Association of Mineworkers and Construction Union (AMCU) and Others v Australian Laboratory Services (Pty) Ltd (JS315/12) [2017] ZALCJHB 398 (1 November 2017)

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[2017] ZALCJHB 398
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Association of Mineworkers and Construction Union (AMCU) and Others v Australian Laboratory Services (Pty) Ltd (JS315/12) [2017] ZALCJHB 398 (1 November 2017)

Reportable
THE
LABOUR COURT OF SOUTH AFRICA,
HELD
IN JOHANNESBURG
C
ase No: JS 315/12
In
the matter between:
ASSOCIATION
OF MINEWORKERS AND
CONSTRUCTION
UNION (“AMCU”)
First Applicant
BALOI,
S AND 89 OTHER AMCU MEMBERS
Second
to Further
Applicants
and
AUSTRALIAN
LABORATORY SERVICES (PTY)
LTD
Respondent
Heard
:
6 – 14 October 2015 and 20 September 2016
Delivered
:
1 November 2017
Summary:
(Unprotected strike – substantive and procedurally unfair –
failure to explore ways of avoiding
dismissal prior to taking
decision – imposition of additional requirement before workers
permitted to return – failure
to invite representations prior
to dismissal in circumstances where management doubted intention to
return to work – relevance
of conduct of union and strikers
during strike –  communications with strikers during a
strike)
JUDGMENT
LAGRANGE
J
Introduction
[1]
The dismissals giving rise to this case took place nearly 4 years
before trial proceedings commenced. The matter concerns the
dismissal
of approximately 90 individual members of the first applicant
(‘Amcu’) by the respondent (‘ ALS’)
on 8
November 2011. In the letter notifying Amcu of the dismissals, ALS
stated:
“
Kindly take note that due to
your non-compliance with the court order under case number J2489/11
issued in the Labour Court on 7
November 2011 as well is your
non-compliance with the three ultimatums issued by management on 7
and 8 November 2011 requesting
you to return to work, the Company has
no choice but to dismiss you with immediate effect.”
In
his opening address,
Mr Freund SC
, counsel for the respondent,
clarified that the issue of the non-compliance with the ultimatums
effectively implicitly also include
the workers’ failure to
sign a written undertaking about their willingness to return to work
as pre-condition for resuming
work, which became a major bone of
contention between the parties.
[2]
The applicants originally claimed that either they were dismissed on
account of participating in a protected strike, or alternatively,

they were unfairly dismissed for participating in an unprotected
strike. The strike commenced on 28 October 2011. An interim order
had
been granted on 7 November 2011 declaring the strike to be
unprotected and interdicting the applicants from various forms of

strike -related misconduct. On the return date of the interim order
on 1 December 2011, the rule was confirmed on an un-opposed
basis.
During the course of the proceedings, the applicants did not persist
with their claim that the strike was a protected one
and accordingly
the dismissals must be evaluated simply on the basis of whether or
not they were fairly dismissed for participating
in an unprotected
strike. The critical events leading to the dismissal relates to the
ultimatums issued by ALS on 7 and 8 November
and how the parties
interacted with each other during those two days.
[3]
Witnesses for ALS were Mr G Condie (‘Condie’), the Chief
Executive Officer, Ms S Greyling, the HR Manager, (‘Greyling’),

Mr T van der Merwe (‘van der Merwe’), the site manager of
ALS operations at the Goedgevonden mine premises and Mr E
van Dyk
(‘van Dyk’), a former laboratory manager at the Witlab
site. Mr V Mkhonto (‘Mkhonto’), an analyst
and a former
shop steward working at the Witlab premises and Mr A Mashiya
(‘Mashiya’) an operator at GGV testified
for the
applicants.
Material facts
[4]
After a recognition dispute in 2011, the union and the company agreed
with each other at the CCMA to start wage and other negotiations
in
good faith by 18 August 2011 with a view to concluding them by 2
September 2011, including the conclusion of a recognition agreement.

As sometimes happens in the initial stages of the rise of a new union
in a workplace, despite the undertaking made at the CCMA,
relations
between Amcu and ALS did not develop smoothly. It is common cause
that from August to October there were go slows and
stoppages.
Further, the negotiation timetable got side-tracked following the
dismissal of a shop steward, Mr J Mdlela (‘Mdlela’),
for
using a Morning Prayer meeting to hold a union meeting, which in turn
led to a group of employees downing tools.
[5]
In consequence, little progress was made on the recognition and wage
talks by the time the parties met again on 26 September
2011, since
the last round of negotiations on wages which took place on 1
September. The train of events was interrupted by the
dismissal of
Mdlela. On 19 September, Mr J Mphahlele, the general secretary of
Amcu (Mphahlele) requested an urgent meeting with
the company on 21
September to discuss the dismissal of Mdlela. This was the same day
that a group of workers had protested about
the dismissal. Greyling
phoned Mphahlele and explained that she had other meetings scheduled
for that date. In her mind, the matter
of Mdlela’s situation
was not on the table for discussion having already been referred to
the CCMA, though Condie claimed
the company was still willing to
entertain a discussion after 19 September.
[6]
On 23 September the company proposed a meeting to discuss the
recognition agreement and wages on 26 September. The union only

responded in writing on 26 September at about 12H00 confirming that a
meeting would be held that afternoon, without mentioning
the subject
matter of the meeting.  Greyling said she assumed that the union
would have added to the agenda if they wanted
to add to the subjects
proposed by the company. Although the meeting had been scheduled to
finalise the recognition agreement and
to discuss the wage proposals,
the meeting broke down when management refused to entertain
discussion of the dismissed shop steward,
whose case had already been
referred to the CCMA. In this regard there was correspondence between
Amcu and ALS.
[7]
Greyling maintains that at the meeting on 26 September, Mr Mphahlele
said he needed time to read the proposed recognition agreement
and
would revert to the company by 4 October to set a date for wage
negotiations, but he never reverted to the company.
[8]
By 10 October 2011, despite the absence of any discussion on wages at
the meeting on 26 September owing to the union walking
out of the
meeting when management refused to deal with the dismissal of shop
steward and despite no other meetings having been
convened to discuss
wage negotiations, Amcu referred a mutual interest dispute to the
CCMA concerning negotiations over terms and
conditions of employment.
Condie did concede that the parties had not reached agreement
on wages by the intended date, but
was adamant that it was premature
to assume negotiations had been exhausted.
[9]
At the conciliation, ALS had objected that the referral had been
premature because wages had not been discussed at all, let
alone had
any deadlock been reached before the union referred a dispute to the
CCMA. ALS was of the view that consequently, there
was no dispute as
such over wages, which the union could refer to conciliation and
asked the Commissioner to make a jurisdictional
ruling, which it
claims the Commissioner agreed to do.
[10]
However, no jurisdictional ruling was issued and a certificate of
outcome was issued on 25 October. On the same day the union
issued a
notice of its intention to commence strike action on Friday 28
October. The company responded with a notice on 27 October
indicating
its intention to lock out workers and a separate lengthy letter in
which it set out the reasons it believed a strike
would be
unprotected. In essence, these were that, there was no dispute over
wages which the union could have referred and that
the union’s
constitution required it to ballot members before embarking on strike
action. These communications were the beginning
of a battle by
correspondence between the parties which continued throughout the
strike. Regrettably, the parties seemed to prefer
this method of
communication and did not engage with each other in more direct
interactive communications to the same degree.
Events
at Witlab
[11]
The vast majority of the individual applicants were employed at the
company’s main site at (‘Witlab’) and
nine of them
were employed at its Goedgevonden (‘GGV’) site. The
central narrative concerns all the individual applicants,
except
insofar as it relates to the events of 8 November 2011 when
individual applicants claim they reported back to work. What

