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[2017] ZALCJHB 492
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Food and Allied Workers Union and Others v Amalgamated Beverage Industries (Pty) Ltd (JS644/15) [2017] ZALCJHB 492 (20 April 2017)
IN
THE LABOUR COURT OF SOUTH AFRICA
JOHANNESBURG
Reportable/Not
Reportable
Case
No: JS644/15
In
the matter between:
FOOD
AND ALLIED WORKERS
UNION
Applicant
NCONGWANE,
D & OTHERS
Second and Further
Applicants
and
AMALGAMATED
BEVERAGE INDUSTRIES (PTY) LTD
Respondent
Heard:
30, 31 January 2017, 3 February 2017
Judgment:
20 April 2017
Summary:
Unfair dismissal action in terms of section 191(5)(b)(iii),
alternatively, section 191(5)(a)(i) of the LRA – applicants
dismissed for participating in unprotected strike action –
respondent employer failing to take any steps to contact union
and
failing to issue ultimatum – moreover applicants’
demands not unreasonable in the circumstances – dismissals
accordingly substantively and procedurally unfair and maximum
compensation awarded. Applicants unreasonably refusing with prejudice
settlement offer equivalent to maximum compensation –
applicants therefore not entitled to costs.
JUDGMENT
BARNES
AJ
Introduction
[1]
This
is an unfair dismissal action in terms of section 191(5)(b)(iii),
alternatively, section 191(5)(a)(i) of the Labour Relations
Act
[1]
(“the LRA”).
[2]
The first applicant is
the Food and Allied Workers’ Union (“FAWU”). The
second and further applicants are 11 FAWU
members who were employed
by the respondent until their dismissals on 22 October 2012.
[3]
The second and further
applicants initially numbered 15 but 3 individuals have withdrawn
from the action. In addition, Mr Jacob
Ralejoe, the third applicant,
passed away after the institution of the action. At the commencement
of the trial, an application
was brought for the substitution of Ms
Emily Ralejoe, Mr Ralejoe’s wife and the executor of his
estate, as the third applicant.
This application was unopposed and
was duly granted.
[4]
The second and further
applicants are accordingly:
1.
Mr Donald Ncongwane
2.
Ms Emily Ralejoe
3.
Mr Waited Adoons
4.
Mr Phillimon Mahlatji
5.
Mr Vusimuzi Makumbene
6.
Mr Samuel Ndlovu
7.
Mr Joseph Baloyi
8.
Mr Raymond Ntombela
9.
Mr Ben Motloung
10.
Mr Moses Masondo
11.
Mr Caipus Mdlalose
[5]
For convenience, I will
refer to them simply as “the applicants.”
[6]
The applicants were
employed by the respondent as truck drivers. They were dismissed
during the notoriously violent South African
Transport and Allied
Workers Union (“SATAWU”) strike which took place from 25
September 2012 to 12 October 2012. The
applicants did not participate
in the SATAWU strike. They did however raise concerns about their
ability to perform their duties
safely in the context of the violence
that accompanied the strike.
[7]
On 9 and 10 October
2012 the applicants demanded adequate security from the respondent
and refused to perform their duties. On 10
and 11 October 2012, the
respondent suspended the applicants and charged them with gross
insubordination and gross negligence.
Following a disciplinary
enquiry, the respondent dismissed the applicants on 22 October 2012.
[8]
The applicants plead
that they were dismissed for participating in an unprotected strike
and that their dismissals were unfair for
inter
alia
the following
reasons:
8.1
the respondent failed to contact a FAWU official at the earliest
opportunity, or at all,
to discuss the course of action it intended
to adopt;
8.2
the respondent failed to issue an ultimatum to the applicants; and
8.3
the strike was in response to unjustified conduct on the part of the
respondent in failing
to provide adequate security for the
applicants.
[9]
In the alternative, in
the event that it is found that the applicants were not dismissed for
participating in an unprotected strike,
the applicants plead that
their dismissals were nevertheless substantively and procedurally
unfair for the following reasons:
9.1
the
applicants did not commit the misconduct alleged;
9.2
the respondent’s
instruction to the applicants to perform their duties in
circumstances where widespread violence and intimidation
had been
reported was unreasonable and unfair.
