appearance. He was not present in the
meeting of 07 June 2010. He never met
Msimanga.
[13]
It
came to record during Roode’s cross examination that the union
was not called to the meeting of 14 May 2010, which meeting
was
merely aimed at verifying if employees completed and signed forms.
The union was aware of the meeting and they did not
demand to attend
nor object to the said meeting. He acknowledged that the
employer had no role in the relationship between
the union and its
members but it was important to verify and establish if authorization
was valid. He only informed the union
after the meeting about
problems experienced with collection of subscriptions. There were
disputed signatures which amounted to
fraudulent dealings on the part
of Msimanga hence the option of resignation from their union, LEWUSA,
was given to employees.
[14]
His
further evidence is that there was misunderstanding as the Applicants
thought they were dismissed when they were told about
the lay off.
The Respondent could not give the issue of misunderstanding further
consideration because Applicants had already referred
dispute to CCMA
and that they secured employment in neighbouring farms. The
Respondent gave correct statement to the Department
of Labour that
Applicants were not dismissed. They were as a result unable to assist
the Applicants any further regarding UIF claims
because they did not
have Identity Documents and were uncontactable. The union acted
prematurely by referring the dispute to CCMA.
The Respondent
approached them to come back and to this point the Respondent still
wanted them to come back. No proposals
were brought to
Applicants’ attention. He conceded that in his letter to
the union he did not mention that employees
signed up LEWUSA
membership under duress, he did not state anything about meeting of
14 May 2010 and that some employees left on
07 June 2010, that some
employees signed union resignations. He however confirmed
having stated amongst others that the Respondent
was not obliged to
make union deductions in the light of threshold been less than 50%,
and that the Respondent advised the union
to collect subscriptions
from its members as employees were against deductions.
[15]
Steven
Calaca Junior is the co-owner of the Respondent together with his
father Calaca Senior and brother Gabriel. He testified
that the
Respondent’s business is that of vegetable farming with
approximately 200 employees. There were vegetable, cattle
and maize
farms in the neighbourhood. He was present in the meeting of 14
May 2010 which its purpose was to verify union
membership in the
light of complaints received from employees over union deductions.
In that meeting 120 people resigned
from LEWUSA while 80 - 100
remained. There was no other union introduced and there was no
employee compelled to resign from
the union. Employees worked
in groups daily. In some instances they were required to work
less days or laid off for
up to two months. Some employees do
leave voluntarily and come back in August.
[16]
On
07 June 2010 he did tell the employees (including Applicants) that he
did not need their services due to lay off and would contact
them.
He maintained that he was present on 07 June 2010. He did not
see any misunderstanding as the system was applied
for thirty years.
Roode’s role was to formalize the layoff system by putting
together a document to be used.
The affected employees were
handed a document and every employee was called back but Applicants
did not honour the call.
He learnt from Applicants’
fellow employees that they had no intentions of coming back to work.
[17]
He
emphasized during cross-examination that there was no need to call
the union in the verification meeting of 14 May 2010 nor to
inform
the union about union deductions complaints. It was according
to him a proper procedure to hold the meeting with union
members in
the union’s absence. The Respondent did not inform the
union about the outcome of verification. The
employees actually
asked to resign from the union during the meeting hence more copies
of resignation forms were generated.
The call for verification
exercise was precipitated by union’s enquiries about
subscription monies. It was a yearly thing
for him to tell employees
to return in August. He relied on his foremen to inform the
laid off employees to return to work.
He did not use the union
to communicate with these workers as it was easy to use foremen who
resided in the same area as laid off
employees. He did not know
that he had to discuss lay off with the union. He did not know
how to contact the Applicants
after the referral of 08 June 2010 as
they secured other employments. The Applicants did not have
other disputes with Respondent
after 07 June 2010. He did not
know as to why organizational rights dispute was referred.
LEWUSA is still having members
in the Respondent’s work place.