transpired at the GGV site will be dealt with separately.
[12]
On 28 October, the day the strike commenced, the company complained
in a letter to the union that individual applicants were
blocking
access to the premises and intimidating clients who were trying to
enter the premises. The union responded with its own
letter on 31
October pointing out, amongst other things, that the strike was
protected and requesting a meeting with the company
to resolve the
dispute. Mkhonto was vague about when workers received knowledge of
this communication until some stage during the
following week.
[13]
Management replied, again by letter, that it was not willing to meet
with the union as long as the strike was in progress and
notified the
union that its own offers had expired. It also said that it was “not
willing to discuss wages and conditions
of employment with you any
more due to your unreasonable conduct”. It called on the
strikers to return to work by 08h00 the
following morning. The
correspondence continued with a response from AMCU just after 17H00
on the same day stating that the request
for an urgent meeting was a
“good gesture to try and resolve the ongoing protected strike
action”. The letter further
stated that the invitation for a
meeting still stood, despite characterising the company’s
refusal to meet with Amcu, which
it considered indicative of ALS’s
‘arrogant’ attitude and attempt to ‘undermine’
Amcu members. Mkhonto
testified that they believe because the
certificate had been issued by the CCMA that their strike was
protected and they interpreted
management’s response to the
union’s letters as indicating that the company was not willing
to engage in further discussion
on the wages while the strike
continued, whereas the union was willing to talk. He understood that
the union and the company differed
on whether the strike was
protected or not.
[14]
The company made much of the conduct of the strikers in presenting
its evidence. Thus, Greyling testified that:
“
... They were very violent from
the onset. Blocked access to the laboratory, not only for our clients
also for any staff members
or members of the public or any person who
wanted to deliver samples to the company. They also used abusive
language, they had
dangerous weapons with them, golf clubs, they had
sticks, that one point had rocks that they threw, they burned tyres.
I personally
was there and I was really scared. It built up from
early in the day and it got worse during the day. They really shouted
bad remarks
to me, to management.
They were dancing, provoking us by
their dances, they came close and we stood close to some of the
gates. At one point in time,
some of them turned around, they pulled
off their pants. They made very weird signs of things they would do
to people around there.
They called all white people dogs in their
own language and that made terrible remarks against management,
against the Australians
that is part of our management team, we are
an Australian company. They shouted and screamed then they would sing
and dance like
they normally do with the strike, but they were, it
was a scary situation.”
[15]
Greyling claimed to be too embarrassed to repeat what had been said
by strikers despite the urging of her counsel. She also
testified
that barrier tape had been used to prevent access to the premises and
how Lukhele was prevented from entering the premises
by strikers who
hit his car with sticks and steel bars. She claimed that even when
she called on them to stop hitting the car they
continued. Mkhonto
agreed that when he arrived strikers ran in front of the gates and
had surrounded the vehicle because they wanted
to see whether it
really was Lukhele in the vehicle but denied that anyone struck the
vehicle. He claimed that he had told workers
to let him through. He
agreed that the workers were in front of the gates but were not there
to block him from entering but merely
to make him aware of the
protest. No circumstantial evidence was produced of any damage to
Lukhele’s vehicle. Van der Merwe
also testified to workers
running up and down with sticks in their hands and burning tyres, but
had no difficulty in entering the
Witlab site on a daily basis.
[16]
Greyling also claimed that strikers also gathered around the cars of
clients or courier services brandishing branches. Mkhonto
agreed that
a number of workers were carrying sticks and ‘metal bars’
but denied that they were used to hit any vehicle.
He admitted that a
tyre had been burnt on one occasion in the early morning because of
the cold. It turned out the ‘metal
bars’ were in fact
pieces of palisade fencing which had been used to erect barrier tape
in front of the premises. Later,
Mkhonto vacillated a little about
whether or not workers were brandishing metal bars as well as sticks
and golf clubs but eventually
confirmed his original testimony that
they were.
[17]
Greyling also claimed that strikers were seen drinking outside the
premises. She was too afraid to go to work on her own. Tyres
were
also burnt and when management tried to go outside the premises they
were sworn at ‘badly’. Mkhonto merely said
that strikers
were singing and did not use abusive or insulting language, nor did
they intimidate anyone or block access to the
premises. However, he
readily agreed that one of the slogans charted by the strikers was
“Dhubuli bhunu”, which he
interpreted as meaning ‘kill
the whites”, and “amabunu izinja”, meaning ‘whites
are dogs’.
He also saw no incident on anyone exposing their
buttocks. He further claimed that the workers interpreted the
company’s
erection of barrier tape across both gate entrances
to the premises and the security building at the commencement of the
strike
meant that strikers could picket within the demarcated area
that would be used to gain access to the premises. They found this
area to be too small and then moved the barrier tape to close off the
road approaches to the premises from both sides of the premises.
[18]
One of the posters carried by a striker carried the bold slogan
“SERENA GO TO HELL” beneath a caricature drawing
of
Greyling depicting her as a scarecrow figure with a deranged look on
her face. Other posters carried xenophobic slogans directed
at the
Australian owners. When the strikers saw cars approaching they would
throw stones towards the gate. Mr C Engelbrecht, an
IT manager,
suffered a facial injury when a striker threw a bottle at the glass
window of the security office behind which Engelbrecht
had been
standing. The incident was reported to the SAPS and the case went to
trial resulting in an employee being convicted of
assault. Mkhonto
agreed that when workers were marching up and down the street, there
had been an incident when the window had
been broken but he did not
see how it happened. He also agreed that groups of workers would rush
towards the company premises singing
and charting and then fall back.
[19]
While Greyling’s testimony must be tempered with Van der
Merwe’s testimony that he was able to enter the premises,
she
was present for the duration of the strike and Mkhonto conceded to
the threatening character of some of the chanting. Given
this and the
personalised attacks on management, and the aggressive action of
charging towards the premises it would not be unfair
to say the
picketing acquired an intimidatory character.
7
November
[20]
ALS gave Amcu notice on Thursday, 3 November of its intention to
apply for an urgent interdict to halt the strike. Amcu chose
not to
oppose the application. On Monday 7 November, the company obtained
the interim order and by 14H10 the same day a copy was
served by
Greyling on Amcu head office and received by an administrator, Ms
Mabena, who received it after making a phone call and
being advised
to write “without prejudice” in acknowledging the receipt
of the order.  Notice of the application
had been delivered by
hand to the union on Friday 4 November and had also been received by
Ms Mabena. After delivering the notice,
she saw Lukhele speaking with
the president of Amcu, Mr J Mathunjwa (‘Mathunjwa’) in
the parking area outside the union
offices. Lukhele had accompanied
her to the union offices but had not gone inside with her to deliver
the order.
[21]
On returning to ALS’s premises, Lukhele and Greyling attempted
to serve the court order on the assembled strikers with
the
assistance of the police. Neither workers nor Mkhonto, who was the
de
facto
chief shop steward at the time, were prepared to accept the
court order. Mkhonto’s explanation for this was that the
workers
had agreed amongst themselves that any communications from
the company should be directed through the union, though he conceded

this decision of the workers had not been conveyed to ALS. Having
failed to issue a copy of the court order directly to strikers
or
Mkhonto a copy of the court order was placed on the window of the
security office where it would be visible to any strikers
nearby. By
mid-afternoon a copy of the order had also been faxed and emailed to
the union office.
[22]
Although Mkhonto agreed that he was in regular contact with Mathunjwa
and Mphahlele by phone, and even though Mathunjwa spoke
to workers in
the afternoon of 7 November, he claimed that no mention had been made
in any of these communications about the pending
court application or
the outcome of the application. He agreed that the company with the
assistance of the police had attempted
to serve the court order on
him but because he refused to receive it nobody else would accept it
either. He claimed that the policeman
who tried to hand him a copy of
the order had explained that the document he was required to give
Mkhonto was “a letter from
the company” and that he had
not explained it was a court order. He denied having personally seen
Greyling place a copy of
the order in the window of the security
office but agreed that if it had been placed there, he would have
seen it because he was
no more than 5 m away from the window and
would have gone to read it because it affected him.
[23]
After this failed attempt to serve the order on the employees,
Mathunjwa came to the premises and met with strikers. According
to
Mkhonto, Mathunjwa merely wanted to find out how the strike was
progressing and they had asked for a banner and union T-shirts.