9.3
the respondent failed
to ensure a working environment which was safe and without risk to
the applicants; and
9.4
the sanction of
dismissal was too harsh given that the duration of the alleged
misconduct was only one shift.
[10]
The respondent denies
that it dismissed the applicants for participating in an unprotected
strike and pleads that “neither
the individual applicants nor
the respondent regarded the individuals’ conduct as a strike at
the time.” The respondent
pleads that the applicants were
dismissed for gross insubordination and gross negligence and that
their dismissals were fair.
The
Evidence
[11]
The respondent led the
evidence of Mr Muzi Shilenge, the distribution manager at its Devland
depot where the applicants were based
prior to their dismissals.
[12]
The applicants led the
evidence of two of their number: Mr Donald Ncongwane and Mr Vusimuzi
Makumbene.
[13]
All the applicants,
except Mr Makumbene, were suspended and charged on 10 October 2012.
Mr Makumbene was suspended and charged on
11 October 2012. The
reasons for this will become apparent below.
[14]
I set out the relevant
evidence below. As will be apparent, much of it was common cause or
not seriously disputed between the parties.
[15]
From 25 September 2012
to 12 October 2012 SATAWU embarked on a nation-wide strike involving
truck drivers. The strike was marred
by serious violence, with a
number of incidents involving the torching of trucks and the assault
of truck drivers taking place.
[16]
The applicants did not
participate in the strike and continued performing their duties as
truck drivers for the respondent.
[17]
The respondent accepted
that the violence which accompanied the SATAWU strike placed its
drivers at risk and put security measures
in place in an effort to
mitigate this. These included morning meetings at which hotspots were
identified and the daily route amended
where necessary as well as the
provision of armed escorts for drivers.
[18]
During the course of
the strike, the respondent sent messages to its drivers, including
the applicants, in which it acknowledged
the difficult circumstances
under which they were working and thanked them for their efforts.
[19]
During the course of
the strike, the applicants complained to the respondent that where
armed escorts were provided, they failed
to accompany the trucks on
their full route and tended to turn back half way or even earlier.
The applicants were told by the escorts
that they did this because
they were not being reimbursed for petrol and toll fees and were out
of pocket as a result.
[20]
On 8 October 2012, one
of the respondent’s trucks was attacked in Orange Farm. The
applicants testified that the truck was
shot at and this is recorded
as a common cause fact. Mr Shilenge testified, however, that it was
not clear whether the damage to
the truck was the result of bullets
or rocks. It does not matter.
[21]
This was the first time
during the course of the SATAWU strike that one of the respondent’s
trucks had been attacked.
[22]
Mr Ncongwane testified
that when the applicants (with the exception of Mr Makumbene) arrived
at work on 9 October 2012 they asked
to speak to Mr Shilenge. They
told him that they feared for their lives. They told him that they
had had a problem during the entire
course of the strike with their
escorts leaving them half way and that this had not been resolved.
They said that now that one
of the respondent’s trucks had been
attacked they felt that the strike would affect them, that they would
be targeted. They
said that they would not perform their duties until
the respondent provided them with adequate security.
[23]
Mr Shilenge, in his
evidence, did not deny that the applicants had complained about the
escorts prior to and during this meeting.
Mr Shilenge testified that
previous complaints in this regard had been addressed. He did not
however explain how this had been
done. Notably, when Mr Shilenge was
asked under cross examination whether his response to the applicants
on 9 October 2012 was
that their complaints in this regard had been
addressed, his answer was no.
[24]
Also important in this
regard are the following common cause facts:
“
The
14 individuals raised a number of issues regarding security, which
were, inter alia, as follows:
there
were not enough security escorts;
security escorts were leaving trucks
unaccompanied on the freeways;
security vehicles were unmarked;
some security escorts indicated that
they were not provided with petrol and toll fees.
Shilenge acknowledged the issues
raised and indicated that he would take up the issues with the Risk
Management Unit who would address
the issues with the relevant
security company.”
[25]
Mr Shilenge confirmed
in his evidence that after hearing the applicants on 9 October 2012
he had told them that he would take their
security concerns to the
respondent’s senior management and revert to them. It is common
cause that he asked the applicants,
in the interim, to deliver in
Devland only. The applicants refused.
