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[2017] ZALCJHB 35
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National Union of Metal Workers of South Africa obo Members v Element Six Production (Pty) Ltd (JS1106/14) [2017] ZALCJHB 35 (7 February 2017)
THE
LABOUR COURT OF SOUTH AFRICA, JOHANNESBURG
Not Reportable
Case
no: JS1106/14
In
the matter between:
NATIONAL
UNION OF METAL WORKERS OF
SOUTH
AFRICA obo MEMBERS
Applicants
and
ELEMENT SIX
PRODUCTION (PTY) LTD
Respondent
Heard:
22 February
2016
Delivered:
07 February 2017
JUDGMENT
TLHOTLHALEMAJE, J
Introduction:
[1]
The
Applicants approached the Court to contest the decision of the
Respondent to pay a ‘token’ to some of its employees
who
had performed additional tasks during the course of a protected
strike that took place in July 2014. The Applicants contend
that the
decision was discriminatory within the meaning of the provisions of
sections 5 of the Labour Relations Act (The LRA)
[1]
.
[2]
The
specific provisions relied upon are;
Section
5. Protection of employees
and persons seeking employment
(1)
No
person may discriminate against an employee for exercising any right
conferred by this Act.
(2)
Without
limiting the general protection conferred by subsection (1), no
person may do, or threaten to do, any of the following-
(c)
prejudice an employee or a person seeking employment because of past,
present or anticipated
–
(i)
………
.
(ii)
………
.
(iii)
participation
in the lawful activities of a trade union, federation of trade unions
or workplace forum;
(iv)
………
(v)
………
(vi)
exercise
of any right conferred by this Act; or
(vii)
………
[3]
The
above dispute arose out of the following common cause facts;
3.1
The
Respondent produces abrasive super materials that are used as an
input tool for the purposes of drilling, grinding and polishing.
Its
customers are in various industries including aerospace, oil and gas,
and are mainly based in North America. As at 2014, it
had employed
about 980 employees, with 180 of them falling outside the bargaining
unit;
3.2
On
1 July 2014, members of NUMSA, UASA and SAEWA commenced a protected
strike at the Respondent’s Springs’ plant in
support of
national demands tabled at the MEIBC. The protected strike ended on
28 July 2014, and employees resumed their duties
on 29 July 2014;
3.3
The
allegations of discrimination arose after a decision taken by the
Respondent on 6 August 2014 to pay in accordance with certain
criteria, what it considered to be a token of appreciation to those
employees who had worked and performed additional tasks during
the
strike action;
3.4
Payments
according to the Respondent were made to employees who (a) worked for
at least 10 days during the industrial action; (b)
were permanent
employees and (c) made a positive contribution to running production
during the persistence of the industrial action;
[4]
The
Respondent’s contention is that the above payments did not
breach the provisions of section 5 of the LRA, and were not
discriminatory on any specified or unspecified ground. It considered
the criteria it had applied in making payments as objective
and
rational, which was not intended to be discriminatory, and further
that the payment did not have any effect on the effectiveness
of the
strike, nor was it likely to have a detrimental effect on future
strikes.
[5]
The
Respondent disputed that NUMSA members were denied additional
payments on the basis of their participation in protected industrial
action. It contended that during the industrial action in question,
there were several employees who had performed additional tasks
as
because they were not party to the industrial action, or they were
not affected by the wage dispute before the MEIBC; or because
they
were not members of NUMSA; or that they chose to tender their
services during the industrial action;
[6]
In
order to continue production, it had approached these employees who
also included normally office bound employees, and requested
them to
assist in the production lines. These employees had assisted the
Respondent without inducement or incentives of financial
gain, and
production had continued in order to meet orders.
[7]
NUMSA
maintained that the additional payments were nevertheless
discriminatory, and sought an order that its members who had
participated
in the strike and did not receive a token of
appreciation, be paid an equivalent amount.
