About SAFLII
Databases
Search
Terms of Use
RSS Feeds
South Africa: Johannesburg Labour Court, Johannesburg
SAFLII
>>
Databases
>>
South Africa: Johannesburg Labour Court, Johannesburg
>>
2017
>>
[2017] ZALCJHB 288
|
|
Food and Allied Workers' Union and Others v La Visagie and Seun (JS831/13) [2017] ZALCJHB 288 (10 August 2017)
Reportable
THE
LABOUR COURT OF SOUTH AFRICA,
HELD
JOHANNESBURG
C
ase no: JS
831/13
In
the matter between:
FOOD
AND ALLIED WORKERS’ UNION
First Applicant
NYANGULA, J & 138 OTHERS
Second and
further Applicants
and
LA VISAGIE & SEUN
Respondent
Heard
:
29- 31 August, 1-2, 19-23 September 2016
Delivered
:
10 August 2017
Summary:
(Unprotected strike- dismissal - arising from wage determination from
which the employer was subsequently
exempted - workers returning to
work but embarking on subsequent strike in protest over suspension of
some strikers entry pending
disciplinary enquiries for misconduct
during initial strike – dismissal substantively unfair –
strikers not blameless
for their dismissal- relief)
JUDGMENT
LAGRANGE
J
Introduction
[1]
This is a case involving the dismissal of 87 (eighty-seven) members
of the union, FAWU on 22 April 2013 arising from their participation
in an unprotected strike. The trial took place over two weeks in
August and September 2017.
[2]
The respondent is a citrus and vegetable produce farmer in the
Nelspruit District.
[3]
Mr A Engelbrecht (‘Engelbrecht ’) an employer’s
organisation representative, Mr A Visagie (‘V1’),
a
director of the respondent, Mr A B Pieterse (‘Pieterse’)
the Greenhouse manager, and Mr J Nyathi (‘Nyathi’),a
supervisor in the tomato section, gave evidence for the respondent.
Mr B M Sibeko (‘Sibeko’) a shop steward working
as a
general worker in the cucumber and tomato sections and Mr S M Msiza
(‘Msiza’), an organiser of FAWU gave evidence
for the
applicants.’
[4]
The applicant’s contend that they were unfairly dismissed for
embarking on an unprotected strike. The applicants argued
that the
sanction of dismissal was too harsh and that the respondent acted
inconsistently in allowing certain employees who had
participated in
the strike to return but not others. The applicants also claimed that
the strike was caused by the unjustified
conduct of the respondent of
not paying them the recently determined minimum wage prescribed by
Sectoral Determination 13 for the
Farm Worker Sector. Lastly, they
claim their dismissals were unfair because the ultimatums were
unclear and did not afford them
sufficient time to reflect on them.
The applicants did not pursue a claim of procedurally unfair
dismissal.
Preliminary
issues
[5]
At the start of proceedings,
the respondent argued that the union was not entitled to represent
the applicants on the basis that
even though they had been members of
the union at the time of their dismissal, they were not members of
the union when the dispute
was referred to court. After hearing
argument on the matter, I dismissed the in limine objection. I found
that in view of the provisions
of the applicants’ Constitution
and taking into account the principles in the judgement of the Labour
Appeal Court in
National
Union of Mineworkers v Hernic Exploration (Pty) Ltd
[1]
and the decision in NUMSA v CCMA
[2]
,
I was satisfied that FAWU was entitled to represent the 87 individual
applicants whose names appear on the document entitled ‘Final
List of Applicants’ handed up in court at the
commencement of the trial.
[6]
The applicants also withdrew their claim of automatically unfair
dismissal based on the allegation that the second to further
applicants (‘the employees’) had been dismissed on
account of their union membership. The applicants further conceded
that the employees had been engaged in an unprotected strike.
[7]
On the second day of the trial, applicants gave notice of their
intention to apply for an amendment of their statement of case.
They
tendered party and party costs for the delay which would be
occasioned by the postponement necessitated by the respondent
having
to reply thereto. Leave to amend their statement of case was granted
with the applicants to pay the wasted costs of the
proceedings of
that day but the question of the appropriate scale of costs was
deferred pending the applicants filing an affidavit
explaining the
late filing of the notice of amendment, which has been done.
[8]
The amendment related to the anger the applicants had felt towards
the respondent because they believed that the variation sought
by the
respondent from a new wage determination was a ploy to deny them
money they were entitled to. They also believed that the
state would
reimburse them the difference between the new sectoral determination
minimum wages and the wage paid by the respondent,
so they would not
earn less than the newly gazetted minimum wage. They believed that
the respondent’s request to get them
to vote individually on
the wage variation, undermined the collective mandate they had
conveyed to the respondent, namely that
they rejected any variation
from the wage determination and would rather be retrenched.
[9]
The reason why the amendment was filed so late was because the first
applicant, FAWU, only confirmed an instruction to the attorneys
of
record to conduct the trial on behalf of the applicants three weeks
before the trial commenced. Given that the individual applicants
were
all in Nelspruit and the time constraints in preparing for the trial
on relatively short notice, the applicants’ attorneys
only
became aware of the individual applicants’ alleged
understanding and reaction to the wage determination variation
after
the first day’s evidence was led, which necessitated launching
the amendment application early that evening. I appreciate
the
difficulties encountered by the applicants’ attorneys in the
circumstances, but it seems the principal cause for having
to bring
the amendment was late and poor instructions from FAWU. In the
circumstances, the applicants should pay the respondent’s
wasted costs on an attorney own client scale.
Chronology
of events emerging from the evidence
[10]
As it turned out, much of the evidence of the sequence of events
during February and March 2013 was undisputed in material
respects
even if witnesses differed on some matters of detail. Insofar as
there are material disputes of fact, these mainly concern
exactly
what might have been conveyed by management at the meeting or
meetings held on 21 February and what was conveyed by management
at a
meeting held between management and union representatives at 17h00 on
2 April.
[11]
In February 2013, there was considerable labour relations turmoil in
the farming industry, particularly in the Western Cape
where
farmworkers had been demanding a minimum wage of R150 per day. In
2012, the respondent itself also had experienced protected
strike
action arising from a dispute over wages. That strike resulted in a
collective agreement being concluded between FAWU and
the employer in
terms of which basic monthly salary of workers for the period 1
September 2012 to 31 August 2013 was increased
to R 1579.00 per
month.
[12]
Subsequently, on 5 February 2013, the Minister of Labour amended
Sectoral Determination 13 for the Farm Worker Sector (‘the
sectoral determination’) which increased the minimum statutory
wages in the sector. In terms of the new determination, the
minimum
wage payable was raised to R 11.66 per hour with effect from 1 March
2013, amounting to approximately R 105.00 per day
for a nine hour
day. It is important to note that the period between publication of
the sectoral determination and the date of
the increase was only just
over three weeks.
[13]
Based on 195 working hours per month, the basic wage concluded under
the existing collective agreement between FAWU and the
respondent
amounted to just over R 8.00 an hour. Even that low wage was about 5%
higher than the prevailing minimum wage set by
the sectoral
determination, before it was revised. Consequently, although the
existing basic wage levels were low, adjusting to
the new monthly
minimum wage of R 2274.82 still entailed an increase of over 40% on
the applicants’ existing wages. Visagie
agreed that the strike
in March 2013 was not related to a demand for an increase in breach
of the collective agreement, but was
a demand prompted by the
sectoral determination.
[14]
Engelbrecht testified that the
Department of Labour (‘the Department’) had notified
employers in terms of s 50(1)(b)
of the Basic Conditions of
Employment Act 1997 (‘the BCEA’) that they could apply
for ‘exemption’
[3]
from the determination to delay its full implementation. On 21
February 2013, only one week before the new minimum wage was to
take
effect, under the auspices of the LWO employers’ organisation
(‘LWO’), he wrote to FAWU on behalf of the
employer. The
letter conveyed the company’s view that the only way it could
pay the increase required by the determination
would be if it
retrenched 30% of the workforce. To avoid this, the company was
applying for variation on the basis that it would
raise wages to
1800. 00 per month from 1 March 2013, to R 2000.00 from 1 July 2013
and to 2275.00 from 1 December 2013, thereby
achieving the new
prescribed minimum wage within eight months. A meeting had previously
been requested with FAWU on 21 February
but the union had been
unavailable. The letter concluded with an “open invitation”
to the union to submit “suggestions
and any input”
regarding the application “for exemption”. Attached to
the letter was a schedule detailing the
proposed incremental
introduction of the minimum wage. Msiza said that no response was
received from FAWU to this letter. Sibeko
said he was never shown the
letter by the union of the employer. The letter did not direct the
union to make representations to
the Department but implied it was
expecting FAWU to make any submissions to the respondent. Msiza did
not dispute that the letter
was received but denied ever seeing the
attached schedule before the trial. The only somewhat fatuous reason
he could advance for
not responding to this notification and
invitation by the company to make submissions on the proposed
variation was that the union
did not “object to receipt of a
letter”.
