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[2016] ZALCCT 50
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FAWU and Others v County Fair Foods (Epping) (C262/11) [2016] ZALCCT 50 (8 December 2016)
REPUBLIC
OF SOUTH AFRICA
THE
LABOUR COURT OF SOUTH AFRICA, CAPE TOWN
JUDGMENT
Not
reportable
Of
interest to other judges
Case
no: C 262/11
In
the matter between:
FAWU
First applicant
Bongiwe
XUZA & 119 OTHERS
Second to further applicants
and
COUNTY
FAIR FOODS (EPPING),
a
division of ASTRAL OPERATIONS
LTD
Respondent
Heard
:
13-17 August 2012; 7-9 November 2016
Delivered:
8 December 2016
SUMMARY:
Dismissal for unprotected strike.
Peaceful strike; short duration; company refusing tender of services
after two and a half days.
Distinction with those employees who
returned to work earlier not sufficient to make dismissals (as
opposed to final written warning)
fair. Workers reinstated with
limited retrospectivity, coupled with final written warning.
JUDGMENT
STEENKAMP
J
Introduction
[1]
The 120 individual applicants, represented
by the Food & Allied Workers Union, were dismissed for their
participation in an
unprotected strike. Two other groups, comprising
64 and 58 workers respectively, returned to work earlier. They were
not dismissed
but received final written warnings. The applicants say
that, despite the fact that the strike was unprotected and thus
constituted
misconduct, their dismissal was unfair. They seek
reinstatement.
Background facts
[2]
Some 300 employees, members of FAWU,
embarked on an unprotected strike between 13:45 (the end of the P2
shift lunch) and 14:30 (the
end of the P1 shift lunch) on 15 December
2010. The strike was in support of a grievance that the company had
not paid the workers
year-end bonuses.
[3]
At about 14:45 Avril Arendse, the
production manager, asked two of the strikers to meet her. The
striking workers chose four colleagues
to represent them, namely Mary
Makakane, Mario Faas, Lydia Gwebecimela and Andile Faltien. At about
15:40 Francois Oosthuizen,
the fresh processing and distribution
executive, joined the meeting to explain why the company had not paid
bonuses. The workers’
representatives were not persuaded.
Arendse and Oosthuizen read out an ultimatum to the representatives.
The workers refused to
return to work, even after their
representatives had conveyed to them that Arendse and Oosthuizen had
given them an oral ultimatum
to return to work.
[4]
At approximately 16:00 on Wednesday 15
December the company distributed a written ultimatum amongst the
striking workers gathered
in the canteen, instructing them to return
to work at 07:30 on Thursday 16 December. The ultimatum was also read
out to the worker
representatives in Arendse’s office. The
ultimatum stated:
‘
Re:
UNPROTECTED INDUSTRIAL ACTION /
ULTIMATUM
TO RETURN TO WORK
Please
take herewith urgent note that you are currently embarking upon
illegal and thus unprotected industrial action within the
company’s
FPD Epping bargaining unit, which is in direct contravention of
section 64
of the
Labour Relations Act, 66 of 1995
(“the
Act”). Please take further note that prior to embarking upon
the said unprotected strike action no dispute was
referred to the
CCMA, nor has the CCMA conciliated a dispute and no certificate of
outcome has been issued by the CCMA.
Please
take note that your illegal actions are being viewed in an extremely
serious light and the company therefore instructed you
to return to
normal duty on the date hereof [
sic
] which ultimatum you
failed to adhere to. Please take herewith note [
sic
] that you
are now instructed for the second time to return to normal duty by no
later than the start of your normal shift at 07h30
am on the 16
th
December 2010.
You
are making yourself guilty of misconduct in participating in an
unprotected strike.
Failing
to comply with this second ultimatum will constitute further
misconduct which will leave the company with no other option
but to
discipline all involved parties accordingly to the full extent of the
company’s disciplinary code.
Further
note should be taken that the above-mentioned disciplinary action
might inevitably result in summary dismissal of all involved
employees from the employ of the company as held [
sic
] by the
company’s disciplinary code and procedure and you are thus
urged to heed the company’s ultimatum soonest [
sic
].
The
company would further like to herewith inform you that your continued
unprotected industrial actions might further result in
your
disqualification from any current or revised discretionary Incentive
Bonus Scheme for the current financial year.
We
trust that our employees will act accordingly and immediately return
to work.’
[5]
On Thursday 16 December, 64 of the striking
workers did return to work. They signed a ‘come-back document’
undertaking
not to participate in any further unprotected industrial
action. They ultimately received a final written warning.
