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[2016] ZALCCT 24
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NUM and Others v Power Construction (Pty) Ltd (C85/2014) [2016] ZALCCT 24; (2017) 38 ILJ 227 (LC) (27 July 2016)
REPUBLIC
OF SOUTH AFRICA
THE
LABOUR COURT OF SOUTH AFRICA, CAPE TOWN
JUDGMENT
Not
reportable
Of interest
to other judges
C
ase
no: C 85/2014
In
the matter between:
NUM
Sipho SIGCAU & 13
others
First applicant
Second and further
applicants
and
POWER CONSTRUCTION
(PTY) LTD
Respondent
Heard
:
9-11 September 2015; 30 November – 1 December 2015; 31 March
2016
Delivered
:
27 July 2016
Summary:
Dismissal for participation in unprotected strike.
JUDGMENT
STEENKAMP
J
Introduction
[1]
Power Construction dismissed 33 workers
(the second and further applicants) after they had participated in an
unprotected strike.
They are all members of the National Union of
Mineworkers (NUM). NUM and the other applicants allege that the
dismissals were unfair.
The
applicants’ case
[2]
It is common cause that the workers
participated in an unprotected strike on Friday 16 August; Monday 19
August; and Tuesday, 20
August 2013.
[3]
The union argues that the nature and extent
of the strike did not warrant the dismissal of the employees and that
they were in any
event dismissed without a disciplinary hearing.
[4]
In determining whether the dismissals were
fair, the court was called upon to consider the following factors:
4.1
The interpretation of the sectoral
determination regulating work and pay for days affected by so-called
‘inclement weather’.
4.2
The question whether the weather was in
fact ‘inclement’ on Friday, 16 August 2013.
4.3
The events of 14 to 20 August 2013.
4.4
The substantive fairness of the dismissals,
including:
4.4.1
the seriousness and reasons for
non-compliance with the LRA;
4.4.2
the duration of the strike;
4.4.3
the opportunity given to the employees to
reflect on the actions and to take advice from their union
representatives.;
4.4.4
the harm caused by the strike;
4.4.5
the legitimacy of the strikers’
demand; and
4.4.6
the conduct of the strikers.
4.5
The procedural fairness of the dismissals,
and specifically the absence of a disciplinary hearing.
The
evidence
[5]
The trial took place over a number of days
during September, November and December 2015. After the evidence was
heard, the matter
was postponed for argument on 31 March 2016.
[6]
As set out above, it is common cause that
the workers participated in an unprotected strike over a period of
three days. Much of
the evidence led by the parties concerned their
demands and the question whether or not they were entitled to refuse
working because
of inclement weather. That, in turn, raised factual
issues as well as the interpretation of the relevant sectoral
determination.
[7]
The employer called the following
witnesses:
7.1
Morkel Stofberg (Organisational Development
Executive);
7.2
David Jacobs (site manager);
7.3
Brian Cupido (human resources
practitioner);
7.4
James Barnes (senior site foreman);
7.5
Andrea Jacobs (site supervisor);
7.6
Riaan Smit (senior forecaster and head of
the forecasting unit at the Western Cape office of the South African
Weather Service.
His expert evidence was submitted in writing by
agreement between the parties).
[8]
The union called the following witnesses:
8.1
Russell Desemela (applicant, builder,
dismissed on 21 August 2013);
8.2
Eugenia Peter (NUM organiser).
Factual
background
[9]
Power Construction was involved in a
building project on the site at Pelican Park in Grassy Park.
[10]
On Wednesday, 14 August 2013, the company
informed the employees that they did not have to work on Thursday due
to expected bad
weather. They asked if they could also take Friday 16
August off as rain was predicted for the day as well. The company
refused
and instructed the employees to report for duty on Friday 16
August; and told them that anyone who did not would be disciplined.
[11]
As agreed, the employees did not go to work
on Thursday 15 August. They did report for work at about 07:15 on
Friday 16 August.