[15]
Engelbrecht did not handle the finalisation of the variation
application, which was processed by LWO head office, and could
not
say if there was other correspondence with the union about the
application apart from his letter. He was convinced that a general
provisional variation in the form of a notification from the
Department had been granted before the Department’s letter
specifically granting the respondent provisional variation was issued
on 2 April, but he could not explain why this was not mentioned
in
the pleadings or why no copy of the letter had been obtained, even
though he agreed such communication was ‘quite critical’.
Nevertheless, he insisted that the reason for not implementing the
new determination wage was that the majority of workers had
agreed to
the respondent’s alternative proposal and the company had
explained it would implement it if the majority of workers
agreed.
Initially in his evidence, Visagie also could not shed any light on
specific correspondence of this nature from the Department
but was
convinced h had seen correspondence of this nature at some stage.
[16]
Later, during Visagie’s cross-examination it eventually came to
light that a couple of press releases had in fact been
issued by the
Department on 26 February. One press release advised employers to
apply for a variation under s50 of the BCEA if
they believed they
could not afford the new minimum wage. The other press release
indicated the extent of the disturbance caused
by the new sectoral
determination and sought to calm the situation. The latter release
read:
“
Farmworkers
go on unprotected strike after employers’ variation
26 February 2013
It has only being a month after the
Minister of Labour; NM Oliphant launched the much awaited Sectoral
Determination on Farmworkers
Sector. A move that saw employees
catapulted from a meagre R 69 per day to a whopping R 105 per day.
But the path has not been very rosy
since then. Recent turn of events reveal that farmworkers have gone
on an unprotected strike
and are up in arms with the employers for
applying for ministerial variation. The variation gives the employer
an opportunity to
forward documentations to proof that indeed she/he
cannot afford the minimum wage increment.
Phaswane Tladi, Deputy Director in the
Department said, in as much as the farmworkers disserve the R 105 per
day increment, the
law equally gives employers a chance to apply for
the variation and the Department will assess the situation and
recommend accordingly.
“
The law
goes even further to say that during the process when the employer
has applied for the variation, he or she must continue
paying the
previous minimum wage until the assessments by the Department has
been completed.
But the
employers will be liable to pay the differences accordingly to the
employees if the application is not successful, Phaswane
said.
Latest figures show that 70 percent of
farmers in South Africa are having turnover of less than R 300.000
annually.
On the other side of the coin,
employers continue to retrench employees in large numbers due to the
new minimum wage.
“
We
would like to appeal for calm and encourage farmers that face
challenges and affordability to rather consider applying for this
variation than opting to retrench employees as this will add on the
already high rate of unemployment in the country.
We are ready to criss-cross the
country and go from farm to farm and help with further consultations
both with the employers and
employees in order to bring clarity and
certainty home, he said.
Issued by:
Johannes Mokou
Department of Labour: 083 494 2180
(For media enquiries please contact
Phaswane Tladi: 084 5043801)”
(
Sic
– emphasis added)
[17]
Visagie could not dispute that individual applicants did not have
access to the Internet, but he was of the view that FAWU
had
knowledge of all requests for deviation of the determination. He
nonetheless conceded that he did not know if the union had
knowledge
of either of the press releases in question. Msiza said he had not
seen the press releases before the trial and was unaware
of the
Department’s stance. The respondent had not seen the need to
specifically bring this to the union’s attention
because they
had written directly to the union about the application variation and
the union had not responded. Visagie was unable
to comment on the
correctness of the legal opinion expressed in the emphasised portion
of the press release: his own understanding
was that, provided the
variation application process was followed, the determination would
not be effective on 1 March subject
to the possibility that the
variation might not be finally approved. This view is at least partly
borne out by another press release
issued by the Department on 7
March, which recorded that 918 applications for variation affecting
74,603 farm employees had been
received by the Department. The
release stated
inter alia
, and somewhat confusingly, that:
“
Currently the Department is
capturing the applications received and also requesting outstanding
information from farmers. Also as
part of processing the
applications,
the Department is granting provisional approval to
farmers to pay what has been agreed to in the consultation process
with the workers
provided that the agreed amount is more than R 75,31
per day
which would have been the new wage from 1 March 2017 in
terms of the reviewed sectoral determination.“
(emphasis
added)
[18]
Engelbrecht claimed that he had brought the determination to the
respondent’s attention early February, which was about
the same
time that Sibeko recalled having learnt about the determination from
the radio and news headlines. Sibeko said he was
very happy to hear
the news and that the Department had assisted workers greatly. He was
also told by other workers who had heard
the news. Since he was
elected as a shop steward at the end of 2012, the union did not deal
with the issue of sectoral determinations
in any of the union
meetings he attended and he received no training as a shop steward
apart from what he was told by his predecessor.
Msiza acknowledged
that the union had a responsibility to train shop stewards but
conceded that no training was given to Sibeko
after he was elected as
a shop steward.
[19]
Visagie did not agree that the application for variation lodged on 28
February was unreasonably late: his understanding from
communications
from the employer’s organisation was that, it did not matter if
permission for the variation was not obtained
before the beginning of
March and that the respondent could implement what it proposed. As he
recalled, it was common knowledge
amongst other farmers at the time
and was reported in the press as well as in communications from LWO
that this was acceptable.
Visagie could not point to any
correspondence which showed that a copy of the variation application
had been sent to the union
as required by section 50 (7)(b(i) of the
BCEA and Sibeko confirmed that he had never seen the exemption
application himself.
[20]
Visagie testified that one of the issues considered by the company
was whether it could avoid the possible retrenchment of
approximately
30 employees to enable it to comply with the determination. An
alternative strategy to retrenchment was to apply
for a variation of
the determination. Visagie said the other options available to the
respondent were to implement the minimum
wage, reduce working hours,
or retrench workers. The prospect of reducing working hours was never
a serious consideration however.
[21]
On the same day the respondent wrote to FAWU it convened one or more
meetings of general workers. In the applicants’
statement of
claim and the pre-trial minutes, the applicants claimed that separate
meetings were held in different Departments
on the same day the
letter was sent to the union and that the information in the letter
was also conveyed to workers. Although
the parties recorded this as
common cause, Sibeko, who was the sole witness for the applicants on
what transpired on 21 February,
contradicted this version because he
claimed that there had been a single meeting of all the workers
except those who worked in
the ‘oranges’ section. Visagie
agreed workers in that section would not have been involved anyway
because those workers
are seasonal workers and it was not the citrus
season. Pieterse, the greenhouse manager, recalled three meetings in
his own sections
(cucumber, tomatoes and the packhouse sections) and
understood that two meetings were held in the citrus and overheads
sections
respectively. Sibeko recalled a single meeting at around
13H00 attended by workers from the tomato, packing and cucumber
sections.
However, apart from the fact that the evidence tends to
support what the parties had agreed upon in the pre-trial minute,
nothing
material turns on how many meetings were convened on 21
February, though it might have some bearing on credibility issues if
these
were necessary to decide.
[22]
At the meetings, a Setswana interpreter from the CCMA, Ms R Mashego,
was present together with Engelbrecht and Visagie. Visagie
informed
workers that the employer intended asking for a variation, failing
which it would have to retrench a significant number
of employees.
Pieterse also testified that the company’s proposal for a
staggered introduction of the minimum wage was explained
and the
alternative option of retrenchment was also discussed. On Sibeko’s
own version, Visagie did convey what was contained
in the sectoral
determination, but explained the company wanted to pay the minimum
wage bit by bit because it could not pay it
immediately. Sibeko
mentioned that he and some of the other workers did have a copy of
the company proposal, so it appears that
copies of the proposal were
in circulation by the time the meeting was held. Sibeko conceded that
there was nothing about the document
he did not understand. The
voting process which was to follow was also explained and workers
were given until 25 February to think
about it. The proposed revised
salary structure was presented in terms of which the company would
pay the new minimum wage by December
that year and workers were
issued with a copy of the proposal. Engelbrecht also claimed workers
were advised that they would have
until 25 February to consider their
attitude to the variation proposal. Sibeko understood that the
implementation of the plan depended
on whether or not workers agreed
to it. Pieterse testified that between the meetings on 21 February
and the polling on 25 February
no complaints were received from
workers about the process.
[23]
Engelbrecht denied that workers at any of the departmental meetings
had said they would rather be retrenched than forfeit the
minimum
wage in the sectoral determination. Visagie confirmed this, but the
respondent had conducted the subsequent poll because
the respondent
knew that some workers would say that retrenchment was preferable. He
denied that the respondent ever unequivocally
said that workers would
be retrenched if they did not agree to the variation. He denied
the issue of retrenchment was ever
raised as a means of intimidating
workers to agree to the application to vary the wage determination.
On the contrary, when the
issue was discussed with the workers, they
had not expressed anger when the possibility of retrenchment was
mentioned. Sibeko maintained
that even though workers were worried
about their jobs, some of them did say they would rather be
retrenched than agree to the
variation. He believed that workers said
this because they thought it was a tactical strategy by the employer
to raise the issue
of retrenchment. It had been explained that the
statutory increase would result in the retrenchment of 30 employees
if implemented
immediately. Pieterse testified that even though there
were a lot of questions asked in the meetings, workers were not
angry. Nevertheless
he conceded they were not happy, which Nyathi
also confirmed based on his observation that people were dragging
their feet when
they left the meeting and because they were noisy
during the meeting and were saying the interpreter had been ‘bought’.