The evidence:
[8]
The
Applicants called a single witness, Mr Tshabalala, who was a
full-time shop steward since 2011 to testify in support of their
case. He had a service record of 25 years with the Respondent. His
evidence is summarised as follows;
8.1
Prior
to the strike, the employees had worked overtime during weekends in
order for the Respondent to have sufficient stock piles
so as to
satisfy the demands of its customers during the course of the
industrial action. Those employees were remunerated accordingly;
8.2
He
was unable to confirm how long the additional stock was anticipated
to last, and conceded that it could have been sufficient
for about
two to three weeks, whereas the industrial action lasted for four
weeks. He however contended that as a result of the
employees’
efforts in preparation for the strike, they were entitled to be paid
additional amounts even though they were
on strike, as they had
helped the Respondent to meet the demands of its customers as a
result of the stock piles;
8.3
There
were at least two NUMSA members to his knowledge who were paid the
token because they had chosen to work during the industrial
action.
This according to him was not unusual as employees’ financial
positions and difficulties differed;
8.4
Employees
felt that they lost out by going on strike, as they did not get the
token and were also not paid for the duration of that
strike. The
employees were also concerned with the fact that the non-strikers
benefitted from the increase in wages attained as
a result of the
strike action, and the Respondent therefore discriminated against the
striking employees by not equally paying
them the token;
8.5
The
employees were also entitled to the token in that having resumed
their duties after the strike action, they had to deal with
faulty
stock produced during the strike, which needed to be scrapped off.
[9]
Under
cross-examination, Mr. Tshabalala’s version was as follows;
9.1
He
conceded that those employees that had worked overtime prior to the
strike action to produce stoke piles were duly paid their
overtime
and shift allowances;
9.2
He
could not dispute it when it was put to him that payments were only
made to employees who had done their own work during the
strike as
well as additional work to ensure that production demands were met in
accordance with the three requirements set out
above, and that those
non-striking employees who had not met the criteria were not paid the
token;
9.3
He
conceded that none of the NUMSA members had indicated to him that as
a result of the token not being paid to them that they would
in
future not heed a call to go on strike, or that the Respondent had
induced employees to prevent them from exercising their right
to
strike. He however contended that the members had simply demanded to
be paid the token as well as it was unfair and discriminatory
not to
do so.
[10]
The
Respondent similarly only led the evidence of one witness, Mr De
Klerk, its General Manager. His testimony is summarised as
follows;
10.1
He
joined the Respondent in July 2014, but only commenced his duties on
14 July 2014. At the time of the industrial action, there
was a high
demand for the Respondent’s products. The demand has since
dropped significantly due to the turmoil in the oil
and gas
industries;
10.2
The
Respondent was aware that there was a national strike looming and
accordingly took steps to ensure that it was prepared for
it. It was
anticipated that the strike would last for two to three weeks. On
order to meet the demands of the clients during the
looming strike,
the Respondent had then increased overtime shifts, for which
employees were remunerated;
10.3
It
was extremely important for the Respondent not to be in a position
where it could not service its clients’ orders because
that
could have resulted in loss of market share, as the clients would
have moved to other competitors. A loss of market
share in the
industry was permanent in addition to which there could be
reputational damage to the Respondent;
10.4
The
employees who were on strike were between Grade 1 and 5, being those
who were typically closely associated with the production
process.
Initially during the strike, the production process was not
operational and non-striking employees were predominantly
involved in
picking, packing and shipping activities. Some non-striking staff
members had volunteered to assist with additional
tasks where
required on top of their own work. In this fashion the Respondent was
able to continue servicing its client’s
orders;
10.5
As
at 21 June 2014, stocks had almost depleted whilst the demand for
products continued. The Respondent therefore needed to come
up with
measures to continue with production in order to meet its clients’
demands. A meeting was held with the remaining
staff members and
volunteers were called upon to sustain production on a shift basis;
10.6
No
employees were compelled to perform additional tasks, nor were they
induced or offered payment for volunteering to do additional
tasks.
The volunteers were generally understanding of the Respondent’s
circumstances, and had presented themselves voluntarily;
10.7
Volunteers
came forward to assist the Respondent and were assigned into two
shifts either 06H00 to 14H00 or 14H00 to 22H00. These
came from the
ranks of engineers, junior managers and artisans, and were trained in
health and safety matters, and to operate the
production line
including maintenance. The revised shifts started on 22 June 2014 and
continued until the striking employees returned
to work on 29 June
2014. As a result of the efforts of these employees, the Respondent
was able to meet its client’s demand;
10.8
In
considering how to show its appreciation, it was taken into account
that ‘normal day” employees did not receive a
shift
allowance whilst the NUMSA operators received it when not on strike.