There is a dispute about the state of the weather
on that day.
[12]
I think it is fair to say that the union’s
witnesses gilded the lily somewhat in describing the weather
conditions on that
day. In their statement of case, the applicants
say that it started raining shortly after they arrived at work at
07:15 and that
there had to “skuil”, i.e. seek shelter.
They did not return to work as instructed because by 12:00 “it
was still
raining” and they insisted that they would not work
in the rain. Desemela testified that it was raining heavily when they
arrived at work and that it was cold. He conceded, though, that by
11:00 it was “stopping and raining” and that there
was no
wind although it was still cold.
[13]
This version must be contrasted with the
agreed expert evidence of Smit, the senior forecaster and head of the
forecasting unit
at the Western Cape office of the South African
Weather Service. He recorded that:
13.1
rainfall of less than 2,5 mm per hour is
considered “light”;
13.2
the amount of rainfall during the period
07:00 to 16:00 on Friday 16 August 2013 was insignificant; and
13.3
the rainfall recorded for the period 07:00
to 08:00 on Wednesday 21 August 2013 was 10 mm, which constituted
“moderate to
heavy rain”.
[14]
The company’s witnesses agreed that,
at the time the employees were to commence the duties on Friday 16
August, there was
a light and intermittent drizzle. Although they did
not agree that it was necessary for the employees to “skuil”,
it
appears to be common cause that the employees did in fact do so.
It is also common cause that the employees had been issued with
rain
suits. The union contended that the rain suits were of poor quality;
the company’s witnesses countered that they merely
had to hand
the rain suit in to receive a new one.
[15]
At 08:00 Jacobs arrived on site and
instructed the employees to start working. They refused, saying that
they regarded the weather
as being inclement.
[16]
The applicant Desemela conceded that the
“heavy” rainfall had ceased by 10:00. The company’s
witnesses say that
it was no longer drizzling at that time. And the
weather data for the nearest recording station shows that the drizzle
had stopped
by 10:00. It is common cause that the employees still
refused to go to work.
[17]
At
11:00 Jacobs
[1]
,
the site manager, and Barnes, the senior site foreman, addressed the
striking employees and demanded that they return to work,
failing
which they would not be paid for the day. They refused.
[18]
At some point Barnes arrived with the clock
cards for the week. Desemela says that he saw that zero hours had
been recorded for
Friday 16 August. That is disputed by the company’s
witnesses. The applicants argue that, by mid-morning, the grievance
had
shifted from being forced to work in inclement weather to a
demand that the company clarify why they would not be paid for the
Friday.
[19]
Cupido arrived at approximately 13:30. He
told the employees for the third time to go to work. He reminded them
that, should they
have a grievance, they could refer it to the CCMA.
He asked the striking workers to nominate two representatives who
should meet
in his office while the rest of them returned to work.
They refused.
[20]
At
1430 on Friday 16 August, Cupido and Barnes issued a first
ultimatum
[2]
or communiqué to all striking employees and read it out to
them. It was issued under the name of David Jacobs and read as
follows:
“
CORRESPONDENCE
01 : FIRST COMMUNIQUÉ TO ALL STRIKING EMPLOYEES
This
communiqué serves to advise you that your refusal/failure to
work constitutes a breach of your contractual obligations
and the
provisions of the Labour Relations Act.
You
will not be paid for the time that you do not work. The policy of “
no
work, no pay
” will strictly be applied.
You
are urged to communicate any grievances or this satisfaction by
mandating your representatives and union to meet with management.
All
employees are instructed to return to work on
Monday, 19 August
2013 by 07h30.
Failure to return to work will result in the
company taking appropriate action to protect its interests, including
but not limited
to disciplinary action being taken against you, which
may lead to your dismissal.”
[21]
The employees still did not return to work.
They went home on the company transport at about 15:00 when Jacobs
decided to book the
site off.
[22]
On Monday, 19 August 2013 the employees did
return to the site at 07:30 but they still refused to work.