Sibeko also testified that the interpreter was challenged as to her
credentials and why she had been sent to explain the proposal
to them
when they had a union official. According to him the meeting ended on
a disruptive note.
[24]
Even so, according to Visagie, if workers had not agreed with the
staggered implementation of the minimum wage as proposed
by the
company, the company would not have applied for the variation.
Visagie denied that it had ever been communicated to management
that
workers would rather be retrenched and pointed to the result of the
poll which indicated the opposite. But he did concede
that this might
have been mentioned at one of the meetings. Visagie claimed that
employees had been told exactly what they would
receive until the
sectoral determination was fully implemented, but he also claimed it
was made clear to them that the respondent
would act in terms of its
proposed phasing in of the sectoral determination pending the outcome
of the variation application. However,
Pieterse did not recall this
being conveyed by Visagie, but rather that he had said the company
would have to consider retrenching
if it was not successful in
obtaining the variation. Visagie’s comments about what the
respondent intended to do also seems
at odds with his earlier
testimony that the respondent would not apply for the variation if
the majority of workers did not agree
to it. Sibeko also confirmed
that the interpreter said that if the determination was put into
effect that the employer would have
to retrench because it could not
afford the increase. Personally, he did not believe it could not
afford the increase because it
was such a big company, but it was
never part of the union’s case that the increase was affordable
and that there was no
need for the variation application.
[25]
Following the meetings, workers were requested to ‘vote’
a few days later on whether to support the application
for variation
or not. This was done by asking them to sign a form headed
“Consultation With Employees” in the appropriate
column
of a table set out in the form. Visagie claimed this polling form had
been shown to workers at meetings held with them on
21 February.
Sibeko denied that they were told about the voting process or that
the company would be applying for variation of
the determination:
they merely told about the manner in which the employer proposed to
pay the increase. According to Engelbrecht,
the form was drawn up in
line with Department of Labour guidelines for applications for
variation of basic conditions. The headings
of the columns in the
table appeared thus:
NAME & SURNAME
UNION-YES/NO
AGREE TO EXEMPTION
DO NOT AGREE TO EXEMPTION
REASON FOR DISAGREEMENT
[26]
Workers were individually approached on 25 February to sign the form
indicating their choice. The personnel presenting the
form to
individual workers were Mr D Mabaso (‘Mabaso’) and
Pieterse. A majority of workers canvassed agreed to support
the
variation. Engelbrecht agreed that the completed forms appeared to
suggest that 146 out of 274 employees (about 53%) seemed
to have
acceded to the ‘exemption’. Visagie’s uncontested
evidence was that 24 % voted against the variation,
about 8 % of
employees were absent and 12 % did not vote. During the
cross-examination of Nyathi it also became apparent that some
of the
employees were polled, including himself, would not have been
affected by the wage determination because they were earning
higher
wages.
[27]
It was contended that no interpreter was present when workers were
polled but Pieterse, Nyathi and Sibeko all testified that
Mabaso, who
accompanied Pieterse when the form was canvassed with workers, had
explained the poll to workers in Seswati. Sibeko
also claimed when he
was approached to sign the form it was explained to him that it was
needed because the meeting on 21 February
did not reach a consensus.
Although this sounds plausible, this particular detail was not
canvassed with any management witnesses.
Sibeko also added that
Mabaso said that they wanted to see how many agreed with the proposal
and how many disagreed with it, but
those who did not agree with the
employer would be retrenched, an embellishment of the applicant’s
case, which was also not
canvassed with the employer’s
witnesses.
[28]
Despite any discontent there may have been about the ballot and what
was conveyed to workers by management, Sibeko agreed that
he made no
attempt to contact the union prior to workers receiving their pay
notifications at the end of March. When it was put
to him that the
problem would not have arisen if he had performed his duties as a
shop steward to represent his members, he pointed
out that inasmuch
as management might say they expected the shop stewards to approach
them if workers had a problem, management
had not approached the shop
stewards when they canvassed workers on the variation application:
management simply disregarded their
representative role as shop
stewards and treated them like all the other employees. For example,
when meetings were convened with
workers, management would not engage
with the shop stewards beforehand. This issue was not canvassed with
management witnesses
[?].
[29]
Msiza admitted being aware of the meetings on 21 February but could
not recall being contacted by any shop steward between
then and the
commencement of the strike on 28 March. On the other hand, he claimed
to have known that the union was aware that
workers were unhappy
about the proposal presented at the meetings and that the union had
engaged with members and was giving guidance
to shop stewards on how
to handle the situation. However, he could not explain why Sibeko
said there had been no communications
between them.
[30]
Anomalously, the name of the interpreter who had been present at the
meeting is on 21 February also appeared on the forms on
which workers
indicated their preference, though it was common cause she was not
present during the polling. The forms also contained
the names of the
union organiser and shop stewards which might misleadingly have
suggested to a third party such as the Department
that they had been
participating in the polling process. However, Pieterse testified
that nobody had objected to the polling process
when they conducted
it and two of the shop stewards had also participated in it, both of
whom voted against the variation. Pieterse
said he never heard it
being said that workers were angry that they were approached
individually. He did concede that it would
have been fairer if a shop
steward was present when the workers were individually approached,
but from what he saw the absence
of a shop steward did not deter
workers voting against the proposal. Pieterse could not comment on
whether workers voted for the
proposal because they believed that if
they had voted against it they might be identified for retrenchment.
[31]
Engelbrecht claimed that employees were fully aware that their wages
would initially only increase to R 1800-00 per month and
that the
full new minimum wage would only be paid by December that year. He
also claimed workers had been advised the company was
going to
implement its proposed phasing in of the new minimum wage on the
understanding that the Department of Labour had said
that it did not
have to implement the new minimum wage provided the application was
submitted by 1 March, but with the proviso
that the alternative
phasing in was not approved, the respondent would have to pay
back-pay. Engelbrecht recalled that about 900
employers applied to be
excused from implementing the new wage. He could not recall if he had
seen a written communication from
the Department to that effect but
had seen the temporary variation issued on 2 April which was granted
on condition that an increase
of about 7 % was paid (the respondent
paid 14 % with effect from 1 March). It would seem that the
Departmental press releases which
only emerged in the course of
Visagie’s testimony lend corroborate his recollections.
Nevertheless, he could not dispute
that this communication from the
Department was not made to FAWU or to the employeees. He did not know
why the Department would
have felt it was necessary to issue the
letter on 2 April if it had already issued a general notice of
‘exemption’
pending the final outcome on individual
applications. It must also be noted that none of the respondent’s
witnesses provided
any evidence that any written notification been
provided to the union that it was going to implement its proposal in
reliance on
such a communication from the Department. In fact,
Visagie testified that he saw no need to convey these communications
to the
union because FAWU had never replied to the respondent’s
letter of 21 February so in his view they had accepted the
respondent’s
proposal.
[32]
Visagie was not present when the polling was conducted and could not
comment on the applicants’ claim that no shop steward
was
present when employees were approached individually. It was suggested
that the applicants believed that the state would pay
the difference
between what the respondent was willing to pay and the amount in the
sectoral determination. He did concede that
if the workers had not
been aware that this was the respondent’s intention, that might
have provoked them
[33]
It appears that the variation application was only submitted on 27
February a few days before the new minimum wage was due
to take
effect. Engelbrecht admitted the lateness of the application but
pointed out that the respondent had notified the union
a week earlier
of its intention to apply for it. Engelbrecht could not dispute that
a copy of the application itself had not been
sent to the union.
Msiza said that he only saw the variation application for the first
time when preparing for trial. He claimed
that if he had seen it at
the time he would definitely have opposed the application. He
explained that the union would have opposed
it because it should have
been informed of the application and in the absence of reasons for
the application, it would have objected
to it.
28
March
[34]
When employees received their monthly wage payment notifications by
SMS from their banks early on Thursday 28 March 2013, they
realised
that they were not receiving the minimum wage due in terms of the
sectoral determination. Sibeko testified that workers
were angered by
this.
[35]
The text messages from the workers’ respective banks showed
what they had been paid for March. According to Sibeko, the
workers
had expected that the government would make up the difference between
the wage determination wage and what the respondent
was intending to
pay. Workers had felt they had ‘won a jackpot’ which
would help them over the coming Easter weekend.
When he was asked why
they expected to receive the minimum wage stipulated by the
determination despite the proposal put forward
by the company, his
explanation was that, they never received any feedback from the
company about the outcome of the voting process
and assumed that they
were going to get the money prescribed by the sectoral determination.
By 09H00 that morning a meeting was
convened during the morning tea
time by workers after which they did not want to return to work
because they were unhappy about
the wages they had received.
