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[2018] ZALCJHB 15
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Food and Allied Workers' Union and Others v Marulha Landgoed (Pty) Ltd (JS375/13) [2018] ZALCJHB 15 (24 January 2018)
THE
LABOUR COURT OF SOUTH AFRICA, JOHANNESBURG
Not
Reportable
Case
no: JS375/13
In
the matter between:
FOOD AND ALLIED WORKERS’
UNION
First
Applicant
E MALAHLELA& OTHERS
Second
and Further Applicants
and
MARULHA LANDGOED (PTY) LTD
Respondent
Heard:
26 to 27 July 2016
Delivered:
24 January 2018
JUDGMENT
TLHOTLHALEMAJE,
J:
Introduction:
[1]
The First Applicant, The Food and Allied Workers
Union (FAWU), challenges the procedural and substantive fairness of
the dismissal
of its members, the Second to Further Applicants (the
individual applicants), who were dismissed by the Respondent on
2 April 2013
on the grounds of participation in an
unprotected strike action. The industrial action took place at the
Respondent’s farm
in Hectorspruit, Mpumalanga.
[2]
The Applicants challenge the fairness of the
dismissals on three grounds,
viz
,
that the unprotected strike was in response to unjustified conduct by
the Respondent; that the Respondent failed to contact FAWU
prior to
the dismissals, and further that the Respondent selectively
re-employed dismissed employees. A further claim that the
dismissals
were automatically unfair was abandoned at the commencement of the
proceedings.
[3]
The applicants seek retrospective reinstatement,
alternatively just and equitable compensation. The Respondent opposed
the Applicants’
claim.
Preliminary
issues:
Locus
standi:
[4]
The Respondent raised an objection pertaining to
the authority of FAWU and its attorneys of record, Cheadle Thompson
and Haysom
Inc (CTH), to act on behalf of most of the individual
applicants. It is common cause that FAWU initially referred a dispute
in
respect of 91 employees dismissed. Twenty (20) of these were its
members at the time of their dismissal. The issue of
locus
standi
pertains to the remainder of the
dismissed employees, whom the Respondent contends that FAWU and CTH
are not entitled to represent
them as they were not union members at
the time of the dismissal.
[5]
In respect of the remaining 71 individual
applicants, two bundle of documents containing copies of powers of
attorney and membership
forms were submitted on the morning of the
trial. The Respondent disputed the copies in respect of 33 powers of
attorney on the
grounds that;
5.1.
The documents were completed only during June and
July 2016, long after the institution of these proceedings, and at
the time that
CTH had no authority to be involved in the matter.
5.2.
Most of the documents were defective on various
grounds, including that they were not signed, dated, or witnessed, or
that the name
of the individuals is not indicated. The Respondent
contends that these defects were fatal.
5.3.
The Respondent further held the view that the
wording of the power of attorney did not make provision for the
institution of proceedings
in the Labour Court in the present
circumstances. It contends that the wording merely reflected the
authority to prosecute the
proceedings, but not on behalf of the
other individual applicants.
[6]
In response to the above objections, it was
submitted on behalf of the Applicants that there was no requirement
necessitating the
provision of power of attorneys for the individual
applicants, as they were able to simply attend Court and to confirm
that they
had indeed mandated their representatives to act on their
behalf. Furthermore, with respect to the errors pointed out in the in
the completion of the power of attorney documents, it was submitted
that these documents should be accepted as valid in their form,
and
that to the extent that they were completed by the individual
applicants, this should be indicative of their intention to grant
CTH
valid powers of attorney.
Evaluation:
Re - Locus standi:
[7]
The
starting point is that when this dispute was initially referred to
the Commission for Conciliation Mediation and Arbitration
(CCMA) by
FAWU in April 2013, it was referred as; ‘
FAWU
on behalf of Ernest Mahlalela & others’
.
Attached to the referral form was a list of the dismissed
employees
[1]
. A certificate of
outcome issued on 21 May 2013 was in respect of ‘
FAWU
obo Mahlalela Ernest & 97 others’
[2]
.
I did not understand the Respondent’s case to be that the issue
of
locus
standi
was raised at the CCMA prior to the certificate of outcome being
issued, and to that end,
albeit
that is
not the issue, the individual applicants’ claim is properly
before the Court.
[8]
A
second factor is that the claim was brought by FAWU on behalf of the
individual applicants whom it claimed to be their members.
It can be
accepted that FAWU brought the claim in accordance with its rights in
terms of section 200 of the Labour Relations Act
[3]
.