[6]
Although 16 December is a public holiday,
the employment contract (of Mr Daniels, who disputed that he was
obliged to work on that
day) confirms that, ‘should the needs
of the company necessitate your working on a public holiday, you
shall be obliged to
do so’. It is common cause that the period
leading up to Christmas is the company’s busiest period other
than Easter;
and on 7 December the company put notices up on staff
notice boards informing them that ‘the working of an additional
shift
on Thursday 16 December 2010 is compulsory and a material term
and condition of employment for all employees’. And at the
disciplinary hearing FAWU confirmed that it is common cause that its
members participated in an unprotected strike for the period
15 to 20
December 2010.
[7]
On Friday 17 December the remaining
strikers returned to the premises between 07:00 and 07:30 but refused
to work. The company’s
HR facilitator, Loyiso Mciteka,
addressed them in English and in Xhosa. He told them that, if they
did not sign the comeback document
and return to work, the gates
would be closed at 07:30 and they would not be allowed to clock in.
No-one accepted the ultimatum
to return to work at that stage.
[8]
Mciteka phoned the company’s Mr
Visser at its head office. Visser told him to extend the time to
08:00. Eventually another
58 striking workers signed the comeback
document and returned to work. At 08:35 the company instituted a
lockout in response to
the unprotected strike; read out the lockout
notice to the assembled strikers; and locked the gates. The 58
returning workers
also received final written warnings.
[9]
There is a dispute about what happened on
the rest of that day (17 December). The four worker representatives
met the company’s
representatives, Mr Mciteka and Ms Zorah
Heldsinger. The workers say they tendered a return to work; the
company denies this. On
a balance of probabilities, the applicants
continued the strike on Friday 17 December. In their pleaded case,
they confirm that
they ‘remained on strike for the duration of
the 17
th
’;
that is confirmed in the pre-trial minute. FAWU accepted in the
disciplinary hearing that the applicants were on strike
from 15 to 20
December; and the applicants ‘pleaded guilty’ to the
allegation of misconduct that they were on an unprotected
strike from
15 to 20 December.
[10]
On Monday 20 December 2010 two worker
representatives did convey to management that the strikers were ready
to return to work. The
remaining strikers signed the comeback
document. Management told them to return to work the next morning,
Tuesday 21 December,
as it had already engaged replacement labour and
had to obtain further instructions from head office.
[11]
On Tuesday 21 November the remaining
strikers – i.e. the individual applicants – reported for
duty, having signed the
comeback document. They received letters of
suspension and notices to attend a disciplinary hearing on 23
December 2010.
[12]
Disciplinary hearings took place on 23 and
28 December. The hearings were chaired by S D Tshabalala. The
applicants acknowledged
that they had been on an unprotected strike
from 15 to 20 December. They were dismissed for misconduct on 3
January 2011.
Evaluation
[13]
As
Mr
Marinus
pointed out, this Court
[1]
has
recently determined that the relevant legal principles have to a
large extent by clarified by case law and codified in the
LRA and the
Code of Good Practice: Dismissal.
[14]
Participation
in an unprotected strike may constitute a fair reason for dismissal.
As the Constitutional Court held in
NUPSAW
v National Lotteries Board
[2]
:
“
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.”
[15]
In
considering whether dismissal was a fair sanction for the misconduct,
the Court must consider:
[3]
15.1
the seriousness of the contravention of the
LRA;
15.2
attempts made to comply with the LRA; and
15.3
the conduct of the employer.
[16]
Mr
Whyte
also
raised the distinction between the two groups; the ultimatum; the
exclusion of FAWU; and the short duration and non-violent
nature of
the strike.
Seriousness of the
contravention and efforts made to comply with LRA
[17]
The strikers made no effort to comply with
the LRA. But on the other side of the scale, it was of short
duration. In the case of
the applicants, it lasted for two and a half
working days; the others went back to work after half a day and one
and a half days
respectively. And although I hesitate to consider
this to be a factor, it must on balance be taken into account that
the strike
was peaceful – unhappily not a given in our labour
relations environment.
[18]
The strike caused significant harm to the
employer. It was taken by surprise and could not make contingency
plans. It calculated
its resultant loss to be in the region of R2
million. And it placed its customer relations at risk when it could
not meet demand.
The conduct of the
employer
[19]
Mr
Whyte
did not argue that the strikers had been provoked. It was the
employer’s action of withholding a bonus that led to the
strike;
but he readily conceded that the bonus was discretionary and
not something that the workers had a right to. The employer’s
action cannot be considered as provocation that led to a legitimate,
albeit unprotected, strike.
Distinction between
two groups
[20]
The applicants say that it was unfair of
the company to distinguish between those strikers who received final
written warnings and
those who were dismissed.