[36]
Sibeko approached Pieterse who said they must wait until Engelbrecht
arrived and addressed them on the issue of wages. Sibeko
claims he
had told Pieterse that the workers believed the respondent wanted to
steal their money from the government which they
were entitled to,
but Pieterse denied being told this. Pieterse spoke to shop stewards
and told them that they must return to work
and that Engelbrecht
would discuss the matter with them when he arrived. Pieterse had
already spoken to Engelbrecht when workers
were holding their teatime
meeting. On his way to the farm at about 09H25, Engelbrecht phoned
Msiza and advised him that workers
were refusing to return to work.
Msiza said that he would try and contact the workers telephonically
to try and resolve the issue
as he could not come to the farm
himself. Msiza claimed that he did speak to Sibeko and told him that
the strike was not necessarily
protected and that workers should
return to work, but Sibeko had told him that there was a great degree
of anger amongst the workers.
Msiza testified that it was only after
the Easter weekend that he had an opportunity to go to the farm.
Engelbrecht arrived at
the farm shortly before 10H00. When he
arrived, a number of employees were sitting in front of the packing
sheds and he saw others
holding sticks and branches, which he
surmised they had used to chase other workers out of the greenhouse
section, as he had been
told. Pieterse testified that some workers
had been chased out of their workplaces.
[37]
On speaking to the shop stewards who were present, Engelbrecht was
told that workers wanted to be paid R 105-00 as per the
wage
determination. He reminded them of what had been discussed and that
the company was in the process of obtaining the variation.
He
appealed to them to explain this to members, but when shop stewards
returned they advised him that workers were not interested
in
returning to work unless the issue was resolved by paying them the
wage determination rate. Nothing in his evidence gave the
impression
that he conveyed to the shop stewards that the respondent was relying
on the result of the ballot rather than the representations
from the
Department that because the respondent had submitted the variation
application in time, it did not have to pay the new
minimum wage in
March.
[38]
Shortly after this, the employer issued shop stewards with the first
ultimatum to return to work by 11h30 that day. Although
they refused
to sign for it, they took it and discussed it with workers.
Engelbrecht also spoke to Msiza about the ultimatum at
about 10H20
and faxed a copy to the union office. The body of the ultimatum was
entitled “First Ultimatum to Resume Duties”
and read:
“
Take note that your current
action does not comply with section 64 and/or section 65 the Labour
Relations Act and is therefore regarded
as an unprotected strike.
And here to this ultimatum may result
in serious steps being taken against you.
You are hereby notified to end your
current actions and to resume your normal duties at 11 H30 on 28
March 2013.
Should you fail to adhere to this
ultimatum and neglect to resume your normal duties may be dismissed
due to your actions.
The principle of “no work no
pay” will be applicable.”
[39]
According to Engelbrecht, all previous communications had been issued
in English and disciplinary enquiries were also conducted
in English.
There was no reason to suppose that shop stewards would not have
understood the ultimatums. It was suggested that when
the ultimatum
was issued to Sibeko that he did not understand it. Nevertheless he
did say that it was explained to him and that
Engelbrecht read the
ultimatum to him. Engelbrecht disputed that Sibeko had asked him to
call Msiza because he did not understand
the documents. In fact, when
Sibeko testified he did not mention having made such a request
despite going over the events twice
in his evidence in chief. Sibeko
agreed that Engelbrecht gave him the ultimatum and explained it to
him in English, which he understood
a bit of, but he refused to sign
it because he did not understand English clearly. He claimed that
Engelbrecht did not respond
to the workers’ complaint when he
related it to him, but merely gave him the ultimatum. Nevertheless,
he took the ultimatum
and explained to workers that the company
wanted them to return to work by 11h30. However workers wanted to
know if the ultimatum
indicated when they would be paid their money
which was ‘sent from government’. They were not prepared
to return to
work until the money was paid. They had waited for
Engelbrecht to arrive but he had not resolved the problem. By the
time the first
ultimatum expired, none of the employees had returned
to work. Under cross-examination, Sibeko said that he had conveyed
conveyed
to workers that they must return to work before the
ultimatum expired. What prevented them from doing so was they wanted
an answer
to their demand for payment of the money they believed they
were entitled to get.
[40]
At approximately 12h30, by which stage the chief shop steward, Mr J
Msiza (‘J Msiza’) had returned from training,
Engelbrecht
had held another meeting with shop stewards and issued them with the
second ultimatum calling upon workers to return
to work at 06H00 on
Tuesday 2 April 2013, which was the next working day after the
Easter weekend. The second ultimatum was
handed to J Msiza.
Additional copies of the ultimatums made for shop stewards to
distribute and Engelbrecht denied that they had
only been issued one
copy.
[41]
The wording of the second ultimatum was identical except for changes
relating to the time for compliance and the heading which
reflected
that it was a second ultimatum. As in the case of the first
ultimatum, shop stewards explained it to workers after which
they
left the premises and went home. As far as Engelbrecht could recall,
the second ultimatum was issued between 12H00 and 13H00.
Sibeko
confirmed that J Msiza explained the second ultimatum and claims that
workers were told to return to work on Tuesday 2 April
when the
matter would be resolved. He said workers were content to leave the
premises on that basis.
[42]
Copies of both ultimatums were faxed to the union at 12h38 that day.
Msiza admits that the ultimatums were received but he
was not in the
office. Nevertheless, he claimed he did speak to Engelbrecht and
undertook to engage with the matter after the Easter
weekend.
2
April
[43]
On 2 April 2013, workers gathered early outside the premises and
erected barriers on the main road opposite the entrance to
the farm.
By this stage, nothing had been heard from the union since the strike
began. According to Engelbrecht, the company did
not allow workers
access to the premises until the shop stewards or the union confirmed
that they were willing to work and were
not continuing with the
strike. Visagie said he arrived at about 05h45 and asked workers to
sign the document agreeing to return
to work as a precaution because
he was aware of the damage to property that had occurred in the
Western Cape and it seemed a prudent
measure. He could not say if
this had sparked the further strike action or whether workers had
intended to continue strike anyway.
Sibeko indicated that workers
were angered by being locked out of the premises. As things unfolded,
it never got to the point that
anyone was refused entry because they
did not sign a document. It seems that Visagie’s recollection
of the document was unclear
and that he might have confused it with a
discussion at the meeting which took place later that day when the
issue of workers signing
a document that they were prepared to return
to work had been discussed.
[44]
In any event, according to Visagie by 06H00 on the morning of 2
April, the situation had escalated. Workers had barricaded
the
national road leading into the company premises and prevented
vehicles from passing. At around this time, he phoned Engelbrecht
who
then phoned Msiza at 06H06. Sibeko agreed that the gates were shut by
06h00 and workers were querying why they were prevented
from entering
when they had been told to return to work and the problem would be
resolved. Sibeko claimed that only the security
guards at the gate
and no management personnel were present at that time, but this
version had not been put to any of the employer’s
witnesses.
According to him, they waited until 07H00 at which point workers
decided to close the road in order to get government’s
attention because the money they were expecting came from government.
He denied that workers struck any of the vehicles in any
manner.
[45]
The applicants did not deny barricading the road but denied throwing
sticks or stones at vehicles. They claimed that they wanted
to tell
the public that the government and the company were trying to steal
their money
[46]
Engelbrecht described the atmosphere as very tense when he arrived
and that workers were aggravated. Workers barricaded the
road, threw
stones at vehicles or hit them with branches causing drivers to turn
their vehicles around.
[47]
At 06H27, Engelbrecht again phoned the organiser, but Msiza advised
him that he was not available, though he would try to make
a plan to
get there during the course of the day. Engelbrecht convened a
meeting with shop stewards calling upon them to persuade
members to
return to work to stop what they were doing, but they refused and the
actions escalated to the point where the company
sought the
assistance of the SAPS. The applicants claimed that nobody requested
them to return to work, but at approximately 07h00,
a final ultimatum
was issued calling on workers to return to work by 06H00 the
following working day, 3 April. Apart from having
the heading 'final
ultimatum’ and containing the new time and date for compliance,
the final ultimatum contained the same
content as the previous ones.
This ultimatum was also faxed to the union.
[48]
Msiza arrived at the premises at about 10H30. He met with workers and
a local municipal councillor. Sibeko claimed that Msiza
arrived at
about 10h00 or 11h00, which was after the councillors
arrived.Irrespective of the sequence of events, a meeting between
management and union representatives was convened for 17h00 the same
day. Sibeko claimed that a meeting was held with shop stewards,
Msiza, Visagie and some and some members of management but it was
agreed that another meeting would be held at 17h00 because
Engelbrecht
was not present. This version of an additional meeting in
the morning was never put to Engelbrecht. Shop stewards returned from
the meeting with the management to the workers and reported that the
union would be meeting with management at 17H00 to discuss
the issue
of the wages and workers should return home and report for duty the
following morning.
