About SAFLII
Databases
Search
Terms of Use
RSS Feeds
South Africa: Cape Town Labour Court, Cape Town
SAFLII
>>
Databases
>>
South Africa: Cape Town Labour Court, Cape Town
>>
2015
>>
[2015] ZALCCT 19
|
|
CSAAWU obo Dube and Others v Robertson Abbatoir (C315/2011) [2015] ZALCCT 19; [2015] 7 BLLR 673 (LC); (2015) 36 ILJ 2080 (LC) (23 March 2015)
REPUBLIC
OF SOUTH AFRICA
The
Labour Court of South Africa, Cape Town
Judgment
C
ase
No: C 315/2011
DATE:
23 MARCH 2015
Reportable
Of
interest to Other Judges
In
the matter between:
CSAAWU
obo Dube &
others
.................................................................................................
Applicants
And
Robertson
Abbatoir
................................................................................................................
Respondent
Heard:
16-20 March 2015
Delivered:
23 March 2015
Summary:
Absolution from the instance – LRA s 187(1)(c) –
applicants alleging automatically unfair dismissal –
no
evidence to sustain claim – absolution from the instance
granted.
Judgment
STEENKAMP
J
Introduction
[1]
The applicant is the Commercial,
Stevedoring, Agricultural and Allied Workers’ Union (CSAAWU).
The union has referred a dispute
to this court on behalf of 39 of its
members who were dismissed by the respondent, Robertson Abattoir, in
2010.
[2]
The
applicants say that they were dismissed on 30 November 2010 by way of
a “dismissal lockout” as contemplated in section
187(1)(c) of the Labour Relations Act.
[1]
They argue that the dismissal was automatically unfair. (In the
alternative, they say that the dismissal was automatically unfair
in
terms of s 187(1)(d) of the LRA; and in the further alternative, that
it was simply substantively and procedurally unfair).
[3]
The abattoir agrees that it dismissed the
employees. However, it says that the facts are simple: 30 of the
employees were dismissed
for misconduct in the form of
insubordination on 1 December 2010, and another nine were dismissed
for misconduct on 23 December
2010. There was no lockout and there
can be no talk of an automatically unfair dismissal.
The
applicant’s case
[4]
The applicants’ case was initially
hard to discern. They were initially represented by other attorneys.
Those attorneys filed
a pre-trial conference minute in August 2011,
having been directed to do so by this Court. It was not helpful. The
applicants’
current attorneys took over in that same month.
They delivered an amended statement of claim on 2 December 2011. In
the amended
statement of claim, they alleged that they had been
locked out on 30 November 2010; and:
“
The
respondent’s dismissal of the applicants was automatically
unfair in terms of section 187(1)(b), alternatively section
187(1)(c), further alternatively section187(1)(d) of the Labour
relations act 66 of 1995 (‘the LRA’).
Alternatively
to the above, the respondent’s dismissal of the applicants was
substantively and procedurally unfair.”
[5]
The parties held a further pre-trial
meeting on 15 August 2013. They filed a pre-trial minute on 16 August
2013. In that minute,
they recorded as common cause that “the
dismissed applicants were all dismissed on 1 December 2010.”
[6]
This recordal led to further confusion. The
abattoir raised a point
in limine
that this court had no jurisdiction over the nine employees who were
dismissed on 23 December 2010, as that dispute had not been
conciliated.
[7]
The
interlocutory application was heard on 29 July 2014. In a lengthy
debate between the Court and the applicants’ lead counsel,
Ms
De
Vos
SC, she crystallised the applicants’ case. She made it clear
that they were before this Court on the basis of the dispute
that had
been referred to the CCMA
[2]
and
unsuccessfully conciliated on behalf of all 39
[3]
employees, and that their case was based on an alleged dismissal in
the form of a “termination lockout” on 30 November
2010.
That is why they alleged that it constituted an automatically unfair
dismissal in terms of s 187(1)(c); and that is why the
court had
jurisdiction over all the applicants. She referred to the dismissals
on 1 December and 23 December 2010 as “formal
dismissals”.
She argued that those dismissals were a sham; what the union alleges,
is that its members were dismissed on
30 November 2010. That is the
dispute that was conciliated on 15 February 2011 and that is the
dispute that served before this
Court.