The decision to pay the non-striking employees who had
volunteered to
perform extra duties a token of appreciation was only taken by
management after the end of the strike;
10.9
The
token was paid strictly in accordance with the criteria decided upon
and in some instances, payments were made on a
pro
rata
basis depending on the relevant individual’s participation.
There was no indication given that payments would be made in
future
should a similar situation arise, nor was there any intention to
discriminate against striking members by making these payments.
[11]
Under
cross-examination, it was put to Mr. De Klerk that employees who had
worked overtime in anticipation of the strike had also
gone beyond
the call of duty, and thus deserved to be paid the bonus. He
nevertheless disputed this contention, and testified that
the
overtime was an opportunity given to employees who were duly
remunerated for the work done, and that employees who had worked
overtime shifts had done so on their own free will. Accordingly, the
increase in production in order to prepare for the strike
was not
beyond the employee’s normal duties.
[12]
He
further disputed the contention that volunteers could simply have
been paid shift allowances instead of the token, and testified
that
the volunteers, who were from the non-bargaining unit, were not paid
shift allowances and overtime as there was no provision
for this in
their contracts of employment. It was in the light of this
consideration that the Respondent had elected to use a different
method of paying a token of appreciation.
The
arguments:
[13]
The
parties had filed written heads of argument as agreed at the end of
the trial. In both sets of written argument, reference was
made to
two authorities
[2]
that had
previously dealt with similar issues in this court, and these will be
explored in more detail shortly.
[14]
The
Applicants’ principal argument were however as follows;
14.1
Evidence
presented on behalf of the Respondent indicated that it was not a
normal procedure in the company to pay bonuses of the
nature
complained of, and that this was only done during the strike in
question;
14.2
To
the extent that this type of bonus had never been paid to employees
before and would not be paid in future, it was common cause
between
the parties that discrimination had taken place, and the issue was
whether such discrimination was fair;
14.3
In
accordance with the provisions of section 10 of the LRA, the onus was
upon the Applicants to demonstrate that their rights or
protections
under the provisions of section 5 were been infringed. Once that onus
was discharged, it would then shift to the Respondent
to demonstrate
that its conduct had not infringed any of the employees’ rights
or protection. Thus, the Respondent had to
show that there no
malicious intent in the discrimination complained of;
14.4
In
line with
FAWU
& others v Pets Products
[3]
once
it was established that there was discrimination against employees
for exercising any right conferred in the LRA, it should
be presumed
that the discrimination was unfair, until the contrary was
established;
14.5
The
inference to be drawn from the facts of the case was that
discrimination complained of was unfair, more particularly since
there were no written terms or conditions of employment in place in
the company in respect of the bonuses that were paid to those
employees who did not go on strike;
14.6
The
Respondent’s decision to pay bonuses was shrouded in secrecy as
it had refused to disclose payments made on the grounds
of
confidentiality. It should therefore be concluded that such payments
were only made in respect of the specific strike action,
to send a
message to non-strikers that they should not participate in strike
action, and this was unfair in the light of the protected
strike
action;
14.7
Respondent
had therefore failed to justify or give reasons why the
discrimination was not unfair; had refused to disclose information
pertaining to the payments, and had clearly paid the bonuses in
circumstances where it had previously told those employees that
they
would be rewarded if they did not participate in the strike action.
[15]
The
Respondent’s principal arguments are summarised as follows;
15.1
In
regards to the question of onus, the Courts in
FAWU
and
NUM
v Namakwa Sands
erred in concluding that discrimination against employees for
striking was discrimination on a listed ground. This was so in that
striking was not listed in section 9 (3) of the Constitution of the
Republic
[4]
;
15.2
The
correct test to be applied was that which related to discrimination
on an unspecified ground, as it is akin to the burden of
proof in
section 10 of the LRA. Accordingly, the correct test was that as
proposed by Brassey
[5]
, i.e.,
that a contravention of section 5 of the LRA required ‘
discriminatory
conduct that is actuated by an illicit reason’
.
