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[2015] ZALCCT 41
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CSAAWU obo Dube and Others v Robertson Abbatoir (C315/2011) [2015] ZALCCT 41 (18 May 2015)
The
Labour Court of South Africa, Cape Town
Judgment
Case
No: C 315/2011
DATE:
18 MAY 2015
Not
Reportable
In
the matter between:
CSAAWU
Obo DUBE and
Others
.........................................................................................
Applicants
And
ROBERTSON
ABBATOIR
...................................................................................................
Respondent
Delivered:
18 May 2015
RULING
ON LEAVE TO APPEAL
STEENKAMP
J
Introduction
[1]
The applicant union, CSAAWU (acting on
behalf of 39 of its members), seeks leave to appeal against my ruling
of 23 March 2015 granting
the respondent absolution from the
instance.
The
applicants’ case
[2]
In
order to consider whether there is a reasonable prospect that another
court may come to a different conclusion
[1]
,
it is important to understand what the applicants’ case was.
[3]
As
noted in the judgment
a
quo
,
that case was initially hard to fathom. It became crystallised in a
lengthy debate between the Court and the applicants’
counsel in
an interlocutory application brought by the respondent in July 2014.
The respondent challenged the jurisdiction of this
Court to decide on
the dismissal of nine of the applicants who were dismissed after a
disciplinary hearing on 23 December 2010.
The applicants’
senior counsel, Ms
De
Vos
SC, then made it clear that the applicants’ case would stand or
fall on their argument that all of the applicants were dismissed
on
30 November 2010, and not on 1 December (in the case of 30
applicants) or 23 December (in the case of the remaining nine). She
further grounded the applicants’ case squarely on a “lockout
dismissal” in terms of s 187(1)(c) of the Labour
Relations
Act.
[2]
[4]
In their heads of argument in the
interlocutory application, the applicants’ counsel say
pertinently:
“
The
applicants contend that 42 workers who are members of the first
applicant (CSAAWU) were locked out by the respondent on 30 November
2010, in order to compel them to accept a demand by the respondent in
respect of the daily targets for slaughtering rates.
…
CSAAWU
contended that all the workers had been dismissed on 30 November 2010
by means of an illegal lock-out.”
[5]
The following exchange between the Court
and counsel -- one of many where the Court attempted to clarify
what the applicants’
case was -- is instructive:
“
Court:
What is your client’s case? Is it
saying that there was a lockout dismissal on 30
th
of November or is it saying or does it accept as it does in the
pre-trial minute that one group of people was dismissed on 1 December
and one group of people was dismissed on 23 December?
Ms
De Vos
: no the evidence that we intend to present is based on
the dispute that arose with the lockout, the illegal lockout on the
30
th
November and we are saying that by illegally locking
out the employees there was a de facto dismissal.”
Evaluation
[6]
The applicants’ individual grounds
for leave to appeal must be considered against this background and
against the background
of a directive issued by the Court on 9
September 2014, at the request of the respondent and as a result of
the ruling on
locus standi
in the applicants’ favour, that read as follows:
“
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 Abattoir) must establish that it is fair.”
Dismissal
on 30 November?
[7]
The applicants had to prove that they were
dismissed on 30 November. That is the foundation on which their case
was built. The reason
is clear: were they to accept that they were
dismissed on 1 December and 23 December respectively, nine of the
applicants (dismissed
on 23 December) would have had no
locus
standi
. This Court ruled in July 2014
that they did have
locus standi
based on the case that the applicants presented, i.e. that they were
dismissed on 30 November. It remained for the applicants to
prove
that case on trial. They did not. (Only once the applicants had
proven that they were dismissed on 30 November, would the
onus shift
to the employer to prove that the dismissal was fair).
[8]
The
applicants rely on
Abancedisi
[3]
to argue that the date and mechanism of dismissal need not be certain
for the court to have jurisdiction. But there was never any
doubt
that this Court did have jurisdiction to hear the applicants’
case. Their case was that they were dismissed on 30 November
by way
of an “unlawful lockout” and that that dismissal was
automatically unfair in terms of s 187(1)(c). That is the
case that
the court heard, having jurisdiction to do so. But the applicants did
not prove that case.
