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[2017] ZALCJHB 483
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South African Clothing and Textile workers Union and Others v Filtafelt (Pty) Ltd (JS263/15) [2017] ZALCJHB 483 (14 November 2017)
THE
LABOUR COURT OF SOUTH AFRICA, JOHANNESBURG
JUDGMENT
Reportable
Case
no: JS 263 / 15
In
the matter between:
SOUTH
AFRICAN CLOTHING AND TEXTILE
WORKERS
UNION
First Applicant
GEORGE
RAKAU AND 7 OTHERS
Second and Further Applicants
and
FILTAFELT
(PTY)
LTD
Respondent
Heard
:
24, 25 and 26
April
2017
Delivered
:
14 November 2017
Summary:
Dismissal – employees dismissed for participation in
unprotected strike action –
determination whether dismissal
justified and fair
Dismissal
– whether employees provoked into striking – principles
and evidence considered – employees not provoked
– strike
in fact pre-planned – conduct of striking employees unjustified
Inconsistency
– subsequent re-employment of two employees – principles
considered – issue in reality not one of
inconsistency –
applicants should have pursued dismissal case under Section 186(1)(d)
– no such case made out or pursued
Inconsistency
– even if inconsistency considered – no like for like
comparison – inconsistency not shown to exist
Dismissal
– whether sanction of dismissal for participation in
unprotected strike action appropriate – principles considered
–
dismissal as a sanction justified and fair
Procedural
fairness – whether chairperson of appeal hearing biased –
principles considered – no bias shown –
dismissal
procedurally fair
Procedural
fairness – absence of appeal hearing held – consequences
to procedural fairness – application of LRA
and Code of Good
Practice relating to procedural fairness – no procedural
fairness found to exist
JUDGMENT
SNYMAN,
AJ
Introduction
[1]
I
feel compelled to make some remarks at the outset of this judgment
about the fact that after more than two decades of the new
employment
law dispensation following the introduction of the new Labour
Relations Act (‘the LRA’)
[1]
,
employees still consider it feasible to embark upon unprotected
strike action in pursuit of demands relating to employment
conditions.
I have difficulty in understanding why this is so,
especially if regard is had to the high rate of unemployment that
prevails in
this country. I would expect employees to rather
pursue a course of action that protects their jobs, than to embark
upon
action that places it in jeopardy. It is well known by now
what is needed for strike action, in pursuit of demands relating
to
employment conditions, to be permitted and thus protected under the
LRA. This is not difficult to comply with. As
discussed
later in this judgment, it is equally well known that unprotected
strike action not in compliance with the LRA carries
with it a very
real risk of participating employees losing their jobs as a result.
I thus simply cannot comprehend why this
still happens.
[2]
Having made these opening remarks, back to
the matter at hand. The second to further applicants (who I
will refer to in this
judgment as the ‘individual applicants’)
were all dismissed on 14 October 2014. Following their
dismissal, the
applicants pursued an unfair dismissal dispute on
variety of grounds, against the respondent, ultimately ending up in
the Labour
Court. In a statement of claim filed on 7 April 2015, the
applicants contended that the individual applicants had not embarked
upon an unprotected strike, because they were not required to tender
services unless they got paid the wages they were entitled
to.
In the alternative, the applicants contended that even if the
individual applicants had embarked upon an unprotected
strike, they
were in essence provoked by the respondent into this. The applicants
also raised an automatic unfair dismissal claim
in terms of Section
187(1)(d)(i) of the LRA, saying they were dismissed for exercising a
right under the LRA. A further issue
raised by the applicants
was that the respondent acted inconsistently when it re-employed two
of the dismissed employees after
the fact. A final complaint
was that proper ultimatums were not given to the individual
applicants prior to the disciplinary
proceedings against them.
Only one procedural issue was raised, being that the individual
applicants were not given an appeal
hearing or an opportunity to make
representations at their appeal.
[3]
The respondent opposed the claim. It
contended that it never provoked the individual applicants in any
way. It stated
that the issue of wages related to a wage
increase, and in this regard, the respondent had applied for and
received exemption from
the relevant bargaining council, an issue the
applicants had been fully briefed on and was aware of. The
respondent explained
that the exemption was necessary because of its
dire financial position, of which the applicants was also well
aware. According
to the respondent, the applicants embarked
upon pre-planned unprotected strike action for several days, and
ignored ultimatums
to return to work. The respondent also
disputed any inconsistency in its conduct. As to the issue of
procedure, the
respondent contended it was not obliged to give the
applicants an appeal.
[4]
Fortunately, and at the pre-trial stage,
the disputes between the parties were substantially narrowed down.
Firstly, and importantly,
the applicants conceded and agreed that the
individual applicants had embarked upon unprotected strike action, in
which they demanded
that they be paid the increased wages under the
industry collective agreement. The automatic unfair dismissal
claim was also
not pursued.
[5]
What thus remained for determination was
only the following disputes:
5.1 Did
the respondent provoke the individual applicants into embarking upon
an unprotected strike?;
5.2 Did
the respondent act inconsistently in re-employing two of the
employees it had dismissed for
striking, after the fact?;
5.3 Were
the individual applicants issued with proper ultimatums?;
5.4 Was
dismissal a fair sanction to impose on the individual applicants?;
and
5.5 Were
the applicants entitled to an appeal hearing, and not having received
the same, whether their
dismissal was procedurally unfair?
[6]
The matter came before me on trial on 24,
25 and 26 April 2017, and was finalized on the latter date.
Argument was presented
by both parties on 26 April 2017, and I
reserved judgment. I will now proceed to give judgment by first
setting out the
relevant factual matrix, in
answering the above questions I need to decide.
The
relevant background
[7]
The respondent conducts business as a
manufacturer of filter mediums. The business of the respondent
resorts under the scope
and jurisdiction of the National Textile
Bargaining Council (‘the council’). The issue of
wages and conditions
of employment in the industry is regulated by
the main collective agreement in the council, as amended from time to
time.
Wage increases, as well as annual bonuses paid to
employees, are determined by this main collective agreement. It
must however
be pointed out that the respondent is not an actual
party to the main collective agreement, but the first applicant was.
[8]
It was undisputed that the respondent’s
business, at least since 2013, had been experiencing financial
difficulties.
Its financial statements for the year ending 31
December 2013 showed a loss of just short of R4.5 million for the
year, up from
a loss of some R3.2 million the previous year. As
a result of these financial difficulties, the respondent was unable
to
pay its employees’ annual bonuses due in December 2013.
On 30 October 2013, it applied to the council for exemption
from
paying bonuses, and this application was granted. As a result,
employees were not paid their 2013 annual bonuses.
[9]
On 13
December 2013, a new wage and conditions of employment agreement was
concluded in the council (‘the agreement’).
The
agreement also applied to the respondent and its employees. It
is common cause that the agreement, in clause 2 thereof,
provided
that it would come into operation on the date when the Minister of
Labour extended to the agreement to non parties, and
would apply
until 31 December 2015. This extension of the agreement took
place on 22 September 2014.
[2]
This meant that as from 22 September 2014, the employees of the
respondent would be entitled to the wage increases
and the annual
bonus as prescribed by the agreement.
[10]
In the interim, and at the beginning of
2014, the respondent embarked upon a retrenchment exercise in terms
of Section 189 of the
LRA, because of its financial position. This
exercise was however not pursued to finality. The former proprietors
of the respondent
commenced negotiating with an overseas investor to
acquire the business of the respondent, and the retrenchment process
was put
on hold as a result, as the successful conclusion of these
negotiations would save employees’ jobs. The council, first
applicant
and employees were so informed on 28 May 2014.
[11]
The sale negotiations were ultimately
successful, and the business was sold to the overseas investor, the
current respondent, on
1 July 2014. On 3 July 2014, the
respondent then informed the first applicant and the council of the
sale, and that the Section
189 restructuring process had been
withdrawn. It was also confirmed that the employment of all the
employees would transfer
to the new owner in terms of Section 197 of
the LRA, with all conditions of employment intact. This new
owner is the current
respondent in these proceedings.
[12]
After this acquisition of the business and
transfer being effected, the respondent sought to meet with the first
applicant to discuss
the way forward, especially in the context of
the respondent’s still dire financial position. A meeting
was scheduled
for 18 July 2014. In a letter dated 4 July 2014,
the respondent requested the first applicant to provide its agenda
for the
meeting, and stated that the respondent’s new owners
would give a presentation on the way forward for the business.
On 8 July 2014, the first applicant provided its agenda for the
meeting, which was recorded as the Section 197 agreement, the 2014
increment, and exemption. In respect of all these discussions,
and events to follow, the respondent dealt with Senzo Myeni
(‘Myeni’), an official at the first applicant’s
Pretoria branch.
[13]
The meeting then indeed took place on 18
July 2014. Myeni did not attend this meeting, and sent a
colleague, Cornelius Kodisang.
In this meeting, the parties
discussed the issue of the Section 197 transfer, and this was
resolved. The respondent then
proposed that as part of the
turnaround strategy for the business, the parties agree to a change
in working hours, which was then
discussed. Agreement was also
reached on this issue. The first applicant then proposed
that the employees in
fact start as new employees with the new
owners, and be paid out severance packages. The respondent
undertook to look into
this, and revert. But when the
respondent wanted to discuss the issue of exemption, despite this in
fact being tabled by
the first applicant as well, the first applicant
refused to discuss this. The respondent however indicated that
it would
be seeking exemption.
[14]
With the implementation of the new
increases and bonuses in terms of the agreement looming, and as part
of its turnaround strategy,
the respondent on 4 August 2014 then
sought to apply to the council for exemption from paying these wage
increases and bonuses.
A proper substantive application was
submitted. The first applicant was fully aware of this
exemption application, which
was in any event circulated to it by the
council itself by e-mail on 8 September 2014. On 9 September
2014, Dennis Maluleka
from the first applicant sent an e-mail to
Myeni, asking if the branch supported the application.
[15]
Inexplicably, and on 10 September 2014,
Myeni then wrote to the respondent, indicating that it had come to
the attention of the
first applicant that the respondent did not pay
the 2014 increase, and urged the respondent to pay these increases
with effect
from 1 July 2014. This was despite the fact that as
a non party, the respondent was not yet liable to pay the increase
until
the agreement had been extended to non parties. The
respondent answered on the same day, stating that it had applied for
exemption on 4 August 2014. Myeni e-mailed back on 11 September
2014,
inter alia
requesting
proof of the exemption application being made and whether it had been
approved. The respondent answered on 12 September
2014,
indicating that it was still awaiting the outcome of the exemption
application, and would keep the first applicant posted
of
developments. Nothing further was heard from the first
applicant in this regard, after this exchange.
[16]
On 23 September 2014, the individual
applicants then embarked upon unprotected strike action. They
occupied the canteen, and refused
to work. The managing
director of the respondent, Martin Cross (‘Cross’), went
to speak to them where they gathered
in the canteen. They were
peaceful, but simply refused to work. Cross asked them to come back
to work in the factory, and
then the parties could open a dialogue.
The individual applicants refused to discuss anything with Cross, and
said that all
they wanted was their increases. Cross tried for
about 45 minutes to get them back to work, but was met with point
blank
refusal. Cross then contacted the respondent’s
labour consultant, Lesley Winkworth (‘Winkworth’) for
assistance.
[17]
Winkworth then immediately telephoned
Myeni, and spoke to him that same morning. Winkworth informed Myeni
that the individual applicants
had embarked upon an unprotected
strike, and asked Myeni to intervene to resolve the situation and get
the individual applicants
back to work. Myeni said that he was
travelling and was in Durban at the time, but that he would telephone
the shop steward
to find out what was going on. Myeni never reverted
to the respondent about his efforts in this regard, and the
individual applicants
remained in the canteen the whole day on 23
September 2014, refusing to work.
[18]
The next day, 24 September 2014, the
individual applicants came to work, but once again occupied the
canteen and refused to work.
Attempts to convince them to
return to work failed again. Winkworth called Myeni, who once
again undertook to look into the
situation and revert. Nothing
happened, and Myeni never reverted to the respondent. The individual
applicants once again
remained in the canteen all day and refused to
work. With 24 September 2014 being a Friday, the respondent
decided to wait
until after the weekend to take any action, hoping
that over the week end the first applicant could discuss the matter
with the
individual applicants and convince them to return to work.
[19]
But unfortunately, the respondent’s
hope was misplaced. On Monday 27 September 2014, the individual
applicants again came
to work, occupied the canteen, and refused to
work. Winkworth then contacted Myeni and informed him that
disciplinary proceedings
would now be instituted against the
individual applicants if they did not resume their duties. The
individual applicants however
still persisted with their refusal to
work. After 27 September 2014, the individual applicants did not
report at work at any time.