Thus, the most proximate cause for the discrimination must be
determined to ascertain whether the discrimination was indeed unfair.
In accordance with this proposal, if the employer’s motive was
not to unfairly discriminate, the discriminatory conduct complained
of could not be seen to be unfair;
15.3
Furthermore,
based on Brassey’s proposal and the decision in
FAWU
,
if an employer could prove that there was ‘
rational
and objective’
criteria for the payment of the bonus, and that the intention was not
to discriminate unfairly, this would prove that the discrimination
was not unfair;
15.4
In
this case, the Applicants, through the evidence of Mr Tshabalala
failed to demonstrate that the Respondent did not use rational
and
objective criteria, or no evidence was presented to demonstrate that
non-striking employees were paid arbitrarily and without
reference to
any criteria;
15.5
To
the extent that the Applicants argued that the Respondent had
concealed the payment information, they were entitled to bring
an
application to compel discovery of such documents that disclosed how
payments were made;
15.6
The
Applicants failed to show that the Respondent had the intention to
discriminate against the striking employees for illicit reasons
and/or to prevent such employees from exercising their right to
strike. Furthermore, based on Mr. Tshabalala’s concessions,
NUMSA members would not be dissuaded from joining future strikes
based on the payment of the token of appreciation, and there was
no
basis to conclude that the Respondent had offered an inducement to
prevent striking employees exercising their right to strike.
Evaluation:
[16]
The
starting point is that the right to strike is a fundamental right
enshrined in the Constitution
[6]
and regulated by the LRA
[7]
. It
is accepted that not all employees may be willing to join a protected
strike even if they belong to a trade union that had
called for that
strike. There is nothing in the LRA or any other statutory provision
that prohibits an employer from utilising
the services of its
non-striking employees to perform work ordinarily performed by
striking employees, and rewarding them for going
the ‘extra
mile’.
[17]
The
provisions of section 187 (1) (a) and (b) of the LRA
[8]
specifically prohibit the employer from
compelling
non-striking employees to do work normally done by striking
employees. Francis J in
NUM
v Namakwa Sands
held that these provisions placed an indirect prohibition on an
employer to ask non-striking employees to do the work of striking
employees during a protected strike
[9]
.
In the same token however, no consequences are visited upon an
employer that has politely asked non-strikers to volunteer to perform
work ordinarily performed by striking employees.
[18]
The
lacuna
in the LRA has created a conundrum, which unfortunately the drafters
and legislators equally failed to address in the recent amendments
to
the LRA despite the contentious views and positions expressed in both
FAWU
& others v Pets Products
and
NUM
v Namakwa Sands.
The
difficulties that arise when non-striking employees volunteer to
perform the functions ordinarily performed by the striking
employees
are easily identifiable. Whether these difficulties are imagined or
real is a question of fact, and in some instances,
of law. Some of
these difficulties are the following;
18.1
In
very rare instances would ordinary (low ranking) non-striking
employees volunteer to perform the tasks of striking employees
without an expectation of some form of reward;
18.2
Non-striking
employees who are asked to perform the tasks of those on strike in
addition to their normal tasks can view this as
an opportunity to
supplement their salaries during the duration of the strike. This can
induce them to refrain from joining strike
actions, or abandon the
strike midstream, or be deterred from taking part in strike actions
in future
[10]
.