[8]
Based on that argument, the Court handed
down judgement in the interlocutory application two days later, on 31
July 2014. It found
in favour of the union that the Court did have
jurisdiction over all the applicants. It noted:
“
Mr
Loots
[for
the abbatoir] argued that, in fact, none of the applicants was
dismissed on that date [30 November 2010]. Most of them were
dismissed on 1 December and the nine remaining employees on 23
December. But the union does not accept that. Whether the union
has a
good claim, and if it will be able to show on the evidence that its
members were indeed dismissed on 30 November, is not
for this Court
to decide at this stage. That is what they claim. And if that is
their claim, this Court has jurisdiction to hear
that claim and all
the applicants – including the nine who, according to the
abattoir, were only dismissed on 23 December
– have
locus
standi
before the court.
As
Nugent JA pointed out in
Makhanya
v University of Zululand
[4]
:
‘
When
the claimant says that the claim arises from the infringement of the
common law right to enforce a contract, then that is the
claim, as a
fact, and the court must deal with it accordingly. When a claimant
says that the claim is to enforce a right that is
created by the LRA,
then that is the claim that the court has before it, as a fact. When
he or she says that the claim is to enforce
a right derived from the
Constitution, then, as a fact, that is the claim. That the claim
might be a bad claim is beside the point.’
In
the case before me, the applicants – including the nine workers
who, according to the abattoir, were dismissed on 23 December
–
base their claim on an automatically unfair dismissal that they say
took place on 30 November 2010. That the claim might
be a bad claim
and might not pass muster under section 187(1)(c) of the LRA is
beside the point. That claim can only be decided
once all the
evidence is in and once the parties have placed their arguments
before the court. It does not deprive the nine workers
from their
locus standi
at this stage.”
[9]
Following that judgement, the parties
sought a further directive from the Court with regard to the onus to
begin leading evidence
at trial. I issued the following directive on
9 September 2014:
“
1.
The applicants (CSAAWU) must establish the existence of a dismissal
on 30 November 2010 in terms of section 192 of the LRA and
thus bears
the onus to begin.
2.
If the union establishes the existence of a dismissal, the respondent
(Robertson Abbatoir) must establish that it is fair.
3.
The registrar is directed to set the matter down for hearing for 10
days.”
[10]
The
applicants’ counsel confirmed in a practice note filed on 12
March 2015 that the matter had been set down for hearing
according to
that directive. The applicants thus assumed the duty to begin.
Counsel for the applicant did not make an opening statement.
They led
six witnesses and closed their case.
[5]
At the end of the applicants’ case, the respondent asked for
absolution from the instance.
[11]
The question that arises at this stage,
therefore, is whether the applicants have led sufficient evidence
upon which this court,
applying its mind reasonably to that evidence,
could or might find for them in the case that they have presented.
The
background facts and the evidence
[12]
The
individual employees all worked in the respondent’s abattoir.
They were dissatisfied with their low wages and long hours.
They
approached CSAAWU. They joined the union between September and
November 2010. The union met with management on 19 November
2010.
Management gave an undertaking that it would comply with the
provisions of the Basic Conditions of Employment Act
[6]
and the employees’ contracts of employment. Management
attempted to extract from the union an undertaking that its members
would agree to slaughter 850 carcasses per day in return for a weekly
bonus. It is disputed whether they reached agreement; with
only the
applicants’ evidence before me, I must accept that they did
not.
[13]
The abattoir alleged that union members
embarked on a go slow. On 23 November 2010 it issued final written
warnings to 30 of the
applicants. On 25 November 2010 it issued
written notices to those 30 employees to attend a disciplinary
hearing on 30 November
2010. There is a dispute over which of them
received the notices. On 29 November 2010, they were told to come to
work at 10:00
(instead of 07:00 as usual) the next morning. There is,
according to the applicants’ counsel before Court now, a
dispute
over whether they were pertinently told to attend a
disciplinary hearing at 10:00 on 30 November; however, in their
amended statement
of claim (delivered on 2 December 2011 by their
current attorneys of record) they say in clear terms:
“
On
Monday 29 November 2010 at approximately 17h00, the respondent’s
Van Staden told the applicants to report to the main office
at the
respondent’s premises at 10h00 the following day
for
a disciplinary enquiry
.”
[14]
The applicants say that they nevertheless
went to work at 07:00 on 30 November but they were not allowed in and
the gates were locked.