[21]
The distinction was not arbitrary. The
first two groups of 64 and 58 respectively ended the strike and
tendered their services on
16 and 17 December respectively. The
remaining workers, on the probabilities, defied the ultimatum until
they agreed to return
to work on Monday 20 December.
[22]
Although the distinction is not arbitrary,
I do think that it was unfair. Ultimately, the applicants were
dismissed because they
continued their strike for one and a half days
more than their comrades. The company was satisfied that it could
continue working
with the others; it is hard to see why the conduct
of the applicants was so egregious, compared to that of the others,
that the
‘death penalty’ of labour relations should have
been imposed on them.
[23]
That does not mean that some distinction
would be appropriate. At the very least, the applicants must receive
the same sanction
of a final written warning; I will address what
amounts to a further penalty under the heading of the appropriate
remedy.
Ultimatum
[24]
The
applicants also submit that they were not issued with a clear,
unambiguous and understandable ultimatum. It is trite that the
purpose of an ultimatum is to put the striking workers to terms and
to allow them a reasonable period to reflect on their actions
and to
take advice from their trade union.
[4]
[25]
I disagree that the ultimatum was not
clear. The first written ultimatum was issued on 15 December. it set
out in detail what the
misconduct was and what the possible
consequences would be, should the strikers not return to work. It
resulted in 64 employees
returning to work the next morning. They saw
the writing on the wall (and on the document); there was nothing so
unclear that their
comrades couldn’t see it as well.
[26]
On the morning of Friday 17 December,
Mciteka issued a further verbal ultimatum, leading to another 58
employees returning to work.
And the remaining strikers had
sufficient time over the ensuing weekend to consider their actions;
that is indeed what they did,
leading to them tendering their return
to work on Monday 20 December.
[27]
What this shows, though, is that the
ultimatums had their desired effect: once the applicants had
reconsidered their actions over
the weekend, they returned to work.
Normal production could resume the next day. The company essentially
lost two days’ production
because of the applicants holding out
after their comrades had returned. In those circumstances, where the
applicants did heed
the final ultimatum, I consider dismissal to have
been too harsh a sanction, as set out below.
Was dismissal a fair
sanction?
[28]
Having
regard to the factors outlined above, it appears to me that dismissal
was too harsh a sanction. The employer had not lost
trust in the
striking workers, as is evident from the fact that the other two
groups of strikers kept their jobs. The applicants
tendered their
services and signed the comeback document, undertaking not to engage
in any further unprotected industrial action.
The strike was of short
duration. It was peaceful. Progressive discipline could have achieved
the desired effect; and, insofar
as the employer understandably
wanted to distinguish the applicants who ‘held out’ for
longer than their comrades who
had already gone back to work, it
could have coupled a final written warning with a further penalty
such as a period of unpaid
suspension.
[5]
Conclusion
[29]
In my view, dismissal was not a fair
sanction. The applicants wished to be reinstated. In terms of s
193(2) of the LRA, they must
be reinstated. But in terms of s
193(1)(a), this Court may order the employer to reinstate them “from
any date not earlier
than the date of dismissal”. That brings
me to the appropriate remedy and the question of retrospectivity.
[30]
A
determination of the date of reinstatement requires the court or
arbitrator to exercise a discretion judicially, with regard had
to
the relevant circumstances, so as determine what is fair and
equitable. This requires a consideration of such factors as the
nature and extent of the employee’s conduct, the reasons for
the finding that dismissal was unfair, the effect of the
reinstatement
order on the employer, the reason for and impact of
delays in the determination of the dispute and the extent of the
employee’s
loss of income.
[6]
[31]
And,
as Mogoeng CJ pointed out last month in
SARS
v CCMA
[7]
with regard to the compensation contemplated by s 194(1):
‘
To
compensate or not to compensate and if compensation is to be awarded
for what period, is a function of the judicious exercise
of the
discretionary power that an arbitrator or the court has in terms of
section 194(1) of the LRA. Zondo JP outlined the
applicable
factors in these terms:
“
There
are many factors that are relevant to the question whether the court
should or should not order the employer to pay compensation.
It
would be both impractical as well as undesirable to attempt an
exhaustive list of such factors. However, some of the relevant
factors may be given. They are:
.
. .
(b)
Whether the unfairness of the dismissal is on substantive or
procedural grounds or both substantive and procedural grounds;
obviously it counts more in favour of awarding compensation as
against not awarding compensation at all that the dismissal is both
substantively and procedurally unfair than is the case if it is only
substantively unfair, or, even lesser, if it is only procedurally
unfair.