18.3
Ultimately,
the exercise of a right to strike with a view of advancing and
addressing employees’ legitimate concerns might
be rendered
ineffective if not nugatory. In the alternative, if in the end, the
striking employees’ demands are met, the
non-striking employees
who fall within the bargaining unit, and who had performed the tasks
of those on strike in addition to their
own, would end up benefitting
twice, i.e., an increase in salary as a result of the sacrifices made
by their colleagues, and secondly,
from an extra income derived from
the strike action. This clearly cannot be fair;
18.4
The
practice has the effect of weakening the employees’ collective
bargaining effort, or at most causing discord and disunity
amongst
members of a union, thus undermining the right to strike and
invariably tilting the scales of the power play in favour
of the
employer;
18.5
The
consequences that flow from such disunity may be dire for
non-striking employees, given the common knowledge that strikes
normally
tend to turn violent whether in, at or near workplaces and
beyond. It is not uncommon for strike violence to spiral into
communities
and employees’ places of residence, and employers
and the courts would be remiss in not acknowledging these
far-reaching
consequences;
18.6
When
non-striking employees perform the tasks of striking employees,
employers can withstand a protracted strike and continue with
business as usual as long as the strike continues. Such practices
undermine the legitimacy of protected strike actions, and can
be used
as a strategy by employers to negate and dilute the intended effects
of the protected strike action embarked upon by employees;
18.7
The
effect of such practices is to side-track employers from addressing
legitimate concerns of the striking employees as long as
production
and business continues as normal during the strike. It can also
degrade the status of collective bargaining as a constitutional
tool
to resolve disputes
[11]
,
defeat the purpose of the LRA as identified in its section 1
[12]
,
and undermine the rights of employees to freely associate and take
part in the lawful activities of their unions;
18.8
The
provisions of section 10 of the Basic Conditions of Employment
Act
[13]
equally escaped the
attention of the drafters during its recent amendment in regards to
these contentious issues. These provisions
allow employers to require
or permit employees to work overtime, provided there is an agreement.
However, these provisions do not
address the issue whether such
overtime work,
albeit
permitted and consented to, should cover work ordinarily performed by
striking employees.
[19]
The
issue of onus has to be considered within the context of the
difficulties identified above. Section 10 of the LRA stipulates
that
an employee who alleges that a right or protection conferred by
section 5 has been infringed must prove the facts of the conduct,
and
the employer who engaged in that conduct must then prove that the
conduct complained of did not infringe those provisions.
[20]
The
parties are at odds in regards to how the test pertaining to onus
ought to be applied. The Applicants’ approach is that
to the
extent that they had demonstrated that the Respondent’s conduct
of paying non-striking employees for performing tasks
that would
ordinarily have been performed by the striking employees infringed on
their
rights
or protections conferred by section 5, the onus had shifted to the
Respondent to demonstrate that it had no malicious intent
in
discriminating against them.
[21]
The
Respondent however took a different view to that in
NUM
v Namakwa
Sands
and
FAWU
in respect of the nature of the onus placed upon it, contending that
the correct test is that as proposed by
Brassey.
In this regard, the argument was that in determining whether there
was contravention of section 5 (2) (c) (iii) and 5 (2) (c) (iv)
of
the LRA , it was required of a party to demonstrate ‘
discriminatory
conduct that was actuated by an illicit reason’.
Thus, according to the Respondent, in order to determine whether the
payment was unfairly discriminatory, there should be an enquiry
into
whether
rational
and objective
criteria were used in assessing who the beneficiaries of the payment
were and whether the Respondent intended to unfairly discriminate
against striking workers. This approach was to be used in conjunction
with the test set out in section 10.
[22]
The
question of the onus in this case needs to be understood within the
context of the employees’ case, which was that they
were
discriminated against on the basis of their participation in the
lawful activities of their
trade
union
,
and further having exercised their rights to strike. In
Mbana
v Shepstone & Wylie
[14]
the Constitutional Court held that within the context of employment
law, the test for unfair discrimination is comparable to that
laid
down
Harksen
[15]
,
and
reiterated that the first step is to establish whether the
respondent’s policy differentiates between people. The second
step entails establishing whether that differentiation amounts to
discrimination. The third step involves determining whether the
discrimination is unfair. Thus, if the discrimination is based on any
of the listed grounds in section 9 of the Constitution, it
is
presumed to be unfair.
[23]
In
this case, I have no reason to deviate from the test and approach
adopted in
FAWU
&
others v Pets Products
and
NUM
v Namakwa
Sands
in regards to the issue of onus, moreso since that approach is in
line with the test formulated in
Harksen
.
On the facts of this case, I accept that the Applicants have
discharged the onus placed on them by demonstrating that there was
indeed differentiation which amounted to discrimination, and that and
in return, the Respondent has not been able to demonstrate
that its
conduct did not infringe on the rights of the Applicants as they had
contended, nor have it demonstrated that the discrimination
was fair.