[26]
Mr Shilenge then called
his supervisor and the Depot Manager for Devland, Mr Tshepo
Ramonyalioa to speak to the applicants. Mr
Ramonyalioa arrived
and asked what the problem was. Mr Ncongwane said this surprised the
applicants because they had been complaining
about the escorts for
several weeks and had been told that their complaints had been
escalated, yet Mr Ramonyalioa did not seem
to know what the problem
was. Mr Ncongwane stated that the applicants proceeded to explain
their security concerns to Mr Ramonyalioa
“from the beginning.”
[27]
Mr Ramonyalioa told the
applicants that he and Mr Shilenge would take their security concerns
to the respondent’s senior management
and revert to them. Like
Mr Shilenge, Mr Ramonyalioa asked the applicants, in the interim, to
make deliveries in Devland only.
The applicants refused.
[28]
Mr Shilenge testified
that he regarded the applicants’ refusal to make deliveries in
Devland only as unreasonable because
Devland had never been
identified as a hotspot and there was therefore no safety risk
associated with making deliveries there.
[29]
The applicants’
pleaded case was that they refused to deliver in Devland because they
considered that their lives may be in
danger there too. In his
testimony however, Mr Ncongwane said that the applicants did not
refuse to deliver in Devland because
of safety concerns but because
there were only a few wholesalers in Devland and because their trip
sheets did not stipulate that
they should deliver in Devland.
[30]
Whatever the true
reason for the applicants’ refusal to deliver in Devland, the
fact remains that they refused to perform
their normal duties until
they were provided with adequate security.
[31]
It is therefore clear
that, notwithstanding this discrepancy, the following evidence is
undisputed:
31.1
the applicants
refused to perform their normal duties until the respondent provided
them with adequate security; and
31.2
Mr Ramonyalioa
and Mr Shilenge undertook to take the applicants’ security
concerns to the respondent’s senior management
and to revert to
them.
[32]
Mr Ncongwane testified
that the applicants were in the canteen at the Devland depot around
lunchtime on 9 October 2012. They had
received no feedback from the
respondent’s management at this stage. While in the canteen,
the applicants were approached
by a number of so-called
“owner-drivers” (drivers engaged by the respondent as
independent contractors) who said that
since the applicants were
refusing to work, they intended to perform their deliveries. The
owner-drivers took the applicants’
hand held terminals (HHT’s)
from them and left the depot
[33]
Mr Ncongwane testified
that at this stage the applicants felt that they needed advice from
their union. Since their shop steward
was not present at the depot on
that day, they took a decision to go to FAWU’s office in
Johannesburg and obtain advice.
They travelled to the FAWU office in
two cars. Mr Ncongwane testified that Mr Shilenge phoned him and
asked where the applicants
were. Mr Ncongwane answered that they were
at FAWU’s office in Johannesburg. There was no further
discussion between the
two. Mr Shilenge, in his evidence, did not
deny this account and in fact confirmed that he had heard from one of
the applicants
that they were at the FAWU office at around lunchtime
on 9 October 2012.
[34]
At 13:05pm on 9 October
2012 Mr Shilenge sent SMS messages to all the applicants instructing
them to attend a meeting at the Devland
depot at 13:30pm.
[35]
It is common cause that
the applicants did not attend this meeting.
[36]
Mr Ncongwane confirmed
that the applicants received the SMS messages. He testified that the
applicants left the FAWU office and
travelled back to the Devland
depot but arrived there some time after 13:30pm. Mr Ncongwane
testified that on arrival, the applicants
met one of their team
leaders who advised them that their issues would be dealt with the
following day. The applicants accordingly
left the depot.
[37]
Mr Ncongwane testified
that on 10 October 2012, Mr Mohlalo, FAWU’s legal officer went
to the Devland depot in an attempt to
intervene in the matter but was
refused entry. It was put to Mr Shilenge in cross examination that he
gave the instruction to refuse
Mr Mohlalo entry. Mr Shilenge denied
this and testified that he did not recall FAWU’s legal officer
coming to the depot on
10 October 2012.
[38]
Shortly after their
arrival at the Devland depot on 10 October 2012, the applicants, with
the exception of Mr Makumbene, were suspended
and charged with
misconduct in the following terms:
“
Gross
insubordination in that you refused to obey a lawful and
reasonable instruction to resume your normal delivery duties
on
Tuesday, 9 October 2012 as per your contract of employment and
thereby adversely affecting customer services, sales volumes
and your
relationship with the company; and
Gross negligence, in that you left
your work station without permission and purposely left the delivery
loads undelivered to customers
on Tuesday 9 October 2012.