[20]
According to Myeni, and upon being
contracted by Winkworth, he did drive to the respondent’s
premises to meet with the individual
applicants. Further according to
Myeni, the individual applicants told him that if the respondent gave
them a firm date by which
they would be paid their increases, they
would go back to work. Myeni testified that he told Winkworth that
the respondent must
first commit to pay the increases before the
individual applicants would go back to work.
[21]
A meeting was then held at the respondent
on 30 September 2014 to discuss the matter, and try and resolve the
impasse. This meeting
was also attended by Cross, Winkworth and
Myeni. In this meeting, Myeni made it clear that unless the
individual applicants receive
their increases, they would not go back
to work. Winkworth sought to explain that the respondent would
wait for the pending
exemption application, and if it was not
successful, then the respondent would pay the increases, but if it
was successful, then
the respondent would not pay the increases.
Myeni indicated that the union and the individual applicants were
opposed to the exemption,
and maintained that if there was not a firm
commitment to pay the increases, the individual applicants would not
return to work.
[22]
The issue could therefore not be resolved
on 30 September 2014, and the individual applicants persisted with
their refusal to tender
services. On 30 September 2014, the
respondent then notified the first applicant in writing that
disciplinary action would be instituted
against the individual
applicants for what it called an ‘illegal work stoppage’
and failing to obey a lawful instruction
to return to work.
Individual notices to attend a disciplinary enquiry on such charges
were also issued to each individual
applicant. The disciplinary
hearing was scheduled for 9 October 2014, but ultimately took place
on 13 October 2014.
[23]
The disciplinary hearing was presided over
by Jacobus Stephanus Coetsee (‘Coetsee’), and independent
chairperson. The
individual applicants were represented in the
hearing by Myeni. Myeni in fact entered a guilty plea in the
disciplinary hearing
to the two charges against the individual
applicants. The proceedings then proceeded on the issue of an
appropriate sanction.
Coetsee testified that even in the hearing, the
individual applicants made it clear that they would not go back to
work unless
they get paid their increases, and they never expressed
remorse for what they did. Coetsee recommended the summary dismissal
of
the individual applicants in a written finding dated 14 October
2014. This finding was conveyed to Myeni on 16 October 2014.
The individual applicants were as a result dismissed.
[24]
On 17 October 2014, Myeni lodged an
internal appeal. The basis of the appeal was that the sanction of
dismissal was not appropriate.
On 23 October 2014, with no appeal
hearing being convened, Winkworth wrote to the first applicant
informing it that he had considered
the grounds of appeal, but felt
convinced that the sanction was commensurate with the misconduct, and
that the dismissal was upheld.
It is thus undeniable that no
actual appeal hearing was held.
[25]
The applicants then referred an unfair
dismissal dispute to the CCMA on 31 October 2014. In the
referral, it was contended
that the strike was ‘triggered’
by the conduct of the respondent in not paying increases, and that
the dismissal was
procedurally unfair due to non compliance with
‘Section 6 of Schedule 8’ of the LRA. This dispute
remained unresolved,
and a certificate of failure to settle was
issued by the CCMA on 28 November 2014.
[26]
As to the respondent’s exemption
application, it was only considered by the council on 28 November
2014, and then declined
on 10 February 2015. The respondent was
advised that it could pursue the matter further to the Independent
Exemptions Committee
(‘IEC’). The respondent did so
immediately, and filed an application with the IEC on 16 February
2015. The matter
was heard on 22 April 2015, and in a ruling
dated 6 May 2015, the exemption was granted by the IEC. In terms of
the exemption ruling,
the respondent was granted exemption from
paying the increases and bonuses under the agreement, for the period
from 1 July 2014
to 30 June 2015.
[27]
One final factual issue bears reference. It
was common cause that two of the individual applicants that had been
dismissed because
of their participation in the unprotected strike
action had found their way back into working for the respondent, as
from 10 November
2014. These two individual applicants were
Jack Tumelo Rakoma (‘Rakoma’) and Johannes Ngobeni
(‘Ngobeni’).
The circumstances as to how this came about
were in dispute between the parties, and will be addressed later in
this judgment.
[28]
The aforesaid constitutes the background
facts against which the matter
in casu
is to be decided. I must say that in the end and after the witnesses
testified, very little of what transpired was in dispute.
Only two
main factual issues were in the end in dispute, being the issue of
the applicants’ prior knowledge of the exemption
application
and what it meant, and how the two individual applicants referred to
above came to be re-employed at the respondent.
I will specifically
deal with these issues under the appropriate headings later in this
judgment.
[29]
I will now turn to deciding the merits of
this matter, by answering the five issues identified above, starting
with answering whether
the respondent had provoked the individual
applicants into striking.
Were
the individual applicants provoked?
[30]
As
touched on above, it was common cause that the individual applicants
had embarked upon unprotected strike action from 23 September
2014,
and that this strike action persisted to 30 September 2014.
This clearly constitutes admitted misconduct, for which
dismissal may
well be appropriate.
[3]
In Section 68(5) of the LRA, it is provided that:
‘
Participation
in a strike that does not comply with the provisions of this Chapter,
or conduct in contemplation or in furtherance
of that strike, may
constitute a fair reason for dismissal. In determining whether or not
the dismissal is fair, the Code of Good
Practice: Dismissal in
Schedule 8 must be taken into account.
'
[31]
Schedule 8 deals with the issue of
substantive fairness where it comes to dismissals for participation
in unprotected strike action
in Items 6(1) and (2), which in turn
provide:
‘
(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.
'
[32]
The applicants have very much focussed
their case on Item 6(1)(c), and has pleaded that the individual
applicants were provoked
by the respondent into striking. As such,
this part of the case requires specific attention from the outset. In
the pre-trial minute,
the applicants have said that the provocation
is based on a number of factors, being the following: (1) the
respondent failed to
pay the individual applicants their full wages
pending the outcome of the exemption application; (2) the respondent
failed to consult
the applicants before submitting the exemption; (3)
the respondent failed to advise the individual applicants that it
submitted
an exemption; (4) the respondent failed to advise the
individual applicants that it would not pay the increased wages
pending the
outcome of the exemption; (5) the respondent did not pay
the individual applicants’ 2013 bonuses but the employees
believed
that the respondent was able to do so; and (6) the
respondent breached the individual applicants’ contracts of
employment
by not paying their full wages.
[33]
Do the facts however bear out these
contentions? In my view, not at all. For the reasons I will now
set out, I find it very
hard to believe the individual applicants
were in any way provoked by the respondent. Rather, the irresistible
inference to be
drawn from the evidence is that the strike was
planned beforehand, to coincide with the extension of the agreement
to non-parties,
which happened on 22 September 2014.
[34]
I will dispose of the easiest issue first.
In my view, it cannot be legitimately said that the non-payment of
the 2013 bonus
had anything to do with the strike. As set out
above, the individual applicants were advised in writing that the
2013 bonus
would not be paid, together with the reason why this was
the case. The first applicant and the council had also been informed
of
this. The reason why this was the case had been accepted,
and no dispute was ever raised. To contend that this could
serve as provocation for a strike that started on 23 September 2014
is simply untenable. I may add that the issue of the 2013 bonus
never
featured in the discussions as to what the individual applicants
demanded from the respondent to stop their strike, which
was always
only that their 2014 increases in terms of the agreement had to be
paid.
[35]
This then leaves the issue of the 2014
increases in terms of the agreement. As said, the
evidence paints a picture far
different from one of employees being
genuinely provoked by the conduct of the respondent where it came to
this issue. Everyone
knew the respondent was in financial
trouble. There was a retrenchment pending since the beginning
of 2014, which was only
avoided as a result of the sale. Immediately
when the new owners took over, they engaged the first applicant and
the employees
on the way forward to turn the business around.
When the first meeting was set up in July 2014, the issue of
exemption from
the 2014 wage increases were put on the agenda,
however when the respondent attempted to discuss this in the meeting
of 18 July
2014, the first applicant refused to discuss it, but knew
it was coming. Cross also testified that he did discuss the issue of
exemption with the employees themselves as well. According to Cross,
the employees were well aware that exemption was needed, in
addition
to funding procured from the overseas investor, to turn the business
around. In short, the issue of the respondent wishing
to pursue an
exemption from the 2014 wage increases was never a surprise the
individual applicants, or the first applicant. I am
satisfied that on
the probabilities, they knew it was coming.
[36]
The respondent then filed the exemption
application at the beginning of August 2014. On the undisputed
evidence, this application
was forwarded by the council itself to the
first applicant on 8 September 2014, and then brought to the
attention of Myeni specifically
on 9 September 2014. Knowing
full well there is an exemption application pending before the
council, Myeni demands on 10
September 2014 that the respondent
implements the wage increase. Correspondence is exchanged
between Myeni and the respondent
on 11 and 12 September 2014 in which
the respondent makes it clear that the wage increases would not be
implemented until the pending
exemption application had been decided.
[37]
Under cross examination, Myeni confirmed
that the first applicant was fully aware of the enforcement
provisions in the council main
agreement and that if the first
applicant believed that the respondent was not complying with the
agreement, it could enforce it
against the respondent. Myeni
then conceded that the first applicant had decided not to pursue
enforcement proceedings because
of the pending exemption application.
It is clear to me that the first applicant always knew that the issue
of exemption had to
be first decided by the council before increases
would be paid or the agreement enforced, and must have briefed the
individual
applicants accordingly.
[38]
It
must also be considered that the individual applicants were not
entitled to be paid the wage increase until such time as the
agreement had been extended to non-parties such as the respondent.
The respondent pro-actively sought exemption, before even this
due
date. It has to be more than coincidence that the agreement is
extended to non-parties on 22 September 2014 and the strike
starts on
23 September 2014. To me, this undoubtedly illustrates that the
applicants knew that enforcement through the council
was not possible
because of the already filed exemption, but once the agreement was
actually extended to the respondent this could
serve as basis to
justify the strike by accusing the respondent of unjustified
behaviour because of not immediately complying with
the agreement
upon being liable to do so. Such an approach would be entirely
inconsistent with a case of being provoked, and indicates
a measure
of pre-planning. There was nothing spontaneous about what had
happened. In
Mndebele
and Others v Xstrata SA (Pty) Ltd t/a Xstrata Alloys (Rustenburg
Plant)
[4]
the Court held as follows, as part of the Court’s reasoning for
finding that the dismissal of the employees was fair:
‘…
In
addition, the strike was not spontaneous, but rather planned to occur
at the time that would create maximum pressure on the respondent
and
the strike was not one that the employer had provoked through any
unjust conduct. …
’
[39]
It was suggested that what the respondent
could have done was to nonetheless pay the increases pending the
outcome of the exemption
application. This was in fact the demand
articulated by the individual applicants throughout their unprotected
strike. I
am however compelled to agree with the testimony by
both Cross and Coetsee that to do this would be destructive of the
very basis
of the exemption application itself. In simple
terms, if the respondent can afford to pay the increase pending the
determination
of its exemption application, then why is it necessary
to apply for exemption at all. This would make no sense. The very
purpose
of the exemption application is because the respondent cannot
afford to pay the increases in the first place. And then, as
set out above, the respondent was actually ultimately successful in
seeking exemption from paying the increase, showing that the
position
it adopted was entirely justified.
[40]
A consideration that is not lost on me is
that if the respondent did pay the increases pending the exemption,
and then obtained
the exemption resulting in the increases in effect
being taken away, this would be far more prejudicial and provocative
to the
individual applicants. They would by then have enjoyed the
fruits of an increase, adapted their living expenses accordingly,
only
to then have their salary reduced. I am convinced that this
would cause far more dissatisfaction. It was thus not only
permissible,
but actually prudent, not to pay the increases until the
exemption had been decided, and in my view the respondent was thus
not
obliged to pay the individual applicants the increases at the
time they went on strike, and cannot be seen to have provoked the
individual applicants as a result.
[41]
In
National
Union of Mineworkers and Others v Power Construction (Pty) Ltd
[5]
the Court dealt with a situation where the employer relied on a
provision in Sectoral Determination 2: Civil Engineering Sector
SA,
which in effect determined that if employees could not work due to
inclement weather, they would not be paid for the day not
worked.
There was a dispute as whether the employer was entitled not to pay
the employees on this basis, and the employees
embarked upon
unprotected strike action because of this. Of relevance to the
matter now at hand, the Court said:
[6]
‘
It
cannot, in my view, be said that the strike was in response to
unjustified conduct by the employer. … the second reason
—
that they wanted management to deal with the grievance regarding the
application of the sectoral determination —
is an issue that
they should have referred to the bargaining council …
’
The
point that emerges from this
dictum
is that the individual
applicants, if they believed that they were either entitled to the
increases as of right, or should be paid
the increases despite the
pending exemption, had alternative avenues open to them. They
could have pursued enforcement proceedings
of the collective
agreement at the council. Or they could have engaged in the
exemption application, opposed it, and then
exert pressure through
the first applicant’s direct membership of the council to
expedite the determination thereof.