Arguments
[18]
Both
parties argued by way of written submissions which were both detailed
and helpful. The Applicants argued to the effect
that
the
case for relief sought was
made
based
on evidence tendered
and
should be accordingly awarded. The Applicants further claimed
for the awarding of costs. The Respondent submitted
that case
for
automatically unfair dismissal was not made for lack of sufficient
evidence to the effect. The Respondent further
referred
to
State
Information Technology Agency Ltd v Sekgobela
[1]
in
support of its
arguments.
The Respondent sought dismissal of the application with costs.
Analysis
Existence
of dismissal
[19]
The
Applicants certainly bear onus to establish existence of
dismissal.
[2]
There is no
settled definition of the concept lay off in our law. In
practice a lay-off of employees is amongst others
caused not by any
fault on the part of employees but by employer’s genuine
operational requirements, such as lack of work
for employees,
shortage of raw materials, deficit and shortage of inputs related to
productivity, or breakdown of machinery.
A lay-off does not
mean that employees are terminated from their jobs, but that such
employees could be reinstated after, for example,
revivifying of
deficit or shortages which affected productivity. With regard
to this matter it remains undisputable that
before 7 June 2010 the
Respondent never sent any notice to the Applicants nor their union
notifying them that it contemplated laying
the Applicants off for
operational requirements and inviting them to any consultation to
consult about the said
lay-off.
The reasonable inference is that on or before 7 June 2010 the
Respondent never contemplated laying off the Applicants
and there is
no evidence of any operational requirements which can be said to have
justified such lay-off.
[20]
The Applicants’
evidence which appears to be more probable
is
that
from the respective
dates of their commencement of employment with the Respondent until 7
June they were never laid-off. Put
the other way, there were no
interruptions of their continuous services with the Respondent. What
actually happened is that the
Applicants were rostered to perform
their duties from Mondays to Saturdays between January and May of
each year, three to four
days between June and July of each year, and
from Mondays to Saturdays between August and December of each and
every year.
They earned R380.00 per week per each employee
except during the months of June and July wherein they each earned
R300 per week.
[21]
According to Radau the
Applicants were told by Steven Calaca Senior that he did not need
their services while Calaca Junior claimed
to be the person who
conveyed the said message. What is material and relevant in
this regard is that on 07 June 2010 the
Applicants were told that
their services would not be needed by the Respondent. The
material fact remains that Calaca Junior
and Calaca Senior are the
co-owners of the Respondent with authority to act on behalf of the
Respondent. Armed with this
authority it can safely be accepted
that either of them acted on behalf of the Respondent to convey a
message to the Applicants
which led to Applicants’ departure.
The evidence of Steven Calaca
Junior, the co-owner of the Respondent that on 07 June 2010 he told
the Applicants that he did not
need their services is consistent with
Applicants’ case that on 07 June 2010 they were told to leave
as there was no longer
work for them. The Applicants’
evidence that they heard nothing from the Respondent after 07 June
2010 remained unchallenged.
The Respondent’s averment
that they were not contactable denotes that there was no intentions
on its part to re-employ the
Applicants after the alleged lay off
period.
If one is
told by his employer that his services were no longer needed, this is
simply
nothing but
termination of employment relationship
at
the instances of the employer
which
amounts to dismissal.
In
the premises I have no doubts that the Applicants have made a case in
establishing existence of dismissal.
Merits
of the dispute
[22]
The Applicants based
their claim on section 187(1)(d) of the LRA which renders the
dismissal automatically unfair if the reason
for dismissal is rested
on employer’s acts which are contrary to section 5 of the LRA.
Section 5 essentially offers
protection of the employees or job
seekers when exercising the rights in terms of the Act. In
other words victimization of
employees for the reason above is
prohibited and a dismissal associated with such victimization becomes
automatically unfair.