[39]
On 10 October 2012, Mr
Makumbene and two other FAWU members who had not been present at work
on 9 October 2012, clocked in at the
Devland depot. Mr Shilenge
testified that these employees indicated to him that they would not
perform their duties as they did
not feel that it was safe to do so
and demanded adequate security. Mr Shilenge’s testimony in this
regard accords with the
following common cause fact:
“
On
10 October 2012, Norman Mogashoa, Vusimuzi Makumbene and Zacharia
Thamage informed the respondent that they could not perform
their
duties as they did not feel it was safe to do so given that the
SATAWU strike was still ongoing and allegedly intensifying.”
[40]
In his testimony
however, Mr Makumbene denied that he refused to work on 10 October
2012. He testified that he asked Mr Shilenge
to provide him with
security and that Mr Shilenge did not answer him and simply took his
HHT from him, rendering him unable to
work.
[41]
There are a number of
difficulties with Mr Makumbene’s evidence in this regard.
Firstly, it contradicts what is recorded by
the parties as a common
cause fact. Secondly, it was never put to Mr Shilenge for him to
answer to. Thirdly, it is in my view highly
improbable that Mr
Shilenge would have prevented Mr Makumbene from making his deliveries
on 10 October 2012 if he was willing to
do so. For all these reasons
I reject this evidence and find that Mr Makumbene, together with Mr
Mogashoa and Mr Thamage, refused
to perform their duties on 10
October 2012 until they were provided with adequate security. In so
doing, they acted in solidarity
with the applicants who had refused
to perform their duties on 9 October 2012.
[42]
On 11 October 2012, Mr
Makumbene was suspended and charged with misconduct in the following
terms:
“
Gross
misconduct – refusing to obey a lawful and reasonable
instruction on Wednesday 10 October 2012 to continue with your
normal
driver duties and therefore you are in breach of your contract of
employment.”
[43]
A single disciplinary
enquiry was held at which the applicants were found guilty of all the
charges against them.
[44]
The applicants were
dismissed on 22 October 2012.
[45]
On the question of
relief, it became common cause during the trial that reinstatement is
not reasonably practicable, the respondent
having outsourced its
delivery function in its entirety.
[46]
It also emerged during
the trial that, on 9 May 2016, the respondent made a with prejudice
settlement offer in terms of which it
offered to pay each of the
applicants an amount equivalent to 12 months salary in full and final
settlement of their claim. The
applicants rejected this offer. In
their evidence, the applicants stated that they did so because the
offer did not include the
value of shares which they believed they
were entitled to in terms of a share scheme which they had
participated in during their
employment with the respondent.
Applying
the Law to the Facts
[47]
The respondent contends
that the applicants were not dismissed for participating in an
unprotected strike but for gross insubordination
and gross
negligence. However, it is evident from the charges which have been
quoted above that the substance of the misconduct
with which the
applicants were charged and found guilty was refusing to perform
their duties. If the applicants’ refusal
to perform their
duties amounted to strike action then they were dismissed for
participating in an unprotected strike (there of
course being no
suggestion of any protected strike in this case).
[48]
Whether the applicants
were engaged in a strike action is a question which must be
determined objectively with reference to the
LRA’s definition
of strike.
[49]
“
Strike” is
defined in section 213 of the LRA as follows:
“
The
partial or complete concerted refusal to work or the retardation or
obstruction of work, by persons who are or have been employed
by the
same employer or by different employers, for the purposes of
remedying a grievance or resolving a dispute in
respect of any matter
of mutual interest between employer and employee, and every reference
to work in this definition includes
overtime work, whether it is
voluntary or compulsory.”
[50]
It is well established
that this definition entails four elements:
50.1
Firstly, there
must be a stoppage of work. The duration or extent of the stoppage is
irrelevant.
