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[2017] ZALCPE 13
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National Union of Mineworkers and Others v Roberts Brothers Construction (Pty) Ltd and Another (P05/14; P06/14) [2017] ZALCPE 13 (3 October 2017)
Of
interest to other judges
THE
LABOUR COURT OF SOUTH AFRICA,
HELD
AT PORT ELIZABETH
Case
No: P 05/14
P
06/14
In
the matter between:
NATIONAL
UNION OF MINEWORKERS
First
Applicant
UNATHI
STIMELE
Second
Applicant
W
TWALO & 10 OTHERS
Third
and Further Applicants
and
ROBERTS
BROTHERS CONSTRUCTION (PTY) LTD
First
Respondent
MPUMULANGA
CONSTRUCTION (PTY) LTD
Second
Respondent
Handed
down on 3 October 2017 in Johannesburg
JUDGMENT ON
APPLICATION FOR LEAVE TO APPEAL
LAGRANGE
J
Introduction
[1]
The respondents in this matter have applied for leave to appeal the
judgement handed down on 4 April 2017. I shall continue
to refer to
the parties as they were cited in the original judgement.
Condonation
[2]
The application for leave to appeal was filed late on 2 June 2017,
the respondents having only obtained a copy of the judgement
on 19
April 2017. No explanation is provided why they were unaware it had
been handed down earlier. The applicants filed a notice
of intention
to oppose the condonation application but never filed an answering
affidavit. The explanation for the delay is a mixture
of
misconceptions about when the 15 day period for filing the
application expired and the delays in communicating between the new
and former attorneys of record (Bax Kaplan Russel Inc and Snyman
Attorneys respectively), counsel and others in the course of which
the time periods in the rules of Court became subordinated to the
work commitments of the practitioners involved, which is generally
not an acceptable justification for delay. However, the applicants
did not dispute the explanation provided and did not advance
any
reasons why they would be unduly prejudiced by the delay. In the
circumstances, I am willing to condone the filing of the application
for leave to appeal on the basis that the respondents appeal rests in
part on a point of law.
Merits of the application
[3]
In my judgement I decided that the dismissals were substantively fair
but were procedurally unfair in that “the respondents
did not
take the necessary and sensible step of contacting the union to try
and end the strike other than issuing the ultimatums
and pleading
with the strikers”.
[4]
In essence, the respondents now argue on appeal that I erred in
failing to appreciate that item 6 (2) of schedule 8 of the
Labour
Relations Act, 66 of 1995
–
4.1 does not oblige an
employer, amongst other things, to contact the employees trade union,
as part of the requirements of procedural
fairness;
4.2 imposes an obligation
on employees to contact the union as part of their process of
deliberating on ultimatums, and
4.3 the object of the
obligation on an employer to contact a union has nothing to do with
procedural fairness but is simply an obligation
the employer has
towards the union that has its own interest in intervening in strike
because of the potential negative impact
the possible dismissals may
have on the union.
[5]
Secondly, the respondent’s claim that the court erred in
finding the dismissals were procedurally unfair, or alternatively
in
awarding the employees six months’ compensation on account of
its failure to attempt to contact the employee’s union
before
issuing the final ultimatum. This second ground of appeal essentially
concerns whether the court ought to have found the
dismissals were
procedurally unfair in the absence of communication with the
employees union before issuing the final ultimatum
given that the
employees were aware of the possible consequences of their conduct,
that they failed to contact their union themselves,
and that on the
probabilities it would have made ‘no difference’ if the
union had tried to intervene.
Evaluation
[6]
Item 6 (2) of schedule 8 of the LRA states:
“
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.”
[7]
While it may be a factor in weighing up the striking employees’
responsibility for their dismissal and in determining
relief, to
suggest that item 6 (2), places an equivalent responsibility on them
to contact their trade union, as the express wording
of the
emphasised portion of the provision places on the employer cannot be
reconciled with a plain reading of the text thereof.
I should also
mention that this novel interpretation was never pleaded nor argued
by the respondents, who like the applicants could
not be bothered to
submit written argument when the matter was set down for argument. In
my view, it is disingenuous of the respondents
to now go to great
lengths to raise this point only on appeal and there is little
prospect of another court agreeing with their
interpretation of item
6(2) in any event.
[8]
In relation to finding that the failure to notify the union of the
strike affected the procedural fairness of the dismissal,
I am also
satisfied it is unlikely that another court would not regard such a
failure as a very material factor in determining
the fairness of the
dismissal. The contention that the obligation on the employer to
contact the union is purely to protect the
union’s interests
is, with respect, absurd. Once again, this is a novel proposition
never canvassed or advanced at the hearing
or in argument.
[9]
I am well aware that new points of law may be raised on appeal, but
feel compelled to point out that these were never raised
and in my
view have purely been raised to ensure that the Labour Court cannot
refuse to grant this application.
[10]
Concerning the complaint that the award of six months remuneration
was too generous in the circumstances, since I consider
I have no
choice but to allow the appeal on the point in law, there is no
reason to deny the applicants an opportunity to attempt
to persuade
the Labour Appeal Court that an award of six months’ wages of a
dozen construction workers was too generous and
went beyond what was
necessary to emphasise the importance of attempting to contact the
union of employees engaged in an unprotected
strike.
Order
1. Leave to appeal
against the judgment in this matter handed down on 4 April 2017 is
granted.
2. Costs shall be costs
in the appeal.
___________________
Lagrange
J
Judge
of the Labour Court of South Africa
(In
chambers)