[49]
In any event, there was some agreement to hold a meeting and it
convened at 17h00. The meeting was attended by Visagie, the
respondent’s financial manager, the general farm manager (Mr
Alwegen), Engelbrecht, Msiza and the three shop stewards. According
to Engelbrecht, Msiza raised the issue of the new minimum wage in the
wage determination. He was then he was shown a copy of a
letter from
the Department of Labour issued on the same day which had granted
provisional permission to the respondent to pay a
minimum of R 75.31
per day pending the final outcome of the application to vary the
minimum wage. The letter also reminded the
company to provide certain
requested information by 8 April 2013 relating to its financial
position and hours worked, failing which
the application would deemed
to be refused. Engelbrecht testified that although the letter
required employer to pay increase of
8.6% with effect from 1 March
2013, it had in fact paid an increase of 14% in terms of its
proposal. I note in passing that this
meeting was the first meeting
held between the union and the company at which the variation
application was discussed. It was also
the first time there was
official confirmation of a provisional variation by the Department in
favour of the respondent, as opposed
to press releases. The letter
had only been received from the Department at about 14h30 that day.
[50]
According to Engelbrecht, the union representatives accepted that the
temporary variation had been granted by the Department
and agreed to
await the final outcome of the variation application. However, Sibeko
indicated that it made them angry to learn
that the employer would
not have to pay back the difference between the determination and the
proposal, if the application for
variation was successful. When he
was asked if he thought the employer had done anything wrong in the
light of this letter, Sibeko
responded that it was wrong of the
company to bring it to their attention so late. Msiza said the union
delegation was shocked
to see the letter but agreed to urge workers
to return to work the following day.
[51]
Engelbrecht claimed that union representatives also accepted that the
strikers would be issued with a final warning, but later
under
cross-examination, he was more equivocal about whether that was
merely something which management intended to do but had
not yet
decided upon. He maintained that the respondent would have been
entitled to do so, but his advice to the respondent was
that the
issue should be discussed with the workers once they were back at
work and a final written warning probably would have
been issued for
participation in the strike up to and including 2 April. Visagie
could not recollect being advised by Engelbrecht
to issue a final
written warning or that this had been mentioned in the meeting on 2
April. He was adamant that the company did
advise the union
representatives at the meeting that it intended taking disciplinary
action the following day against eleven employees
whom the respondent
had identified as being involved in hitting vehicles and erecting
burning barricades on the public road. Visagie
claimed they advised
the union delegation that the workers in question would not be
allowed onto the premises. The need for proceeding
with this
disciplinary action fell away when all workers were disciplined for
their participation in unprotected strike action.
Sibeko and Msiza
both denied that any mention was made of the planned disciplinary
action that would be taken against some of the
workers. Sibeko was
under the impression that there would be further discussions between
management and shop stewards to resolve
matters and that they were
not warned that workers facing disciplinary action would be prevented
from entering the premises.
[52]
At the meeting which took place between the union, shop stewards and
management representatives the following issues were raised:
52.1 the union was
concerned that the company had not complied with these actual
determination called upon to do so.
52.2 Engelbrecht advised
that the company was unable to pay the wages prescribed and gave
Msiza a copy of a letter
from the Department of labour responding to
its variation application.
The
union delegation discussed the information received and advised the
company that they noted the response from the Department
and would
await the outcome of that process.
3
April
[53]
The following day workers entered the farm premises but when the
eleven employees identified by the company for disciplinary
action
were prevented from entering the premises and were issued with
notices of suspension, other workers resumed their strike
demanding
that the respondent abandon the intended disciplinary action against
the individuals. Sibeko said that certain workers
had been prevented
from going to the workstations by the security officials who had
retained their clock cards which made other
workers very upset. At
around 06H40, Visagie said he phoned Engelbrecht and advised him of
developments. Engelbrecht then phoned
Msiza and explained to him that
despite the commitment made to resume work, workers were still
refusing to do so. Engelbrecht made
three telephonic attempts to get
hold of Msiza in during the following hour after learning about the
new turn of events.
[54]
When Engelbrecht arrived at the premises some of the strikers were
sitting on the grass and he saw two of the shop stewards
chasing
workers from the greenhouse with sticks or branches and that he could
not say if they were subsequently disciplined for
this. Pieterse
claims to have seen this but could not identify which individuals had
been involved. Nyathi also claimed that he
had been allocating tasks
to workers who had reported for work in his section when a group of
workers arrived and asked how they
could work when others were
outside. Workers who had taken tools began handing them back and
there was a commotion during which
time some workers were assaulted.
He fled the scene on a motor bike.
[55]
A meeting nonetheless ensued with shop stewards in which the company
reiterated the commitment to return to work which had
been made in
the previous day’s meeting. Shop stewards raised the issue of
the disciplinary action to be taken against the
11 individuals which
the other workers wanted the respondent to abandon. Visagie and
Engelbrecht said the shop stewards said they
would continue with
their strike action until the eleven employees came back to work. It
was explained to the shop stewards that
the workers in question would
have an opportunity to present their cases at the disciplinary
inquiries. The shop stewards then
reported back to the striking
workers but they did not return to work.
[56]
According to Engelbrecht, Msiza arrived at the farm at about 07H30,
approximately 30 minutes after he had. He claims that Msiza
spoke to
members for approximately five minutes and then left again without
speaking to management at all. He then phoned Msiza
at 07H46 and
asked him why he had left. Msiza responded that workers did not want
to listen to him and there was nothing more he
could do. The fact
that workers were not interested in listening to Msiza was borne out
by Sibeko’s testimony. He indicated
that workers were agitated
and noisy and did not give him their attention because they were
saying that the company was “coming
with another tactic”
by blocking some employees. He could not say workers did not listen
to Msiza but he could not hear what
he was saying because workers
were singing. Msiza essentially confirmed that over the course of
about 10 minutes he
had attempted to persuade workers to
return to work without success. He also confirmed that he had
conveyed his frustration to
Engelbrecht and that he had left because
workers did not want to listen to him and there was nothing more he
could do.
[57]
There was no real doubt what the strike on 3 April was about. Visagie
himself was of the view that the strike on 3 April was
in support of
the 11 employees who had not been admitted to the premises pending
disciplinary action. However, Since the union
and the shop stewards
had been advised the previous day of the company’s intention to
discipline these employees and the
nature of the alleged misconduct,
he did not think it was provocative of the company to exclude them
from the premises.
[58]
Thereafter, at about 11h00 the respondent met with the shop stewards
and explained that the conduct of the workers was unacceptable
and
gave them notices of suspension and that workers should appear at
disciplinary enquires on 5 April. It is common cause that
no further
ultimatum was issued to the strikers after the final ultimatum the
previous day. The notice of suspension explained
that they were
suspended without pay pending the disciplinary enquiry on account of
being on an unprotected strike. The notice
of the enquiry, which
contained a certain amount of duplication, and was issued to all the
workers gathered outside the premises,
charged them with the
following:
“
1. UNPROTECTED STRIKE, in that
on 28 March 2013, 2 April 2013 and 3 April 2013 you participated in
an unprotected strike and not
adhere to any of the ultimatums issued
in this regard. First ultimatum was issued on 28 March 2013 09:30 to
resume duties at 11:30.
The second ultimatum was issued on 28 March
2013 at 11:00 to resume duties on 2 April 2013 at 06:00. Final
ultimatum was issued
on 2 April 2013 at 07:00 to resume duty on 3
April 2030 at 06:00 which is not adhere to.
AND/OR
2. GROSS INSUBORDINATION in that on 03
April 2013 you ignored the final ultimatum to resume duty. First
ultimatum was issued on
28 March 2013 09:30 to resume duties at
11:30. The second ultimatum was issued on 28 March 2013 at 11:00 to
resume duties on 2
April 2013 at 06:00. Final ultimatum was issued on
2 April 2013 at 07:00 to resume duty on 3 April 2030 at 06:00 which
is not adhere
to.
3. ANY OFFENCE WHICH IS IN CONFLICT
WITH THE ACCEPTED NORMS OF BEHAVIOUR AS WELL IS THE DISTURBANCE OR
RELATIONSHIP WITHIN THE WORKPLACE,
in that on 02 April 2 013 you
blocked the National Road R538 with rocks and burning branches. That
you also threw stones at passing
vehicles and hit them with branches.
4. BRINGING THE COMPANY NAME INTO
DISREPUTE, in that on 02 April 2013 you blocked the National Road
R538 with rocks and burning
branches. That you also threw stones at
passing vehicle and there was branches. This action lead to the
Company’s good name
and reputation being damaged.”
[59]
Copies of the suspension notice and the notice of the disciplinary
enquiry were faxed to the union. At the union’s request
the
enquiry was postponed to 16 April 2013.
Disciplinary
Enquiry of 16 April and 22 April
[60]
A disciplinary hearing was held on 16 April and on 22 April the
employees dismissed.
[61]
Msiza represented workers at the enquiry. An external chairperson
found the workers guilty and recommended their dismissal
which
recommendation the respondent followed. Sibeko said that the enquiry
was conducted in English and workers did not follow
the proceedings
properly. None of the shop stewards testified but the organiser,
Msiza, made representations. Msiza said that they
did not call any
witnesses because of the nature of the charges. When he was asked why
no evidence was presented that the workers
were angry because they
did not understand the variation process, Msiza could only say that
he might have mentioned that to the
chairperson but could not
remember clearly what he had said.