(c)
In so far as the dismissal is procedurally unfair, the nature and
extent of the deviation from the procedural requirements;
the minor
the employer’s deviation from what was procedurally required,
the greater the chances are that the court or arbitrator
may
justifiably refuse to award compensation; obviously, the more serious
the employer’s deviation from what was procedurally
required,
the stronger the case is for the awarding of compensation.
(d)
In so far as the reason for dismissal is misconduct, whether or not
the employee was guilty or innocent of the misconduct; if
he was
guilty, whether such misconduct was in the circumstances of the case
not sufficient to constitute a fair reason for the
dismissal.
(e)
The consequences to the parties if compensation is awarded and the
consequences to the parties if compensation is not awarded.
(f)
The need for the courts, generally speaking, to provide a remedy
where a wrong has been committed against a party to litigation
but
also the need to acknowledge that there are cases where no remedy
should be provided despite a wrong having been committed
even though
these should not be frequent.
(g)
In so far as the employee may have done something wrong which gave
rise to his dismissal but which has been found not to have
been
sufficient to warrant dismissal, the impact of such conduct of the
employee upon the employer or its operations or business.
(h)
Any conduct by either party that promotes or undermines any of the
objects of the Act, for example, effective resolution of
disputes.”
[8]
The appropriate remedy
[32]
In fashioning an appropriate remedy, I take
into account the following factors:
32.1
The applicants committed misconduct by
participating in an unprotected strike – thus undermining the
aim of the effective
resolution of disputes. Yet their misconduct did
not, in my view, warrant dismissal.
32.2
They should be placed in a position similar
to that of their comrades who were not dismissed. They should be
reinstated, together
with a final written warning.
32.3
The fact that these applicants defied the
ultimatum initially, though, does distinguish them from those who
were not dismissed.
Although I have found their dismissal to be
unfair, they should not be reinstated retrospectively.
32.4
The hearing of this matter has been delayed
for more than five years.
32.5
In all these circumstances, I consider it
fair to limit the backpay due to the reinstated workers to an amount
equivalent to six
months’ wages.
32.6
All of the applicants asked to be
reinstated. The company needs time to give effect to the order
necessitating their reinstatement
after more than five years, during
which time it has reorganised its business. I consider it fair to
give the company a maximum
period of two months in which to do so.
32.7
It may also be that, despite them having
asked for reinstatement, some of the applicants may have found other
employment in the
past five years. Those workers who do not report
for duty will forfeit their right to reinstatement. However, they
should still
receive compensation in the nature of a
solatium
equivalent to six months’ wages.
Costs
[33]
Although the applicants have been
successful, they have committed misconduct. There is an ongoing
relationship between the company
on the one hand and FAWU and the
workers on the other hand. Upon their reinstatement, the company will
also have to re-establish
its relationship with the workers. In law
and fairness I do not consider a costs award to be appropriate.
Order
[34]
I therefore make the following order:
34.1
The dismissal of the second and further
applicants was substantively unfair.
34.2
The respondent is ordered to reinstate the
individual applicants to the positions that they occupied before
their dismissal on the
same terms and conditions of employment, with
no loss of benefits.
34.3
The respondent is ordered to pay the
individual applicants backpay limited to six months’
remuneration. The backpay must be
paid within 30 days of the date of
reinstatement.
34.4
Each of the individual applicants must be
furnished with a final written warning valid for a period of 12
months from the date of
reinstatement.
34.5
The respondent must communicate to the
applicants when they should report for duty, but that date must be no
later than 1 February
2017.
34.6
Those applicants who do not report for duty
on the designated date will forfeit their right to reinstatement.
They will still be
entitled to six months’ remuneration as
compensation, to be paid no later than 30 days after the other
applicants had reported
for duty
34.7
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:
Grant Marinus
of Werksmans.
[1]
NUM v
Power Construction (Pty) Ltd
[2016]
ZALCCT 24 (27 July 2016).
[2]
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].
[3]
Code of Good Practice: Dismissal, Item 6.
[4]
Edelweiss
Glass & Aluminium (Pty) Ltd v NUMSA
[2012]
1 BLLR 10
(LAC) para 55;
Majola
v D & A Timbers (Pty) Ltd
[1996]
9 BLLR 1091 (LAC).
[5]
This sanction is specifically contemplated by the County Fair
disciplinary code.
[6]
Pick ‘n
Pay Retailers (Pty) Ltd v SACCAWU
[2016]
ZALAC 56
(25 November 2016) para 32 [per Savage AJA].
[7]
[2016] ZACC 38
(8 November 2016) para 50.
[8]
Kemp
t/a Centralmed v Rawlins
(2009)
30
ILJ
2677 (LAC) para 20.