Whilst he was there, the company made a second attempt to serve the
order. On this occasion, the company asked a security guard
to hand
over the court order together with first ultimatum. However, they
would not take it as they were busy talking with Mathunjwa
and the
security guard was disturbing them. Mkhonto agreed that it was
obvious that the security guard was attempting to hand the
document
to them and they knew that was a document which the company had asked
him to give to them. He later elaborated saying
that Mathunjwa had
told the security guard that he told him that he was disturbing them
and asked him more time to discuss the
matter, but agreed that
Mathunjwa never reverted back to the security guard to obtain the
document. This was broadly consistent
with Greyling’s
observation of the interaction between the security guard and the
crowd gathered around Mathunjwa. What she
observed was that workers
and Mathunjwa made gestures waving him away. The ultimatum referred
to the court order and stated that
the strike was illegal and
unprotected. It further stated:
“
Your (
sic
) required to
return back to work at 7:00 on Tuesday 8 November 2011. If you do not
return to work at the above time, the company
will follow the
appropriate procedure which may result in dismissal.”
Mkhonto
denied seeing the ultimatum placed on the security office window
either, but said that if workers had seen it they would
have returned
to work by 07H00 the following morning. It was common cause that the
ultimatum was transmitted to the union offices
and would have been
received around 15h45, but was not conveyed to strikers at that time.
In relation to the strikers who were
not present at the premises,
Condie’s view was that in relation to strikers who were absent
from the picket it was sufficient
that Amcu had been served with a
copy of the ultimatum, though he conceded that the purpose of issuing
an ultimatum would be defeated
if it did not reach the persons it was
intended for and it was management’s responsibility to ensure
that this was done.
Consequently, he accepted that if the applicants
did not receive the first ultimatum they could not be responsible for
not complying
with it. This essentially touches on the respective
obligations parties engaged in industrial action have to communicate
with each
other and is discussed in the evaluation below.
[24]
Condie stressed that it was the company’s view that it was
Amcu’s responsibility to keep its members fully informed
about
developments and Amcu purported to represent employees so ALS
accepted Amcu as the channel of communication. Further, he
felt the
company made every attempt to ensure that ultimatums were
communicated.
[25]
There was considerable disagreement about the number of strikers who
were present at any time during the strike. This was an
issue that
only emerged gradually during the case because on the pleadings, it
was common cause that all the strikers were present
on 8 November,
but evidently, that was not factually correct.  Estimates of the
size of the crowd varied considerably. Condie
and Greyling
recollected that the crowd on 7 and 8 November was approximately 30
in number, whereas Mkhonto said the size of the
crowd varied during
the day but was usually upward of 45 in number. Later when the
parties produced a detailed name list of strikers,
Van Dyk and
Mkhonto specifically identified 22 and 57 named individuals as being
present. In addition Van Dyk acknowledged there
were others present
whom he could not identify but that they never numbered more than 40
altogether. He based this by comparing
the group of strikers with the
size of the group of 60 employees he normally addressed in staff
meetings. On 8 November he observed
the group of strikers at various
times during the morning including when workers appeared at the gate
just before 09h00.  Much
was made in cross examination of Condie
and Greyling about the fact that strikers who were not picketing at
the premises would
not necessarily have known about the court order,
which ought to have been served on all the individual respondents.
[26]
Ultimately this led the applicants to file a belated amendment to
their statement of case which was not opposed by the respondents.
The
amendment was to the effect that ALS had not taken reasonable steps
to ensure that the second ultimatum came to the attention
of all of
the strikers. The amendment was not opposed, but ALS then applied to
reopen its case in order to lead further evidence
of Greyling that it
did not have the individual cell phone numbers of the individual
applicants. In applying to reopen its case,
ALS did not concede that
as a matter of law it was required to contact each applicant
individually, but wish to lead the evidence
as a precaution in the
event it might be wrong on this issue and even though the applicants
had not specifically pleaded that the
reasonable steps ALS should
have taken included service of the ultimatums by SMS or cell phone
calls. The application to reopen
the case was dismissed, principally
on the basis that issues bearing on the strikers knowledge of the
ultimatums was canvassed
sufficiently for ALS to determine whether it
needed to lead further evidence on the issue, even though the formal
amendment of
the pleadings to place afterwards. However, I made it
clear that in dismissing the application, the nature of an employer’s

obligations to notify each and every striker an ultimatum was still a
matter for argument.
8
November
[27]
Mkhonto testified that Mathunjwa came early to the premises early
that morning and handed out union T-shirts to the assembled
strikers,
who at that stage numbered approximately 45 according to him. He
claimed that Mathunjwa made no mention of the court
order or the
first ultimatum. Although he was adamant that nothing of substance
was discussed with Mathunjwa, least of all the
court order and
ultimatum, he did not dispute that Mathunjwa was there for over an
hour before the second ultimatum was issued.
Mashiya initially
testified that he knew of the court order from other workers before
the second ultimatum was issued but then
corrected himself and simply
said he could not remember if he heard of the order before or after
the second ultimatum was issued.
[28]
The second ultimatum was issued at 08H15, to which a copy of the
court order was attached. The second ultimatum, which appeared
to
have been prepared the previous day, called on workers to return to
work by 09H00. Mkhonto agreed that this ultimatum was handed
to
Mathunjwa by Greyling. Mkhonto testified that after receiving this,
Mathunjwa instructed them to stop picketing, present themselves
for
work at the gate and return to work. Mkhonto said workers were
confused because they believed the strike was protected yet
the court
order said they must return to work but Mathunjwa said the court
order had to be followed.
[29]
According to Mkhonto, the security gates on the right-hand side was
open a little bit but when they approached the gate it
was closed and
the security officer said that they must wait for management to come
outside. Mkhonto testified further that, it
was at about 08H50 that
they attempted to enter the premises
en masse
through the
large vehicle gate to the left of the security office and not through
the turnstile gate through which they would normally
enter and clock
in when reporting for work. According to Greyling, workers clocked in
at the turnstile using their employee numbers
followed by fingerprint
identification. Mkhonto conceded that before starting work workers
would clock in, but claimed that on
that morning the large gate was
opened for them. He agreed that they were still chanting struggle
songs while waiting to enter,
but claimed they had left their sticks
on the grass opposite the plant.
[30]
There was some controversy in the evidence about what workers would
normally be wearing when they reported for work. Mkhonto
claimed that
they would report for work in their ordinary clothes and change into
their PPE work clothes once they were inside
the company. On that
morning they had put on the union T-shirts which Mathunjwa had issued
them with earlier. In the company’s
answering statement, it had
been said that the individual applicants were not wearing their
personal protective equipment which
was required of them prior to
entering the premises, which ALS took to be a clear indication that
they had no intention of tendering
their services. However,
ultimately, Greyling and Condie agreed that workers were not expected
to report for work in working clothes.
Greyling and Condie also
agreed that there was nothing inherently untoward about wearing union
T-shirts when reporting for work.
[31]
When the strikers approached the gate, management received a message
that a security guard wanted to speak to them. He told
them that
people were assembled outside and that they had told him to advise
Condie they wanted to come inside. Condie told him
to advise them
that management was in a meeting and would revert back to them
shortly. Condie then went to observe the strikers
from the first
floor of the office building and saw the group assembled very close
to the vehicle entry gate. He observed that
they were wearing their
union T-shirts which they appeared to have put on over their ordinary
clothes. Seeing them dressed in their
T-shirts Condie said: “I
found that somewhat intimidating that they still seemed to be,
purporting to be a mob, a union mob,
so I was concerned about what
their intentions really were.” He also said that all he knew
was that they wanted to enter
the premises but he had no way of
knowing if they were actually going to return to work or to continue
the industrial action. Given
that this was the same group of people
that had been waving sticks and metal bars at him, he was concerned
about their intentions
and felt that the company needed to consider
its position. Condie conceded that there was nothing untoward about
workers wearing
union T-shirts when tendering their services, as
such, but in the context of the events of the strike he interpreted
the wearing
of T-shirts by the strikers differently. The conduct of
the strikers, the absence of any positive response to the first
ultimatum
and the donning of union T-shirts issued by Mathunjwa
indicated to management that the strikers’ position was
unchanged.
When it was put to Condie under cross-examination that all
of these issues were known in the before workers assembled at the
gate
and therefore ALS would have sought an undertaking from workers
when it issued the second ultimatum, Condie claimed that the
discussion
with Lukhele about a potential undertaking had already
started before workers presented themselves at the gate at 08H50,
even though
Lukhele only arrived after 09H00. Previously, his
evidence suggested that the discussion about an undertaking arose
after workers
presented themselves. However, he conceded that the
employees had done what the company had called upon them to do in
paragraph
4 of the second ultimatum.
[32]
In telephonic discussions with the company’s lawyers and
Lukhele on what approach to adopt, they decided that they were