My conclusions are fortified by the following;
23.1
It
was common cause that the strike action was protected, and was in
pursuance of demands tabled at the MEIBC to which the Respondent
was
a member. The strike action had ultimately resulted in an agreement
being reached at the level of the MEIBC. To the extent
that the
employees had participated in that strike, they had done so in
pursuance of the lawful activities of their trade union,
and in the
exercise of their rights as conferred in both section 64 of the LRA,
and as entrenched in section 23 (2) (a) and (c)
of the
Constitution;
23.2
In
anticipation of the strike, employees had increased productivity, and
equally ‘went the extra mile’, with a view
of enabling
the Respondent to meet the demands of its customers. It is accepted
that the employees were paid their normal overtime
pay in this
regard, however, like their non-striking colleagues, they also went
the extra mile. I did not understand the Respondent’s
case to
be ‘extra mile’ both sets of employees went to varied in
degrees to justify the differentiation;
23.3
As
a consequence of the striking employees’ extra effort before
the strike, the Respondent was able to meet the demands of
its
customers for at least three weeks. On the Respondent’s
version, the volunteers performed additional tasks in the last
few
days of the strike. Not much turns on the contention that volunteers
went the extra mile in performing additional tasks in
the first few
days of the strike action without inducement or promise of a reward,
as they had simply understood the position the
Respondent found
itself in;
23.4
When
the surplus stock started to deplete, the Respondent then called upon
the volunteers to work on a revised shift system in order
to ensure
that production continued. Amongst those volunteers were members of
NUMSA who fell within the bargaining unit;
23.5
As
a consequence of the shift work performed by the volunteers, this had
assisted the Respondent to prevent a total supply failure,
a gap in
the supply line, and enabled it to meet all its supply obligations;
23.6
Significant
with the re-arrangement of the shift system as adopted by the
Respondent is that it enabled and induced non-striking
employees to
volunteer, and it is improbable that employees would have volunteered
to work shifts without an expectation of some
form of reward;
23.7
On
6 August 2014, and about a week after the strike had ended, the
Respondent took a decision to pay what it considered a token
to those
employees who had not embarked on strike action, and who in its
version had ‘gone the extra mile’;
23.8
When
NUMSA complained about this differentiation, the Respondent justified
it on the basis of ‘fair or objective’ criteria
applied
in making the payments. Significant with the alleged criteria is that
those that qualified must have worked for at least
10 days during the
industrial action. If this was the case, this then leads to the
question that if there were employees who had
volunteered in the
early days of the strike, and had done so without inducement or
expectation of a reward, why would they be rewarded
when it was the
Respondent’s case that the shifts were re-arranged only to
cater for the last week of the strike when stocks
depleted?
23.9
Significantly
also, the criteria that those that were paid must have been permanent
employees and had made a positive contribution
to running production
during the persistence of the industrial action cannot by all
accounts justify the differentiation, in that
the striking employees
were equally permanent employees and had equally contributed
positively to the running of production in
that they had gone the
extra mile prior to the strike. Thus even on the test of onus
favoured by the Respondent, there was no rational
or objective
criteria utilized to reward non-striking employees;
23.10
More
worrying with these additional payments is that despite the
Respondent’s contention that it had merely shown ‘goodwill
and appreciation’ towards the non-striking employees, it has
refused to disclose to NUMSA how much was paid to those employees,
other than contenting that the criteria for payment was objective and
fair. The veil of secrecy surrounding these payments, especially
since they were purportedly not akin to overtime pay, leads to an
inference that they were not merely made as a token;
23.11
Significant
also with these payments is that they were made in similar
circumstances as in
FAWU
,
where there is neither a term or condition of employment prevailing
at the Respondent or a practice that employees were to be
remunerated
for work done over and above the normal contractual entitlements.