As to whether it was for an employer to concern itself with
with
the union membership status of an employee, Sutherland JA in
Macdonald’s
Transport Upington (PTY) LTD v AMCU & others
[4]
held
inter
alia
that;
a)
It was not the
employer’s business to concern itself with whether membership
dues were up to date or any other aspect of the
relationship between
individual employees and their union, or to interfere with the
internal decisions of a trade union as to whom
to allow to become a
member;
b)
An
employee who appears before the Labour Court represented by a union
pursuant to Section 161(c) of the LRA, need not have been
a member at
the time of that employee’s dismissal. If that be so, the
relationship between union and a purported member in
such proceedings
is not dependent, in the least, on a history of membership
[5]
;
c)
Except as regards the
need for a union to prove membership for collective bargaining
purposes, the relationship between a union
and its members is a
private matter. To interfere with the private contractual
relationship of other persons, a stranger would
have to demonstrate
some sort of delictual harm.
[9]
In
line with the above authority
[6]
,
and to the extent that FAWU claims that the individual applicants are
its members and had furnished membership forms in that regard,
it is
therefore not necessary for the individual applicants to have
specifically given CTH powers of attorney to act on their behalf.
Once CTH was properly on record as FAWU’s attorneys of record,
and the individual applicants were properly before the court
as
represented by FAWU, that should be the end of the matter. I am
therefore satisfied that FAWU, and by implication, CTH, have
the
necessary
locus
standi
to represent all the individual applicants that are properly before
the Court.
[10]
It follows from the
above that it would not be necessary to deal with the validity of the
powers of attorney. A point that needs
to be made however is that to
sustain the Respondent’s argument in that regard would lead to
both unfairness and absurdity.
The individual applicants allegedly
not belonging to FAWU at the time of the dismissal cannot be left in
the lurch and are indeed
entitled to be represented by it. To hold
otherwise would then imply that these individuals would have to be
excluded from these
proceedings, and to then authorise someone or
some other attorney in respect of the same matter. If this is the
route that the
Respondent intended, I fail to appreciate the logic
and reasoning behind it, in that all that will eventually take place
after
the finalisation of this matter, is a re-run of the same issues
at some point in the future in this very Court.
Dispute
between the parties:
[11]
The events leading to the dismissal of the
individual applicants are largely common cause as can be gleaned from
the parties’
signed pre-trial minutes. In summary;
11.1
The Respondent is in the business of farming
bananas, pineapples and sugar cane. Prior to the dismissals, it had a
workforce of
510 employees. During the latter part of 2012 and early
2013, there was significant unrest within the farming sector
particularly
in the Western Cape region. The Respondent was however
not affected by these events at the time.
11.2
Pursuant to
the labour unrest in the farming sector, ‘
Sectoral
Determination 13 for the Farm Worker Sector’
[7]
was amended, in terms of which the minimum hourly wage in the sector
was increased from R7.61 to R11.66 with effect from 1 March 2013.
11.3
As at the time of publication of the amendments,
the Respondent’s employees worked 8 hours per day. Their
contracts of employment
provided for 7 hours per day. When the
amendments were published, the Respondent took a decision not to
apply for exemption, but
to reduce the number of working hours per
day to 7, and paid the employees at the increased rate.
11.4
The Respondent duly advised its employees of that
decision in a meeting called by its Farm Manager, Mr Giep Joubert.
That decision
was to be implemented with immediate effect.
11.5
There was discontent amongst the employees
related to the reduction in working hours. This had resulted in
unprotected strike action
on 7 March 2013. One of the
Respondent’s owners, Jaycee Rousseau (Rousseau) approached the
employees who had gathered
within the premises. Rousseau, without
attempting to find out what the problem was, simply told the
employees that if they did
not commence their duties immediately,
they would be charged for participating in an unprotected strike. The
employees remained
in the area.
11.6
At about 09h30, Anton Engelbrecht (Engelbrecht),
a representative of Landbou Werkgewers Organisasie (LWO), an employer
organisation
of which the Respondent was a member, posted a written
ultimatum on the walls near where the employees were gathered. He
left after
informing the employees to return to work by 10h00. The
employees stayed put.
11.7
At some stage, Engelbrecht returned and informed
the employees to elect five representatives amongst themselves to
speak to management.
None of the employees had volunteered out of
fear that they may be victimised. At about 11h00, members of the SAPS
arrived at the
premises and convinced the employees to elect
representatives to speak to management. This was after Engelbrecht
had insisted on
the election of representatives, failing which he had
indicated that no discussions would take place with the employees.