concerned about whether the strikers had a genuine commitment to
return to work and behave appropriately and desist from strike

activities. According to Condie, it was Lukhele who advised the
company to go ahead with the undertaking after he had told him
that
he was concerned workers were not really stopping the strike
activity, they do not seem to be taking off their Amcu gear,
they
were not presenting themselves at the turnstile as they would and he
was concerned that it was just and “unidentified
mob” who
wish to gain access to the site. When Greyling was pressed under
cross-examination about what more could be expected
of the strikers
beyond presenting themselves at the gate, she said that they needed
to indicate that the intentions were serious
and not that they merely
wanted to gain entry to the premises. However, she found it difficult
to explain how they could have demonstrated
that intention other than
to report at the gate, bearing in mind that they had not been asked
to sign any undertaking at that stage.
[33]
The wording of the undertaking, which they decided workers wishing to
return to work must sign stated:
“
I, the undersigned, undertake
to refrain from any violence, intimidation to any employees, damage
to property, racial remarks to
employees, management, members of the
public or clients from the Company as well as continued participation
in the illegal strike.
I agreed to comply with all company
policies and procedures and follow all lawful direction from
supervisors and management.
I agree to render service in line with
required performance standards.
I accept that the working hours of the
company runs from 7:00-15:45 from Monday to Friday. I understand that
this means that I will
commence with my duties at 7:00 and finish at
15:45, apart from 15 minutes for morning tea, and 30 minutes for
lunch.”
[34]
Condie said that the wording was informed by the conduct of strikers
in the preceding week and the language of the court order.
He also
wanted a reassurance that the strikers acknowledged that if they were
allowed onto the premises they would continue with
the same
activities they had been conducting whilst outside. He also sought to
ensure that the “covert industrial action”
which had
taken place in the months preceding the strike would not resume.
Condie testified that, he did not believe at the time
that the
strikers genuinely wanted to enter the premises to return to work.
The reference to the strike as being unprotected was
based on the
fact that the company had obtained an order to that effect. If the
union strikers had an objection to that characterisation
of the
strike which reflected the position, it was never raised with him. He
accepted that he did not have a definite evidence
to prove they were
not acting in good faith, but he had a suspicion they were not. He
was not prepared to speculate on whether
his suspicions would have
been addressed if the company had held a disciplinary enquiry before
dismissing the strikers. Condie
said that the undertaking was only
requested to give the company confidence that the strikers were
genuinely abandoning their strike
action and he could not understand
why the union was opposed to workers signing the undertaking and
allowed the process to roll
on when the company had clearly indicated
that this issue had to be addressed. .
[35]
The undertaking letter was given to Mathunjwa by Greyling and van
Dyk. Greyling claimed she told Mathunjwa that the company
wanted
workers to sign the undertaking, but Mathunjwa said they would not
sign anything. She conceded that it did not occur to
her to ask him
what his difficulties with the document were, but equally they could
have discussed it with her if they had any
difficulties with
document, which is why she went out to explain it to them. Once it
was reported that Mathunjwa was not going
to instruct strikers to
sign the document, the undertaking was also posted on the security
office window and transmitted to the
union office by fax and email.
[36]
In consequence of the requirement to sign an undertaking being
presented, at 09H26, Amcu sent a letter to ALS stating that
the
strikers had presented themselves for work at 08H50 as per the court
order served on them at 08H15, but that
“
... when our members arrived at
the gates the securities (sic) reported to management that workers
have presented themselves at
work but management instructed the
security not to open and the gate and management took to refer back
to them” (sic).
The letter continued to say:
“
We
confirm that Amcu and/or its members cannot be held liable to any
loss the company may suffer and cannot be held liable for not

honouring the court order.”
Mkhonto understood this not to be a
threat to the company but to be saying that it could not be held
against them that the workers
remained outside because it was the
company which refused to allow them to get inside. Condie interpreted
it very differently.
He was concerned that “this was some sort
of vile threat to us, that we are not going to be liable for anything
that happens
after this, we are not going to be responsible for any
losses you incur based on any actions and we not embark on and we are
not
going to be responsible for honouring court order” (
sic
).
However, he agreed that the letter could be read as meaning that
because workers have presented themselves for work they and
the union
could not be blamed for not complying with the court order or
ultimatum.
[37]
Within less than 20 minutes, the company responded in kind to this
communication from the union and the refusal of strikers
to sign the
undertaking by sending a replying letter to the union. Condie
testified that “to ensure the union clearly understood
the
seriousness of the situation and what our requirement was, I had a
letter drafted and sent in my name to the union, saying
that we had
posted this or presented this undertaking which we require them to
sign, that they had refused to sign which left us
with no option but
to understand they were not going to comply with the court order,
they were not going to desist from the court
action.” The
letter read:
“
This is in response to your
letter received at 9:26 am on 8 November 2011.
We put on record that on presenting to
the gates at  Witlab this morning your members were requested to
sign a reasonable undertaking
to return to work in compliance with
the court order J2489/11 and standard company policies and
procedures.
Your members refused to sign this
undertaking leaving no option but to see this as an intention by your
members not to comply with
the court order or company policy and
procedures. Accordingly your members were considered to still be on
strike so they were not
admitted to our premises.
All our rights are completely
reserved.”
[38]
A little over 15 minutes after the union’s last letter, Amcu
sent another letter at 09:45 in which it stated that the
employer’s
“current conduct” constituted an “unlawful
lockout”, and reserved its right to approach
the Labour Court
for appropriate relief. ALS continued the barrage of communication
through correspondence, by issuing  another
letter in response
to the union’s letter of 09h45, which stated:
“
We put on record that this
morning, in your presence, your members were provided a second
opportunity to sign a reasonable undertaking
to return to work in
compliance with the court order J2489/11 and standard company
policies and procedures.
You advised that your members would
not sign this undertaking, further indicating that your members did
not intend to comply with
the court order or company policy and
procedures.
Accordingly your members were
considered to continue to be on strike so they were not admitted to
our premises.”
[39]
About half an hour later at 10h15, the company issued a third
ultimatum calling on workers to present themselves for work by
10h30
and warned that if they did not return to work at that time “the
company will follow the appropriate procedure and
you will be
dismissed.” Condie claimed that this was issued after allowing
some time for the strikers and Mathunjwa to discuss
the issue and
absorb the implications of the requested undertaking, but when nobody
came forward to sign the undertaking and no
questions were asked
about it, ALS believed there was no progress taking place and decided
to issue this ultimatum. Condie claimed
that he was concerned that
issues seem to be escalating, whereas he had hoped that once the
court order had been obtained and served
there would be an
appropriate change of behaviour. He then decided that given that
Mathunjwa was standing in front of the premises
and communicating and
organising activities, he should personally try and communicate with
him and the strikers to see if the issue
could be resolved and
accordingly went to present the third ultimatum to Mathunjwa with
Greyling and Lukhele. The point was made
in cross examination of
Condie and Greyling that the third ultimatum makes no mention of
workers having to sign the undertaking
but simply states that the
first two ultimatums telling them to return to work were ignored.
[40]
When he approached the strikers and Mathunjwa, he read the ultimatum
to Mathunjwa and said that if matters continued they would
have no
option but to proceed with the dismissals and it was necessary to
sign the undertaking so that the company could see they
were
desisting with the strike action. Mathunjwa responded that they did
not need to sign the undertaking because the court order
did not
require it. At this point the discussion ended and the third
ultimatum was also placed on the window of the security office.