The
selective re-employment process
[62]
After the strikers had been dismissed approximately 24 of those who
had originally been dismissed were allowed to return to
work on the
basis that the respondent concluded that they had either not been
involved in the strike or had been identified as
employees who had
been intimidated to participate in the strike. However, a number of
those dismissed were subsequently re-employed
by the company.
Engelbrecht had no involvement in the process which led to their
re-employment. Visagie instructed management that
only people who
were positively identified as being intimidated could be re-employed.
[63]
The process of re-engaging some employees was as follows. Pieterse
said that on the day workers were dismissed forms were handed
out to
them to apply for re-employment, but not everyone took a form or
re-applied. Sibeko confirmed that forms had been handed
out and he
was confident everyone had applied for re-employment.
[64]
On Visagie’s instruction Pieterse assembled a committee
comprised of 6 to 8 senior employees who did not participate
in the
strike, such as Mr J Nyathi and Mr A Machola, to go through the
applications for re-employment.They considered applicants
who claimed
to be intimidated and who had wanted to work during the strike but
could not do so. It was the committee together with
the relevant
section managers which made the decision as to who should be
re-employed.
[65]
Only those applicants who were selected by the committee were
subsequently interviewed by the committee and management. According
to Pieterse, the selection was made on the basis of the knowledge of
members of the committee as to who had been intimidated during
the
strike. Nyathi, who was a member of the committee said that the
committee also considered workers whose houses had been set
alight or
workers who had been on leave. Sibeko denied that there had been any
intimidation during the strike, but conceded that
he could not
dispute if someone’s house had been set alight. Nyathi was
equivocal about his role in the committee and on
his account did not
attend any of its meetings, though he confirmed the names of certain
assistant supervisors from the tomato,
cucumber and workshop sections
who were part of the committee. He was also able to identify a number
of the persons listed as still
employed by the company as employees
who had been subject to intimidation or had been on leave during the
strike. Sibeko, claimed
that ten of the employees whom the company
listed as still employed had participated in the strike. However,
these claims he made
were not properly canvassed with management
witnesses. On the other hand there was scant evidence of any
substance supporting the
objectivity of this peculiar secretive
selection process.
Evaluation
The
causal chain
[66]
The facts of this dismissal case somewhat unusual because the
original strike was did not originate in demands from the workers,
but was a strike arising from failure to implement a statutory wage
increase. It arose because of legitimate expectations of a
significant increase arising from the published sectoral
determination which were drastically curtailed by the unfolding
variation
application process initiated by the respondent in an
effort to deal with the unexpected and significant rise in labour
costs (in
relative terms).
[67]
The original strike might well have been avoided if both the company
and the union had been more proactive in their communications.
Both
parties were equally surprised by the publication of the new sectoral
determination and the scale of the increases. No doubt,
the
Department made the determination in good faith as an attempt to
address the low wages of agricultural workers which at least
in part
had been identified as a cause of the labour turmoil in the sector
which began in the Western Cape. However, the relative
scale of the
adjustment and the timeframe between publication of the determination
and implementation of the new minimum wages
was such that it
precipitated its own problems as illustrated by the large number of
variations applied for.
[68]
Because of the limited time between publication of the determination
and the implementation date, the Department evidently
resorted to the
practical expedient of provisionally suspending the obligation to
implement the new minimum wage in full pending
the final
determination of the flood of variation applications. This legally
questionable measure laid the basis for a degree of
confusion
surrounding what would happen with effect from 1 March 2013 when the
new minimum wage was supposed to take effect.
[69]
Apart from the rushed efforts of the Department to deal with the
situation, the employer and the union each contributed in
their own
way to the confusion because of their limited communications during
the critical period after 21 February. I accept that
the company
initially did the right thing in asking the union to meet with it and
in notifying it of its intentions and inviting
the union to make
submissions about its intended application in the letter of 21
February 2013.
[70]
Nonetheless, the respondent still bears a significant degree of
responsibility for the initial strike occurring. Although the
respondent commenced the process appropriately, once it did not
receive a response from the union there is no evidence it made
any
further effort to communicate with the union about developments. It
did not bother to send the union a copy of the formal variation
application when it submitted it to the Department on 27 February as
it was required to do under section 50 (7)(b)(i) of the BCEA.
The
fact that it had notified the union of its intention to apply for the
variation did not its excuse it from this statutory obligation.
[71]
In this regard, it is noteworthy that its letter to the union of 21
February invited the union to make suggestions and input
regarding
the proposed application. The purpose of s50 (7) (b) (i) is to alert
the union and employees to the formal application
and to invite them
to make use of the opportunity to submit written representations to
the Minister before a decision is made on
the variation application.
The formal application requires a fuller motivation to be provided by
the employer, and goes beyond
what was stated in its letter of 21
February. The formal application procedure is a mechanism to ensure
that both interested parties
have an equal opportunity to make
representations to the Minister before a decision to vary a basic
condition of employment is
taken. Given the union’s
initial failure to engage the respondent on the variation proposal,
it is perhaps doubtful
that it would have done anything even if it
had received such notice, but it was not for the respondent to make
that call based
only on the union’s failure to respond to its
initial letter. Its omission to comply with section 50(7)(b)(i)
meant
that a further channel for engagement over the variation
application was not opened. It is true that Msiza said he would have
opposed
the formal application if he had received it, but if he was
waiting for it, he gave no hint of this because he failed to respond
in any way to the company’s stated intention of applying for
the variation.
[72]
In relation to the respondent’s engagement with the workforce,
whatever workers may have understood about the purpose
of the poll
conducted by the respondent, it appears to be common cause that they
understood that if they did not agree with the
variation, it would
not be implemented. The consent to the respondent’s proposal
based on the poll was based on a slight
majority of those polled. The
poll clearly included some individuals whose wages would not be
affected by the determination and
who should not have been part of
the poll. It must also have been apparent from the meetings on 21
February that there was a degree
of vocal dissent over the proposal.
Between the result of the poll being known to management on or about
26 February and workers
being notified of their March salaries on 28
March, the respondent made no attempt to convey the result of the
poll to any of the
affected employees or to shop stewards or the
union. According to Visagie, 56 % of those polled voted in favour of
the proposal,
24 % voted against it, 8 % were absent when the poll
was conducted and 12 % did not vote.
[73]
Accordingly, workers would not have known what the majority of those
polled had decided nor whether the company proposal would
be
implemented or not. They also would have had no knowledge of the
press releases of the Department which might have encouraged
the
respondent in the approach it adopted. The first indication
employees would have had of what the outcome of the poll
might have
been was what they could infer when they received notice of their
March salaries showing that the respondent was not
implementing the
prescribed minimum wage, but its proposed increase. Given the gap
between the prescribed minimum wage and the
March salary any
reasonable person would have anticipated that prior warning about the
outcome of the poll would have been both
prudent and necessary,
rather than in being revealed indirectly through the banks’ sms
notifications.
[74]
Moreover, when the strike commenced, the evidence does not suggest
that the respondent relied on the outcome of the poll or
even
discussed the outcome as a justification for implementing its own
proposal. On the contrary, it would seem that the justification
advanced was that the Department had agreed that it was not required
to pay the new minimum wage pending the outcome of the variation
application, provided it paid a lower minimum increase. This would
have been the first time that workers were advised of the existence
of the pending application and its implications for their entitlement
to the minimum wage. The last communication they would have
had from
the company prior to that would have been that the respondent was
intending to apply for a variation, which would still
depend on
whether or not they supported it.
[75]
For its part, the union’s failure to endeavour to set up
another meeting or to provide any response whatsoever to the
letter
and its failure to engage with the company after the company started
canvassing workers from 21 to 25 February was grossly
negligent. Even
if the union had been unaware of the specific press releases from the
Department, it is incomprehensible how a
union organising in the
agricultural sector could have been so ill-informed of, or
disinterested in, developments affecting its
members arising from the
publication of the determination and the variation applications
affecting its members, which were generated
thereafter.
[76]
On the evidence, in all probability there was also no communication
between Msiza and the shop stewards during the critical
period from
21 February to 28 March. Any confusion or unhappiness on the part of
the union’s members working at the respondent
ought reasonably
to have been the subject matter of communications between the
officials and shop stewards and the union should
have followed this
up with the respondent. On the evidence, it is fair to say that the
union left its members and shop stewards
to their own devices and
failed to play a meaningful role in assisting them in dealing with
the impact of the sectoral determination
and the variation
application. Apart from the limited and largely reactive role played
by the shop-stewards, the individual applicants
might as well not
have been unionised. Such assistance which they eventually got from
the union came late in the day.
[77]
In the circumstances, it is not unreasonable to believe that a degree
of confusion probably existed amongst the workforce about
whether or
not they ought to have received the gazetted minimum wage in the wage
determination in March and that this would have
caused an
understandable degree of frustration and anger. It was a situation in
which expectations should have been more responsibly
managed
especially given the magnitude of the promised increase imposed by
government relative to what was actually paid. The complexity
of the
provisional variation application procedure and the provisional
blanket permission ostensibly granted by the Department
to employers
should also have been properly explained given the novelty of the
situation and the fact that the affected workers
were mostly
unskilled agricultural workers.