50.2
Secondly, there
must be joint action, in the sense that the employees must down tools
with a common purpose.
50.3
Thirdly, the
action must be aimed at inducing the employer, as opposed to another
third party, to comply with a demand.
50.4
Fourthly, the
refusal to work must be “
for
the purpose of remedying a grievance or resolving a dispute in
respect of a matter of mutual interest between employer and
employee.”
46
The first three
elements of the definition are clearly established in this case.
47
The fourth element has
been described in the following terms:
“
Either
a grievance or a dispute must therefore exist before workers can be
deemed to be on strike and the strikers must intend their
action to
remedy or resolve that grievance or dispute. Workers that mutually
resolve to stay away from work to, say, watch a rugby
match will
therefore not be on strike. (Although if they down tools in support
of a demand that the employer give them time off
to watch rugby, then
they will be on strike). However, employees who stop work in
support of a demand that the employer discuss
a grievance with them
will be deemed on strike. Even a demand that management attend a
meeting is sufficient.”
[2]
[51]
In this case, the
evidence established that the applicants were aggrieved with regard
to the security measures put in place by the
respondent to protect
them during the SATAWU strike, demanded that the respondent provide
them with adequate security and refused
to perform their normal
duties until the respondent had complied with their demand. The
applicants’ refusal to work was therefore
“
for
the purpose of remedying a grievance in respect of a matter of mutual
interest between employer and employee.”
[52]
This applies to the
action by the applicants on 9 October 2012 as well as to the action
by Mr Makumbene on 10 October 2012. I am
therefore satisfied that the
applicants’ refusal to work on 9 and 10 October 2012 amounted
to unprotected strike action.
[53]
That being the case,
the respondent was required to follow certain mandatory procedures
prior to dismissing the applicants. Of application
in this regard is
item 6 of the Code of Good Practice which provides as follows:
“
(1)
Participation in a strike that does not comply with the provisions of
Chapter IV is misconduct.
However, like any other act of misconduct,
it does not always deserve dismissal. The substantive fairness of
dismissal in these
circumstances must be determined in the light of
the facts of the case, including -
(a)
The
seriousness of the contravention of this Act
(b)
Attempts
made to comply with this Act; and
(c)
Whether
or not the strike was in response to unjustified conduct by the
employer.
(2)
Prior to dismissal the employer should, at the earliest
opportunity, contact a trade union official to discuss the course of
action
it intends to adopt. The employer should issue an ultimatum in
clear and unambiguous terms that should 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 these steps to the employees in question, the
employer may dispense with
them.” (emphasis added)
[54]
The
requirements highlighted above are not mere formalities. On the
contrary, the purpose of requiring the employer to make contact
with
the union is to give the union an opportunity to dissuade the
employer from dismissing the strikers and to persuade the strikers
to
return to work. The Labour Appeal Court has held that consultation
with the union serves the function of a pre-dismissal hearing.
[3]
A mere notice to the union that the employer intends to issue an
ultimatum is therefore insufficient. Some form of discussion must
precede the ultimatum to the strikers.
[4]
[55]
On the rationale behind
the need to issue an ultimatum, the following has been said:
“
The
final requirement set out in the Code is that the employer must give
the employees an ultimatum before dismissing them. The
reason is
obvious: workers embark on strike action to compel their employer to
comply with their demands. An ultimatum informs
the workers that an
employer would rather dispense with their services than yield. Both
logic and fairness therefore require that
the striking workers be
afforded an opportunity to reconsider their positions before the
employer pulls the trigger.”
[5]
[56]
In this case, the
respondent did not comply with either of these requirements. There
was no attempt whatsoever by the respondent
to contact FAWU to
discuss the matter. This was despite the fact that Mr Shilenge
established that the applicants were at FAWU’s
office at around
lunchtime on 9 October 2012.
[57]
The applicants contend
that FAWU’s legal officer arrived at the Devland depot on the
morning of 10 October 2012 in an effort
to intervene in the matter
and was denied entry. As stated above, Mr Shilenge denied this. Even
however if I accept the respondent’s
version in this regard, Mr
Shilenge confirmed, in response to a question from the Court, that
between the time that he spoke to
Mr Ncongwane on 9 October 2012 and
the time that he suspended and charged the applicants on 10 October
2012 no attempt was made
by the respondent to contact FAWU. This
failure, on its own, means that this legal requirement was flouted.