The employees
ultimately elected the five representatives and
dispersed at about 13h00.
11.8
On 8 March 2013, the employees again
arrived at the Respondent’s premises but refused to report for
duty. The five
representatives elected the previous day continued to
talk to management, with Mr Ernest Mahlalela, the Second Applicant,
acting
as their spokesperson. Mahlalela spoke with Engelbrecht and
informed him that the employees would not go back to work until they
had received feedback.
11.9
The employees were given until 07h30 to return to
work. Mahlalela and the other representatives then gave feedback to
the employees,
who had in turn still refused to go back to work until
they had dispersed at about 14h00 and left the premises.
11.10
On 11 March 2013, the employees again
gathered outside of the Respondent’s premises and refused to
return to work.
Mr Justice Shakoane, a FAWU official was called by
one of the employees to intervene and attended at the premises.
Shakoane spoke
to Engelbrecht, Joubert and other managers of the
Respondent. He thereafter addressed the employees and requested that
they return
to work, which they did.
11.11
Prior to the employees returning to work,
ultimatums had been issued during the course of the strike which were
ignored. Upon the
employees having returned to work, they were all
subsequently issued with final written warnings.
11.12
Other than the final written warnings, the
Respondent also took a decision to institute disciplinary action
against a group of 23
employees, whom it had identified as having
committed misconduct during the unprotected action of 7 and
8 March 2013.
These employees were given notices on
20 March 2013 in terms of which they were advised that
disciplinary hearings would
be held on 26 March 2013.
11.13
After the Respondent had identified some of the
employees for discipline, a majority of employees refused to work
until the charges
against those employees were dropped. Normal work
operations however continued until the morning prior to the
disciplinary hearing
of 26 March 2013, when other employees
again demanded that the Respondent should withdraw the charges
against their colleagues
or charge all of them as they had all
participated in the strike.
11.14
Shakoane again attended at the farm in the
morning of 26 March 2013. He was not allowed to represent
the employees at
the disciplinary hearings and had left soon
thereafter. The hearings continued in the employees’ absence.
11.15
At about 14h00, Engelbrecht issued notices of
suspension in respect of all employees, and also copies of a notice
to attend a disciplinary
enquiry. He had read out from the copies and
given them to Mahlalela. This was in response to the strike
action of that day.
The employees were suspended until 2 April 2013
when they were required to attend a disciplinary enquiry.
11.16
On 2 April 2013, all the employees
notified of the hearings had attended. They were represented by
another Union official,
Mr Catholice Moraba. Malahlela had testified
on behalf of all the employees. A decision was taken on 4 April 2013
in
terms of which all the employees were found guilty. Letters of
dismissal followed on 5 April 2013.
11.17
The employees were advised to return on
8 April 2013 to re-apply for their positions should they so
wish. They were given
forms to complete and advised to return the
following day to re-apply for their positions. Most of the dismissed
employees were
re-employed and had returned to work. Some of the
individual applicants had not re-applied for their positions.
The
evidence on behalf of the Respondent:
[12]
The evidence of Mr Anton Engelbrecht, an official
of LWO on behalf of the Respondent is summarised as follows;
12.1
He had previously discussed the Respondent’s
options regarding the amendments to the sectoral determination during
February 2013,
which included seeking an exemption, which the
Respondent was not keen to pursue.
12.2
He had communicated the Respondent’s
decision to the employees at a meeting held with them on
26 February 2013,
and had further advised them that the
changes were to be implemented with immediate effect. His address to
the employees which
was in Afrikaans was translated into iSiswati by
Mr Moses Mamiza, the Respondent’s Human Resources officer.
Mamiza in his
testimony had confirmed Engelbrecht’s version in
this regard.
12.3
According to Engelbrecht, the employees
understood what they were told, and had asked questions for clarity.
They had not raised
any problems at the time. Engelbrecht nonetheless
confirmed that the purpose of that meeting was simply to advise the
employees
of the changes to be implemented.
12.4
In justifying the changes, Engelbrecht further
testified that the employees’ employment contracts provided
that they would
be required to work 7 hours. Prior to the amendments,
the employees however worked 8 hours per day because there was
sufficient
extra production to enable the additional hour per day.
The practice was that in summer the employees worked 8 hours per day
whereas
in winter they reverted to the 7 hours per day. His
contention was that reverting to 7 hours per day was not a change to
the employees’
contract of employment;
12.5
Rousseau on 7 March 2013 informed him
of the strike action at the farm. When he arrived, he found that the
employees were
indeed on strike and holding placards. He had
approached the employees and requested them to appoint five
representatives
who could negotiate with management on their behalf.