Such payments in line with the difficulties pointed
out in this
judgment at paragraph 18 have created doubt as to their bona fides,
and notwithstanding Mr. Tshabalala’s contentions
that as far as
he knew that might not be the case, it is not far-fetched to conclude
that union members would in future think twice
prior to joining
strike actions in the future;
23.12
Given
the conclusions reached above together with the difficulties as
indicated elsewhere in this judgment, it is concluded that
the
payment of a ‘token’ made to non-striking employees in
this case constituted differentiation, which amounted to
discrimination within the confines of section 5 of the LRA. That
discrimination was unfair in that the striking employees, contrary
to
the provisions of section 2 (c) (iii) and (vi) were prejudiced for
their participation in the lawful activities of their trade
union,
and the exercise of their right to strike.
[24]
The
difficulties in granting the Applicants any form of relief in such
circumstances have been identified in both authorities referred
to in
this judgment. In
FAWU,
it
was held that to grant any form of relief would be to condone or
compound the illegitimate conduct of the Respondent (i.e., of
rewarding non-striking employees for work done during a protected
strike). The Court in this regard deemed a declaratory order
prohibiting repetition of similar conduct as appropriate. To the
extent that the Applicant may have sought payment of the additional
payments made to non-striking employees, a further difficulty is that
these amounts are unknown, partly as a result of the Respondent’s
reluctance to disclose them immediately after NUMSA had raised its
concerns, and partly as a result of the Applicants not having
done
anything to quantify those amounts even after the Respondent had made
a discovery in respect of some of them
[16]
.
Other than the difficulties raised in both
FAWU
and
NUM
v Namakwa
Sands,
it would therefore neither be competent nor appropriate for the court
to grant any monetary relief in this case. To that end, and
in view
of the conclusions reached in respect of the discriminatory conduct
complained of, a declaratory order is deemed to be
appropriate.
[25]
In
regards to the issue of costs, the Applicants were represented by a
union official in these proceedings, and ordinarily, a cost
order
would not be competent.
Order:
1.
It
is declared that the Respondent’s conduct in paying certain
employees who did not participate in the national strike of
1 July
2014 to 28 July 2014 additional payments was in contravention
of sections 5 (1); 5 (2) (c) (iii) and 5(2) (c) (vi)
of the LRA.
2.
The
Respondent is prohibited from engaging in such conduct with effect
from the date of this order.
3.
There
is no order as to costs
__________________
Edwin Tlhotlhalemaje
Judge
of the Labour Court of South Africa
APPEARANCES:
On
behalf of the Applicant:
Ms Prudence Gqoba
(NUMSA National Legal
Officer)
On
behalf of the Respondent:
Mr Johan Olivier of Webber Wentzel Attorneys
[1]
Act
66 of 1995
[2]
FAWU
& others v Pets Product (Pty) Limited
[2007] 7 BLLR 781
(LC) and
NUM v Namakwa Sands – A Division of Anglo American
Corporations Limited (2008) 29 ILJ 698 (LC)
[3]
At
para 20 where it was held that;
‘
In
my view, where a person (such as the respondent employer in this
case) discriminates against employees (such as the individual
applicants) for exercising their right to strike which is conferred
by this Act, then the unfairness of that discrimination is
presumed
although the contrary may still be established. In this regard, it
is analogous to discrimination on one of the grounds
specified in
the Constitution, the unfairness of which is presumed until the
contrary is established (Harksen supra at para 48).
In my view,
therefore it is not necessary at the section 10(a) stage of the
proceedings in this Court, for the party alleging
the infringement
to prove, for example, that the discriminatory conduct was or is
actuated by an illicit reason or by an ulterior
motive on the part
of the respondent employer. This approach, with due respect to
Brassey, avoids the cases of so-called mixed
motive which he refers
to in his book at page A2:9. This approach also, with due respect to
Mr Steenkamp’s argument, avoids
me having to get into a debate
about whether section 5(1) (and (3) for that matter) should be
restrictively applied or interpreted.
In other words, in my view,
once it is established that there was discrimination against an
employee for exercising any right
conferred by this Act, then it
must be presumed that such discrimination was unfair, until the
contrary is established’
[4]
Constitution
of the Republic of South Africa, Act 108 of 1996
[5]
‘
Employment
and Labour Law Commentary on the Labour Relations Act’ Vol 3
[6]
Section
23 (2) (c) of the Constitution
[7]
Chapter
IV of the LRA
[8]
‘
187.