Condie claimed that he was hoping there would be some discussion that
would develop so the situation could be resolved and he hoped
that
Mathunjwa would appreciate that by approaching him as the executive
manager of ALS, Mathunjwa would appreciate that they were
genuinely
trying to resolve the matter. The ultimatum was emailed and faxed to
the union office and he was confident that Mathunjwa
was in constant
communication with the office in view of the previous letters
received in his name and the fact that Mathunjwa
was constantly using
his phone.
[41]
After the third ultimatum was posted, Condie witnessed Mathunjwa
calling workers to him in front of the gate saying “come,
come
come go to work !”. Mathunjwa then addressed the strikers and
said that what the company was doing was locking them
out and that
the union could oppose the court order on the returned day because it
was only an interim order, which said nothing
about signing an
undertaking. Condie interposed in the address and told strikers that
the undertaking documents were in the security
office and anyone who
wished to return to work could return by signing the undertaking and
returning one by one, but nobody responded
to that. Once nobody had
presented themselves at the turnstile and in the absence of any other
response from the union by 10H30,
the company realised that strikers
would not sign the undertaking or report for work and therefore they
had no other option but
to proceed with the dismissal. Condie was
adamant that the object of the ultimatums was to get people back to
work not to dismiss
them.
[42]
Mkhonto testified that one worker did attempt to enter through the
turn style some 20 to 40 minutes after strikers presented
themselves
en masse at 08h50, but he reported that he could not clock in and
gain access.
[43]
ALS did not specifically invite Amcu to make any representations why
the strikers should not be dismissed before it issued
the dismissal
notice. Condie agreed this was not done but in view of the
correspondence between ALS and Amcu, it was clear that
if the
situation was not resolved, dismissals would take place. The channel
of communication was open with the union and the union
was free to
have raised any issues with the company. Greyling was of the view
that there was ample opportunity for Amcu to make
representations and
the union had an opportunity to engage company when Condie had
approached Mathunjwa personally in the course
of issuing the third
ultimatum. Greyling would not concede that if ALS had held a
disciplinary enquiry before dismissing employees,
management’s
suspicions could have been tested at the time rather than four years
later at the trial.
[44]
At around 11h00 the company posted a notice of dismissal on the
security of this window, stating:
“
Kindly take note that due to
your non-compliance with the court order under case number J2489/11
issued in the Labour Court on 7
November 2011 as well is your
non-compliance with three ultimatums issued by management on 7 and 8
November 2011 requesting you
to return to work, the company has no
choice but to dismiss you with immediate effect.”
Condie
claimed that he saw workers reading the letter and having a
discussion after which they started to leave.
[45]
Amcu also sent ALS a letter at 11h33, which made no reference to the
dismissal letter but responded to the issuing of the third
ultimatum.
Amcu claimed that strikers had presented themselves for work at 08H50
following the second ultimatum issued at that
time and that the
employer’s refusal to allow them to work constituted an
unlawful lockout because they had complied with
both the second and
third ultimatums. ALS did not respond to this letter until the
following day, by which stage it had already
affected the dismissals
the previous day. The letter merely reiterates the company’s
stance that their failure to sign the
undertaking indicated that they
did not intend to comply with the court order or company policies and
procedures and therefore
were considered to be still on strike when
they failed to heed the third ultimatum.
Events
at GGV
[46]
Nine of the individual applicants were employed at the ALS site at
the GGV mine, where ALS provided its laboratory services
as a
contractor to the mine. In terms of the work schedules of these
applicants, six of them (Messrs P Nyaka, P Thabang, V Khoza,
J
Moleleki, P Seerane and C Sello) were not scheduled to work on 8
November and none of them reported for work before the expiry
of the
ultimatums on that day. A dispute exists between the parties about
the three remaining individual applicants (Messrs A Mashiya,
L Xulu
and S Baloyi), who would ordinarily have worked on 8 November in
terms of their schedule. In essence, Amcu claims that after
the
second ultimatum was issued the three individuals, who were at the
picket at Witlab premises, went to report for work at GGV.
They
arrived at around 11H00 and commenced work but later were called to
the office of the site manager by the superviser, Mr Mncube.
Van der
Merwe told them they were dismissed and must leave the work area
after which they were escorted off the premises by mine
security
personnel.
[47]
Van der Merwe denied that the three individuals had presented
themselves for work on 8 November. He testified that access to
GGV
premises for ALS employees is through a turnstile controlled by the
mine’s security department. ALS employees were issued
with an
access card, which had to be checked to see if the holder still had a
valid medical rating and to verify the identity of
the cardholder
against the photograph on the card. The card was not swiped by the
holder but by the security officer. Once the
strike commenced the
security department was advised to deny access to the individuals on
strike. As far as he was concerned, the
three individuals could not
have gained access to the premises. Van der Merwe agreed that Baloyi
did report at the mine at about
14H30 on 8 November. Van der Merwe
was advised by the security office that Baloyi had come to the site
because he wanted to empty
his locker, but he did not have access and
had a dismissal letter with him. He and a security officer then
escorted Baloyi to his
locker which he proceeded to empty and
thereafter he was escorted off the premises. Mashiya disputed this
version because he claimed
that he was with Xulu and Baloyi the whole
day as related in his own account of events.
[48]
Van der Merwe said he never received any report that Mashiya or Xulu
had come to the premises. van der Merwe was sceptical
that these two
individuals would have gained access to the premises at GGV even if
the access system was not working because the
security office had
been issued with a list of all the names and the photographs of those
on strike who were not allowed to come
on site, but agreed that it
was possible that a security officer who did not know them well and
was on duty could have let them
in.
[49]
Mashiya said the access system was not always working and the
security staff would let them even if they forgot their access
cards
because they knew they were working there and there was a good
relationship with the security staff. On 8 November, when
they
arrived around 11H30 they did not have their access cards and told
the security staff the strike was over and they were returning
to
work. They were admitted to the premises and put on their PPE and
started to work. They saw van der Merwe in his office which

overlooked the working area and presumed that he saw them because
they walk past his office on the way to their workstations. He

admitted that there were other people he did not know at their
workstations but he did not see them doing any work and they were

able to resume their duties. When he was confronted with the evidence
that the company had engaged Labour broker staff to fill
in for those
on strike, he changed his version and said that he only found three
ALS staff in the lab area. Nobody questioned their
return to work. He
claimed they told Mncube that a court interdict had overturned the
strike and so they were back at work. After
working for some time, at
around 14H00, they were summonsed to van der Merwe’s office and
he told them he got a call from
Witlab to say that whoever was
involved in the strike was dismissed. He told them they should leave
the premises and they were
escorted out by a security staff member.
He then phoned Mkhonto who advised him that all the AMCU members had
been dismissed and
there was a dismissal letter in the window at
Witlab.
[50]
Mkhonto claimed to have received a call from Mashiya to say that they
had been called out by van der Merwe and told to leave
the mine
because they were dismissed. Mashiya claimed to have been present at
Witlab in the morning of 8 November and had spoken
to Mathunjwa about
the fact that he and his colleagues worked at GGV after the second
ultimatum had been issued. Mathunjwa had
encouraged them to get to
GGV as soon as possible. Arrangements were then made with a friend of
Baloyi’s to take them to
GGV by car and the three of them went.
Initially Mashiya said it would take about an hour and half to get to
GGV from Witlab, and
when it was pointed out to him that the distance
involved was only about 30 km he explained that the delay was caused
by waiting
for the lift from Baloyi’s friend.
Post-dismissal
events
[51]
Fourteen of the persons appearing in the list of individual
applicants were in not in fact dismissed or were immediately
reinstated
even though their names had appeared on the list of
persons dismissed which was posted on the security office window.
Condie explained
that these individuals had either been on leave or
did not participate in the strike. Some had reported for work. Others
did not
but had advised the company that they wanted to continue
working but were worried about reporting for work during the strike.
By
the time proceedings commenced, the parties had agreed that these
individuals were no longer part of the second to further applicants