Despite their reluctance, the ultimately did. During the strike, an
ultimatum
was issued which the employees had ignored. A second
ultimatum issued failed to yield any results. Later in the day the
employees
had dispersed and left the premises.
12.6
On 8 March 2013 the strike had
continued. Engelbrecht testified that he was threatened when he
attempted to enter the
premises. Another ultimatum was then issued,
imploring the employees to return to work on 11 March 2013;
12.7
According to Engelbrecht, he had contacted
Shakoane of FAWU on 7 March 2013 to attend to the strike.
Shakoane arrived
at the premises only on 11 March 2013.
Flowing from Shakoane’s intervention, the employees had
returned to work;
12.8
The Respondent had decided to charge the 23
employees for their conduct during the unprotected strike.
Engelbrecht denied that the
Respondent had unilaterally changed the
terms and conditions of the employees’ employment as there was
no reason why the
new sectoral determination could not be implemented
in line with the employees’ contracts of employment;
12.9
Between 11 and 26 March there was relative
peace as employees continued with their normal duties. During that
period, discussions
according to Engelbrecht were held with the
employees, who were also informed of final written warnings issued to
them on 19 March 2013
for their participation in the
unprotected strike action;
12.10
A decision to institute disciplinary enquiries
against 23 employees was taken on 20 March 2013. The
disciplinary action
related to those employees’ conduct during
the unprotected strike. The enquiries were scheduled to take place on
26 March 2013.
12.11
Shakoane according to Engelbrecht had attended
the hearings in the morning but was rude and had left hurriedly as he
had other business
to attend to in Komatipoort. Shakoane allegedly
said that he would not take part in the hearings and had subsequently
addressed
the employees gathered outside the venue where the
enquiries were held, and thereafter told them to leave.
12.12
According to Engelbrecht, the disciplinary
enquires did not proceed on 26 March 2013 but were
postponed to 28 March 2013.
He was involved as a witness,
and the subsequent enquiry resulted in the summary dismissal of the
individuals involved;
12.13
Notices of suspension and to attend a
disciplinary enquiry in respect of all other employees were
subsequently issued after they
had ignored the final ultimatum.
Following the enquiry on 2 April 2013, the other employees,
including the individual
applicants were dismissed. Engelbrecht holds
the view that the dismissals were appropriate as the employees were
given warnings
and reasonable period within which to comply with the
ultimatums, which copies were also faxed to the offices of FAWU. He
could
not however provide evidence to prove that the copies were
indeed faxed to the Union;
12.14
Under cross-examination, Engelbrecht conceded
that the employees were merely informed of the Respondent’s
decision in respect
of the sectoral determination, and that there
were no consultations held with them prior to the decision being
implemented. He
further conceded that management had refused to
discuss anything with the employees on 08 March 2013 whilst
they were
on strike;
12.15
In regard to the final written warning issued
after the strike of 7 – 11 March 2013,
Engelbrecht conceded that
these were issued without inviting the
Union to make representations.
[13]
The evidence of Mr Giep Joubert (Joubert), one of
the directors of the Respondent is also summarised as follows;
13.1
It was not viable to pay the increased wages as
per the sectoral determination and maintain the 8-hour system, as
this would have
resulted in an increase in labour costs in the region
of R4 million per year. These increased costs could have led to
retrenchments
which the Respondent sought to avoid, or at worst,
could have led to the closure of the farm as it would not have been
possible
to absorb such a high increase.
13.2
The workforce in 2013 consisted of about 500
employees and the Respondent was unable to sustain the 8 hours per
day system. The
workforce as at the time of these trial proceedings
consisted of 300 employees, and the Respondent had since reverted to
the 8
hours per day system.
The
evidence on behalf of the Applicants:
[14]
Ernest Mahlalela (Mahlalela), the Second
Applicant was employed by the Respondent as a general farm worker for
a period of two years
prior to his dismissal. His testimony was that;
14.1
He was elected as one of the employee
representatives during the strikes in 2013, as the employees were
unhappy with the Respondent’s
decision to reduce their working
hours;
14.2
Joubert had sometime in March 2013, called
the employees to a meeting and informed them of a reduction in
working hours, and
an increase in their hourly rate to R11.66. The
employees were not afforded an opportunity to ask questions at that
meeting in
regard to the new changes and had thereafter left and
resumed their duties.