[78]
In the circumstances, although the original strike was clearly an
unprotected one, because it was not preceded by any dispute
declaration, the downing of tools by workers who had not been kept
abreast of developments since they were polled on 25 February
was
understandable. It is true that initially they ignored the ultimatums
issued. However, it is equally true that once they were
presented
with proof that the Department had provisionally approved a smaller
increase pending the outcome of the variation application
that they
agreed to go back to work despite their obvious disappointment. Had
matters ended there, nobody would have been dismissed,
aside perhaps
for those accused of other misconduct during the strike, because they
made good their commitment to return to work
the following day.
[79]
It was the new strike which erupted on 3 April that precipitated the
dismissal inquiries. It was common cause that workers
had returned to
work on 3 April. It was only when the news reached them that the
eleven workers who were facing disciplinary action
had been refused
access to the workplace that strike action started afresh. This alone
suggests they were probably taken unawares
by the suspensions. If in
fact it had been made known to workers on 2 April that eleven workers
would be facing disciplinary action
and would be suspended the
following day, it seems less likely they would only have reacted
after the workers were suspended the
next morning. It is more
probable they would not have started work in the first place. Even if
I accept that the union delegation
at the 17h00 meeting on 2 April
was told of the company’s intention to take disciplinary steps
against the eleven individuals,
it seems unlikely that they were also
told that the workers in question would not be allowed back at work
pending the enquiries.
On the probabilities it was the exclusion of
the eleven individuals which sparked the fresh outbreak of strike
action.
[80]
It is true the respondent first spoke to the shop stewards and
reminded them about the commitment to return to work, but the
shop
stewards explained workers would not unless the suspended workers
were allowed to return to work.
[81]
Thereafter Msiza very briefly and unsuccessfully attempted to
persuade workers to return to work. He was understandably frustrated
by their refusal to listen to him. Even so, it is remarkable he left
the premises without communicating anything to management
even though
he came to the premises at management’s request. It would seem
he did not even have a separate discussion with
the shop stewards.
[82]
The respondent clearly adopted the view that it was no longer
necessary to issue further ultimatums, but proceeded directly
to
suspend all the workers and initiate disciplinary action. Beyond the
ultimatum issued the previous day in respect of the original
strike,
apart from insisting that workers should honour the agreement they
would return to work, neither the shop stewards nor
Msiza were
advised that the respondent was going to proceed with disciplinary
action if the new strike action over the suspensions
did not cease.
It is clear from the charges levelled against them that the
respondent regarded the strike as a continuous event
and that the
tools down on 3 April was merely a continuation of an uninterrupted
strike which began on 28 March, when in fact the
strike which
commenced on 28 March had been resolved at the meeting at 17h00 on 2
April and ended with workers returning to work
the next day.
[83]
The strike which ensued thereafter was sparked by different reasons
relating to the respondent’s subsequent action in
suspending
those to be disciplined. Obviously, the disciplinary action and
suspension were consequences of the first strike, but
management
clearly was of the view that it had already done all that was
necessary to warrant dismissing the strikers because of
the
ultimatums issued in the main strike. It is also true Msiza had
washed his hands of the workers after a brief attempt to persuade
them to return, which might have emboldened management to believe
there was nothing more to be done if workers would not even listen
to
a union official. Nonetheless, it was implicit in management’s
approach that no further warning of impending disciplinary
action
which could result in dismissal was necessary in view of the final
ultimatum issued on 2 April before workers returned to
work.
Were
the dismissals unfair?
[84]
According to
National
Union of Metalworkers of South Africa (NUMSA) v CBI Electric African
Cables
[4]
Item
6 of schedule 8 of the LRA, which must be taken into account of in
deciding the fairness of unprotected strike dismissals in
terms of s
188(2), states:
“
Dismissals and Industrial
Action
(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.”
[85]
In the CBI matter, the LAC also stated:
“
[28] It is clear from the
provisions of section 68(5) that participation in a strike that does
not comply with the provisions of
Chapter IV (strikes and lock-outs)
constitutes misconduct and that a judge who is called upon to
determine the fairness of the
dismissal effected on the ground of
employees’ participation in an illegal strike should consider
not only item 6 of the
Code but also item 7 which provides as
follows:
“
7. Guidelines in cases of
dismissal for misconduct. –
Any person who is determining whether
dismissal for misconduct is unfair should consider –
Whether or not the employee
contravened a rule or standard regulating conduct in, or of relevance
to, the workplace; and
If a rule or standard was contravened,
whether or not –
the rule was a valid or reasonable
rule or standard;
the employee was aware, or could
reasonably be expected to have been aware, of the rule or standard;
the rule or standard has been
consistently applied by the employer;
and dismissal was an appropriate sanction for the contravention of
the rule or standard.
[29] In my view the determination of
substantive fairness of the strike-related dismissal must take place
in two stages, first under
item 6 when the strike related enquiry
takes place and secondly, under item 7 when the nature of the rule
which an employee is
alleged to have contravened, is considered. It
follows that a strike-related dismissal which passes muster under
item 6 may nevertheless
fail to pass substantive fairness
requirements under item 7. This is so because the illegality of the
strike is not “a magic
wand which when raised renders the
dismissal of strikers fair” (National Union of Mineworkers of
SA v Tek Corporation Ltd
and others (1991) 12 ILJ 577 (LAC)). The
employer still bears the onus to prove that the dismissal is fair.
[30] In his work Grogan
expresses the view that item 6 of the Code is not, and does not
purport to be, exhaustive or rigid
but merely identifies in general
terms some factors that should be taken into account in evaluating
the fairness of a strike dismissal.
He, therefore, opines that in
determining substantive fairness regard should also be had to other
factors including the duration
of the strike, the harm caused by the
strike, the legitimacy of the strikers’ demands, the timing of
the strike, the conduct
of the strikers and the parity principle. I
agree with this view as the consideration of the further factors
ensures that the enquiry
that is conducted to determine the fairness
of the strike-related dismissal is much broader and is not confined
to the consideration
of factors set out in item 6 of the Code.”
[5]
Factors
mentioned in Item 6 of Schedule 8
[86]
There was no attempt by the applicants to embark on a protected
strike prior to the initial strike commencing. In my view it
was an
understandable response in the circumstances. The respondent had not
advised them or their union of the result of the informal
poll and
confirmed that it was proceeding to implement its proposal, which was
at odds with the sectoral determination, based on
the advice
dispensed by the Department on pending variation applications.
Moreover, the respondent was aware the poll result had
not taken
account of 8 % of the workers’ views who were not polled, and
included employees who were not affected by sectoral
determination.
It ought to have been more cautious in accepting the poll result as a
clear endorsement of its proposal by those
affected by it. At the
very least it should have conveyed the results to the union, provided
it with a copy of the formal application
and confirmed what it was
planning to do. Simply leaving workers to infer its intentions from
their wage packets was a risky step.
It should also have been obvious
that the gap between what the determination promised and what the
respondent was going to pay
workers on 1 March was huge and required
a more careful handling of the employees’ thwarted legitimate
expectations of receiving
the prescribed minimum wage.
[87]
In relation to the initial strike, I accept that the ultimatums did
give workers enough time to consider their actions and
that the
thrust of the ultimatums were understood. In fact there was nothing
in the applicant’s evidence to suggest the strikers
were
confused about the ultimatums or that the time to consider them was
insufficient as had been pleaded.
[88]
Another important consideration is that even though the union and
strikers had not been aware of the Departments ‘blanket’
provisional variation permission as conveyed in its press releases,
which the respondent was relying on to legitimise its actions,
as
soon as they were told about the very late formal provisional
variation granted to the respondent, they accepted its legal status
and agreed to end the strike, despite their disappointment with the
result. Up to that point I do not think the applicant’s
actions
could justify their dismissal for participation in the unprotected
strike. In effect the ultimatums and the meeting with
the union
delegation at 17h00 on 2 April served the purpose of ensuring the
strikers to work before the final ultimatum expired.
[89]
Regrettably matters did not end there. On balance I believe the
employer did convey its intention to discipline the eleven
employees
it accused of strike related misconduct, but that it had not been
conveyed that they would be suspended on their arrival
at work. If
this had been conveyed to workers before they returned to work on 3
April it is unlikely they would have reported to
their work stations
and begun to prepare to commence their duties. Management
reminded the shop stewards of the commitment
made to return to work
and the shop stewards responded with the workers’ effective
demand to uplift the suspensions. Management
did seek the union’s
assistance but Msiza’s efforts were ineffectual, though it
seems workers decided he was not worth
listening to. The
employer then issued the notices of suspension and disciplinary
enquiry notices to the rest of the workforce.
It seems at that stage
the respondent viewed the resumption of strike action as a breach of
the undertaking to return to work in
compliance with the final
ultimatum issued the previous day and that no further warning to
strikers was required prior to initiating
disciplinary action.