[9]
As
this Court forewarned the applicants in the interlocutory ruling on
locus
standi
on 31 July 2014:
[4]
“
As
Nugent JA pointed out in
Makhanya v
University of Zululand
:
‘
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.”
[10]
In any event, the facts of this case are
distinct from
Abancedisi.
In that case, the employer ceased paying the employees their wages.
In this case, the employer continued paying the employees until
the
end of their notice period, after they had been dismissed for
misconduct on 1 December and 23 December respectively. And in
terms
of s 190(2)(d) of the LRA:
“
[I]f
an employer terminates an employee’s employment on notice, the
date of dismissal is the date on which the notice expires
or, if it
is an earlier date, the date on which the employee is paid all
outstanding salary.”
[11]
There is simply no evidence that the
applicants were dismissed on 30 November. In their heads of argument,
they rely on a statement
made by Mr Davids (a Department of Labour
official, and not an employee representative, wrongly refer to as
“Daniels”
in the heads) that: “Weet julle nie die
mense is ge-dismiss [
sic
]
nie?”. But the applicants were all adamant that the employer
representative, Mr de Bod, was shocked when Davids said this
and
immediately corrected him, making it clear that it was not so.
[12]
The employer did use replacement labour on
30 November – the date when the employees, by their own
admission, were told to
attend a disciplinary hearing at 10:00. But
they were paid for the day, and when they were eventually dismissed,
they were paid
for the notice period. There is simply no evidence of
a dismissal on 30 November. There is no reasonable prospect that
another
court may find differently on the evidence before the Court.
Reason
for dismissal
[13]
The applicants’ case was that they
were dismissed by way of a lock-out on 30 November to compel them to
accept the employer’s
demand for higher slaughter targets.
[14]
But
the employees were, as a fact, finally and irreversibly dismissed for
misconduct on 1 December and 23 December respectively.
Dube conceded
that he was dismissed following a disciplinary hearing on 23
December. Their dismissals can, quite simply, not be
brought within
the scope of s 187(1)(c). As the Supreme Court of Appeal [per Mpati
DP and Cameron JA] pointed out in
Fry’s
Metals v NUMSA
[5]
:
“
Only
conditional dismissals can fall under s 187(1)(c), and it is this
that distinguishes them from the broader category of dismissals
where
the employer – irreversibly – ‘has terminated’
the employment contract. Dismissals intended to be
and operating as
final – not, in other words, reversible on acceptance of the
demand – can thus never have as their
reason ‘to compel
the employee to accept’ that demand. They will therefore not be
automatically unfair. In such cases,
the only factual inquiry
confronting a court is the employer’s reason for effecting the
dismissal: once compulsion to accept
the disputed demand (with
ensuing reversal of the dismissal) is excluded, no further inquiry
into the nature or categorisation
of the demand is required.”
[15]
As the respondents’ counsel point out
in their heads of argument, the applicants find themselves on the
horns of a dilemma.
If there was no dismissal on 30 November 2010,
the applicants’ case must be dismissed on the facts. If there
was a dismissal,
it was final. If that is so, their case must be
dismissed on the law.
[16]
In any event, the applicants led no
evidence that the reason for their dismissal was to compel them to
accept a demand in respect
of any matter of mutual interest between
them and the employer.
[17]
There is no reasonable prospect that
another court will come to a different conclusion.
Section
187(1)(d)?
[18]
The applicants initially pleaded, in the
alternative, that their dismissal was automatically unfair in terms
of s 187(1)(d) of the
LRA. But the case was not, as they now appear
to suggest in the submissions for leave to appeal, that the employer
was “anti-union”.
It was explained as follows in the
pre-trial minute:
“
The
dismissed applicants were dismissed because, with effect from 22
November 2012, they exercised their rights conferred by
section
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
section 10
(5) thereof;
2.
to refuse to work in excess of 10 hours of
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).”
[19]
None of the applicants led any evidence to
establish such a case. And in any event, when their counsel was asked
in terms if an
automatically unfair dismissal in terms of
section
187(1)(d)
remained part of their case, Ms
de
Vos
said unequivocally: “Nee, dit
is nie die saak nie. Dis nie hoekom ek die getuienis aanbied nie.”