and accordingly the case concerns the remaining 76 second to further
applicants.
[52]
ALS gradually started to replace the dismissed workers. However,
because of economic conditions in the coal industry by the
beginning
of 2015, it only employed 44 employees compared with 138 at the time
of the strike in November 2011. During the same
period the price of
coal declined by approximately 40%. In addition, one of ALS’s
clients, New Clydesdale Colliery closed
and no longer had use for
ALS’s on-site laboratory and the GGV mine terminated its
contract with ALS. Condie testified that
ALS had estimated it would
cost the firm approximately R 16 million in the event the individual
applicants were reinstated. In
2014 the company had made a profit of
R 1.7 million but in 2015 but had suffered a R 2.6 million loss,
which he attributed to the
decline in the coal mining industry. To
pay an amount of R 16 million would effectively require the company
to liquidate the business
and sell off fixed assets.
Evaluation
[53]
The main disputed facts concern: the extent to which the strikers had
knowledge of the court order and the ultimatums; the
degree of
violent behaviour displayed by the strikers; the number of strikers
present at the premises at the lab on the last few
days of the
strike, and whether or not certain individuals working at the GGV
site did report for work on 8 November after the
strike ended. In
relation to the events at about 08H50 on 8 November when strikers
gathered at the vehicle gate of the Witlab premises,
there is less
dispute about the actual chain of events, but it is the parties
different perceptions of what the other party’s
intentions were
that were at odds with each other. I will only focus on those areas
which require the court’s attention to
determine the fairness
of the dismissal.
Legal
framework
[54]
Before proceeding with the analysis of the events, the general legal
framework for evaluating the conduct of the parties preceding
an
unprotected strike dismissal needs to be outlined.
[55]
Item 6 of schedule 8 of the Labour Relations Act, 66 of 1995 (‘the
LRA’), which must be taken into account of in
deciding the
substantive 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.”
(emphasis added)
Item
6, attempts to encapsulate important aspects of the respective
conduct of the employer and employee parties in the course of
the
strike which must be considered in deciding whether any ensuing
dismissals were substantively fair or not. Item 6 (1) is concerned

with the extent to which strikers, and by implication any union they
belong to, have departed from the legal requirements for protected

strike action and how they conducted themselves during the strike
itself. Item 6 (2) is concerned with the extent to which the
employer
party gave strikers a reasonable opportunity to abandon their
unprotected action. Unfortunately, the object of the guidelines
has
often been lost sight of by parties engaged in unprotected strike
conflicts and there is a tendency for both parties to focus
on
whether the employer formally complied with item 6 (2) since this is
often the easiest factual question to evaluate and is one
of the
important requisites for a fair dismissal of unprotected strikers.
Similarly, there is a tendency to ignore the extent to
which workers
or the union party makes any meaningful efforts to end the
unprotected strike, because item 6 (1) tends to emphasise
the
non-compliance with the statutory requirements for commencing strike
action. In focusing in a checklist fashion on these factors,
an
underlying concern of item 6, which is to evaluate how both parties
dealt in good faith with resolving the unprotected strike
action is
sometimes lost sight of.
[56]
In the extract below from LAC
decision in
National
Union of Metalworkers of South Africa (NUMSA) v CBI Electric African
Cables
[1]
the LAC made it clear that the factors determining the fairness of a
dismissal of unprotected strikers are not confined to those
listed in
item 6 and that there are other considerations that also should be
taken into account as the court alluded to in the
reference to the
work of Grogan. The LAC expressed the principles as follows:
“
[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
s
not confined to the consideration of factors set out in item 6 of the
Code.”
[2]
[57]
In considering those aspects of the parties’ conduct in the
course of an unprotected strike which are relevant to the
fairness of
the dismissal, it is also important that the court should be careful
not to adopt an armchair approach in its evaluation
of that conduct,
and to bear in mind the context in which decisions were taken by
parties. That context can, in some instances,
mitigate deviations
from best industrial relations practices to a greater or lesser
extent. The more measured, reflective and detached
environment of
trial proceedings is a different context from that when they
confronted each other through the employer’s
perimeter fence.
The reasonableness of how they conducted themselves in relation to
each other must be assessed in the context
of that more fraught
environment.
The court order and first ultimatum
[58]
Unusually, the court order was delivered directly to the union
offices early in the afternoon of 7 November. There is no dispute

that it was received by an administrator who evidently spoke to
someone who had advised her to receive it ‘’without

prejudice”. It is improbable that she did this without speaking
to someone in authority in the union. Moreover Mathunjwa
was aware of
the company’s visit to the premises as he was in conversation
with Lukhele outside the building when Greyling
left the building
after delivering the notice. In all probability, the union at least
knew of the interdict by mid-afternoon. It
is common cause that
strikers gathered at the premises refused to accept the service of
the interdict on them and were aware that
management was attempting
to issue a document to them. Mkhonto also conceded that if they had
been interested in the order that
was placed in the window of the
security office, they could have read it.
[59]
It is also common cause that Mathunjwa met the strikers outside the
company premises that afternoon, after the order had been
served on
the union and that a further attempt to serve the order together with
the 1
st
ultimatum was resisted by ignoring the efforts of
the security guard on the pretext that Mathunjwa was preoccupied with
discussions
with the workers. Astonishingly, in these discussions,
the news of the court order was not conveyed to the strikers
according to
Mkhonto. I find it hard to believe that the only issue
of substance discussed was the provision of T-shirts and a union
banner.
The ultimatum was also placed on the window of the security
office and it is not disputed it was sent to the union office before

close of business.
[60]
Despite Mkhonto testifying that the union was the strikers chosen
channel of communication, it seems the union chose not to
convey the
order to them and when the president of the union was outside the
premises, he declined to accept communications from
the company.
Under no circumstances if workers truly remained ignorant of the
court order and the ultimatum on Monday afternoon,
they only had
themselves and the union to blame as management did all that
reasonably could to bring the order and the ultimatum
to their
attention. As a matter of probability, I believe it was unlikely they
did not at least learn of the court order on Monday
afternoon because
it is highly improbable that Mathunjwa would not have enquired at the
office about Greyling’s visit. Secondly,
Mashiya evidently knew
of the court order before the second ultimatum was issued on Tuesday
morning. It is more probable in my
view that the union was engaged in
a conscious tactic of trying to delay the moment when the strikers
could no longer credibly
deny their knowledge of the court order. It
is also perhaps not coincidental that although the strike had been in
progress for
some days, it was only when the court order was obtained
that workers asked Mathunjwa to provide them with T-shirts and a
banner.
Knowing that they could not prolong the return to work much
longer, it is quite plausible that workers wished to demonstrate to

management that they were unbowed and remained loyal to the union and
their cause despite having to end the strike.
Second
ultimatum
[61]
The first ultimatum had given strikers until 07H00 on 8 November to
return to work. When they did not, the second was issued
around 08h15
calling upon them to return to work by 09H00, they were now clad in
their union regalia. There was also some evidence
that they were
carrying a banner too. Given the length of the meeting proceeding the
issuing of the second ultimatum, it is unlikely
that it could have
been solely taken up with the distribution of union paraphernalia. It
is more likely that the meeting discussed
the imminent prospect of
the return to work and the way forward, such as whether they would
oppose the interim interdict or how
their demands might be pursued
thereafter. It is only reasonable to surmise that this was discussed
because it was barely 30 minutes
after the second ultimatum was
issued that workers presented themselves at the vehicle gate. Mkhonto
had said workers were confused
about the court order and their own
view that the strike was protected. It is more likely that much of
this was discussed in the
first meeting that morning and that
Mathunjwa did not simply break the news of interdict when the second
ultimatum was issued because
the response to the second ultimatum was
relatively rapid if one considers that according to Mkhonto, workers
had no prior knowledge
of the court order or the first ultimatum at
that point.
[62]
I have little doubt that management was taken aback by the rapidity
of the apparent turnaround by the strikers. Having believed
that the
union and the strikers were unlikely to heed the ultimatums given
that the strike continued even after the court order
had been served
on the union and that there had been no communication from the union
itself after the order and first ultimatum
had been served, and
having seen workers putting on union T-shirts as a demonstration of
reinforcing their solidarity, it must
have caused some confusion when
they appeared
en masse
, still singing and charting, at the
gate. It is also not implausible that management may have had some
doubts about whether they
genuinely intended to return to work or
whether it was just a ruse to gain entry to the premises. The
strikers also did not attempt
to enter the workplace where they would
clock in at the turnstile which also suggested that they might have
been pursuing a different
agenda than signalling the end of the
strike. Lastly, although the strike had not been unusually violent,
there was some overt
violence and the picketing was aggressive and
had an undertone of personal animosity towards Greyling and Condie.
Under these circumstances,
I accept that management might reasonably
have wanted some assurance that the workers were not intending to
continue the strike
action if they were admitted to the premises. The
device management hit upon was the signature of the written
undertaking. Although
Condie claimed that the company had been
considering an undertaking before workers presented themselves, it
seems more likely that
it was the events at 08H50 that triggered this
response.
[63]
Regrettably, the underlying purpose of the undertaking got somewhat
lost in the formalistic tit for tat between the union and
the company
which followed, which resulted in the parties entrenching positions
rather than finding common ground. We do not know
what informed
Mathunjwa’s thinking except from the correspondence and what he
said to management. The union’s first
response was to dash off
a letter disclaiming any liability for further continuation of the
strike on the basis that management
had refused the tender of
services. It must be remembered that, previously the company had said
that it would hold the union liable
for losses incurred as a result
of the strike action and it is understandable that Mathunjwa would
have taken the earliest opportunity
to protect the union from any
subsequent claim by placing on record the company’s refusal to
admit workers back to work.
Condie instead took it to be a threat
that the union no longer took any responsibility for subsequent
events. Perhaps, if this
letter had been discussed with the company’s
lawyers, he might have obtained an alternative perspective of it. Be
that as
it may, his perceptions reinforced his view that obtaining
the undertaking was critical and responded in this vein to the union,