They contacted the union. The general
secretary and assistant general secretary, messrs Trevor Christians
and Karel Swart, arrived
at the abattoir late in the morning. They
had a meeting with the abattoir’s main member, Mr De Bod,
facilitated by the mayor
and a town councillor, that afternoon. An
official of the Department of Labour, Mr Martin Davids, was also
present. In the course
of the meeting, Davids said (according to
Christians), “Don’t you know that your members have
already been dismissed?”
or words to that effect. Christians
testified that De Bod was visibly taken aback (“hy het
geskrik”) and that he (De
Bod) immediately corrected Davids,
saying that they were awaiting the outcome of the disciplinary
hearing. The chairperson of the
disciplinary hearing conveyed that
outcome to De Bod the next day, 1 December 2010. The hearing had
taken place
in absentia
.
The outcome was that the abattoir issued the 30 employees with
notices of dismissal dated 1 December 2010 and dismissing them
on
notice.
[15]
The other nine employees were given
subsequent notices to attend a disciplinary hearing on 22 December
2010. They were dismissed
on notice on 23 December 2010 for
misconduct in the form of being absent from work without leave.
Absolution
from the instance: the relevant principles
[16]
Ms
Van
Huyssteen
,
for the applicants, referred to the judgments of this Court dealing
with the applicable legal principles in
Mouton
v Boy Burger (Edms) Bpk
[7]
and
Nombakuse
[8]
.
In essence, the question is whether there is evidence upon which this
court, applying its mind reasonably to the evidence, could
or might
(not should, nor ought to) find for the applicants.
[17]
The
applicants concede that there is no direct evidence that they were
dismissed on 30 November 2010. They rely on an inference.
And in
Nombakuse
[9]
the court said:
“
In
the case of an inference, the court will refuse the application for
absolution from the instance unless it is satisfied that
no
reasonable court could draw the inference for which the applicant
contends. The court is not required to weigh up different
possible
inferences but merely to determine whether one of the reasonable
inferences is in favour of the applicant.”
Sufficient
evidence to establish the applicants’ case?
[18]
In order to establish that either an
automatically unfair dismissal or, simply, an unfair dismissal took
place on 30 November 2010,
the applicants first have to establish
that a dismissal did take place on that day, as clarified by
applicants’ counsel in
the hearing on 29 July 2014, in the
judgment of 31 July 2014, and the directive of 9 September 2014.
[19]
If a dismissal is established, the question
is whether it is automatically unfair. The applicants have abandoned
their initial claim
in terms of s 187(1)(b). They have also not
amended their statement of claim, as they had indicated they intended
to do, to include
a claim in terms of s 187 read with s 5. What
remains is, primarily, a claim in terms of s 187(1)(c); and in the
alternative, a
claim in terms of s 187(1)(d).
[20]
In terms of s 186(1), “dismissal”
means that an employer has terminated employment with or without
notice; and the relevant
parts of s 187 read:
“
(1)
A dismissal is automatically unfair if the employer, in dismissing
the employee, acts contrary to section 5 or, if the reason
for the
dismissal is —
(a)
…
(b)
…
(c)
to
compel the employee to accept a demand in respect of any matter of
mutual interest between the employer and employee;
[10]
(d)
that the employee took action, or indicated an intention to take
action, against the employer by—
(i)
exercising any right conferred by this Act; or
(ii)
participating in any proceedings in terms of this Act;”.
Were
the workers dismissed on 30 November?
[21]
The first question that arises is whether
it constituted a dismissal if the workers were prevented from
entering the premises on
30 November 2015.
[22]
The short answer is that it did not. They
were paid for the day. They were called to a disciplinary hearing. It
was held in their
absence. The abbatoir terminated their employment
for misconduct, with notice – as contemplated by s 186(1)(a) –
on
1 December and 23 December 2010 respectively.
[23]
Counsel
for the applicants argued that the workers were “locked out”
and that that constituted a dismissal, relying
on
NUMSA
v Abancedisi Labour Services.
[11]
But in that case, the employees – employed by a labour broker –
were not only excluded from the premises of the client
to which they
were assigned and replaced with new workers; they were also not
reassigned work elsewhere and they were not paid
wages thereafter. In
the case before me, the abbatoir did appoint temporary workers to
keep the line going; but the group of 30
workers were paid notice pay
from the date of their actual dismissal on 1 December, and the
remaining nine continued to be paid,
called to a disciplinary hearing
for their failure to attend work, attended that hearing in their
capacity as employees on 22 December,
and were only dismissed –
with notice – on 23 December.
[24]
To this must be added Mr Christians’s
own evidence that, at the meeting on 30 November, Mr De Bod stated
unequivocally that
the employees had not been dismissed, but that
they had to await the outcome of the disciplinary hearing. That
outcome was only
conveyed to De Bod on 1 December and to the
employees subsequently. They were, quite simply, not dismissed before
1 December and
23 December respectively. Mr Christians, the union’s
general secretary, conceded as much.