None of this was done.
There was simply no necessity for the strike.
[42]
I
also consider the fact the strike started some two weeks after the
respondent’s last engagement with the first applicant
in which
it was made clear that the respondent would first wait for the
outcome of the exemption before increases would be paid,
with no
further interaction between the parties in between. Yet again,
there is nothing spontaneous in a strike starting
two weeks later.
Then, and the day after the agreement is made applicable to the
respondent by the Minister’s extension
to non-parties, the
individual applicants simply occupy the canteen, refuse to work and
make no specific demands. It is only
though the first
applicant’s involvement that it finally and clearly comes out
that what the individual applicants want,
is to be paid the increase
despite the exemption. In
National
Union of Metalworkers of SA and Others v CBI Electric African
Cables
[7]
the Court said:
‘…
While
I accept that the respondent's failure to pay the employees correctly
for the hours they had worked triggered the employees'
response, I do
not, however, agree that the means they employed justified the end
they sought to achieve. Abandoning their workstations
and leaving the
respondent's premises was not conduct which, in all the circumstances
of the case, could be said to have been a
reasonable means by which
to respond to the respondent's failure to comply with its contractual
obligations. Other less disruptive
and non-belligerent ways to
resolve the issue were available to the employees. There is no
evidence that their abandonment of their
workstations was coupled
with any demand or grievance.
Their
conduct was deliberate and calculated. It undermined the process of
collective bargaining as a tool to resolve industrial
disputes. …
Their collective decision to walk off at 22h00 was taken before they
filed any grievance. There was no attempt
at all on their part to
comply with the provisions of the Act regarding the handling of
grievances. The employees' contention that
they were justified in
leaving their shift early because of the respondent's failure to pay
them correctly, is according rejected.
’
Based
on what is summarized above, similar considerations in my view apply
in casu
.
[43]
As a
concept, provocation requires at least some form of wrongful conduct
or
mala
fides
or material breach of employment conditions or employment contract by
the employer or its representatives (management). In my view,
it
cannot be said that where an employer implements or pursues
legitimate and permitted means to deal with a difficulty that it
has,
this could be seen to be provocation of the employees. In short, some
turpitude on the part of the employer is necessary.
An example
of the kind of conduct that could be seen to constitute such
turpitude can be found in
National
Union of Metalworkers of SA and Others v Pro Roof Cape (Pty) Ltd
.
[8]
In this judgment, the Court held that the employers’ failure to
pay ‘significant amounts’ in remuneration
due to
employees ‘
contributed
significantly to a loss of trust in its industrial relations with its
workforce’
.
Then further, the Court also considered the fact that once the
dispute reared its head, the employer chose to deal with
the matter
in a dismissive fashion, breached an agreement it reached with the
union, and never had the intention to pay the amounts
concerned
despite saying it would. The Court described these actions of
the employer as being ‘nothing less than provocative’
and
‘reprehensible’.
[9]
The Court concluded:
[10]
‘
In
sum, the employees showed some forbearance and accommodation in
relation to the employer's illegal conduct. What they assumed
to be
the employer's reneging on 20 December was probably the final straw.
Unquestionably, the demand of the strike was legitimate,
albeit that
it related to a rights dispute. Nor was the timing of the strike
calculated to maximize harm. It was a responsive strike
embarked upon
in reaction to the employer's unsatisfactory conduct. It endured for
a mere few hours …
’
[44]
The case now before me is not anywhere near
to what the Court was critical of in
Pro
Roof Cape
. The opposite is in
fact true. The respondent played open cards with the applicants
throughout, and they were fully
aware that the respondent’s
actions were motivated by its dire financial position. The
applicants knew why the respondent
needed exemption, and they knew it
was coming. The applicants also knew that the consequences of
this exemption would be
that they do not receive increases for 2014.
The respondent was entitled to seek exemption, and thus its actions
in applying for
it was legitimate, and a proper course of action to
try and resolve its financial difficulties. At the beginning of
August
2014, the respondent had filed a proper application for
exemption, of which the first applicant was aware. Despite this
exemption,
the first applicants still demanded that the increases be
paid and the respondent pointed out that this could not be done until
the exemption had been decided. This all happened some two
weeks before the strike started. Then, and without anything
further emanating from the respondent, the strike started on 23
September 2014, the very next day after the 2014 increases were
made
applicable to the respondent. In light of the pending
exemption, and all the background preceding it, the demand by
the
individual applicants pursuant to their strike was simply not
legitimate. And finally, the strike that started on 23
September 2014 persisted until 30 September 2017 when it was decided
to discipline the individual applicants. If anyone was forbearing
and
accommodating in this instance, it was the respondent.
[45]
Further
examples of where the Court had accepted that employees were provoked
into striking are the judgments in
National
Union of Metalworkers of SA and Others v Lectropower (Pty) Ltd
[11]
,
Food
and Allied Workers Union and others v Supreme Poultry (Pty) Ltd
(Formerly known as Country Bird)
[12]
,
Transport
and General Workers Union and others v Coin Security Group (Pty)
Ltd
[13]
and
SACTWU
and Others v Novel Spinners (Pty) Ltd
[14]
.
In
Lectropower
,
the Court accepted that provocation for the strike existed in
circumstances where the strike was triggered by the summary dismissal
of three shop stewards without a hearing, the reasons for that
dismissal turned out to be that the employer felt that their removal
would prevent industrial action, they were considered troublemakers,
and that the chairperson of a grievance hearing took exception
to the
demand tabled by the shop stewards in the grievance.
[15]
In
Supreme
Poultry
,
the Court accepted provocation where the employees reacted to a
manager of the employer, in response to legitimate grievances
laid by
the employees,
shouted
at them and crumpled up the letter containing the grievances and
threw it back at them.
[16]
In
Novel
Spinners
,
the Court held that the strike was caused by provocation in an
instance where the union had tabled
various requests for meetings to discuss legitimate issues, to which
the employer did not even respond to, and where it found that
the
employer wanted to unreasonably delay meeting with the union.
Finally,
and in
Coin
Security Group
,
the employer simply unilaterally, and without prior notice, withdrew
transport of the employees to their sites because they earlier
participated in an industry protected strike, and instructed them to
make their own way to their sites whilst threatening them
with
dismissal if they did not do so.
[17]
The Court in
Coin
Cecurity Group
said in this regard:
[18]
‘
In
my view
,
the collective impact of this unjustified behaviour of the respondent
provoked the unprotected strike and clearly outweighed any
possible
criticism against the individual applicants for not utilising the
mechanisms of the LRA and for embarking upon an unprotected
strike …
’
[46]
A central theme emerges from all these
judgments. In each of these cases, the employer in essence
adopted an indefensible
position, and acted either unlawfully,
unacceptably or unreasonably. The strikes were an immediate
reaction to this kind
of conduct, and were of short duration.
In simple terms, there was a direct connection between the unlawful,
unacceptable
or unreasonable conduct of the employer and the strike
that promptly followed. None of these consideration apply
in
casu
, as nothing the respondent did was
unlawful, unacceptable or unreasonable, and certainly the strike did
not promptly start in reaction
to anything the respondent did at and
around the time it started. The lengthy duration of the strike
of the individual applicants
is also inconsistent with a situation
where they had been provoked into striking.
[47]
I
conclude on this topic by other individual references where the Court
found that provocation did not exist. In
Mxalisa
and Others v Dominion Uranium Joint and Another
[19]
the Court held that the strike was not provoked by the dismissal of
committee
members by the employer, because the strike started long after that
dismissal and even after an unfair dismissal dispute
had been
referred to the CCMA, and that dispute referral had failed. In
National
Union of Metalworkers of SA and Others v SA Truck Bodies (Pty)
Ltd
[20]
the Court similarly rejected a case of provocation based on the
employer disciplining a shop steward, because the shop steward
has
been properly charged and suspended, and was notified to attend a
disciplinary hearing on charges of insubordination which
the Court
found was justified considering the conduct of the shop steward.
The Court said:
‘
In
these circumstances, the subsequent unprotected strike was in clear
defiance of the lawful right of an employer to suspend and
charge a
disrespectful and defiant employee. …
’
In
line with the central theme discussed above, these two judgments show
that the instances where provocation is not found to exist
are where
the conduct of the employer was legitimate, and there was no prompt
reaction to anything the employer did. As stated,
the matter
now before me is aligned to these cases.
[48]
Also,
the issue of the exemption was an ongoing issue, since the beginning
of July 2014, and dealt with again in September 2014.
There was
nothing indicating that this application for exemption would not be
properly dealt with in terms of the processes prescribed
in the
council main agreement, and the applicants could fully participate in
these processes. These are further factors that
work against a
legitimate complaint of provocation. In
Modibedi
and Others v Medupi Fabrication (Pty) Ltd
[21]
the Court dealt with a situation in which it was contended by the
employees that the strike was provoked by the employers failure
to
resolve the ongoing problem of poor quality food served to the
employees. The Court held:
[22]
‘…
it
was argued on behalf of the applicants that they had demonstrated
that the issue of the poor quality of meals had been there
for some
time since 2009, and that action was taken by the respondent only
after the meal boycott in February and March 2010. Even
if this was
the case, to the extent that the employees had laid a grievance in
this regard, and countless meetings were held to
address the issue,
this adds credence to the view that as the matter was on-going and
under sustained discussions, this could not
serve as provocation to
the extent that the whole procedure designed to deal with such
matters under the PLA could be completely
ignored. To this end, there
is no basis for a conclusion to be made that there was provocation
that compelled the applicants to
ignore the provisions of the PLA and
embark on the path that they took. …
’
[49]
For all the reasons set out above, it is my
conclusion that the respondent did not provoke the individual
applicants. The
strike of the individual applicants was not
based on any unjustified conduct by the respondent. The
respondent at all times
acted in a legitimate and responsible manner,
on order to deal with genuine challenges in its business. The
applicants were
kept appraised of what the respondent was doing, and
in particular, the applicants at all relevant times knew that there
was a
proper exemption application in respect of the 2014 wage
increases pending in the council. It was not a legitimate
demand
on the part of the applicants to insist that these increases
be paid irrespective of the pending exemption application. I
also believe that the strike was pre-planned to coincide with the
date when the 2014 wage agreement became applicable to the respondent
so that it could be said that the respondent breached their
employment conditions as justification for what they planned to do.
The duration of the strike and the demand persisted with therein
further convinces me that the strike was a deliberate design by
the
applicants to scupper the exemption application by way of placing
undue pressure on an already struggling respondent.
I thus
reject any case that the individual applicants had been provoked.
Is
there inconsistency?
[50]
Next, the applicants contended that the
respondent acted inconsistently in dismissing the individual
applicants, because the respondent
had subsequently re-employed two
of the individual applicants, namely Rakoma and Ngobeni. It was
undisputed that they were part
of the group of dismissed employees,
and that subsequently, the respondent in fact re-employed them.
Thus, and in order to
decide whether this part of the applicants’
case has substance, it must be determined exactly how the
re-employment of Rakoma
and Ngobeni by the respondent came about.
[51]
Cross testified that the decision to
dismiss the individual applicants was a final one and that the
respondent, after the dismissal,
took measures to obtain an entirely
new workforce. Because of the severe financial pressure the
respondent was under, it
was according to Cross considered most
prudent to utilise the services of a labour broker to provide it with
employees.
[52]
According to Cross, he was approached by
Rakoma and Ngobeni in November 2014, asking for their jobs back.
They told him they
were sorry for taking part in the strike and did
not agree with the demand made in the course of the strike.
They also told
him that they were coerced by the other employees to
participate in the strike. Cross testified that he told them
that the
respondent was not employing any employees at that time and
had decided to use the services of a labour broker. Cross then
referred them to the Labour broker.
[53]
Rakoma and Ngobeni then indeed went to the
labour broker, LP Artisan Recruitment CC, and signed an employment
contract with it on
10 November 2014. The labour broker then
placed them along with other workers provided by the labour broker to
the respondent.
Cross testified that the two of them then
worked through the labour broker at the respondent until March 2015
and as far as he
was concerned had proven themselves by way of their
work and conduct to the respondent again. The respondent then
offered
them employment with the respondent again, effective 26 March
2015, in terms of new written contracts of employment.
[54]
Cross testified that none of the other
individual applicants behaved in a similar manner as Rakoma and
Ngobeni did after their dismissal.