14.3
Employees nonetheless kept complaining about the
changes and had decided to confront management in the morning of
7 March 2013
as a group since they did not have
representatives (FAWU did not have elected shop stewards on the
farm). Rousseau met and
informed them that even though he
acknowledged that there was a problem with the changes, it was for
the employees to decide whether
they wanted to go back to work or
continue with their unprotected strike action. He further informed
the employees that management
would implement ‘no work, no pay’
in respect of those that did not want to go back to work.
14.4
The employees had not planned to go on strike,
and after Rousseau had addressed them, they then decided not to go
back to work,
specifically since Rousseau did not want to listen to
their concerns.
14.5
Mahlalela confirmed that Mamiza had interpreted
what Engelbrecht had said. He however contended that Engelbrecht also
refused to
entertain their questions, and simply told them that they
were on unprotected strike;
14.6
Mahlalela confirmed that after Engelbrecht spoke
to them, he also told them to return to work before 08h00. The
employees nonetheless
refused to go back to work as their complaints
had not been addressed. At 08h00, Engelbrecht came back to where the
employees were
gathered, said nothing, and simply pasted copies of an
ultimatum on a wall and left. The ultimatum required of the employees
to
return to work by 08h30.
14.7
At some point Engelbrecht came back and requested
them to choose 5 representatives amongst themselves to talk to
management. The
employees were hesitant to nominate representatives
to act on their behalf, as they were afraid that they could be
victimised and
ultimately dismissed, as it had happened in the past.
14.8
It was only after the members of the South
African Police Service got involved and informed them to choose five
representatives
that they had agreed to do so. Whilst the five
representatives were having discussions with management, the
employees were then
told to leave the Respondent’s premises.
14.9
Mahlalela was one of the five representatives
chosen by the employees to represent them in their meeting with
Engelbrecht. Engelbrecht
told them that the employees should all go
home and that the five representatives should meet with management
the following day.
At about 13h00, the five representatives reported
back to the other employees and everybody thereafter dispersed. The
following
morning the employees had reported for duty and waited for
Engelbrecht at the entrance of the premises as they had been
instructed
not to enter the premises the previous day.
14.10
When Engelbrecht arrived and upon the employee
representatives confronting him, he refused to speak to them, telling
them that he
had nothing to say to them as the employees were still
on strike. He told them that he would only speak to them if the
employees
went back to work before 0h900.
14.11
The five representatives went back to the
employees to give a report back. Mamiza approached the
representatives and informed them
that Engelbrecht would only speak
to them once all the employees had returned to work by 09h30. Upon
receipt of the news, the employees
refused to go back to work. The
employees left the premises at about 14h00.
14.12
Mahlalela had then called Justice Shakoane of
FAWU to intervene. Shakoane attended to the matter on Monday
(11 March 2013)
as he had promised. He met with Mamiza in
the latter’s office. Engelbrecht, Rousseau and Joubert joined
them. In that meeting,
Engelbrecht explained that the employer could
not continue paying the employees for an 8-hour day, hence the
decision taken. He
also informed them that the employees had been
issued with written warnings for the strike on 7 and 8 March 2013
due
to the unprotected strike and failure to heed ultimatums.
14.13
Shakoane had informed management that he would
not accept the warnings because the employees were never informed of
any intended
disciplinary action. At that stage, Engelbrecht then
told Shakoane and the employees to leave as they were not listening
to him.
The representatives and Shakoane then left to address the
workers and upon their advice, the employees resumed their duties.
14.14
Upon the employees going back to work, 23
of them including Mahlalela and the other representatives were
subsequently called to
management offices where they were issued with
a list of charges, with the disciplinary hearing being scheduled for
26 March 2013.
Five charges for participating in an
unprotected strike action were levelled against them.
14.15
There was unhappiness among the employees about
the selective disciplinary action taken against some of them and not
the group as
a whole. Shakoane was also informed of these turn of
events. All the workers decided that they would not work unless the
charges
were withdrawn against their colleagues.
14.16
On 26 March 2013 Shakoane arrived at
the premises with the intention of representing those facing
disciplinary action.
He was however informed that no external
representatives were permitted at the hearing and therefore he could
not represent them.
When Shakoane was barred from representing the
employees, a scuffle between him and Joubert ensued after the latter
physically
pushed him. Shakoane returned the favour, resulting in
Mahlalela having to separate them. Mamiza then told Shakoane and the
other
representative to leave the building. They then went outside
and addressed the workers who had gathered outside the hearing room
and informed them of what had just taken place.