Was
the sanction of dismissal fair?
[90]
Although the CBI decision refers to all the factors in item 7 of
Schedule 8, the key issues to consider once it is established
that
workers embarked on a protected strike is whether the sanction of
dismissal was fair in the circumstances. Factored into that
decision
are the court’s consideration of the issues listed in Item 6.
[91]
As mentioned in the evaluation above, the initial strike was in fact
resolved because workers agreed to return to work and
did, albeit
perhaps unhappily because of the outcome of the wage determination
issue which gave rise to the strike. One of the
outstanding
consequences of the strike was the disciplinary measures to be taken
against strikers implicated in the activities
of the road blockade.
[92]
I have indicated that on the probabilities, workers might not have
been surprised by the fact that disciplinary action was
contemplated
for the alleged misconduct of the eleven workers, but had not
expected their immediate suspension and I am also satisfied
the
employer did not warn the union delegation on 2 April of this
measure. Be that as it may, it does not mean the employees were
entitled to strike over the suspensions. S 186 of the LRA recognises
unfair suspensions as unfair labour practices which may be
referred
to the CCMA and which may be decided by arbitration. Similarly the
suspension of the employees could not simply be assumed
to be
tantamount to their dismissal and any dispute over that, if it
occurred could also be referred to arbitration. Msiza tried
to advise
workers not to strike over this issue but they did not want to even
listen to their own union’s advice, let alone
heed the advice
he offered. They consciously rejected his attempt to guide them. They
must accept that if they had listened to
him they might not have
found themselves where they are today.
[93]
Nonetheless, when Msiza addressed them, he did not know what the
company intended to do next. There is no evidence in his
communications with Engelbrecht that the latter warned him that the
next step the company would take would be to initiate disciplinary
measures against all the strikers which could lead to their
dismissal. Equally the company never conveyed this to the shop
stewards
before they reported back to workers or to the workers
before it started issuing the notices of suspension and the
disciplinary
charges.
[94]
I accept that the strike on 3 April cannot be considered in isolation
from the events of the preceding days, but in deciding
an appropriate
response to the fresh outbreak of strike action over the disciplinary
issue the employer’s actions should
have taken account of the
previous course of events as well. The initial strike had effectively
been resolved and the ultimatums
issued had finally been heeded. In a
real sense those ultimatums did not relate to the events of 3 April
but to the events resulting
in the conclusion of the original strike.
The employer appeared to have adopted a formalistic view of the final
ultimatum, namely
that it could be relied on as applicable and
‘valid’ for the purposes of any fresh outbreak of strike
action albeit
that the issue which caused the next strike was the
result of developments following the cessation of the main strike.
[95]
Obviously, an employer cannot be expected to endure ongoing strike
action where strikers ingeniously try to refashion the issue
which
gave rise to the original strike to create the impression that the
issue giving rise to the new strike is about a different
matter
altogether, whereas it remains essentially the same. But I am not
persuaded that this was the case here. It may be that
the suspension
of the workers arose from the first strike but it was a fresh
development and workers were obviously reacting to
the new turn of
events, whether their conduct was justified or not. The employer saw
it as merely a resumption of the original
strike, but it was not
because workers had acceded to the consequences of the provisional
variation issued by the Department. They
were now questioning the
suspension of workers arising from the strike and they saw it as
different from the dispute which gave
rise to the original strike
even if they thought it was a tactical move by the employer.
[96]
Under those circumstances, I do not think it could be assumed by the
employer that workers would appreciate that the company
was of the
view that the previous ultimatum which they had heeded also served as
a final warning to return to work or face possible
dismissal for
walking out over the suspension of the shop stewards. At the very
least, the company could have conveyed its intentions
to give the
workers a chance to contemplate the possible consequences of the
fresh strike action before it instituted disciplinary
action.
[97]
But having decided not to issue such a warning and to rather follow
the disciplinary process, it ought then to have taken into
account
when deciding on the sanction that it had embarked on disciplinary
steps without any further warning in circumstances where
it could not
assume workers would have understood no further ultimatum would be
issued and would have considered that possibility
before they
continued with the strike action over the suspensions. That does not
mean when considering the legitimacy or seriousness
of the strike,
the duration of the new strike could be considered in isolation from
the fact that it would mean the employer was
facing its third day of
strike action.
[98]
In deciding to dismiss the employees for the strike which commenced
on 28 March and in collapsing that strike with the strike
of 3 April,
the employer failed to acknowledge the distinct reasons for the two
strikes and that it would have been wholly unfair
to dismiss the
strikers for their mere participation in the first strike which had
arisen in highly unusual circumstances and when
workers legitimate
expectations were so poorly handled by the employer and the union and
more importantly, where ultimatum was
actually heeded. The weight of
justification for the dismissals would therefore have to be found in
the second strike where no
further warning of imminent disciplinary
was issued at all and no opportunity was given to them to reflect on
the consequences
of persisting, even if it was necessary to give
strikers only one opportunity to do so given the illegitimacy of the
second strike
and the fact that they had ignored Msiza’s
advice.
[99]
Under the circumstances, the respondent ought not to have dismissed
the individual applicants for the reasons given, but should
have
issued them with final written warnings subject perhaps to them
accepting a period of suspension. The fact that the employer
subsequently re-employed a substantial number of employees without
affording all employee’s a chance to defend their claim
to
re-employment implies a lack of parity of treatment of all the
strikers albeit that the original decision to dismiss strikers
was
applied to all those charged.
[100]
Consequently, I agree with the applicants that the sanction of
dismissal was too severe and I am satisfied the dismissal of
the
applicants was substantively unfair.
Relief
[101]
The normal remedy for substantively unfair dismissal is
reinstatement. The employer advanced no evidence it could not
re-employ
the workers. If their reinstatement will leave the employer
with an excessively large workforce then it may well have to embark
on retrenchments to accommodate the reinstated workers, but that in
itself is not a bar to reinstating them under s 193(2)(c) of
the LRA.
[102]
The extent to which they should be afforded backpay is another
matter. The applicants would not have been dismissed if they
had
heeded Msiza’s advice. They decided to proceed regardless, even
if at that point they did not realise the employer would
not give
them any ultimatum in respect of the new strike. They are at least
partly responsible for the situation they find themselves
in.
Similarly, it would be inequitable for the employer to face an
inordinately large payment of backpay simply because of
the
litigation process. Consequently, the period effective reinstatement
should be limited to six months in my view, even if it
is without
loss of service continuity. It is also appropriate to issue a final
written warning for participating in unprotected
strike action.
Alternative relief is afforded in the case of applicants who might
have passed away since the dismissals.
Costs
[103]
Aside from the discrete issue of the costs of the union’s late
amendment of its statement of case which have been dealt
with above,
in this instance it is appropriate that costs for the remainder of
the trial should follow the result.
Order
[1]
The respondent must reinstate the 87 individual applicants whose
names appear on the Final
List of Applicants attached hereto as
Annexure “A” (‘the individual applicants)
with retrospective effect
to a date six calendar months’ prior
to them presenting themselves for reinstatement at the respondent’s
premises,
which they must do by no later than 31 August 2017.
[2]
Reinstatement must be effected on the same terms and conditions of
employment the applicants
would be receiving if they had not been
dismissed. Payment of backpay for the six month period prior to the
date an individual
applicant presents himself or herself for
reinstatement must be paid by the respondent within 20 calendar days
of that date.
[3]
Reinstatement of any individual applicant is subject to that
applicant signing for receipt
of a final written warning for
participating in unprotected strike action, valid for a period of 12
months’ from the date
the applicant presents himself or herself
for reinstatement.
[4]
In the event any individual applicant has passed away by the date of
judgment, the respondent
must pay to the deceased estate of that
applicant an amount of eight months’ remuneration as
compensation, calculated on
the rate of remuneration that applicant
would have earned on 10 August 2017 had that applicant been still
been employed by the
respondent,.
[5]
The first applicant must pay the respondent’s wasted costs
incurred in opposing the
applicants’ application to amend their
statement of case brought during the course of the trial hearing, on
an attorney own
client scale.
[6]
The respondent must pay the applicants’ costs, excluding costs
incurred by the applicants
in their application to amend their
statement of case during the course of the trial hearing, such costs
to be paid on the ordinary
scale.
_________________________
Lagrange
J
Judge
of the Labour Court of South Africa
APPEARANCES
APPLICANTS:
R
Daniels of Cheadle
Thompson
& Haysom Inc
RESPONDENT:
A
Jacobsz instructed by
Barnard
Inc
[1]
(2003) 24 ILJ 787 (LAC)
[2]
(2000) 11
BLLR 1330 (LC)
[3]
Strictly speaking the correct term for an ‘exemption’ in
the BCEA is a ‘variation’ and the term ‘exemption’
is only used with reference to exemptions previously granted under
the 1983
Basic Conditions of Employment Act.
[4
]
[2014] 1 BLLR 31
(LAC) at 36, par [26].
[5]
At 38-39.