In my view, the law,
as well as common sense, dictated that the
respondent contact FAWU to discuss the matter and its failure to do
so was unreasonable
in the circumstances.
[58]
This is particularly so
having regard to the nature of the demands made by the applicants and
the context in which they were made.
The evidence established that
the applicants had previously raised the issue of armed escorts
failing to accompany them on their
full routes and that this issue
had not been resolved by 9 October 2012. This was a serious issue
that deserved to be engaged with
seriously by the respondent. It was
also understandable that the incident at Orange Farm that took place
on 8 October 2012 would
have heightened the applicants’ sense
of insecurity and added impetus to their demands to have their
security concerns urgently
addressed. The respondent ought to have
appreciated this, particularly given its earlier acknowledgement of
the difficult circumstances
in which the applicants were working.
[59]
In my view, the
applicants’ demands were not unreasonable in the circumstances
and the respondent ought to have engaged with
them sympathetically
and constructively with the involvement of FAWU. Had the respondent
done so, it is in my view probable that
the dismissals could have
been avoided. At the very least, in the event that it was not
possible to resolve the matter in discussion
with FAWU, the
respondent ought to have issued the applicants with an ultimatum,
placing them on terms and giving them an opportunity
to resume their
duties, prior to taking action against them as it did.
[60]
All the applicants,
including Mr Makumbene, were entitled to the legal protections
referred to above.
[61]
The respondent’s
failure to make any attempt to contact the applicants’ union or
give the applicants an ultimatum prior
to dismissing then for
participating in an unprotected strike rendered the applicants’
dismissals substantively and procedurally
unfair.
[62]
As stated above, it
became common cause during the trial that reinstatement is not
reasonably practicable. Having regard to the
above findings and
particularly to the finding that the applicants’ demands were
not unreasonable in the circumstances, I
am of the view that they are
entitled to the maximum compensation permitted by law.
[63]
The applicants were
offered the equivalent of 12 months salary each as compensation and
refused it. As stated above, the reason
given for this was that the
offer did not include the value of shares to which the applicants
considered they were entitled. If
the applicants believe they have a
claim against the respondent for the value of shares, they are at
liberty to pursue that in
the appropriate forum. The respondent’s
failure to make a tender in relation to the shares was not, however,
in my view,
a reasonable basis on which to refuse an offer of
settlement in respect of the applicants’ unfair dismissal
dispute.
The respondent’s offer was equivalent to the
maximum compensation permissible in law in respect of this dispute.
For these
reasons, the applicants’ rejection of the offer was
unreasonable and they shall not be entitled to their costs as a
consequence.
[64]
The applicants filed
their statement of case late which necessitated an application for
condonation. That application was granted
by Gush J on 4 April 2015
and costs were reserved. The applicants filed their statement of case
late despite a clear order from
Cele J requiring them to refer the
matter to Court within 14 days. I am of the view that, in these
circumstances, it would not
be fair to require the respondent to pay
these costs either.
[65]
I accordingly make the
following order:
Order
1.
The dismissals of the
second and further applicants (being the persons referred to in
paragraph 4 above) are declared to be substantively
and procedurally
unfair.
2.
The respondent is
ordered to pay each of the second and further applicants an amount
equivalent to 12 (twelve) month’s remuneration
calculated at
the individual’s rate of pay on the date of dismissal, within
one month of the date of this judgment.
3.
There is no order as to
costs.
__________________________
Heidi
Barnes
Acting
Judge of the Labour Court
Appearances:
For
the Applicants: Mr S Kuane (FAWU official)
For
the Respondent: Adv S Khumalo instructed by Bowman Gilfillan Inc
[1]
Act 66 of
1995.
[2]
Grogan
Workplace
Law
(Juta,
11
th
ed) at p 371.
[3]
See
Modise
and Others v Steve’s Spar Blackheath
(2000) 21 ILJ 519 (LAC)
[4]
Grogan
Workplace
Law
(Juta,
11
th
ed) at p 470.
[5]
Grogan
Workplace
Law
(Juta,
11
th
ed) at p 471.