14.17
Engelbrecht also came outside, read from a
document and informed the workers that those employees who were
charged had been found
guilty and that a trust relationship between
them and the Respondent had broken. Engelbrecht did not say anything
about sanction.
He then told the other employees to go back to work.
At about 14h00, notices of suspension were then issued to all
employees and
were informed to come to a hearing on 2 April 2013.
14.18
On 2 April 2013, the hearing had
commenced, and the employees were represented by another union
official, Catholice Moraba.
The employees were informed of their
dismissal on 4 April 2013. On 5 April 2013 the
employees were finalising
the paperwork in regard to the termination
of their services when they were told that those that wanted to
re-apply for their posts
should come back on 8 April 2013.
14.19
All the dismissed
employees had re-applied for their positions except Mahlalela and
others, includin
g the four other
representatives. Malahlela’s contention was that he did not
apply as he knew that he was ‘enemy number
1’.
[15]
Under cross-examination, Mahlalela conceded that
in terms of his contract of employment, he was required to work 7
hours. He nonetheless
contended that he worked 8 hours, and only in
the winter season did the employees work less hours. He conceded that
management
had informed the employees that they were on unprotected
strike. He denied however that they were informed of the
consequences.
Mahlalela denied that the employees were issued with
final written warnings for participation in an unprotected strike in
the first
strike. He nonetheless conceded that the employees went on
unprotected strike on 26 March 2013 and were issued with
ultimatums
which they had ignored.
[16]
Shakoane of FAWU also testified on behalf of the
applicants. His testimony was that;
16.1
He was contacted by the employees on
11 March 2013 at about 06h00 and informed of strike as the
Respondent had reduced
their working hours. At the time there were
approximately 130 FAWU members employed by the Respondent.
16.2
FAWU did not have a recognition agreement with
the Respondent and had not previously engaged with it about any
aspects other than
organisational rights. FAWU after the dismissals
no longer had a presence at the Respondent.
16.3
He denied ever being contacted by the Respondent
during the strike, and reiterated that he attended at the farm only
after he was
called by the employees. He confirmed that the meeting
with Engelbrecht, Mamiza and others took place where it was explained
to
him that the reduction in hours came about as the Respondent could
not afford the increase.
16.4
Shakoane testified that there was relative peace
between 11 and 25 March 2013. The problems however
surfaced when
management wanted to discipline the 23 employees. The
other employees’ attitude was that the charges against the 23
employees
should be withdrawn, or that the Respondent should
charge all the employees as they had all participated in the
strike
action.
16.5
On the morning of 26 March 2013 he had
arrived at the premises in order to represent the 23 employees at the
disciplinary
enquiry. Engelbrecht informed him that he should leave
as the shop stewards could represent the other employees. This was
even
though the five representatives had also been charged.
16.6
Soon thereafter, Joubert also told Shakoane to
leave and had approached him and pushed him out of the office.
Shakoane realised
that Joubert had a firearm on his person. He left
the office and addressed the employees before leaving. He denied that
he was
rude or disrespectful towards the Respondent’s
management when he was told to leave. He further denied that he was
in a hurry
to attend to another meeting, as his sole purpose of
coming in was to represent the employees at the enquiry.
16.7
Shakoane denied ever receiving any copies of
ultimatums. He testified that he had not raised the employees
concerns with the Respondent
prior to 26 March 2013 because
of Joubert’s attitude.
The
issues to be decided:
[17]
In determining whether the dismissal of the
individual applicants was fair, the Court is called upon to consider
five issues,
viz
;
(a)
Whether the individual applicants had
participated in the unprotected strike as a result of unjustified
conduct on the part of the
Respondent in unilaterally reducing their
working hours in order to avoid paying the minimum wages determined
in the amendment
to the sectoral Determination for the farming sector
on 5 February 2013;
(b)
Whether the dismissal of the individual
applicants was substantively and procedurally unfair because the
Respondent selectively
re-employed some of the dismissed workers but
refused to re-employ them following the dismissal of the employees
for the same reason;
(c)
Whether the Respondent failed to contact an
official of FAWU at the earliest opportunity to discuss the course of
action it intended
to adopt;
(d)
Whether the Respondent failed to afford the
individual applicants sufficient time to reflect on the ultimatums
that were issued
and to respond to those ultimatums; and
(e)
Whether in the circumstances, the dismissals of
the individual applicants were substantively and procedurally unfair.
The
legal principles:
[18]
Two separate strike actions took place at the
farm. The first was between 7 and 11 March 2013, and
the second on
26 March 2013. The strike actions in question
being unprotected, the starting point is section 68(5) of the Labour
Relations
Act, which provides 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.'