[23]
Cupido had contacted Edward Phibantu, a NUM
shop steward who works at the company’s head office. Phibantu
arrived at the site
with Cupido. Phibantu spoke to the employees and
asked them what their grievances were. He then went into the site
office and told
Jacobs and Cupido that the employees wanted payment
for Friday 16 August as the weather had been inclement. Cupido asked
Phibantu
to return to the employees and asked them to nominate four
representatives to enter into discussions while the rest of the
employees
returned to work. They refused.
[24]
Phibantu left at approximately 09:00. He
called the NUM organiser at the Bellville regional office, Eugenia
Peter, to assist. Cupido
addressed the employees again and instructed
them to return to work and to lodge a grievance in due course. They
refused.
[25]
At about 12:00 the company issued a second
ultimatum. It read as follows:
“
CORRESPONDENCE
02 : ULTIMATUM TO EMPLOYEES PARTICIPATING IN AN UNPROTECTED STRIKE
Your
refusal to work constitute a breach of the contractual obligations in
terms of your:
1.
contract of employment; and
2.
the provisions of the Labour Relations Act.
Management
requests that:
·
You raise any complaint, concern or
dissatisfaction through the grievance procedure with management.
·
You return to work on or before Monday, 19
August 2013 at 13h00.
·
You mandate your elected representatives
from your place of work to meet with management and your union(s) to
discuss the reasons/concern
of these actions.
Failure
to comply with the above request on or before 1300 on Monday, 19
August 2013 will result in management having no alternative
but to
take appropriate action to protect the interests of the company.
These actions may include but are not limited to disciplinary
action
taken against you, which may result in you being dismissed.
Any
employee who briefly returns to work, and thereafter continues with
unprotected strike action, will be deemed not to have returned
to
work and this will not amount to substantive compliance with the
original ultimatum and the continuation of strike action will
expose
employees on strike to dismissal.
The
rule of “no work, no pay” will apply.
Management
calls on you to mandate representatives and your union to meet with
management to communicate the issues/reasons giving
rise to your
unprotected actions.”
[26]
Peter only arrived at the premises at about
15:00. She met with the company management and the striking
employees. She could not
resolve the issue and left.
[27]
Jacobs issued a third ultimatum at about
15:00. It read:
“
CORRESPONDENCE
03: FINAL COMMUNIQUÉ”
Management
regrets that you ignored the instructions contained in the ultimatum
issued on Monday, 19 August 2013 at 12H10 and its
attempts to resolve
the reasons/concerns that gave rise to your unprotected industrial
action.
This
serves to inform you that unless you return to work by 07H30 on
Tuesday, 20 August 2013, management will have no alternative
but to
dismiss you.
Management
trusts that this will not be necessary and that you will reconsider
your actions and return to work by 07H30 tomorrow.”
[28]
The striking workers still did not heed the
ultimatum. They left the premises and returned on Tuesday, 20 August
2013 at about 07:30.
This was day three of the unprotected strike.
[29]
The workers again congregated outside the
site gate at the site offices. Peter arrived at about 09:00 and spoke
to Cupido. Cupido
asked her to speak to the employees and ensure that
they return to the site. She tried to persuade the employees to
return to work
while she attended to their grievance. Instead, the
employees insisted on taking their tea break before returning to
work. Cupido
pointed out that there had not worked at all; that, in
the circumstances they were not entitled to a tea break; and that
they should
return to work immediately. They refused. Peter left.
[30]
Cupido issued notices of dismissal at about
11:30 on Tuesday, 20 August 2013. The notices read as follows:
“
CORRESPONDENCE
04: NOTICE OF DISMISSAL TO ALL STRIKING EMPLOYEES
Management
refers to all the attempts made to resolve your alleged grievance(s)
which has given rise to your participation in unprotected
strike
action at Pelican Park (civils site) since Friday, 16 August 2013.
The
company has attempted to deal with your representatives in respect of
your demands. You have opted not to choose representatives
and liaise
in a group.