None of them approached the
respondent. He was adamant that the respondent never approached
any of the individual applicants
for re-employment.
[55]
Ngobeni testified that he received a
telephone call from the respondent to come to the employer to speak
about re-employment, and
was told there was the possibility of
re-employment for him through a labour broker. Ngobeni said
that he spoke to the production
manager, Adam, in this regard.
Ngobeni expressed his interest, and the respondent sent his CV to the
labour broker.
Ngobeni said he never went to the labour broker,
but simply returned to work at the respondent. Ngobeni said
that he never
spoke to Cross.
[56]
Rakoma testified that he indeed went to
Cross and asked him for his job back. He said that he did
apologise to Cross for being
part of the strike. But he
disputed that he ever told Cross that he was coerced into joining the
strike. He then went
to the labour broker as advised, and
returned to work at the respondent.
[57]
One of the other individual applicants,
Bogiso Sekgapani (‘Sekgapani’) also testified in this
respect. He confirmed
that the individual applicants were not
called back to work by the respondent. He stated that even if
the respondent called
them back to work, they would not have gone
back to work unless the respondent agreed to pay the increases.
He also added
under cross examination that because they had already
referred their dispute, they could in any event not go back to work
at the
respondent.
[58]
When
I consider the above testimony, I have little hesitation in accepting
the testimony of Cross as being true, where it contradicts
that of
the individual applicants that testified. There are a number of
reasons for me doing this. Firstly, material
parts of the
testimony of Ngobeni was never put to Cross under cross
examination.
[23]
Secondly, Rakoma in fact confirmed the testimony of Cross that it was
not the respondent that approached them for re-employment,
but they
went to the respondent and asked for their jobs back. Rakoma
also confirmed that he apologized for his earlier conduct.
In this
respect, he directly contradicted the version of Ngobeni.
Thirdly, Sekgapani also contradicted Ngobeni when he testified
that
the individual applicants were not approached by the respondent for
re-employment. Fourthly, the documentary evidence showed
that the
respondent actually sought an alternative workforce through a labour
broker, and did not seek to re-employ dismissed employees.
[59]
On
the basis of a proper credibility assessment,
[24]
Cross testified cogently and honestly, was willing to make
concessions where required, and did not contradict himself. His
testimony is also consistent with the documentary evidence. The
same cannot be said about the testimony of Ngobeni.
He was in
my view evasive, and his testimony was directly contradicted in
material respects by the applicants’ other witnesses.
Sekgapani in reality presented evidence consistent with what
Cross said, and I am satisfied that he was truthful in this
regard.
The only part of the testimony of Rakoma that is contradictory to
that of Cross, being that he did not say that he
was forced to join
the strike, was not put to Cross under cross examination and can
safely be rejected on that basis. For
these reasons as well,
the testimony of Cross must be accepted.
[60]
Turning next to deciding the case of the
applicants, based on the above accepted facts, the gist of the
applicant’s case is
that the respondent had dismissed all the
individual applicants, including Rakoma and Ngobeni, for the exact
same misconduct, being
that they all participated in the same
unprotected strike action and refused to comply with the instruction
to resume their duties.
But then, and despite this, the
applicant re-employed Rakoma and Ngobeni, but not any of the other
individual applicants.
According to the applicants, this showed
that the misconduct for which the individual applicants were
dismissed, was in reality
not considered by the respondent to be
dismissable as it forgave some of the transgressors for their sins,
but not others.
This is where the inconsistency argument comes
in.
[61]
This
argument of the applicant is based on the following
dictum
in
Yichiho
Plastics (Pty) Ltd v SA Clothing and Textile Workers' Union and
Others
:
[25]
‘
The
major stumbling block at that stage was the company's insistence on
re-employing only some of the dismissed workers. The company's
stance
was completely unreasonable. Once it had decided, on Monday, 31
January, that it would re-employ some of the dismissed workers,
it
had taken the decision not to hold the work stoppage against its
former employees. It had forgiven them their sins. The workers
who
had participated in the work stoppage had acted collectively. They
had all committed the same wrong. The company could not
thereafter
discriminate against some of those employees, by not re-employing
them. …
’
[62]
This
dictum
in
Yichiho
Plastics
was applied by Cameron JA (as he then was) in
Fidelity
Guards Holdings (Pty) Ltd v Transport and General Workers Union and
Another
[26]
as follows:
‘
As
a statement of principle, this embodies certain consequences for
employers who, like the company in the present case, evince
a
willingness to take back dismissed workers. As found earlier, the
company was justified in dismissing the strikers when it did
on the
day of the stoppage. Once, however, it decided to take back some of
the dismissed workers it took upon itself a duty of
non-discrimination. That duty could be discharged only by the company
demonstrating a legitimate basis of differentiation between
those
reinstated and those not reinstated.’
[63]
But
it did not follow that because the employer decided to re-employ some
of the employees it had dismissed, but not others, this
was
per
se
unfair to those that had been dismissed but had not been
re-employed. In
NUMSA
v SA Wire Company (Pty) Ltd
[27]
it as held:
‘…
I
cannot see how it can be suggested that the respondent was obliged to
reinstate the entire workforce and by not doing so, committed
an
unfair labour practice. …
’
[64]
All
three of these judgments referred to, related to the unfair labour
practice jurisdiction under the former LRA
[28]
,
which included the concept of unfair dismissals. The
erstwhile LRA contained no categories of dismissal as defined
in
Section 186(1) of the current LRA.
[29]
This meant that categories of dismissal were developed under the all
encompassing concept of the unfair labour practice.
And in this
context, what was recognized was two distinct acts of dismissal in
these circumstances, the first being the initial
act of actual
termination of employment by the employer, and the second being the
act of offering re-employment to some but not
others. For each of
these two acts, the employer would have to show that the dismissal
was fair. In short, and even if the first
dismissal of employees for
participating in strike action was justified, once the employer
decided to re-employ only some of the
dismissed employees but not all
of them, the employer had to demonstrate a legitimate basis for doing
so.
[65]
These
two concepts then found their way into the formal categorization of
what constitutes a dismissal as defined in Section 186(1)
of the new
LRA. Section 186(1)(a) reads:
‘…
an
employer has terminated employment with or without notice.
’
[30]
Then
also, and in Section 186(1)(d), dismissal is defined as meaning:
‘…
an
employer who dismissed a number of
employees
for the same or similar reasons has offered to re-employ one or more
of them but has refused to re-employ another …
’
Section
186(1)(d) thus contemplates selective re-employment by an employer of
employees that have already been dismissed in the
first instance for
same or similar reasons. It is therefore, for all intents and
purposes, a case of a second dismissal following
a first dismissal.
In
National
Union of Metalworkers of South Africa (NUMSA) obo Jan and Others v W
E Geysers
[31]
the Court
said:
‘
This
form of dismissal is possible only when it has been preceded by a
‘conventional’ dismissal and the employees concerned
were
dismissed in similar circumstances.
Selective
re-employment constitutes a dismissal only when one or more of the
formerly dismissed employees have been offered re-employment,
and
when others have been refused re-employment. It is the
refusal
of the employer to re-employ dismissed employees that triggers this
form of dismissal. …
’
[66]
Considering
inconsistency
per
se
,
it is simply an element of disciplinary fairness that applies to any
dismissal for misconduct, and seeks to prevent arbitrary
behaviour by
an employer. It could therefore apply to a dismissal under
Section 186(1)(a) or (d) of the LRA, as respectively
the first
instance dismissal or the selective re-employment dismissal. In
Food
and General Workers Union and Others v Design Contract Cleaners (Pty)
Ltd
[32]
,
the Court held:
‘…
It
is a well-established principle of our labour law that selective
dismissal of workers may constitute an unfair labour practice
as
envisaged in the Act - on the basis that it is discriminatory in
nature
…
There is,
however, no rule that selective action is unfair per se; the question
depends on the circumstances of each case. …
The
above principles are applicable mutatis mutandis to selective
re-employment …
’
As
also said in
Chemical
Energy Paper Printing Wood and Allied Workers Union and Others v
Metrofile (Pty) Ltd
[33]
:
‘…
Our
law requires that employees who have committed similar misconduct
should not be treated differentially. …
’
[67]
In
the case of a dismissal as defined in Section 186(1)(a) of the LRA,
inconsistency is about employees committing the same misconduct
being
visited with the same sanction (being that of dismissal), in the
first place.
[34]
In
Southern
Sun Hotel Interests (Pty) Ltd v Commission for Conciliation,
Mediation and Arbitration and Others
[35]
,
the Court, in this context, said:
‘
The
courts have distinguished two forms of inconsistency - historical and
contemporaneous inconsistency. The former requires that
an employer
apply the penalty of dismissal consistently with the way in which the
penalty has been applied to other employees in
the past; the latter
requires that the penalty be applied consistently as between two or
more employees who commit the same misconduct.
A claim of
inconsistency (in either historical or contemporaneous terms) must
satisfy a subjective element - an inconsistency challenge
will fail
where the employer did not know of the misconduct allegedly committed
by the employee used as a comparator (see, for
example, Gcwensha v
CCMA & others
[2006] 3 BLLR 234
(LAC) at paras 37-38). The
objective element of the test to be applied is a comparator in the
form of a similarly circumstanced
employee subjected to different
treatment, usually in the form of a disciplinary penalty less severe
than that imposed on the claimant
…
’
[68]
And in the case of a dismissal as
contemplated by Section 186(1)(d), inconsistency, as an element
of fairness in dismissal
cases, is about the requirement that
selection between employees for re-employment or not being
re-employed, must not be done in
a discriminatory or arbitrary
fashion.
[69]
Applying
the above to the matter
in
casu
,
the applicants have targeted their inconsistency challenge at the
first dismissal on 14 October 2014. The applicants pleaded
a
case that this first dismissal was unfair because the respondent has
re-employed two of the dismissed employees, but not the
other
individual applicants. So, and in other words, the applicants
have equated subsequent selection for re-employment
per
se
,
as rendering the first dismissal unfair for that reason. This
is however an entirely wrong approach, and unfortunately for
the
applicants, simply has no substance. In dealing with
inconsistency the case of a first instance dismissal, which in my
view can equally be applied to cases such as the one now before me,
the Court in
Minister
of Correctional Services v Mthembu NO and Others,
[36]
found as follows:
‘…
Consistency
is therefore not a rule unto itself, but rather an element of
fairness that must be determined in the circumstances
of each
case....’
Thus,
the approach of the applicants is to make selective re-employment a
rule unto itself, the mere existence of which rendering
the act to be
unfair. This falls far short of the complete consideration
necessary.
[70]
The
first difficulty the applicants has is that, as I have illustrated
above, the subsequent re-employment of employees is not relevant
to
the consideration where it comes to the fairness of the first
dismissal of the individual applicants on 14 October 2014.
Inconsistency where it comes to the first dismissal must be an issue
that exists at the time when the first dismissal was effected.
This simply means that at the point in time when the employer decides
to first dismiss some employees and not others, the employer
must be
reasonably aware that what it doing is tantamount to impermissible
differentiation – the subjective element referred
to in
Southern
Sun Hotel Interests
.
[37]
As a matter of common sense and logic, what happens after this
dismissal has been effected, specifically in the context of
taking
some employees back and not others, cannot be an issue that even
exists at the time when the first decision to dismiss is
taken.
This is the very reason why Section 186(1)(d) was introduced into the
definition of a dismissal, so as to properly
cater for such kind of
actions of an employer after the fact. As held in
National
Union of Mineworkers and Others v MCC Group of Companies
[38]
:
‘
As
it was correctly pointed out on behalf of the respondents, the
dismissal as identified above can only be as contemplated in section
186 (1) (d) of the LRA. This form of dismissal is a statutory defined
dismissal that is distinct and separate from the original
dismissal
in terms of section 186 (1) (a) of the LRA. The elements of selective
non-re-employment include a previous dismissal;
employees dismissed
for the same or similar reasons; an offer of re-employment made to
some of them; and a refusal to re-employ
other employees. All of
these factors are present in this case. It is further accepted that
the date of a dismissal contemplated
in section 186(1)(d) is the date
on which the employer refused to reinstate or re-employ other
dismissed employees.’
[71]
In short therefore, the re-employment of
Ngobeni and Rakoma does not render the dismissal of the other
individual applicants on
14 October 2014 unfair based on
inconsistency. There existed, on the evidence, no issue of
inconsistency at the time of this
first dismissal, and no such case
was made out on the pleadings and in evidence. The
re-employment that took place on 10
November 2014 is a distinct, and
separate, dismissal in itself, that must be evaluated on its own.