adding the rider that in the absence of the undertaking being signed
the company regarded the workers as still being on strike,
thereby
shifting the emphasis away from the return to work as the primary
thrust of the ultimatum to a requirement of making a
written personal
undertaking to do so. For its part, the union sought to strengthen
its legal position by pointing out that since
workers had ended their
strike action, their exclusion from the workplace now constituted an
unprotected lockout, since it could
not be construed as a defensive
lockout to an unprotected strike. The absurdity of the situation
ought to have become clear: the
parties were now in dispute about
whether a strike was over, a matter which ought to have been
relatively simple to resolve. While
their formal communications flew
back and forth, Mathunjwa and Condie were within sight of each other
at the company premises.
It was only after the third ultimatum was
issued that Condi took the initiative of directly approaching
Mathunjwa. He claimed that
he hoped some discussion would develop.
Unfortunately, the way he approached Mathunjwa was not very conducive
to that. Essentially,
he did no more than directly present the third
ultimatum to Mathunjwa and insist that the undertaking was necessary
to ensure workers
were ending the strike. Mathunjwa responded in kind
by pointing out that compliance with the court order did not require
workers
to do so. At that juncture, if cooler heads had prevailed,
there might have been a proper engagement in finding a solution.
Thus,
union leadership was insisting that the strike was over but
management was unconvinced and was insisting on a particular mode of

acceptance by strikers that this was indeed so. Essentially, there
was common ground that the strike should come to an end but
they
simply disagreed about how workers would return to work. It was
suggested that the requirement in the undertaking that workers

acknowledge the unprotected nature of the strike had been one of the
reasons they had been reluctant to do so, but this was never

articulated by Mathunjwa at the time. It seems more probable that it
was simply the fact that the employer appeared to be adding
the
written undertaking as an additional requirement before they could
return to work, which was not foreshadowed in the interdict,
nor
indeed even in the third ultimatum. Regrettably, there were no
attempts to explore other alternatives to an individual written

undertaking, such as the union confirming that the strike would not
continue once they returned to the premises, or agreeing that
the
workers would enter the premises as usual through the turnstile gate
where they would clock in.
[64]
Both parties can be blamed for failing to engage properly with the
underlying issue, but before the company moved to the next
step of
dismissing the workforce management should have paused to consider
whether it was really entitled to assume that dismissal
was the only
alternative at that point. It took the decision to dismiss the
workers at a point where it knew that they were claiming
they wanted
to return to work but would not sign the ultimatum and where there
was a dispute whether its requirement to sign the
undertaking went
beyond the court order, and what had been stated expressly in the
undertakings. The fact that there was an evident
disagreement about
whether workers had in fact shown their willingness to end the strike
ought to have alerted the company to the
need to give workers or the
union an opportunity to address the company on this issue. This was
not the type of case where there
had been no positive response from
strikers or their union to steps taken by management to end the
strike. The union was clearly
expressing the view that its members
wanted to return to work but should not be required to do anything
more than comply with the
court order in order to do so. What should
have been evident to management, even if they had reasonable
misgivings about the workers
real intentions, was that they were not
dealing with a workforce that adamantly continued to ignore the court
order and the company’s
ultimatums. If that had been the case,
management might justifiably have concluded that nothing was going to
alter their stance
and that there was no alternative to dismissal.
[65]
In this case, the company was aware of an unmistakable change in the
strikers’ behaviour before it issued the final ultimatum

because they had ceased picketing and appeared at the gate. It was
also aware that the union claimed it was the company that was

preventing workers from returning to work and management heard
Mathunjwa exhorting workers to return to work after the third
ultimatum
was issued. The company also knew that the court order and
the ultimatums had not stipulated any formal pre-requisite for
returning
to work but never sought to explore this sticking point
with Amcu. An enquiry or opportunity to make representations might
have
revealed that it was workers’ genuine intention to end the
strike and return to work and that it was just a natural suspicion

about why the additional requirement of signing the undertaking had
been imposed which prevented the parties from realising a common

objective.
[66]
At the very least, management could have done more to allay any
genuine concerns it had about workers intentions by giving
the union
an opportunity to make representations why it should not dismiss the
workers because they refused to sign the undertaking
before entering
the premises. That opportunity might have opened up the channel for
more meaningful dialogue of the kind which
Condie claimed he had been
seeking with Mathunjwa when he gave him the third ultimatum and
insisted on the importance of the undertaking
being signed.
Alternatively, if the company had held an enquiry before finalising
any dismissals, it might have realised that there
was a genuine
intention on the part of the workers to end the strike, instead of
relying almost entirely on its own perceptions
and interpretation of
their actions. It is for this reason that this was a case where
simply issuing the ultimatums and waiting
for them to expire was not
procedurally sufficient either.
[67]
Other factors making the dismissal substantively unfair was that the
union and its members had some reason to believe that
the strike was
a protected one. The parties clearly had not been able to conclude a
wage agreement and on the face of it, there
was an unresolved dispute
of interest arising from that, even if the company felt more time
should have been given to negotiation
beforehand. Further, the strike
was preceded by a referral to conciliation and more than two days
formal notice of the commencement
of the strike. Even though the
union engaged in some unacceptable brinkmanship between the issuing
of the order and the second
ultimatum, within less than a day after
the court order was issued the cessation of the strike had occurred,
subject only to its
possible revival later if the court order was not
discharged.
[68]
It was argued that the company ought to have held an enquiry because
not all of the strikers would have received the communications

regarding the ultimatums as they were not all present at the picket
on Monday or Tuesday. It was also conceded by the employer
that it
might have been possible to notify strikers by SMS of the ultimatums.
While that may be a measure that would be prudent
to take, and in
some situations might be seen as a necessary step, in the context of
a strike where workers outside the company
premises refused to accept
direct communications from the company and insist that there should
only be a single channel of communication
with them through their
union, they could hardly insist afterwards that the employer ought to
have communicated with them as individuals.
Moreover, workers who
engage in strike action ought reasonably to be expecting some
response from the employer. After all, if they
were not expecting to
provoke a response, they would not go on strike. It is reasonable to
expect that workers on strike will maintain
a degree of contact with
each other and their union to keep abreast of recent developments in
the progress of the strike including
management’s response to
it. Unions also ought to be aware that in the dynamics of strike
situations, circumstances can change
rapidly and the need for
constant communication between the union and its members is important
to maintain. While management needs
to communicate its responses to
the strikers clearly and unequivocally, if it attempts to do so by
communicating with the union
and the strikers were present at its
premises, that will generally be sufficient. I did not think that
management has an obligation
to try and keep constant track of the
identity of particular strikers who were not present when ultimatums
were communicated to
the strikers who are present. Obviously, there
may be situations where strikers tend to attend the strike picket
during their shift
and this would require an employer to ensure that
there was a reasonable opportunity for workers on different shifts to
adhere
to any ultimatums to return to work, but unions and shop
stewards also have a responsibility to communicate developments to
those
who are absent from the picket line. In this case, the channels
of communication were clear and the strikers would not allow any