Despite
attempts to settle the dispute, together with engaging with union
representatives, you have failed to return to work.
You
have also ignored numerous requests to resume working and have
carried on with your unprotected strike actions even in the face
of
an ultimatum issued on Monday, 19 August 2013.
In
the circumstances and after due consideration, Power Construction
(Pty) Ltd hereby dismiss you and terminate your contract of
employment with immediate effect.
Payment
will be made on 30 August 2013.
You
are requested to leave the premises by 0830, Tuesday, 20 August
2013.”
[31]
After the dismissal, a meeting was held
between some of the employees; Phibantu; Cupido and Stofberg at the
company’s head
office on Thursday, 22 August 2013.
[32]
At the meeting, the company offered to
reinstate the employees on their previous conditions of employment,
subject to them signing
an undertaking to return to work. In terms of
the undertaking, drafted by management, they would acknowledge the
following:
32.1
“
Employees involved in unprotected
industrial action agreed that they did not follow the correct
procedure in resolving the dispute.
32.2
Employees acknowledge that this document
will be kept on record and be regarded as a final warning in the
event of related or similar
misconduct taking place in future.
32.3
Employees agree to and acknowledge the
company’s grievance and disciplinary code. Furthermore, the
employees acknowledge,
as noted in the union’s recognition
agreement with the company, that the company has the right to apply
management discretion
in its daily running of the company.
32.4
Upon written acknowledgement of this
document through signature, employees will be reinstated as they were
employed prior to their
dismissal.
32.5
During unprotected industrial action, some
company employees experience intimidation from striking employees.
The company reserves
its right to apply disciplinary procedures
against those employees were found guilty of intimidation.”
[33]
The employees refused to sign the
undertaking. That resulted in the offer to reinstate them
retrospectively being withdrawn.
[34]
The union referred an unfair dismissal
dispute to the CCMA. Conciliation failed and it was referred to this
court for trial.
The
sectoral determination
[35]
Clause
1 of the Sectoral Determination 2 : Civil Engineering Sector South
Africa
[3]
defined ‘short time’ as:
“
a
temporary reduction in the number of ordinary hours of work owing to
the vagaries of the weather… or any unforeseen contingencies
and/or circumstances beyond the control of the employer… which
directly affect the employer’s ability to provide work.”
[36]
Under the heading “short time”,
the sectoral determination goes on to prescribe the remuneration when
hours of work
are reduced on account of short time “excluding
short time owing to inclement weather”.
[37]
Clause 7(4)(b) then goes on to prescribe
that, whenever the ordinary hours of work prescribed in clause 8 of
the sectoral agreement
are reduced “on account of inclement
weather” the following arrangements will apply:
37.1
where no work has begun at all on site, and
if an employee has reported for work, the employee will be paid for
four hours, provided
the employee has at the request of the employer,
remained at the workplace during this period;
37.2
should work be stopped after the first four
hours, the employee will be paid for the hours worked;
37.3
should work be stopped during the first
four hours, the employee will be paid for four hours only;
37.4
where the employer has given his employees
notice on the previous working day that no work will be available due
to inclement weather,
then no payment will be made provided that
clause 7(4)(a)(i) is complied with.
[38]
Clause 7(4)(a)(i) provides, in short, that
any deduction may not exceed one third of the employee’s weekly
wage.
[39]
The only sensible construction to be placed
on the determination, it seems to me, is that, where the employer
gave the employees
notice on the previous day that no work will be
available due to inclement weather, they are not entitled to payment
for the day.
That is what happened in this case with regard to work
on Thursday, 15 August 2013. But that is coupled with a proviso: the
deduction
may not exceed one third of the employees’ weekly
wages.
[40]
Were the applicants entitled to be paid for
Friday, 16 August 2013? That question must be determined by first
deciding whether they
had to stop work due to inclement weather on
that day. It is common cause that they were instructed to go to work,
therefore clause
7(4)(b)(iv) does not apply.