Automatically
unfair dismissal in terms of s 187(1)(c)
[25]
In
any event, if there was a lockout on 30 November, it did not imply a
dismissal, much less an automatically unfair dismissal as
contemplated by s 187(1)(c). Counsel for the applicants implored me
to draw such an inference. But there was no evidence to even
lead to
such an inference. Not even Mr Christians, the general secretary of
the union, so much as alleged that the workers were
locked out “to
compel the employees to accept a demand in respect of any matter of
mutual interest between the employer and
employees”, as
required by the subsection. To use a slaughterhouse analogy,
hy
kon eenvoudig nie die kloutjie by die oor bring nie
.
Neither did any one of the slaughterhouse five who testified. There
was not an iota of evidence that, even if the employees were
locked
out, that lockout was in order to compel them to accept a demand in
respect of a matter of mutual interest. And when the
workers were
dismissed, it was a final dismissal, thus excluding it from the scope
of s 187(1)(c).
[12]
[26]
The applicants have not led any evidence to
bring their claim within the scope of s 187(1)(c). For that reason
also, the respondent’s
application for absolution from the
instance must succeed.
Automatically
unfair dismissal in terms of s 187(1)(d)
[27]
Albeit faintly argued by the applicant’s
counsel, a claim in terms of s 187(1)(d) remained part of their case.
The basis for
that claim was not set out in their amended statement
of claim, but it was clarified as follows in the pre-trial minute of
August
2013:
“
Section
187(1)(d):
The dismissed applicants
were dismissed because, with effect from 22 November 2012, they
exercised their rights conferred by
s 5(2)(c)(iv)
of the
Labour
Relations Act, 66 of 1995
–
1.
to refuse to work overtime in the absence
of a binding agreement to do so (in accordance with
section 10(1)(a)
of the BCEA, read with
s 10(5)
thereof);
2.
to refuse to work in excess of 10 hours
overtime per week (in accordance with
section 10(1)(b)
of the BCEA);
and/or
3.
to refuse to work in excess of 12 hours on
any given day (contrary to
section 10(1A)
of the BCEA”.
[28]
Again, there is simply no evidence before
the court to support such a claim. Not one of the applicants’
witnesses testified
that any of these reasons constituted the reason
for their alleged dismissal on 30 November 2010, apart from the fact
that they
failed to establish the existence of a dismissal on that
date.
Other
unfair dismissal
[29]
It may or may not be that the applicants’
dismissal for misconduct on 1 December and 23 December respectively
was unfair.
That remains untested. If it was, they should have
referred an unfair dismissal dispute to the CCMA for arbitration.
This court
has no jurisdiction to hear such a dispute, and the
parties have not agreed that the court should hear it, sitting as an
arbitrator,
in terms of
section 158
(2)(b) of the LRA. And in any
event, such a dispute does not flow from a dismissal on 30 November
2010.
[30]
The individual employees did earn low wages
and they did work long hours. Those are not issues for this court to
pronounce upon,
given the parameters within which the applicants
chose to clothe their claim.
Conclusion
[31]
The applicants have presented no evidence
upon which this court could or should find that they were dismissed
on 30 November 2010,
much less that it constituted an automatically
unfair dismissal in terms of
ss 187(1)(c)
or
187
(1)(d) of the LRA.
The respondent’s application for absolution from the instance
succeeds.
[32]
With regard to costs, this court is
enjoined to take into account the requirements of both law and
fairness in terms of
s 162
of the LRA. In terms of the law, costs
normally follow the result. If that were the only consideration, it
follows that the applicants
must pay the respondent’s costs.
That is also what both parties asked for in the pleadings.
[33]
However, I must also take into account the
requirements of fairness. Specifically, in terms of
section 162(2)
, I
may take into account –
“
(a)
whether the matter referred to the Court ought to have been referred
to arbitration in terms of this Act and, if so, the extra
costs
incurred in referring the matter to the Court; and –
(b)
the conduct of the parties –
(i)
in proceeding with or defending the matter before the Court; and
(ii)
during the proceedings before the Court.”
[34]
In exercising my discretion whether or not
to award costs, I have, apart from the fact that the union has been
the unsuccessful
party, taken into account the following:
34.1
The union chose to refer an unfair
dismissal dispute based on an alleged “dismissal lockout”
in terms of
section 187(1)(c)
to this Court, instead of referring an
unfair dismissal dispute arising from the dismissals for misconduct
on 1 December and 23
December respectively to the CCMA for
arbitration.