[72]
This
brings me to the second difficulty in the applicants’
inconsistency case. This is the fact that the applicants
have
not sought to rely on a dismissal as contemplated by Section
186(1)(d). No such case was pleaded, both in the statement
of
case or the pre-trial minute. The applicants are bound by their
case as pleaded in the statement of claim and articulated
in the
pre-trial minute. In
Knox
D’Arcy AG and another v Land and Agricultural Development Bank
of South Africa
[39]
the Court said:
‘
It
is trite that litigants must plead material facts relied upon as a
basis for the relief sought and define the issues in their
pleadings
to enable the parties to the action to know what case they have to
meet. …’
And
where it comes to a case as articulated in a pre-trial minute,
Conradie JA in
National
Union of Metalworkers of SA and Others v Driveline Technologies (Pty)
Ltd and Another
[40]
,
said the following:
‘
It is true,
of course, that a pretrial agreement is a consensual document which
binds the parties thereto and obliges the court
(in the same way as
the parties' pleadings do) to decide only the issue set out
therein...’
[73]
Without
such a pleaded case, it is simply not open to me to decide whether or
not such a dismissal was unfair, meaning whether the
selection of
some employees to be re-employed and not others, was arbitrary.
[41]
In simple terms, if the applicants have not pleaded a dismissal in
terms of section 186(1)(d), then a consideration of the
fairness of
such a dismissal cannot arise. This should for all intents and
purposes then be the end of the applicants’
inconsistency case.
[74]
However,
and even if I am wrong in this respect, and even if it is considered
whether re-employing two of the individual applicants
and not the
other individual applicants was fair or unfair, I am satisfied that
on the evidence, no unfairness can be shown to
exist. Perhaps
the most important consideration in this regard comes from the
testimony of Sekgapani. He made it clear that
the respondent did not
approach them for re-employment and even if the respondent did so
they would not come back to work, without
a commitment to pay
increases. As he was the only individual applicant that
testified that had not been re-employed, therefore
one can accept
that this point of view applied to all the others. In
W
E Geysers
[42]
the Court held:
‘
In
order to establish that they were subsequently dismissed by the
respondent in terms of section 186(1)(d) of the LRA, the applicants
bore the onus to establish two critical facts:
13.1 first, that the respondent
offered to re-employ or re-employed one or more employees previously
dismissed by it; and
13.2 second,
that the applicants tendered their services to the respondent and the
respondent refused to re-employ them.
’
The
individual applicants never, on the evidence, tendered service after
dismissal. The first applicant equally never tendered
services
of the other employees or take efforts to get them back to work.
[43]
The only evidence was that they would not go back to work even
if this was offered, without their increases being paid, which
was
the very issue that gave rise to their dismissal in the first place.
On this basis alone, the failure by the respondent
to re-employ the
other individual applicants cannot be considered to be arbitrary or
even unfair.
[75]
The
fact is that Rakoma and Ngobeni came back to the respondent of their
own accord, expressed their apology and regret for what
happened, and
asked the respondent to give them their jobs back. They did not
attach any condition to this request.
Cross said that under
these circumstances, he was willing to consider taking them back into
employment, which in my view is an
entirely justified approach to
adopt.
[44]
Cross went even further and testified that if the other individual
applicants had behaved the same way, he may have
also considered
taking them back into employment. But they did not do so.
These pertinent facts, in my view, serve
as a material and justified
distinction between Rakoma and Ngobeni, and the other individual
applicants, where it comes to selective
re-employment. It is a
legitimate basis for doing so. Borrowing from the principles relating
to inconsistency where it comes
to first instance dismissal, I wish
to refer to the following
dictum
in
SA
Commercial Catering and Allied Workers Union and Others v Irvin and
Johnson Ltd
[45]
which in my
view can equally be applied to cases of selective re-employment:
‘…
Consistency
is simply an element of disciplinary fairness …. Every
employee must be measured by the same standards ….
Discipline
must not be capricious. It is really the perception of bias inherent
in selective discipline which makes it unfair.
Where, however, one is
faced with a large number of offending employees, the best that one
can hope for is reasonable consistency.
Some inconsistency is the
price to be paid for flexibility, which requires the exercise of a
discretion in each individual case.
If a chairperson conscientiously
and honestly, but incorrectly, exercises his or her discretion in a
particular case in a particular
way, it would not mean that there was
unfairness towards the other employees. It would mean no more than
that his or her assessment
of the gravity of the disciplinary offence
was wrong. It cannot be fair that other employees profit from that
kind of wrong decision.
In a case of a plurality of dismissals, a
wrong decision can only be unfair if it is capricious, or induced by
improper motives
or, worse, by a discriminating management policy....
Even then I dare say that it might not be so unfair as to undo the
outcome
of other disciplinary enquiries. If, for example, one member
of a group of employees who committed a serious offence against the
employer is, for improper motives, not dismissed, it would not, in my
view, necessarily mean that the other miscreants should escape.
…
’
[76]
Taking
the very basis of the decision of Cross to re-employ Rakoma and
Ngobeni, in my view it cannot simply be legitimately argued
that it
was capricious, discriminatory, or mala fide. Cross was
motivated by what he saw as an approach by individual employees
to
him, expressing their sincere remorse for what they did, and in
effect pleading for another chance without any condition attached
to
the plea. Certainly also, it was never the respondent that
initiated the re-employment, and if the two individual applicants
did
not approach Cross, they would not have been re-employed. And
finally, if the other individual applicants followed suit, they
may
well have also been re-employed, but instead they deliberately did
not seek re-employment. In
Triple
Anchor Motors (Pty) Ltd and Another v Buthelezi and Others
[46]
the Court said the following, in circumstances where the employer had
extended a blanket offer of re-employment to all dismissed
employees,
but only some of them took up the offer and were re-employed:
‘…
a
number of employees who did apply within a reasonable time to be
re-engaged were in fact re-employed. In terms of Adamson's evidence
the offer was a blanket one extended to all the dismissed employees.
In these circumstances there can be no talk of selective
re-employment …
’
[77]
There
was no case of the respondent dismissing the employees with the
intention of purging what it considered undesirable elements
and then
re-employing the rest, or some surreptitious strategy to make changes
to the workforce, or could not even provide a basis
for the
selection.
[47]
Even if Cross can be criticized for even considering to re-employ
only the two individuals and not the others, this simply
cannot be
seen to be unfair towards the other individual applicants in the
circumstances, considering what I have said above.
In the end,
selective re-employment
per
se
is not unfair, as this selective re-employment must be shown by the
applicants to be coupled with capricious conduct by the employer,
ulterior motives in effecting the selective re-employment, or the
application of discriminatory management policy. None of
this
was shown to exist in casu.
[78]
In
conclusion therefore, on the issue of inconsistency, there exists no
case of inconsistency where it comes to the first dismissal
on 14
October 2014. As regard to the issue of selective re-employment
following the first dismissal, no case of dismissal
as contemplated
by section 186(1)(d) has been pleaded or raised, and as such, the
fairness of such a dismissal cannot be considered.
But even if
the fairness of the selective re-employment is considered, it can be
seen to be justified and legitimate, and certainly
not unfair. The
exercise of a value judgment further convinces me that this is a case
where the individual applicants should not
benefit from the conduct
of the respondent in re-employing the two employees concerned, and
not the others.
[48]
The applicants’ inconsistency case must thus fail.
Did
the applicants receive proper ultimatums?
[79]
It was common cause that no written
ultimatums were issued by the respondent to the applicants.
However, and even though it
was initially contended by the applicants
in the pleadings that no ultimatums at all were given by the
respondent to the applicants,
it was conceded by Mr Savant, for the
applicants, when the matter started before me, that verbal ultimatums
were in fact given
to the applicants. He indicated that the
applicants’ challenge remained that these ultimatums were
insufficient.
[80]
The
issue of an ultimatum is dealt with in Item 6(2) of the Code of Good
Practice, referred to above. Applying this provision,
the Court
in
Mndebele
and Others v Xstrata South Africa (Pty) Ltd t/a Xstrata Alloys
(Rustenburg Plant)
[49]
said:
‘
The
code does not suggest how the ultimatum should be distributed, or
require that it must be in writing. Furthermore, it states
that the
issuing of an ultimatum is not an invariable requirement. The purpose
of an ultimatum is not to elicit any information
or explanations from
the employees but to give them an opportunity to reflect on their
conduct, digest issues and, if need be,
seek advice before making the
decision whether to heed the ultimatum or not. The ultimatum must be
issued with the sole purpose
of enticing the employees to return to
work, and should in clear terms warn the employees of the folly of
their conduct and that
should they not desist from their conduct they
face dismissal. Because an ultimatum is akin to a final warning, the
purpose of
which is to provide for a cooling-off period before a
final decision to dismiss is taken, the audi rule must be observed
both before
an ultimatum is issued and after it has expired. …’
[81]
What does the evidence
in
casu
then show? In my view, it
shows an employer that exhibited extraordinary restraint and
patience. When the strike started
on the morning of 23
September 2014, Cross spoke to the individual applicants and tried to
convince them to get back to work.
He did not make accusations
nor was he confrontational. I accept that he genuinely tried to
get the individual applicants
back to work. But unfortunately
it quickly became clear that nothing that Cross could say could get
the individual applicants
back at work, unless he agreed to pay them
the increases subject to the pending exemption application.
[82]
Where it came to the first applicant, this
was tasked to Winkworth to deal with. The undisputed evidence was
that he did contact
Myeni on 23 September 2014 to ask him to
intervene, and Myeni undertook to do so. The respondent took no
further action against
the individual applicants for the whole day,
so as to afford the first applicant a proper opportunity to
intervene.
[83]
When the individual applicants again
reported at work on 24 September 2014 and refused to work, the same
process unfolded.
Cross addressed the individual applicants and
Winkworth contacted Myeni. Again, Myeni said that he would look
into it.
Myeni, on his own version, indicated that he did meet
with the individual applicants at about this time, but they made it
clear
to him that they would only return to work if there was a
commitment by the respondent to pay their increases. The
respondent
decided to not take any action until after the intervening
week end, giving the individual applicants a further opportunity to
consider their position and consult with the first applicant about
what to do next. It was only on the morning of Monday,
27
September 2014 when the same action again unfolded, that Winkworth
called and told Myeni that disciplinary action would now
be taken
against the individual applicants.
[84]
Despite this view expressed by Winkworth on
27 September 2014, the respondent was still prepared to convene a
meeting to discuss
the matter so as to try and possibly resolve the
dispute. This was convened on 30 September 2014. In the
interim and
pending this meeting, the individual applicants persisted
with their refusal to work. The respondent however did not take
action, but sought to give the meeting a chance to succeed. The
applicants however remained intransigent, and made it clear
that no
matter what, they will not come back to work unless there was a
commitment to pay their increases despite the pending exemption.
Only then was disciplinary proceedings instituted.
[85]
In
all of these circumstances, it is simply not possible to say that the
applicants did not receive a proper ultimatum. Over
the course
of eight days, including an intervening week end, the applicants were
given time to consider their position, which must
be more than enough
time. In
Power
Construction
[50]
the Court held:
‘
Were
the strikers given an opportunity to reflect on their actions? Most
assuredly. They were given the first communiqué
on Friday.
They had the weekend to reflect and, if necessary, to contact their
union representatives. They did not.
’
[86]
The
individual applicants clearly knew that the respondent viewed their
conduct as unlawful, and would take disciplinary action
against them.
The individual applicants also had the opportunity to consult the
first applicant, who had a proper chance to advise
them. They
made a deliberate and conscious decision to proceed with the strike,
in the face of all else. It has to
be said that if this cannot
be regarded as being a proper opportunity given to striking employees
to reflect on their behaviour
and the consequences thereof, cool down
and make an informed decision, and also consult their trade union, it
is difficult to comprehend
what would be. In what I consider to
be comparable circumstances, the Court in
Xstrata
Alloys (Rustenburg Plant)
[51]
held:
‘…
The
peculiar circumstances in this case reveal that the opportunity to
attend the launch, which was planned for one day, was slipping
away
and having been afforded a second opportunity during lunch to attend
the launch, the appellants did indeed have sufficient
time to
consider their stance and to modify their conduct. Having regard to
the principles pertaining to ultimatums and their purpose,
I agree
with Lagrange J that the appellants were issued with an ultimatum
that served the purpose for which the law requires an
ultimatum to be
issued. The appellants were cautioned in clear language and were
specifically informed of the consequences of their
failure to heed
the warning. They were accordingly given an opportunity to reflect on
their conduct and to desist from it.