Automatically unfair dismissals
(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)
that the employee participated in
or supported, or indicated an intention to participate in or
support, a strike or protest action
that complies with the
provisions of Chapter IV;
(b)
that the employee refused, or
indicated an intention to refuse, to do any work normally done by an
employee who at the time was
taking part in a strike that complies
with the provisions of Chapter IV or was locked out, unless that
work is necessary to prevent
an actual danger to life, personal
safety or health;
[9]
At
para 40 held that:
‘
The
respondent was aware of the provisions of section 187(1)(a) and (b)
of the LRA that prevents an employer from dismissing employees
who
are embarked in a protected strike and employees who refuse or
indicate an intention to refuse, to do any work normally done
by an
employee who at the time was taking part in a strike that complies
with the provisions of Chapter IV unless the work was
necessary to
prevent an actual danger to life, personal safety or health. This
section in my view places an indirect prohibition
on an employer to
ask non striking employees to do the work of striking employees
during a protected strike. The employees who
were not on strike were
paid to do the work of non striking employees and the reward for
doing this were the R300.00 daily allowance
and free meals. The
respondent clearly knew that it could not force the non striking
employees to do the work of their striking
colleagues. It therefore
came up with this policy that from the evidence led was clearly to
incentivise non striking employees
to do the work of their striking
colleagues. Talmakkies who worked during the protected strike said
that when he sometimes worked
as a tap floor operator not during
strikes he was not paid the R300.00 allowance. This was also
confirmed by Appollus. None of
the employees who did alternative
work outside a strike situation were paid this daily allowance. They
were either paid a shift
or acting allowance.’
[10]
See
NUM v Namakwa Sands at para 41
[11]
Section
23 (5) of the Constitution
[12]
‘
1.
Purposes of this Act
The
purpose of this Act1 is to advance economic development, social
justice, labour peace and the democratisation of the workplace
by
fulfilling the primary objects of this Act, which are –
(a)
to give effect to and regulate
the fundamental rights conferred by section 23 of the Constitution
of the Republic of South Africa,
1996
(b)
to give effect to obligations
incurred by the Republic as a member state of the International
Labour Organisation
(c)
to provide a framework within
which employees and their trade unions, employers and employer’s
organisations can –
i.
collectively bargain to determine wages,
terms and conditions of employment and other matters of mutual
interest; and
ii.
formulate industrial policy; and
(d)
to promote –
i.
orderly collective bargaining;
ii.
collective bargaining at sectoral level;
iii.
employee participation in decision-making
in the workplace; and
iv.
the effective resolution of labour
disputes.
[13]
Act
75 of 1997
[14]
(2015)
36 ILJ 1805 (CC)
[15]
Harksen
v Lane NO and Others
[1997] ZACC 12
;
1998 (1) SA 300
(CC) at para 50 where it was
held that;
‘
At
the cost of repetition, it may be as well to tabulate the stages of
enquiry which become necessary where an attack is made
on a
provision in reliance on section 8 of the interim Constitution. They
are:
(a)
Does the provision differentiate
between people or categories of people? If so, does the
differentiation bear a rational connection
to a legitimate
government purpose? If it does not then there is a violation of
section 8(1). Even if it does bear a rational
connection, it might
nevertheless amount to discrimination.
(b)
Does the differentiation amount to
unfair discrimination? This requires a two stage analysis:
(b)(i) Firstly, does the
differentiation amount to “discrimination”? If it is on
a specified ground, then discrimination
will have been established.
If it is not on a specified ground, then whether or not there is
discrimination will depend upon
whether, objectively, the ground is
based on attributes and characteristics which have the potential to
impair the fundamental
human dignity of persons as human beings or
to affect them adversely in a comparably serious manner.
(b)(ii)
If the differentiation amounts to “discrimination”, does
it amount to “unfair discrimination”?
If it has been
found to have been on a specified ground, then unfairness will be
presumed. If on an unspecified ground, unfairness
will have to be
established by the complainant. The test of unfairness focuses
primarily on the impact of the discrimination
on the complainant and
others in his or her situation….’
[16]
Pages 4 – 7 of the Trial Bundle