direct communications to themselves. ALS took more than reasonable
steps to communicate the court order and ultimatums to the union
and
to the strikers at the premises. Any striker who was not present but
had been interested enough to be informed about the progress
of the
strike on a daily basis, ought to have been aware that important
developments were afoot at the time and kept themselves
updated on
those developments. The time period over which the court order and
ultimatums were communicated was not so short that
absent strikers
could reasonably claim to have been caught unawares.
The GGV workers
[69]
In respect of the GGV strikers who would not have been required to
report for duty by the time workers were dismissed on 8
November,
there is no real dispute that their dismissals were unfair. There
remains the question of the three employees who contended
they had
returned to work.
[70]
The respective company and union versions of what transpired with the
three GGV strikers who were dismissed are mutually exclusive.
Was
within the company’s grasp. According to Van der Merwe, the
only one of the three who came to the premises on 8 November
was
Baloyi and he only did so in the afternoon after the dismissals had
taken place. His reporting at that time simply in order
to collect
his belongings was consistent with arriving at GGV following the
dismissals.  Van der Merwe’s testimony that
the security
office contacted him before Baloyi was admitted to the premises
accompanied by a security official is also consistent
with Van der
Merwe’s testimony that the security office had been instructed
not to admit strikers to the premises of the
mine during the strike.
There was no direct evidence to contradict Van der Merwe’s
account of Baloyi’s appearance that
afternoon, save that by
indirect implication it was a fabrication because on Mashiya’s
version all three of them had returned
to work by about 11H00.
[71]
Mashiya could not dispute that the security office had been given
instructions not to admit them, but explained that they merely

informed the security that the strike was over and proceeded to their
workstations having been presumably seen by Van der Merwe,
who let
them work for at least two hours they were advised of their
dismissal. On their version, their supervisor simply accepted
their
return to work even though temporary workers were filling in for them
and seemingly did not think it was necessary to mention
their return
to his superior, Van der Merwe. Two difficulties arise with the
inherent probabilities of Mashiya’s account.
Firstly, given
that he said they did not speak to Van der Merwe but that he must
have seen them on the premises, it is highly improbable
he would have
simply turned a blind eye to their sudden appearance in the workplace
when they were supposed to be prevented from
entering by the security
staff. He did concede the possibility that, despite the arrangements
with the security office, it was
possible that they might have been
admitted to the premises, but that does not mean it is likely that he
would have been indifferent
to their presence if he must have seen
them on their way to their workstations as Mashiya claimed he would
have. Secondly, it seems
less probable that they would have not
created some confusion at their workstations when replacement workers
had been engaged to
do their duties. Even if those replacement
workers were not at the workstations at the time they arrived, it
seems somewhat unlikely
they would have avoided contact with them
over a period of more than two hours. Moreover, on Mashiya’s
version, Mncube did
not have any difficulties with their
reintegration in the workplace despite the presence of the temporary
replacement workers,
which also seems improbable.
[72]
I am satisfied on the relative probabilities of the two versions that
it is less likely that Mashiya and his two colleagues
did report for
duty as he claimed and accordingly they did not resume their duties
as normal only to be ejected a couple of hours
later. However, there
was no evidence what they were expected to do if they wanted to
return to work.
[73]
Van der Merwe did not testify that he had been instructed to ask them
to sign an undertaking if they reported for work and
it is more
probable that the company did not differentiate between them and the
rest of the Witlab employees and that the impasse
which led to the
dismissal of the Witlab employees also led to their dismissal. In
fact he did not even know about the undertaking
and Condie had
testified it was never sent to him. Van der Merwe testified that even
if they had presented themselves for work
they would not have been
admitted to the GGV premises, so it seems the opportunity for being
admitted to the premises before the
ultimatum expired on signature of
the undertaking was not even available to them as the undertaking was
never sent to Van der Merwe.
[74]
In conclusion, the GGV employees on strike were dismissed without any
consideration of whether or not they were prepared to
tender their
services and they were treated as if they were simply part of the
group of workers gathered at Witlab. Clearly, had
even more reason to
be heard before they were dismissed to evaluate whether their
circumstances warranted different treatment from
the rest of the
strikers, given that they would not have been admitted to the GGV
premises and the improbability they could have
complied with the
third ultimatum before it expired even if transport to GGV had been
immediately available when it was issued.
I am not satisfied that
they had the same opportunity as other strikers to comply with the
ultimatum and ought at least to have
been given an opportunity to
make representations on why they should not have been treated the
same as the other strikes. Consequently,
I am satisfied their
dismissals were also substantively and procedurally unfair.
Relief
[75]
As the dismissal of the applicants was substantively and procedurally
unfair the issue arises whether there is any reason why
they should
not be reinstated. By the time the matter came to trial, the business
of the respondent was a hollowed out version
of what it had
previously been. Owing largely to the declining fortunes of the cold
industry, in particular a substantial drop
in the coal price of
40 %, and loss of contracts involving laboratories run by ALS at
other mines, the workforce had shrunk
by even more than the number of
those who had been dismissed, a drop of close to 70%.
[76]
It stands to reason that if the workers had not been dismissed during
the course of the strike, they stood a very high chance
of being
retrenched in the ensuing years. This is not a situation where it is
simply a question of reinstating those dismissed
and then embarking
on a retrenchment process to align the employment figures with the
firm’s current operational status.
Even if every one of the
current employees were retrenched to make way for reinstated
strikers, ALS could only accommodate half
of those dismissed,
assuming for the sake of argument that the 44 of the hypothetically
retrenched workers could easily be replaced
by any of the dismissed
strikers from a skill matching point of view. Clearly, in this
context it is not reasonably practicable
to reinstate the dismissed
individual applicants.
[77]
The remaining question then is the extent of compensation as an
alternative to reinstatement. Given the analysis above of the

substantive and procedural unfairness of the dismissals, I am
satisfied that if it was practicable to reinstate the dismissed
workers that would have been the appropriate remedy, with some
reduction in the degree of retrospectivity owing to the some of the

unduly aggressive conduct of the strikers, personalised attacks on
management, racist and threatening chants, and their initial
failure
to comply with the court order as well as wilfully ignoring
communications from the company. The union also collaborated
in the
last mentioned tactic.
[78]
Given that compensation is the only alternative remedy, but that
twelve months’ compensation would be unduly generous
in view of
the factors mentioned. I am also mindful that given the reasons why
reinstatement is not practicable, the economic value
of reinstatement
would not have been very meaningful as it seems unavoidable that
approximately 50 % of the strikers would have
been retrenched after
being reinstated given the current size of the workforce.
Consequently, I believe eight months’
remuneration is an
appropriate amount of compensation.
Costs
[79]
The applicants have been substantially successful and there is no
ongoing relationship between the parties. In this case, it
is
appropriate that costs should follow the result, with a reduction as
a mark of the court’s disapproval owing to the initial
conduct
of the union after receiving the court order.
Order
[1]
The dismissal of the second and further applicants, excluding the
fourteen applicants identified
in paragraph 4.2.3 of the respondent’s
statement of response of 18 September 2015, was substantively and
procedurally unfair.
[2]
The respondent must pay each of the second and further applicant’s,
identified in
paragraph [1] of this order, compensation equivalent to
eight (8) months’ remuneration calculated at their rates of
remuneration
at the time of their dismissal in November 2011, which
must be paid within 30 days of the date of this judgment.
[3]
The respondent must pay 75 % of the applicants’ costs.
_______________________
Lagrange
J
Judge
of the Labour Court of South Africa
APPEARANCES
APPLICANTS:
R
Itkin instructed by Larry
Dave
Inc.
RESPONDENT:
A
Freund, SC instructed by
Anton
Bakker Attorneys
[1]
[2014] 1 BLLR 31
(LAC) at 36, par [26].
[2]
At pages 38-39, paras [29] – [30].