’
[87]
Applying
the ratio in
Xstrata
Alloys (Rustenburg Plant)
,
the Court in
AMCU
obo Sibiya and Others v Shanduka Coal (Pty) Ltd
[52]
held:
‘
The
Employees’ contentions that the ultimatum was unclear on the
basis that they were simply informed that they should desist
from the
strike immediately and to return to work is without merit. In line
with what Murphy AJA had stated in
Mndebele
& Others v Xstrata South Africa (Pty) Ltd t/a Xstrata Alloys
(Rustenburg Plant)
,
the mere fact that the ultimatum was issued, and the Employees were
told on no less than three occasions that they should desist
from
their actions and return to work failing which consequences would
follow was more than sufficient …
’
I
align myself with these views, which I consider to be equally
applicable
in casu
.
[88]
It
must also be considered that the respondent first took the matter up
with the union (first applicant) before deciding on any
action
against the individual applicants. It did so on no less than
three occasions, including a meeting on 30 September
2014. It
is only after the meeting on 30 September 2014, which turned out to
be fruitless, that disciplinary action was instituted
against the
individual applicants. In
CBI
Electric African Cables
[53]
the Court held as follows:
‘…
Item
6(2) of the code makes it clear that 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. This is
necessary for two reasons. Firstly, it affords the union
an
opportunity to persuade the strikers to resume work and secondly, it
provides a safeguard against possible rash action by the
employer. In
the event that the employer decides to issue an ultimatum, which
should meet the requirements of the code, the employer
must ensure
that it allows the employees sufficient time to reflect on the
ultimatum and to respond thereto. …
’
And
in
Association
of Mineworkers and Construction Union and Others v Anglogold Ashanti
Ltd
[54]
it was said:
‘…
I
also accept that at least once the strike action commenced AMCU
national leadership, as represented by Mphahlele, had sufficient
information to have recognised the need to intervene even if the
consequences of failing to bring the strike action to an end were
not
spelt out. In this regard, I think it is reasonable to acknowledge
that while there is an obvious need for unambiguous and
explicit
communication to striking workers about the employer's intentions, it
is sufficient for the purposes of seeking the union's
assistance that
it be advised of the unfolding events and that its urgent assistance
in resolving the situation is required. …
’
[89]
The facts in casu are clearly in conformity
to the above principles in
CBI Electric
African Cables
and
Anglogold
Ashanti
. Myeni as trade union
official was asked twice to intervene and he undertook to do so.
He was given two days before
the week end to intervene. He did
try and persuade the individual applicants to resume their work, but
they were steadfast
in their demand and he failed. The
employees were given a whole week to reflect on their conduct and
come to other insights.
And finally still, the issue was fully
ventilated in the meeting on 30 September 2014 before the final
decision was taken to discipline
the individual applicants.
[90]
I am therefore satisfied that the
requirements as contemplated by Item 6(2) of the Code of Good
Practice have been complied with
by the respondent. Despite
there being no written ultimatums, the applicants were clearly
appraised that what the individual
applicants were doing was
misconduct, and that they faced disciplinary action as a result. The
first applicant as a trade union
was properly consulted beforehand,
and given an opportunity to consult its membership and bring them to
other insights. A period
of more than a week was given to the
applicants to cool off, contemplate their actions and make an
informed decision. In the end,
they made a deliberate and informed
decision, which was to continue with the strike action, in the face
of all else, until there
was a commitment to pay their increases. The
applicants’ case of not having received a proper ultimatum thus
falls to be
rejected.
Was
dismissal an appropriate sanction?
[91]
The
consideration as to whether dismissal is an appropriate sanction
applies to the first dismissal of the individual applicants
on 14
October 2014. As stated, the individual applicants participated
in unprotected strike action, and refused to return
to work despite
being instructed to do so, which is clearly misconduct. As a matter
of principle, it is the kind of misconduct
which is sufficiently
serious to place it in the realm of a dismissable offence.
[55]
[92]
The
above being said, it does not automatically follow that this kind of
misconduct is
per
se
dismissable.
[56]
As said in
CBI
Electric African Cables
:
[57]
‘…
It
is clear from the provisions of s 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 …
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 …
’
Item
7 of the Code of Good Practice deals specifically with the
requirements considering whether dismissal for misconduct is fair,
it
must be considered whether:
‘…
dismissal
was an appropriate sanction for the contravention of the rule or
standard …
’
.
[58]
This means that the normal principles where it comes to deciding
whether dismissal is an appropriate sanction is equally applicable
to
unprotected strike misconduct.
[93]
Navsa
AJ in
Sidumo
and Another v Rustenburg Platinum Mines Ltd and Others,
[59]
summarized
the considerations in deciding whether dismissal is an appropriate
sanction as follows:
[60]
‘
In
approaching the dismissal dispute impartially a commissioner will
take into account the totality of circumstances. He or she
will
necessarily take into account the importance of the rule that had
been breached. The commissioner must of course consider
the reason
the employer imposed the sanction of dismissal, as he or she must
take into account the basis of the employee's challenge
to the
dismissal. There are other factors that will require consideration.
For example, the harm caused by the employee's conduct,
whether
additional training and instruction may result in the employee not
repeating the misconduct, the effect of dismissal on
the employee and
his or her long-service record. This is not an exhaustive list.
’
[94]
Following
on the judgment in
Sidumo
,
a number of other principles were crystalized out, that would require
consideration in assessing whether the sanction of dismissal
is
fair. The further principles are the issue of the breakdown of
the trust / employment relationship between the employer
and
employee, the existence of dishonesty, the possibility of progressive
discipline, the existence or not of remorse, the job
function and the
employer’s disciplinary code and procedure.
[61]
[95]
Dealing
specifically where it came to applicable considerations in the case
of strike dismissals, the Court in
National
Union of Metalworkers of SA v Vetsak Co-operative Ltd and
Others
[62]
it
was held as follows in deciding whether unlawful strike action
justified dismissal:
‘…
The
rationality of the conduct of the respective parties will always be a
factor; so too their flexibility and bona fides, the cause,
purpose
and continued "functionality" of the strike, the financial
and economic repercussions for both sides of the strike
and of the
dismissals, the I ability of the employer and his employees to absorb
the harm done thereby and the duration of the
strike, actual and
anticipated. There are, I am sure, other considerations as well. The
relevant factors cannot all be captured
in a single formula or
formulation
.'
And
in
CBI
Electric African Cables
[63]
the Court articulated the considerations particular to strike action
as follows:
‘
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.
’
[96]
Applying
all of the above, I will first consider the nature of the
misconduct. As said, the misconduct is serious. It
must
also be considered that the strike action was of an excessively
lengthy duration.
[64]
It started on 23 September 2014 and in reality never ended. As
I have discussed above, and even following the meeting
of 30
September 2014, the misconduct did not end. Even as late as the
disciplinary hearing on 13 October 2014, the individual
applicants
never proposed that their behaviour would stop and that they tendered
their services, and they in fact persisted with
their demand.
Comparable is the following dictum form the judgment in
Modibedi
and Others v Medupi Fabrication (Pty) Ltd
[65]
:
‘
There
can be no doubt that the applicants' decision to embark on industrial
action between 5 and 10 March 2010 was well thought
out albeit
ill-conceived. It is one thing to embark on unprotected industrial
action for a few hours and something else to do so
on four
consecutive days in pursuance of unreasonable demands. The applicants
knew the seriousness and impact of their actions
on the entire Medupi
project. They knew that disruptions experienced in their contract
impacted negatively on other projects. The
respondent had more than
bent backwards in accommodating them insofar as any perceived
grievances they may have had with catering.
At no stage did the
applicants pause to take stock of their actions.
’
[97]
As I
have dealt with in detail earlier in this judgment, there was no
legitimate justification for the individual applicants’
conduct, and there was nothing done on the part of the respondent
that could be seen to justify such kind of a reaction from the
individual applicants. In short, there was no justified cause
or reason for what the individual applicants did. And
further,
it cannot be said that the strike was in any way functional to
collective bargaining, which the Court in
SA
Truck Bodies
[66]
regarded as an important factor to consider as well.
[98]
The
applicants made no attempt to comply with the procedures in place, in
terms of the LRA, to render the strike action to be protected.
This was the case despite the fact that in the period between 10 and
12 September 2014, it was demanded that the respondent pay
the
increases despite the exemption application, and the respondent made
it clear that the outcome of the exemption application
would inform
its decision in this regard. There was ample time to comply
with the requisite LRA procedures. In
Power
Construction
[67]
it was held as follows, in finding that the dismissal of the
employees was fair:
‘
Neither
the individual employees nor the NUM made any attempt whatsoever to
comply with the LRA. The employees simply downed tools
and refused to
work without referring any dispute to the CCMA, even when invited to
do so by Cupido.
The company reminded the striking
workers at least three times, in writing, that they were breaching
their contractual obligations
and the provisions of the LRA. They
were told in terms that failure to return to work would lead to
disciplinary action which could
include their dismissal. They paid no
heed.’
As
already summarized earlier in this judgment, similar considerations
apply
in casu.
[99]
The respondent led undisputed testimony
about the break down in the employment relationship. Insofar as
the re-employment
of Rakoma and Ngobeni is concerned, I have dealt
with this in full, above, and for the reasons already given, this
cannot serve
to dispel this testimony about the break down in the
employment relationship, especially considering that even at trial
before
me, the remaining individual applicants confirmed that if
their demand was not met, they would not have gone back to work.
[100]
The individual applicants showed no remorse
in the disciplinary hearing. As touched on above, and had the
individual applicants
shown remorse, Cross may have decided not to
dismiss the individual applicants. The guilty plea they
proffered in the disciplinary
hearing was in my view not genuine,
especially considering that despite this guilty plea, the individual
applicants never actually
acknowledged their wrongdoing, and never
pleaded for forgiveness. Worse still, and despite this guilty
plea, they remained
steadfast in their view, even in the disciplinary
hearing, that unless there was a commitment to pay the increases,
they would
not go back to work. This meant that in reality, the
individual applicants were not rehabilitated, and there was no
possibility
of restoring the employment relationship.
[101]
Coetsee
conceded that the personnel files of the individual applicants was
not placed before him in the disciplinary hearing and
that he did not
have proper particulars about their personal circumstances. But
he did testify that he was aware that some
of them had long service.
In my view, these considerations would have a minimal impact on the
ultimate decision as to whether
the sanction of dismissal was fair.
All the other factors, and in particular, the gravity of the
misconduct, was such that
personal circumstances, length of service
and an unblemished disciplinary record could not save the individual
applicants from
dismissal.
[68]
[102]
The respondent’s disciplinary code
does provide for dismissal in the case of a refusal to obey a
reasonable and lawful instruction.
There is no specific
provision therein relating to a penalty for participation in
unprotected strike action, other than a general
reference to
dismissal being justified on any grounds recognized in law.
[103]
It is also true that the strike was
peaceful. But in my view, that was part of the design.
This is evident that on every
day of the strike, the individual
applicants would simply come and report at work, but then proceed to
the canteen and refuse to
work. The fact that the strike was not
coupled with the kind of violence and intimidation often seen in the
case of unprotected
strike action cannot assist the individual
applicants in the circumstances where it comes to the penalty of
dismissal.
[104]
In my
view, the strike was designed to inflict maximum harm on the
respondent. It happened without any prior warning or indication
that it was even contemplated. It took the form of a deliberate
design, with the individual applicants actually attending at work,
but then occupying the canteen and refusing to work. As Cross
testified, the result of this conduct was that all production
ground
to a complete halt for several weeks. He further testified that
this caused a loss in confidence from customers and
the respondent
had problems paying suppliers. The individual applicants were
specialized employees, working on specialized
machines, and could not
simply be readily replaced by replacement labour, a fact which the
individual applicants were very much
aware of. The strike thus
caused the respondent significant, and entirely undue, prejudice, in
circumstances where it was
already financially in dire straits. In
Xstrata
Alloys (Rustenburg Plant)
[69]
it was held as follows in the Court upholding dismissal:
‘…
In
addition, the strike was not spontaneous, but rather planned to occur
at the time that would create maximum pressure on the respondent
and
the strike was not one that the employer had provoked through any
unjust conduct. …
’
[105]
I may add that a relevant consideration at
trial is that the respondent was ultimately successful in its
exemption application,
showing that it was entirely justified in
doing what it did, when pursuing exemption.
[106]
I am
convinced by all the above considerations that the individual
applicants earned their dismissal. Overall considered,
the
sanction of dismissal implemented upon the individual applicants on
14 October 2014 was fair.
[70]
There simply exists no basis in fact or in law to interfere with this
decision taken by the respondent, as employer.
Was
the applicants’ dismissal procedurally unfair?