34.2
The applicants have not led any evidence to
support the claim in terms of
section 187(1)(c)
or
s 187(1)(d).
150%
">
34.3
The
applicants’ cause of action was originally hard to fathom. That
was clarified by their counsel in the hearing of 29 July
2014. In the
judgement of 31 July 2014, the applicants were forewarned that the
claim in which they chose to persist would be a
hard claim to
prove
[13]
. Yet they persisted.
34.4
During the course of the trial, the
applicants asked for the matter to stand down a number of times
because their witnesses were
either not available or not prepared.
34.5
The individual applicants are poorly paid
workers in a rural community. Although there is no evidence before
the court, I am prepared
to accept that most of them are probably
still unemployed following their dismissal. They are not well
educated. They may well
have been badly advised, both by the trade
union and, at least initially, by the erstwhile attorneys. It would
not be fair to order
them to pay the respondent’s costs.
34.6
On the other hand, the abattoir has been
brought to court in a trial that has already lasted six days based on
a chosen cause of
action that had very limited prospects of success.
It has had to incur significant legal costs. Both parties have seen
it fit to
incur the costs of two counsel; in the case of the
applicants, that of Senior Counsel. It would not be fair to the
respondent for
it to carry all of those costs in circumstances where
the applicants have not even come out of the starting blocks and
absolution
from the instance has been granted.
34.7
The union has represented its members
throughout the litigation. In the interlocutory application heard on
29 July 2014, the abattoir
had initially also sought an order for
security for costs based on its concern that the union may not be
able to pay costs. As
Mr
Loots
pointed out when we debated costs in this matter, the union at that
stage objected vehemently. Its attorney, Mr Mosikili, stated
under
oath that CSAAWU is not “a man of straw”. SERI also
stated in correspondence that the respondent’s claim
that
CSAAWU is a “man of straw” is “without foundation”.
It has not presented any evidence to the contrary
in this hearing.
34.8
There is no longer any relationship between
the employer and the union.
[35]
Taking all these factors into account, I
deem it appropriate according to the requirements of the law and
fairness to order the
union to pay the abattoir’s costs,
including the costs of two counsel.
Order
The
respondent, Robertson Abbatoir, is granted absolution from the
instance.
The
applicant, CSAAWU, is ordered to pay the respondent’s costs,
including the costs of two counsel.
Anton
Steenkamp
Judge
of the Labour Court of South Africa
APPEARANCES
APPLICANTS:
Annemarie de Vos SC
(with
her Elsa van Huyssteen)
Instructed
by the Socio-Economic Rights Institute (SERI) (Johannesburg).
RESPONDENT:
Hanri Loots
(with
him Lourens Ackermann)
Instructed
by Du Bois, De Vries, De Wet & Kroukam (Robertson) and Bisset
Boehmke McBlain (Cape Town).
[1]
Act 66 of 1995 (the LRA).
[2]
Robertson
Abbatoir v CSAAWU obo Dube & ors
[2014] ZALCCT 38 paras 17-19.
[3]
[3]
The union initially purported to represent 42 employees, but it
became common cause that two of them are still working for the
abbatoir and that another one was not represented by it.
[4]
2010 (1) SA 62
(SCA) para 71.
[5]
Five of the six witnesses testified in Afrikaans. Nevertheless, when
I enquired from their counsel whether they would prefer
the reasons
for this
judgment
to be in Afrikaans or English, she said that they would refer it to
be in English. I drafted the judgment accordingly.
[6]
Act 75 of 1997.
[7]
(2011) 32
ILJ
671 (LC).
[8]
Nombakuse
v Dept of Transport and Public Works, Western Cape Provincial Govt
(2013)
34
ILJ
671 (LC).
[9]
Supra
para 22.
[10]
Subsection (c) has been substituted by s 31 of Act 6 of 2014 to
read: “a refusal by employees to accept a demand
in
respect of any matter of mutual interest between them and their
employer”. However, the applicants in this case rely
on the
wording of the section before its substitution.
[11]
[11]
(2013) 34
ILJ
3075 (SCA).
[12]
Cf
Fry’s
Metals (Pty) Ltd v NUMSA
[2003]
2 BLLR 140
(LAC);
NUMSA
v Fry’s Metals (Pty) Ltd
[2005]
3 All SA 318 (SCA).
[13]
Robertson
Abbatoir v CSAAWU
[2014]
ZALCCT 38 paras 16-19 and 25.