[23]
It
is clear from section 192 (2) of LRA 1995 that onus remains on
employer throughout trial. Employee only has evidentiary
burden
to adduce evidence to combat prima facie case Since onus
remains on employer throughout trial, employee’s evidence
is to
raise credible possibility that automatically unfair dismissal had
taken place. Employer is then to prove the contrary
All
Applicants need to do to place the Respondent on defence is to raise
credible possibility that automatically unfair
dismissal did occur,
and thereafter the Respondent is then required to prove that
dismissal is fair (See
Janda
v First National Bank
[3]
,
Rockliffe v Mincom (Pty) Ltd
[4]
and
Thomas v Mincom (Pty) Ltd
.)
[5]
[24]
There is some doubt about
an existence of Roode’s union which the Respondent allegedly
wanted the Applicants to join after
resigning from their own union.
The alleged union remained unidentified and the position of Roode as
Respondent’s HR
Consultant and lawyer was not disputed.
There is no sufficient evidence that there was collusion between
Roode and Respondent’s
management to recruit them to join the
other
union.
However this is colateral issue.
[25]
The main and decisive
issue is Respondent’s active role in assisting the employees to
resign from LEWUSA. It appears
to be common cause that the
Respondent assisted employees to resign from LEWUSA. The Respondent’s
version is that employees
were given an option to resign from the
union if they were unhappy with deductions. Such assistance
does not appear to be
in good faith nor in the interest of employees.
The Respondent took advantage of their lowest level of
literacy. The
Applicants’ case on this point suggests
that the signing of forms was based on coercion as they were
categorically informed
that any person not signing would no longer
work for the Respondent.
[26]
It is in fact difficult
to find merit in Respondent’s version that its relationship
with the union was smooth
or
that
it acted in the best
interests of the union members in carrying out the verification
process to assist the vulnerable employees.
The aforesaid version
contradicts Respondent’s own case that:
26.1
union official Msimanga was fraudulent in his dealings,
26.2
the union called strike,
26.3
there was no need to involve union about the verification exercise,
28.4
there was no need to inform union of the outcome of the verifications
in question,
28.5
the union was directed to collect subscriptions directly from its
members,
28.6
the Respondent had not been prepared to administer deductions because
the union had no 50% plus representation.
[27]
Furthermore the
contradictory version by Roode that the trade union subsequently did
not have membership any longer flies in the
face of Calaca Junior
’
s
evidence
that the union
still has. It becomes vividly clear that the Respondent’s
pushing for employees’ resignations from
the trade union was a
quick measure of making the employees to give up the trade union
membership. The Applicants became
casualties for their refusal
to give up their membership of the trade union. This certainly
reveals that the reason for dismissal
of the Applicants was to
penalize the Applicants for their lawful decisions to remain union
members of LEWUSA. This in no uncertain
terms goes against the
provisions of section 5 regarding the prohibition of any attempt to
sway employees to give up membership
of the trade union or workplace
forum.
[28]
In
SA
Freight & Dock Workers Union v Safcor Freight (Pty) Ltd t/a
Safcor Panalpina & Others
[6]
the Court held that employer’s decision to incentivize non
union members with 4.5% increase and placing a condition upon
them
that the increase would be reversed should they join a trade union in
the future, was in violation of provisions of section
5 and
discriminatory. The Court specifically per Cele J held as
follows;
“
[34]
The change was accompanied by an early salary increase for the
non-unionized employees in Durban to the exclusion of the member
of
the Applicant. The conditions attendant to the salary increase are
clearly a prima facie infringement of 5, particularly 5(2)
(a) and
5(3) of the Act. The conditions discouraged a non-union member
from exercising a right protected by the Act to join
a union at his
or her discretion, for a specific period of time. The
Respondent has not really tendered an explanation for
its approach in
this regard. It chose to explain the inequality brought about
by the plurality of its bargaining agents.
Inequality brought
about by the plurality of bargaining council agents is one matter.
It has nothing to do with dissuading
an employee from exercising his
right to join a union. All employees of the Respondent had a
right to join a union of their
choice. Those employees of the
Respondent base in Durban were discouraged by the
condition of the salary increase
from joining a union when those
based outside of Durban were not. The conditions brought about
an unequal treatment by the
Respondent of its employees without a
valid and a fair reason.”