[20]
In argument, Ms
van
Huyssteen
nevertheless tried to
resurrect an alternative case based on
s 187(1)(d)
, albeit faintly.
(She conceded that she was “diffident” about that element
of the applicants’ case). But what
was now presented, was a new
case based on anti-union bias, and not the case made out in the
pre-trial minute based on a refusal
to work overtime.
[21]
This ground of appeal also fails.
Appeal
against costs order
[22]
The applicants also seek leave to appeal
against the costs order of 23 March 2015.
[23]
An
appeal court will not lightly interfere with the discretion of the
court
a
quo
in deciding on costs. As the Constitutional Court recently held in
Mbana
v Shepstone & Wylie
[6]
:
“
When
granting costs against [the appellant], the Labour Court took into
consideration the provisions of
section 162
of the
Labour Relations
Act. In
doing so, it was cognisant of the requirements of law and
fairness. It considered the conduct of the parties during and after
the
preparation of the pre-trial minute and concluded that costs
would be borne by [the appellant], but limited them only to costs
incurred after the conclusion of the pre-trial minute. The
determination of costs is a matter that lies in that court’s
discretion.
Ms Mbana has not made out a compelling argument that in
exercising that discretion, the Labour Court acted capriciously or
applied
the law incorrectly.
Similarly,
Ms Mbana has proffered no cogent argument that the Supreme Court of
Appeal exercised its discretion capriciously or incorrectly
when
granting the costs order, nor has she identified exceptional
circumstances warranting this Court’s intervention in this
regard.
All
be told, it is not in the interests of justice to grant leave [to
appeal] in respect of the costs orders of the Labour Court
and the
Supreme Court of Appeal.”
[24]
The
same principles hold true in this case. The union has shown no
exceptional circumstances why the costs order should be reversed,
nor
has it shown that the order was granted capriciously. It led no
evidence to show why a costs order against it would not be
appropriate in law or fairness. And when the union said that it was
not a “man of straw”, that was interpreted in the
way
that our courts have consistently done, i.e. to mean that it is not
indigent.
[7]
The costs order
a
quo
was not granted capriciously or incorrectly, but after a proper
application of judicial discretion. There is no prospect that a
higher court will interfere. This ground for leave to appeal also
fails.
Costs
of this application
[25]
The applicants have shown no prospects that
another court will come to a different conclusion. They would have
been well advised
to accept the judgment
a
quo
and to avoid incurring further
costs. They chose not to. That necessitated the respondent incurring
further costs. In law and fairness,
the applicant union must pay
those costs.
Order
[26]
I therefore make the following order:
26.1
The application for leave to appeal is
dismissed.
26.2
The applicant union, CSAAWU, is ordered to
pay the costs of the respondent, Robertson Abattoir.
Anton
Steenkamp
Judge
of the Labour Court.
APPEARANCES
APPLICANTS:
Anne-Marie de Vos SC
Stuart Wilson
Irene de Vos
Instructed by:
SERI.
RESPONDENT:
Hanri Loots
Lourens
Ackermann
Instructed by:
Bisset Boehmke McBlain.
[1]
[1]
Cf the test in
NEHAWU
v UCT
(2003)
24
ILJ
95 (CC) paras 25-26.
[2]
Act 66 of 1995 (the LRA).
[3]
NUMSA
v Abancedisi Labour Services
(2013) 34
ILJ
3075 (SCA).
[4]
Robertson
Abattoir v CSAAWU
[2014]
ZACCT 38 paras 18-19.
[5]
[2005] 3 All SA 318
(SCA); (2005) 26
ILJ
689 (SCA) para 56. See also
NUM
v Mazista Tiles (Pty) Ltd
(2006) 27
ILJ
471 (SCA).
[6]
[2015] ZACC 11
(7 May 2015) paras 52-53.
[7]
Cf
Tadyn
Trading cc t/a Tadyn Consulting Services v Steiner
(2014)
35
ILJ
16
7
2
para 14 at 1676 E;
Rham
Equipment (Pty) Ltd v Lloyd
(2008)
29
ILJ
3033
(LC) paras 12-13, both citing
Gois
t/a Shakespeare’s Pub v Van Zyl
(2003)
24
ILJ
2302 (LC) [per Waglay J].