[107]
As stated above, participation in
unprotected strike action is nothing else but misconduct. Thus,
and just like any other
dismissal for misconduct, any dismissal for
participation in unprotected strike action must be procedurally
fair. Where it
comes to procedural fairness in the case of
dismissals for misconduct, Item 4(1) of the Code of Good Practice
provides:
‘
Normally,
the employer should conduct an investigation to determine whether
there are grounds for dismissal. This does not need
to be a formal
enquiry. The employer should notify the employee of the allegations
using a form and a language that the employee
can reasonably
understand. The employee should be allowed the opportunity to state a
case in response to the allegations. The employee
should be entitled
to a reasonable time to prepare the response and to the assistance of
a trade union representative or fellow
employee. After the enquiry,
the employer should communicate the decision taken, and preferably
furnish the employee with written
notification of that decision.
'
The
Court in
Avril
Elizabeth Home for the Mentally Handicapped v Commission for
Conciliation, Mediation and Arbitration and Others
[71]
applied Item
4(1) as follows:
‘
It
follows that the conception of procedural fairness incorporated into
the LRA is one that requires an investigation into any alleged
misconduct by the employer, an opportunity by any employee against
whom any allegation of misconduct is made, to respond after
a
reasonable period with the assistance of a representative, a decision
by the employer, and notice of that decision.’
[108]
What
is clear from the above is that the Code of Good Practice does not
provide for an internal appeal process or appeal hearing.
This
was recognized in
Avril
Elizabeth
,
[72]
where the Court said:
‘…
Neither
the Act nor the code obliges an employer to provide any workplace
right of appeal against the decision to dismiss. …’
[109]
But
it is not just about the provisions of the LRA and the Code of Good
Practice. Where it comes to an internal appeal, the
right to
such a process may well be afforded by the employer’s own
disciplinary code or related procedures.
In
Motor
Industry Staff Association and Another v Silverton Spraypainters and
Panelbeaters (Pty) Ltd and Others
[73]
the Court held:
‘
Although
the LRA does not oblige an employer to provide an internal appeal
structure, it is, in my view, imperative that once the
employer has
decided to establish such structure in the workplace the appeal
process must be fair. Any employee who feels aggrieved
by the outcome
of a disciplinary process has a vested right of access to a fair
internal appeal process, where such appeal structure
is provided in
the workplace. Otherwise, if the fairness of the internal appeal
process should simply be ignored as irrelevant,
then the
establishment of such appeal structure becomes a meaningless
exercise. …
’
[110]
Now it is true that in his disciplinary
hearing finding, Coetsee has indicated that the applicants had a
right to lodge an internal
written appeal, which they duly did on 16
October 2014. Also, the disciplinary code of the respondent
made provision for
an internal appeal procedure, and in particular,
the convening of an appeal hearing. It would therefore
certainly seem
that the respondent’s own rules give the
applicants the right to an internal appeal hearing.
[111]
The basis of the applicant’s internal
appeal, as recorded in the appeal document itself, only related to
the issue of the
sanction of dismissal not being appropriate.
However, and having so appealed, the applicants never received an
internal appeal
hearing in this regard. What happened is that
Winkworth considered the appeal, on the documents and the
disciplinary hearing
finding, and came to the conclusion that there
was no prospect of a different decision on sanction at an appeal.
In a finding
dated 23 October 2014, he upheld the dismissal of the
individual applicants. The reason he gave was that the
individual applicants
had pleaded guilty, an ‘illegal strike’
warranted a dismissal and the failure to follow a lawful instruction
also warranted
dismissal.
[112]
It is undoubtedly so that the individual
applicants were at least afforded a fair and proper disciplinary
hearing prior to filing
their appeal, and this was never challenged
by the applicants. The factual circumstances relating to the
misconduct was never disputed
in the disciplinary hearing. The
disciplinary hearing chairperson was an independent third party and
the individual applicants
were represented by their union official in
the proceedings. In the disciplinary hearing, the issue was also in
reality only about
an appropriate sanction, and this issue was fully
ventilated in those proceedings.
[113]
The
crisp question now is whether the failure to afford the applicants an
actual appeal hearing and Winkworth in fact deciding the
issue on the
papers, so to speak, rendered the dismissal of the individual
applicants procedurally unfair. As held in
National
Union of Mineworkers and Another v Commission for Conciliation,
Mediation and Arbitration and Others
[74]
:
‘…
Even
if it may be considered that the issue raised by the applicants could
feasibly constitute some or other form of procedural
irregularity,
this does not by automatic consequence mean that the dismissal of the
second applicant was procedurally unfair …
’
[114]
The
point I wish to make is that procedural fairness is a holistic
consideration, taking into account the provisions of the Code
of Good
Practice and the employers’ internal code and procedure. In
this regard, the background events in the course of the
entire
disciplinary process must be considered. The primary
consideration always has to be whether, considering what happened
internally in the employer as a whole, the employees understood the
allegations against them, had a fair and proper opportunity
to state
their case in respect of the same before an impartial chairperson,
and then, if found to have committed the misconduct,
had a proper
opportunity to address the issue of an appropriate sanction.
The fairness of any appeal process should not be
considered in
isolation without having regard to the preceding events. In
Silverton
Spraypainters
,
[75]
the Court specifically dealt with procedural complaints about the
internal appeal process, in circumstances where the preceding
disciplinary process was considered to be fair, and said:
‘…
On
a holistic consideration of Mr Van Jaarsveld's disciplinary process,
I am inclined to hold that it was conducted fairly. In any
event, his
complaint about the internal appeal process would have been
compensated by the fact that he was subsequently accorded
another
opportunity to state his case and ventilate all his grievances when
the dispute was dealt with de novo during the arbitration
hearing.
Accordingly, I hold that the procedure followed by the company which
led to the dismissal of Mr Van Jaarsveld was a fair
procedure. …
’
[115]
Does
the absence of an actual appeal hearing in this case constitute the
kind of procedural failure that would render the dismissal
of the
individual applicants procedurally unfair in the face of all else?
In my view, this cannot be the case. On face
value, the absence
of an appeal hearing in the face of the provisions of the
respondent’s own disciplinary code does appear
irregular, but
it does not follow that its absence would necessarily render the
dismissal procedurally unfair. In
Power
Construction
,
the Court considered, specifically in the context of a dismissal
relating to unprotected strike action, whether the dismissal
was
procedurally unfair because the employees did not receive an actual
disciplinary hearing, and concluded:
[76]
‘
It
could still be argued, as the union did, that the very absence of a
disciplinary hearing before the dismissal is in itself procedurally
unfair. But on the facts of this case, and given the precedent of the
Constitutional Court in
Xinwa
,
I disagree. It is difficult to see how a formal disciplinary hearing
could have made any difference before the striking workers
were
dismissed. They were made aware of the unprotected nature of the
strike, not only by management, but also by their own union
representatives. They were told at least three times that they ran
the risk of dismissal, should they continue. Yet they persisted.
They
were given the opportunity to make representations through the union
representatives and invited to appoint their own representatives.
…
’
[77]
Comparing
this reasoning to the matter before me, all these considerations
equally apply, and more. Despite all the events
preceding the
disciplinary process, which I have discussed in detail above, there
was an actual proper disciplinary hearing held
which led to the
decision to dismiss the individual applicants being taken. I
simply cannot see how an appeal hearing could
change anything,
especially considering that the appeal was only about the issue of an
appropriate sanction which had already been
fully ventilated, with
the applicants having been given a proper opportunity to make
representations.
[116]
In
Anglogold
Ashanti
,
[78]
the Court specifically dealt with irregularities where it came to an
appeal process in the course of a strike dismissal dispute,
and said:
‘
As
regards the appeal process, it does seem that communication of the
right to appeal was not well done. However, it was extended
and AMCU
was a party to the extended appeal process. The attenuated right to
hearings in strike dismissals does not extend to a
right to an appeal
hearing as a matter of course and insofar as it is offered, there is
no reason in principle why it has to be
more elaborate than the
dismissal hearing in its execution.’
[117]
In
the end, and as said in
Schwartz
v Sasol Polymers and Others
[79]
:
‘ …
As
was stated in
Avril
Elizabeth Home for the Mentally Handicapped v Commission for
Conciliation, Mediation & Arbitration & others
and has been repeatedly emphasised by this court, the balance struck
by the LRA recognises not only that managers are not experienced
judicial officers, but also that workplace efficiencies should not be
unduly impeded by onerous procedural requirements.’
[118]
The
applicants have argued that Winkworth, who decided the appeal, was
biased because of his earlier involvement in the matter.
I
accept that Winkworth, who is the respondent’s labour
consultant (employers’ organization official), was involved
in
the exemption, in advising the respondent, interacting with Myeni,
the first applicant’s official, during the strike,
and assisted
with the formulation of the charges against the individual
applicants. If Winkworth was an arbitrator in the
course of
arbitration proceedings under the LRA, it could legitimately be said
that this constitutes bias because of a reasonable
apprehension that
the decision maker would not bring an objective mind to bear on the
matter.
[80]
But it must be remembered that an internal appeal is not arbitration,
and as said in
Mathabathe
v Nelson Mandela Bay Metropolitan Municipality and Another
[81]
:
‘
Insofar
as bias is concerned, the applicant was afforded the benefit of an
independent chairperson. This is more than the code provides
and more
than what is common in most workplaces where disciplinary enquiries
are ordinarily chaired by a more senior member of
management.
Further, as the court observed in
Avril
Elizabeth Home
,
the code does not provide for a test for bias in the form that
applies in the civil or criminal courts.’
[119]
In casu
,
the applicants had the benefit of an independent chairperson, and a
fair disciplinary hearing. Winkworth was not involved
in this
disciplinary hearing and the actual decision taken therein to
recommend the dismissal of the individual applicants.
Winkworth
was not even in the disciplinary hearing. Winkworth, as labour
consultant, simply dealt with the appeal, which
was only about the
sanction of dismissal, by bringing an external eye, so to speak, to
bear on the prior events, and decided that
there was no apparent
basis to interfere with the original finding. Applying the
watered down test for bias as recognized
in
Avril
Elizabeth
, I am of the view that it
cannot reasonably be said the dismissal of the individual applicants
was procedurally unfair because
of the possible argument that
Winkworth may be biased, and it must be concluded that he dealt
with the appeal in a reasonable
manner.
[120]
Based on the reasons as set out above, it
is thus my view that the failure to afford the applicants an appeal
hearing and the manner
in which Winkworth disposed of the appeal does
not render the dismissal of the individual applicants procedurally
unfair.
Overall considered, the requirements of Item 4(1) of
the Code of Good Practice, as well as the respondent’s own code
and
procedure, was satisfied. The applicants’ claim of
procedural fairness must therefore fail.
Conclusion
[121]
I accordingly conclude that the dismissal
of the individual applicants by the respondent was substantively
fair. There existed
a fair and proper reason for dismissal, and
dismissal as a sanction was similarly appropriate and fair. The
individual applicants,
in the end, earned their dismissal by way of
their entirely unjustified conduct. As to procedural fairness,
I am satisfied
that the individual applicants were subjected to an
overall fair process in the course of the respondent arriving at a
final decision
to dismiss them, and their dismissal was procedurally
fair.
[122]
The applicants have thus failed to make out
a case of unfair dismissal, and their claim must fail.
[123]
This only leaves the issue of costs.
I
have, in terms of Section 162 of the LRA, a broad discretion where it
comes to the issue of costs. I do understand why the
individual
applicants behaved as they did. After all, the failure to get
an increase may justifiably make employees unhappy.
But this
does not charge the reality that the applicants went about this
entire matter all wrong. Even though the applicants
have failed
to make out a case that their actions were justified, I will be
prepared to consider their subjective views where it
comes to the
issue of costs. I also consider that the respondent and the
first applicant have an ongoing relationship.
As a whole, I
believe that this is a case where it would be most appropriate and
fair to make no order as to costs.
Order
[124]
For all of the reasons as set out above, I
make the following order:
1.
The dismissal of the individual applicants
by the respondent was both substantively and procedurally fair.
2.
The applicants’ claim is consequently
dismissed.
3.
There is no order as to costs.
_____________________
S
Snyman
Acting
Judge of the Labour Court
Appearances:
For
the Applicants:
Mr I Savant
of Cheadle Thompson & Haysom Attorneys
For
the Respondent:
Adv A P Van Der Westhuizen
Instructed
by:
Bimelow De Oliveira Ekerhold Inc Attorneys
[1]
Act 66 of 1995.
[2]
Published by way of GN 715 as
contained in GG 37993 dated 12 September 2014.
[3]
See
National
Union of Metalworkers of SA and Others v CBI Electric African Cables
(2014) 35 ILJ 642
(LAC) at para 28.
[4]
(2016) 37 ILJ 2610
(LAC) at para 34.
[5]
(2017) 38 ILJ 227
(LC) at para 39.
[6]
Id at para 59.