[8]
[19]
The relevant guidelines in
Schedule 8 are those to be found in Items 6(1) and (2), which provide
that:
‘
(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.'
[20]
In
NUMSA
v CBI Electric African Cables
[9]
,
the Labour Appeal Court held that it was apparent from the provisions
of section 68(5) of the LRA that a Judge called upon to
determine the
fairness of a dismissal effected on the ground of participation in an
unprotected strike should consider, in addition
to Item 6 of the
Code, the provisions of Item 7. These regulates dismissals for
misconduct more generally, and also requires the
determination of
whether the dismissal of the employees was appropriate for the
contravention of any relevant rule or standard
[10]
.
Substantive
fairness:
(i)
Was the strike in response to unjustified conduct
by the Respondent?
[21]
Central to the Applicants’ case is that the
Respondent unilaterally reduced the employees working hours from 8 to
7 hours,
and that this decision had a far-reaching impact as it
affected the employees’ income and working conditions. It was
submitted
on their behalf that because of the impact of that
decision, the Respondent ought to have taken appropriate and
constructive steps
in raising it with the employees and should have
been open to discussions on it or alternatives to it.
[22]
It was submitted on behalf of the Respondent on
the other hand that there could be no suggestion that the strike
action was provoked,
as all that was done was to simply revert to the
employees’ 7 hours’ work in accordance with the
employees’ contracts
of service.
[23]
The Applicants nonetheless contended that the
issue was not about the parties’ contractual rights, but about
how the Respondent
conducted itself in the circumstances and whether
this led to the strike.
[24]
It is my view an important consideration in this
case was that two separate incidents precipitated the unprotected
strike actions.
The first related to the reduction in working hours,
which was conveyed to the employees on 26 February 2013.
No
action was taken by the employees between that date and
7 March 2013 when they had embarked on industrial action.
That
action had continued until 11 March 2013 and after the
intervention of Shakoane. In my view, once the employees had returned
to work on 11 March 2013, that was the end of the matter.
They were thereafter issued with final written warnings on
19 March 2013. The validity of these final written warnings
was not an issue for the Court to consider.
[25]
The
decision to reduce the working hours having been communicated to the
employees on 26 February 2013, and the strike
action having
commenced on 7 March 2013, it is my view that it cannot be
said that the first strike was provoked by any
unjustified conduct on
the part of the Respondent. There was nothing spontaneous about that
strike action
[11]
. Mahlalela
confirmed that the decision was conveyed to the employees on
26 February 2013, and I did not understand his
version to
be that they did not understand what it was that was conveyed to
them. This is distinguishable from whether the employees
accepted
what was conveyed to them.
[26]
I accept that the purpose of the meeting of that
day was merely to convey the decision rather than to consult the
employees or have
any discussions surrounding it. I further accept
that the employees were clearly aggrieved by that decision and the
manner in which
it was conveyed to them. The employees nonetheless
had ten days to reflect on it, and the only invariable conclusion to
be reached
is that the unprotected strike was indeed planned and was
not by all accounts, a knee-jerk reaction to any unjustified conduct
on the part of the Respondent. Within the ten days in question, the
employees had an opportunity to reflect on their options, which
included either lodging grievances or referring a dispute to the
CCMA. They nonetheless chose to embark on an unprotected strike.
To
conclude on that issue, the first strike action did not result in the
dismissal of the employees, including the 23 identified
for separate
discipline as shall further be demonstrated in this judgment.
[27]
The second issue that precipitated the
unprotected strike action was the suspension and intention to
discipline 23 employees identified
as allegedly having committed acts
of misconduct during the strike action of 7 – 11 March 2013.
Flowing
from these intended disciplinary steps as announced on
20 March 2013, other employees in sympathy with their
colleagues
went on strike, demanding that the charges against their
colleagues be withdrawn.
[28]
It was submitted on behalf of the Applicants that
the Respondent’s conduct in this regard was unjustified in
that;
a)
The
employees had complied with the ultimatums and should thus have not
been charged
[12]
b)
The employees were correct in questioning the
Respondent’s decision to arbitrarily charge some of them when
the entire workforce
had embarked on a strike
[29]
It was common cause that between 12 –
20 March 2013 there was relative peace on the farm. This
was despite the fact
that the Respondent had issued final written
warning to employees who had participated in the strike action of
7 – 11 March 2013.