[41]
The
sectoral determination was amended on 25 August 2009.
[4]
In terms of the amendment, employers are required to pay their
employees a full day’s pay irrespective of the number of
working hours lost as a consequence of inclement weather. The
applicants say that this also applies where the employer had given
notice the previous day that no work would be performed on site. The
company disagrees.
[42]
It is not essential for the determination
of this case to decide what the proper interpretation of the amended
sectoral determination
is. What is relevant, is whether it could be
said that the weather on Friday, 16 August 2013 was “inclement”
to the
extent that the employees reasonably refused to work. The
question whether they were entitled to payment for the day (or for
four
hours) only becomes relevant if the prior question is answered
in the affirmative.
Weather
conditions on Friday 16 August
[43]
The term ‘inclement weather’ is
not defined. The Oxford English Dictionary defines it as
“unpleasantly cold or
wet”. But what is unpleasant for
one person may not be unpleasant for another. I would agree with Mr
Whyte,
for
the applicants, that one must have regard to a combination of
rainfall, wind, and temperature, as well as the working conditions
at
a particular site.
[44]
The expert evidence of Mr Smit -- taken
together with that of the witnesses on site – is conclusive. It
was drizzling when
the workers arrived at work shortly after 07:00.
By 10:00 the rain had either stopped (according to the company’s
witnesses
and the expert evidence) or it was only raining “on
and off” (according to Desemela). On Desemela’s version,
the wind had also died down, even though it had been windy earlier.
According to the expert witness, the amount of rainfall on the
day
was insignificant. And the temperature arranged between 11 and 16°C.
Desemela testified that the cold was not a factor,
only the rain.
[45]
The employees were issued with rain suits.
It does not appear to me to be unreasonable to expect them to work in
the conditions
as described. The weather as described by the expert
witness did not seem to me to be inclement to the extent that it was
not possible
to work outdoors.
[46]
The reasons for striking underwent a
metamorphosis during the course of the trial. It ranged from refusing
to work because it was
raining to a grievance regarding the
interpretation of the sectoral determination. But on either basis, it
was an unprotected strike;
and the reasons for striking do not appear
to me to be reasonable. As Cupido pointed out to the workers, if they
disagreed with
the interpretation of the sectoral determination they
could have referred a dispute to the CCMA or to the relevant
bargaining council.
And should the workers have wished to renegotiate
the terms governing inclement weather, that is something that must be
done at
national level by their trade union and the employers’
organisations in accordance with the constitution of the Bargaining
Council for the Civil Engineering Industry.
The
meeting of Thursday 22 August
[47]
It is common cause that, at the meeting of
Thursday 22 August, the company offered to reinstate the employee’s
on the previous
terms and conditions of employment, provided that
they signed the undertaking set out above. The applicants say that
they refused
to sign the undertaking because the company was not
prepared to address their grievance relating to payment on the
Friday; and
that the purpose of the meeting was not to revisit the
fairness of the dismissals. It was thus not intended to constitute an
after-the-fact
disciplinary hearing or appeal.
The
legal principles
[48]
The
relevant legal principles have to a large extent been clarified by
case law and codified in the LRA
[5]
and the Code of Good Practice: Dismissal.
[6]
[49]
Participation
in an unprotected strike may constitute a fair reason for
dismissal.
[7]
As the Constitutional Court pointed out in
NUPSAW
v National Lotteries Board
:
[8]
“
Employees
have a constitutional right to strike. The [Labour Relations] Act
regulates the manner in which that right can be exercised.
There is
no obligation on employees to use the regulated dispute-resolution
procedures under the Act, but there are consequences
if they do not.
If they start by using these regulated procedures, but then abandon
them and simply stop working, they are not
committing a crime. They
are, in that sense, still acting “lawfully”. But that
“lawfulness” does not afford
them the benefits of a
protected strike under the Act. By failing to adhere to the Act the
strike becomes unprotected, and an employer
will be in a position to
take disciplinary steps against them for not coming to work.”