[7]
(2014) 35 ILJ 642
(LAC) at paras 38 – 39.
[8]
(2005) 26 ILJ 1705
(LC)..
[9]
See para 31 of the judgment.
[10]
Id at para 34.
[11]
(2014) 35 ILJ 3205
(LC).
[12]
[2016] JOL 35779
(LC).
[13]
(2001) 22 ILJ 968
(LC).
[14]
[1999] 11 BLLR
1157 (LC).
[15]
See paras 20 – 22 of the
judgment.
[16]
Para 17 of the judgment.
[17]
Para 134 of the judgment.
[18]
(supra) at para 135.
[19]
(2013) 34 ILJ 2052
(LC) at paras 49 – 50.
[20]
(2008) 29 ILJ 1944
(LC) at paras 23 – 24.
[21]
(2014) 35 ILJ 3171
(LC).
[22]
Id at para 61.
[23]
ABSA Brokers
(Pty) Ltd v Moshoana NO and Others
(2005)
26
ILJ
1652
(LAC) at para 39;
Southern
Sun Hotel Interests (Pty) Ltd v Commission for Conciliation,
Mediation and Arbitration and Others
(2010)
31
ILJ
452 (LC)
footnote
13;
Trio
Glass t/a The Glass Group v Molapo NO and Others
(2013)
34
ILJ
2662 (LC) at para 41.
[24]
Conducted in terms of the principles
set out in
SFW
Group Ltd and Another v Martell et Cie and Others
2003
(1) SA 11
(SCA) at para 5.
[25]
(1996)
17 ILJ 648 (LAC) at 658C-D.
[26]
[1998] JOL 3333
(LAC) at para 45.
[27]
[1996] 3 BLLR 271
(LAC) at 278.
[28]
Act 28 of 2956.
[29]
See Section
186(1)(a) to (f) of the LRA.
[30]
This is the definition after the
amendment of the LRA effective 1 January 2015. Before the
amendment, it simply referred
to the termination of an employment
contract with or without notice.
[31]
[2017] ZALCJHB 152
(8 May 2017) at paras 10 – 11.
[32]
(1996) 17 ILJ 1157
(LAC) at 1166A-G.
[33]
(2004) 25 ILJ 231
(LAC) at para 35. See also
SA
Commercial Catering and Allied Workers Union and Others v Irvin and
Johnson Ltd
(1999)
20 ILJ 2302 (LAC) at para 29;
Absa
Bank Ltd v Naidu and Others
(2015)
36 ILJ 602 (LAC) at para 35;
See
Chemical
Energy Paper Printing Wood and Allied Workers Union v National
Bargaining Council for the Chemical Industry and Others
(2010)
31 ILJ 2836 (LAC) at para 20.
[34]
See Item 3(6) of Schedule 8 which
reads: ‘
The
employer should apply the penalty of dismissal consistently with the
way in which it has been applied to the same and other
employees in
the past, and consistently as between two or more employees who
participate in the misconduct under consideration.’
[35]
(2010) 31 ILJ 452
(LC) at para 10.
[36]
(2006) 27 ILJ 2114
(LC)
at para 9.
See also
Consani
Engineering (Pty) Ltd v Commission for Conciliation, Mediation and
Arbitration and Others
(2004)
25 ILJ 1707 (LC) at para 19.
[37]
(
supra
)
footnote 35. See also
National
Union of Mineworkers on behalf of Botsane v Anglo Platinum Mine
(Rustenburg Section
)
(2014) 35 ILJ 2406 (LAC) at para 39;
Comed
Health CC v National Bargaining Council for the Chemical Industry
and Others
(2012)
33 ILJ 623 (LC) at para 10;
SA
Municipal Workers Union on behalf of Abrahams and Others v City Of
Cape Town and Others
(2011)
32 ILJ 3018 (LC) para 50.
[38]
[2015] ZALCJHB 64
(27 February 2015) at para 6.
[39]
[2013] 3 All SA
404
(SCA) at para 35. See also
Imprefed
(Pty) Ltd v National Transport Commission
1993]
2 All SA 179
(A) at 188 – 189;
Naidoo
v Minister of Police and Others
[2015]
4 All SA 609
(SCA) at para 30;
Minister
of Safety and Security v Slabbert
[2010] 2 All SA 474
(SCA) at para 11;
Chester
Wholesale Meats (Pty) Ltd v National Industrial Workers Union of SA
and Others
(2006) 27
ILJ
915 (LAC) at para 19.
[40]
(2000) 21
ILJ
142
(LAC) at para 16. See also
GE
Security (Africa) v Airey and Others
(2011)
32
ILJ
2078 (LAC) at para 20 – 21.
[41]
See
Ekhamanzi
Springs (Pty) Ltd v Mnomiya
(2014)
35
ILJ
2388 (LAC) at para 19;
Lowies
v University of Johannesburg
(2013) 34
ILJ
3232
(LC) at para 29;
Chemical
Energy Paper Printing Wood and Allied Workers Union and Others v CTP
Ltd and Another
(2013) 34
ILJ
1966 (LC) at para 105.
[42]
(
supra
)
at para 13.
[43]
Compare
Yichiho
(
supra
)
at 658A-659G.
[44]
As to the effect
that genuine remorse may have on the restoration of the employment
relationship, see
De
Beers Consolidated Mines Ltd v Commission for Conciliation,
Mediation and Arbitration and Others
(2000)
21 ILJ 1051 (LAC)
at
para 25;
Independent
Newspapers (Pty) Ltd v Media Workers Union of SA on behalf of McKay
and Others
(2013)
34 ILJ 143 (LC) at 146A-B.
[45]
(1999) 20 ILJ 2302
(LAC) at para 29. See also
See
Chemical
Energy Paper Printing Wood and Allied Workers Union v National
Bargaining Council for the Chemical Industry and Others
(
supra
)
at para 21;
Consani
Engineering (Pty) Ltd v Commission for Conciliation, Mediation and
Arbitration and Others
(2004)
25 ILJ 1707 (LC) at para 19;
Southern
Sun Hotel Interests
(
supra
)
at para 10.
[46]
(1999) 20 ILJ 1527
(LAC) at para 31.
[47]
Compare
Betha
and Others v BTR Sarmcol (A Division of BTR Dunlop Ltd)
(1998) 19 ILJ 459
(SCA) at 512A-H;
Mediterranean
Woollen Mills (Pty) Ltd v SA Clothing and Textile Workers Union
(1998) 19 ILJ 731
(SCA) at 735A-G;
Mamabolo
and others v Manchu Consulting CC
[1999]
JOL 4704
(LC) at para 22;
Pro
Roof Cape
(
supra
)
at para 36.
[48]
Compare
SRV
Mill Services (Pty) Ltd v Commission for Conciliation, Mediation and
Arbitration and Others
(2004)
25 ILJ 135 (LC) at paras 23, 26 and 31.
[49]
(
2016)
37 ILJ 2610 (LAC) at para 27.
[50]
(
supra
)
at para 62.
[51]
(
supra
)
at para 28. See also
SA
Truck Bodies
(
supra
)
at para 31.
[52]
[2017] ZALCJHB 134
(25 April 2017) at para 61. See also para 62 of the judgment.
[53]
(
supra
)
at para 35.
[54]
(2016) 37 ILJ 2320
(LC) at para 237.
[55]
Section 68(5) of
the LRA;
Power
Construction
(
supra
)
at para 49;
Pro
Roof Cape
(
supra
)
at para 30.
[56]
SA Truck Bodies
(
supra
)
at para 34;
Nkutha
and Others v Fuel Gas Installations (Pty) Ltd
(2000) 21 ILJ 218
(LC) at para 94
.
[57]
(
supra
)
at para 28 – 29.
[58]
Item 7(b)(iv) of the Code of Good
Practice.
[59]
(2007) 28 ILJ 2405
(CC).
[60]
Sidumo
(
supra
)
at para 78. This
dictum
was also referred to with approval in
Fidelity
Cash Management Service v Commission for Conciliation, Mediation and
Arbitration and Others
(2008)
29
ILJ
964 (LAC) at para 94;
National
Commissioner of the SA Police Service v Myers and Others
(2012) 33 ILJ 1417
(LAC) at
para 82.
[61]
See
Eskom
Holdings Ltd v Fipaza and Others
(2013)
34 ILJ 549 (LAC) at para 54;
Harmony
Gold Mining Co Ltd v Commission for Conciliation, Mediation and
Arbitration and Others
(2013)
34 ILJ 912 (LC) at para 22;
Trident
SA (Pty) Ltd v Metal and Engineering Industries Bargaining Council
and Others
(2012)
33 ILJ 494 (LC) at para 16;
Taxi-Trucks
Parcel Express (Pty) Ltd v National Bargaining Council for the Road
Freight Industry and Others
(2012) 33 ILJ 2985 (LC) at para 18;
Samancor
Chrome Ltd (Tubatse Ferrochrome) v Metal and Engineering Industries
Bargaining Council and Others
(2011)
32 ILJ 1057 (LAC) at para 34;
National
Union of Mineworkers and Another v Commission for Conciliation,
Mediation and Arbitration and Others
(2011)
32 ILJ 1189 (LC) at paras 26 – 27;
City
of Cape Town v SA Local Government Bargaining Council and Others (2)
(2011)
32 ILJ 1333 (LC) at paras 27 – 28;
Mutual
Construction Co Tvl (Pty) Ltd v Ntombela NO and Others
(2010)
31 ILJ 901 (LAC) at paras 37 – 38.
[62]
[1996] ZASCA 69
;
1996 (4) SA 577
(A)
at
593F-G.
[63]
(
supra
)
at para 30. See also
National
Union of Metalworkers of SA and Others v Atlantis Forge (Pty) Ltd
(2005) 26 ILJ 1984
(LC) at para 79;
Pro
Roof Cape
(
supra
)
at para 30.
[64]
I dealt with this
above when discussing the issue of a proper ultimatum. Also
c
ompare, to the
contrary,
Supreme
Poultry
(
supra
)
at para 16 where the Court held that a strike duration of 1(one)
hour was of a short duration.
[65]
(2014) 35 ILJ 3171
(LC) at para 73.
[66]
(
supra
)
at para 34.
[67]
(
supra
)
at paras 55 – 56. See also
Transport
and General Workers Union and Others v De la Rey's Transport (Pty)
Ltd
(1999)
20 ILJ 2731 (LC) at para 43
[68]
See
Toyota
SA Motors (Pty) Ltd v Radebe and Others
(2000)
21 ILJ 340
(LAC)
at para 15;
Hulett
Aluminium (Pty) Ltd v Bargaining Council for the Metal Industry and
Others
(2008)
29 ILJ 1180
(LC)
at para 42
[69]
(supra) at para 34.
[70]
Compare
Shanduka
Coal
(
supra)
at paras 88 – 90.
[71]
(2006) 27 ILJ 1644
(LC) at 1651F-H. See also
Nitrophoska
(Pty) Ltd v Commission for Conciliation, Mediation and Arbitration
and Others
(2011) 32 ILJ 1981 (LC) at para 18;
Tshongweni
v Ekurhuleni Metropolitan Municipality
(2010) 31 ILJ 3027 (LC) at para 14.
[72]
(
supra
)
at 1654E.
[73]
(2013) 34 ILJ 1440
(LAC) at para 44.
[74]
(2013) 34 ILJ
945 (LC)55]
[75]
(
supra
)
at para 45.
[76]
(
supra
)
at para 72.
[77]
The Court in
Power
Construction
was referring
to the judgment of the Constitutional Court in
Xinwa
and Others v Volkswagen of SA (Pty) Ltd
(2003)
24 ILJ 1077 (CC) where the LAC (Court
a
quo
)
held that the dismissal of striking employees was procedurally fair,
because the union and the employees were given ‘ample
opportunity’ to make representations prior to the decision to
dismiss, and the Constitutional Court held in this respect
at para
16: ‘In the light of these facts, the applicants have no
prospect of persuading this court that their dismissal
was
procedurally unfair’
.
[78]
(
supra
)
at para 243.
[79]
(2017) 38 ILJ 915
(LAC) at para 13.
[80]
See
BTR
Industries SA (Pty) Ltd and Others v Metal and Allied Workers Union
and Another
(1992)
13 ILJ 803 (A) at 817F-I;
SA
Commercial Catering and Allied Workers Union and Others v Irvin and
Johnson Ltd (Seafoods Division Fish Processing)
(2000)
21
ILJ
1583
(CC)
at paras 14 – 16.
[81]
(2017) 38 ILJ 391
(LC) 24. See also
Ngobeni
v Passenger Rail Agency of SA Corporate Real Estate Solutions and
Others
(2016) 37 ILJ 1704 (LC) at para 11.