[29]
It
is of high importance to mention that the above reasoning was
confirmed by the Labour Appeal Court in
Safcor
Freight (Pty) Ltd t/a Safcor Panalpina & SA Freight & Dock
Workers Union
[7]
.
There
is no reason why this principle should not find application in this
instant case. Particular regard is given to the
fact that the
employees who were not willing to resign from LEWUSA were no longer
guaranteed employment. The Applicants whom
it is not in dispute
that they did not resign from LEWUSA as directed by the Respondent
ended up being terminated. The Respondent’s
version that
Applicants left as a result of misunderstanding and that there were
many other people who did not sign resignations,
is regrettably not
backed by evidence nor raised in its pleadings. In the absence
of sufficient evidence to rebut what the
Applicants established,
there is no other finding to be made than that the Applicants have
succeeded in raising credible possibility
that automatically unfair
dismissal did occur. The Respondent has hopelessly
failed
to prove that such dismissal is fair for any other legitimate reason.
[30]
In
the circumstances the Applicants’ dismissal is found to be
automatically unfair. Regarding relief, it is my view
that
reinstatement cannot be an appropriate remedy in the given facts.
Radau’s evidence that the Applicants wanted reinstatement
on
condition that they be compensated
before
they would tender their services, is indicative of the fact that they
may not be really willing to
work
for the Respondent. The Respondent pointed that most of them
took up employment in the neighbouring farms though not
put to
Applicants’ witness. Interestingly these are the persons
who were not contactable. This shows that the
restoration of
employment relationship is near impossibility. It is worth
saying that this does not preclude the Court from
ordering
reinstatement in the light of the Constitutional Court’s
decisions in
Billiton
Aluminum SA Ltd t/a Hillside Aluminum v Khanyile
[8]
and
Equity
Aviation Services (Pty) Ltd v CCMA & Others
[9]
saying
that alternative employment cannot be a bar to reinstatement].
[31]
I am under the
circumstances inclined to grant each Applicant maximum compensation
equivalent to 24 months’ remuneration.
Specific
regard is given to seriousness of the Respondent’s
transgression of Applicants’ constitutional and legal right
to
remain union members of the own trade union.
[32]
Both
parties argued for costs against each other. The fact that the
Applicants were represented by counsel on
pro
bono
basis, does not bar the Court from ordering costs in their favour
where
warranted (
See
Abrahams v Drake & Scull Facilities Management (SA)(Pty) Ltd
[10]
Such
order in my view should be considered together with requirements of
law and fairness coupled with judicial discretion vested
upon the
court. The court has also taken into account that there is no
more ongoing relationship as their
reinstatement
order has not been granted.
O
rder
[33]
In
the premises I am inclined to make the following order;
33.1
The dismissal of the Applicants is declared automatically
unfair under section 187(i)(d).
33.2
The Respondent is ordered pay compensation to each Applicant
equivalent
to 24 months’ remuneration, calculated at the rate of
remuneration such Applicant earned on the
date of dismissal.
33.3
The Respondent is ordered to pay the costs of suit.
_________________
BALOYI
AJ
Acting
Judge of the Labour Court of South Africa
Appearances
For
the Applicant:
D Z Kela
Instructed
by:
Ndumiso Voyi
Inc
For
the Respondent: A J Nel
Instructed
by:
G Lindeque
Attorneys
[1]
(2012) 33 ILJ 2274 (LAC).
[2]
192(1) of the LRA.
[3]
(2006) 27 ILJ 2627 (LC)
[4]
(2007) 28 ILJ 2041 (LC)
[5]
(2007) 10 BLLR 993 (LC)
[6]
[2011] 32 ILJ 415 (LC)
[7]
[2012] 12 BLLR 1267 (LAC)
[8]
[2010] 5 BLLR 465 (CC)
[9]
[2008] 12 BLLR 1129 (CC)
[10]
[2012] BLLR 434
(LC).