[50]
The substantive fairness of the dismissal
must be determined in the light of the facts of the case, including:
50.1
the seriousness of the contravention of the
LRA;
50.2
attempts made to comply with the LRA; and
50.3
whether
or not the strike was in response to unjustified conduct by the
employer.
[9]
[51]
Prior
to dismissal the employer should, at the earliest opportunity,
contact the trade union official to discuss the course of action
it
intends to adopt. The employer should issue an ultimatum in clear and
unambiguous terms such a 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
the steps to the employees in question, the employer may dispense
with them.
[10]
[52]
As
the Labour Appeal Court pointed out in
Mzeku
& Ors v Volkswagen SA (Pty) Ltd
:
[11]
“…
Where
employees are dismissed because they refuse to work, the substantive
fairness of the dismissal means that the conduct for
which the
employees are dismissed is unacceptable (or is conduct which
constitute a material breach of the employment contract)
and for
which dismissal is a fair sanction. Whether conduct for which the
employees are dismissed it is unacceptable but the sanction
of
dismissal is, in all the circumstances, not a fair sanction, the
dismissal cannot be said to be substantively fair. Obviously,
where
it is found that the conduct for which the employee has been
dismissed is not unacceptable conduct or where it is found that
the
employee is not guilty of unacceptable conduct for which he was
dismissed, the dismissal cannot be said to be substantively
fair.”
Evaluation
/ Analysis
[53]
In the light of these legal principles, I
will consider the substantive and procedural fairness of the
dismissals.
Substantive
fairness
[54]
It is common cause that the applicants did
not comply with the LRA. How serious was this contravention?
[55]
Neither the individual employees nor the
NUM made any attempt whatsoever to comply with the LRA. The employees
simply downed tools
and refused to work without referring any dispute
to the CCMA, even when invited to do so by Cupido.
[56]
The company reminded the striking workers
at least three times, in writing, that they were breaching their
contractual obligations
and the provisions of the LRA. They were told
in terms that failure to return to work would lead to disciplinary
action which could
include their dismissal. They paid no heed.
[57]
The striking workers were not even willing
to listen to the advice of their own union representatives. Phibantu
did not give evidence,
but Barnes’s evidence that Phibantu
advised the employees to return to work and that they refused, was
unchallenged. Peter’s
evidence was startling. She had been an
NUM organiser for five years. She advised the striking workers to go
back to work but they
refused. She acknowledged that Cupido advised
her that the applicants should refer a dispute to the CCMA. Yet her
members did not
heed her advice. What is startling, is that she would
not, at first, even acknowledge in cross-examination the common cause
fact
that the union’s members were engaging in unprotected
strike. She acknowledged that “they were sitting down because
they were refusing to work until they got paid for Friday”;
that they had not referred any dispute to the Bargaining Council
or
the CCMA; yet she refused to concede, at first, that this constituted
an unprotected strike. This is what she had to say:
“
To
me a strike is when people are damaging people’s property, then
holding sticks and stuff like that. That is why I do not
agree with
you. That is how I am explaining a strike.”
[58]
This statement is indicative of how the NUM
(the first applicant) approached this matter. Because the strike was
not violent, it
deems dismissal to be too harsh a sanction. It is, to
say the least, shocking that a trade union organiser with five years’
experience would equate a strike to wilful damage to property.
[59]
It cannot, in my view, be said that the
strike was in response to unjustified conduct by the employer. The
first reason for the
strike – that it was raining and that it
constituted inclement weather – is not borne out by the expert
evidence relating
to the weather on Friday 16 August. And the
second reason – that they wanted management to deal with the
grievance
regarding the application of the sectoral determination –
is an issue that they should have referred to the Bargaining Council,
as Cupido advised them to do.
[60]
Should the employees have wanted to
renegotiate the terms of the sectoral determination, that had to be
done at national level in
terms of the constitution of the Bargaining
Council for the Civil Engineering Industry. That is a collective
agreement that binds
the union and the company.
[61]
The third reason profferred for the strike
is that the company provoked the employees by refusing to pay them
for Friday despite
the fact that that reported for duty. But after
they reported for duty, they refused to work. The company’s
witnesses were
adamant that the weather conditions at the time did
not prevent them from working. That is borne out by the expert
evidence. They
refused to work despite being instructed to do so. In
those circumstances, they were not entitled to be paid and this was
not a
good reason for them to embark on unprotected strike action.
[62]
Were the strikers given an opportunity to
reflect on their actions? Most assuredly. They were given the first
communique on Friday.
They had the weekend to reflect and, if
necessary, to contact their union representatives. They did not.
[63]
On Monday, both union representatives –
Phibantu and Peter – urged the striking workers to return to
work. They did
not do so. Peter tried again on Tuesday. Still they
refused. The strike carried on for a third day. And when they were
offered
reinstatement, they spurned that offer as well. The
conditions on which they were to be reinstated were hardly
unreasonable. Instead
they chose to remain unemployed.
[64]
The company can be criticised on one
aspect. Although Cupido contacted the shop steward, Phibantu, he did
so belatedly; and there
is no clear evidence that, on a balance of
probabilities, it was Cupido rather than Phibantu who contacted
Peter, the NUM organiser.
And the company did not send copies of the
three ultimatums to NUM.
[65]
This failure does not, in my view, detract
from the substantive fairness of the dismissal. Even when Phibantu
and Peter did try
to intervene, it had no effect. And even when the
dismissed employees were given the opportunity after the fact to
reconsider and
to return to work, they refused.
Procedural
fairness
[66]
There was no disciplinary hearing before
the company dismissed the employees on Tuesday 20 August 2013.
[67]
The
Code of Good Practice
[12]
does not envisage a formal disciplinary hearing before employees
participating in an unprotected strike may be dismissed. However,
in
Modise
& ors v Steve’s Spar Blackheath
[13]
a divided Labour Appeal Court held that, subject to certain
exceptions, and procedural strikers must be given a hearing as well
as an ultimatum prior to dismissal in order to give expression to the
audi
alteram partem
rule. The hearing may be of a collective nature and may take place in
the context of the discussion that the employer is required
to have
with the employees’ trade union in terms of item 6 (2).
[68]
The form that the hearing takes will depend
on the circumstances. In some cases a formal hearing might be
required whereas in other
circumstances it will suffice to send a
letter to the strikers or the union inviting them to make
representations. The ultimate
test is whether the strikers were given
a fair hearing.
[69]
The
finding in
Steve’s
Spar
was
upheld by the Labour Appeal Court in terms of the 1995 LRA in
Karras
t/a Floraline v SASTAWU
[14]
,
Mzeku v Volkswagen SA (Pty) Ltd
[15]
and
Volkswagen
SA (Pty) Ltd v Brand NO.
[16]
[70]
As
the learned authors in
Labour
Law through the Cases
[17]
point
out, the decision in
Mzeku
was confirmed by the Constitutional Court in
Xinwa
v Volkswagen of South Africa (Pty) Ltd
[18]
without, however, pronouncing on the scope of the
audi
alteram partem
principle
in the context of a strike. Given that several meetings had been held
between the union, management and the strikers’
representatives, at which the strikers had been warned that the
strike was unprotected, and an agreement had been reached between
the
union and the company, the Constitutional Court held that “the
applicants have no prospect of persuading this court that
the
dismissal was procedurally unfair”.
[71]
In this case, as in
Xinwa
,
management repeatedly warned the striking workers that the strike was
unprotected. It issued three ultimatums in which it warned
the
striking workers that they could be dismissed if they did not return
to work. To union representatives tried to persuade the
workers to
return to work. They refused.
[72]
It could still be argued, as the union did,
that the very absence of a disciplinary hearing before the dismissal
is in itself procedurally
unfair. But on the facts of this case, and
given the precedent of the Constitutional Court in
Xinwa
,
I disagree. It is difficult to see how a formal disciplinary hearing
could have made any difference before the striking workers
were
dismissed. They were made aware of the unprotected nature of the
strike, not only by management, but also by their own union
representatives. They were told at least three times that they ran
the risk of dismissal, should they continue. Yet they persisted.
They
were given the opportunity to make representations through the union
representatives and invited to appoint their own representatives.
They refused. And although the company did not, on a balance of
probabilities, contact the regional office of NUM – choosing
to
involve the shopsteward, Phibantu, instead – that fact, though
open to censure, did not have any effect on the strikers’
actions. Phibantu did contact the regional organiser, Peter. She
spoke to management and to the strikers. Her efforts came to nought.
[73]
What is more, the company gave the striking
workers yet another opportunity to make representations through both
the elected representatives
and the trade union representatives after
the dismissal. They were offered reinstatement on conditions that
were not unreasonable.
In my view, that cured any procedural
unfairness that may have arisen before the dismissal.
Conclusion
[74]
I hold that the dismissal of the workers
for participating in an unprotected strike was substantively and
procedurally fair.
[75]
With regard to costs, I take into account
that the representatives of the NUM did try to persuade the striking
workers to return
to work. It would not be fair to saddle the union
with a costs order. The individual workers have already lost income,
albeit through
their own actions. I do not think it would be fair to
impose a costs order on them. And although I have held that any
procedural
unfairness brought about by the failure to have a
disciplinary hearing before the dismissal was cured by the subsequent
offer of
reinstatement, the company should bear in mind that it is
preferable, even in these circumstances, to have a disciplinary
hearing
before dismissal. For this reason also, I do not make a costs
order.
Order
[76]
I therefore order that:
76.1
The dismissal of the employees was fair.
76.2
There is no order as to costs.
_______________________
Anton
Steenkamp
Judge
of the Labour Court of South Africa
APPEARANCES
APPLICANTS:
Jason Whyte of Cheadle
Thompson & Haysom.
RESPONDENT:
Glen Cassells of
Maserumule Inc.
[1]
Where I refer to Jacobs, it is a reference to the evidence of David
Jacobs, the site manager. Where I refer to the evidence of
Ms Andrea
Jacobs, the site supervisor, I shall refer to her as “Ms
Jacobs” or “Andrea”).
[2]
There was some debate whether the first two communiques could be
styled “ultimatums” or “written warnings”.
Not much turns on it. The wording is in the form of an ultimatum:
return to work or face possible dismissal.
[3]
Government Gazette
22103 of 2 March
2011.
[4]
Government Gazette
32525, 25 August 2009.
[5]
Labour Relations Act 66 of 1995
.
[6]
Schedule 8 to the LRA.
[7]
LRA
s 68(5).
[8]
2014
(3) SA 544
(CC);
2014 (6) BCLR 663
(CC);
[2014] 7 BLLR 621
(CC);
(2014) 35
ILJ
1885 (CC) para [69] [per Froneman J].
[9]
Item 6 of the Code of Good Practice: Dismissal.
[10]
Item 6(2).
[11]
[2001] 8 BLLR 857(LAC)
para [15].
[12]
Schedule 8 to the LRA, Item 6(2).
[13]
[13]
[2000] 5 BLLR 496
(LAC), decided in terms of the 1956 LRA and
summarized by Du Toit et al,
Labour
Law through the Cases
(LexisNexis) at Sch 8-17 (issue 22). I repeat the authors’
summary of this case and those that followed here.
[14]
[2001] 1 BLLR 1 (LAC).
[15]
[2001] 8 BLLR 857 (LAC).
[16]
[2001] 5 BLLR 558 (LC).
[17]
Above at Sch 8-18 (issue 22).
[18]
[2003] 5 BLLR 409
(CC); 2003 (4) 390 (CC) para [16].