After notices to attend
an enquiry were issued to the 23 identified employees on
20 March 2013, other employees refused
to work until the
charges against their colleagues were withdrawn. Six days later
26 March 2013, and on the date of the
disciplinary hearings
in respect of the 23 employees, other employees again went on strike
in sympathy. Two ultimatums were issued
on 26 March 2013,
and it is not correct as submitted on behalf of the Applicants, that
these ultimatums were adhered
to.
[30]
Having ignored the two ultimatums, the employees
were subsequently issued with notices of suspension, with
disciplinary enquiries
being scheduled for 2 April 2013.
The question of whether the second strike of 26 March 2013
was provoked need
to be considered within the context of whether in
identifying the 23 employees for discipline in respect of the strike
of 7 – 11 March 2013,
the Respondent
adopted an indefensible position, and/or acted either unlawfully,
unacceptably or unreasonably.
[31]
It is trite that discipline in the workplace is a
management prerogative, and even in circumstances where a strike was
protected,
the employer is entitled to institute disciplinary
proceedings against individuals who are alleged to have committed
acts of misconduct
during that strike. Thus, any disciplinary action
in that regard would not be in respect of the (protected) strike
action itself,
but the conduct accompanying that strike. This is so,
in that it is expected of employees who embark on strike action, to
conduct
themselves and their strike activities in a peaceful and
civilised manner.
[32]
In this case, the 23 employees were identified as
having allegedly committed acts of misconduct during the strike of
7 – 11 March 2013,
including violence,
hostility and intimidation. They were duly issued with notices on
20 March 2013 to attend the disciplinary
enquiry scheduled
for 26 March 2013. Other employees were clearly aggrieved
by these turns of events and it was only
on the date of the hearing
that they had went out on a full-scale strike in sympathy with their
colleagues.
[33]
It was held
in
National
Union of Metalworkers of SA and Others v Lectropower (Pty) Ltd
[13]
that an
employer’s decision to summarily dismiss shop stewards and
without a hearing merely because of the latter being viewed
as
‘troublemakers’ after they had lodged a grievance
constituted unjustified conduct. In this case, and inasmuch as
the
employees had always been suspicious that the Respondent would target
their representatives, it was not only the representatives
that were
selected for discipline, but also other ordinary workers alleged to
have been involved in acts of misconduct. The strike
action therefore
of 26 March 2013 was not spontaneous in the light of the
notices having been issued to the 23 employees
on 20 March 2013.
I can only conclude that the strike action was planned to coincide
with the disciplinary proceedings
scheduled for 26 March 2013.
Since it was management’s prerogative to discipline its
employees for conduct during
strike action, it cannot by all accounts
be said that the Respondent acted unfairly, unreasonably or
provocatively in identifying
the 23 employees for discipline. This
issue is however separate from whether there was substance to the
charges against the 23
employees.
(ii)
Non-compliance with the provisions of the
LRA:
[34]
It has already been indicated that the two
separate strike actions were unprotected, with no attempt by the
Applicants to comply
with the provisions of the LRA. This omission
should weigh heavily against the Applicants, in view of participation
in an unprotected
strike being considered misconduct.
[35]
Whilst the first strike action may have been a
learning curve for the employees, it does not appear that they
learned anything from
it. It further appears that the employees,
despite the consequences of their actions having been made clear to
them by the Respondent
and Shakoane on 11 March 2013,
failed to appreciate those consequences.
[36]
The first strike took place over three days. On
the common cause facts, the first ultimatum was issued on the first
day of the strike
at 09h30. Engelbrecht having pasted the written
ultimatum on the walls next to where the employees had gathered, also
spoke to
the employees, informing them that they should return to
work by 10h00. That ultimatum was ignored, and the employees left the
premises at 13h00.
[37]
On 8 March 2013, and after the
employees had elected representatives to speak to management, they
again refused to report
for duty, insisting that they would only do
so once they had received feedback from their representatives. The
representatives
went back to the employees and reported that
management wanted them to go back to work by 07h30 failing which
there would be no
discussions with the representatives. Again, the
employees refused to report for duty and left the premises at 14h00.
[38]
On 11 March 2013, the employees again
refused to report for duty. It was only when Shakoane intervened that
the strike
had ended. It was further common cause that all the
employees on strike on 7 and 8 March 2013 were issued
with final
written warnings. Engelbrecht conceded that those warning
were issued without inviting the Union to make representations. The
validity
of those warnings was not challenged at the CCMA, and
whether it was fair or not for the Respondent to have issued them is
not
an issue for the court to determine.
[39]
With the second strike of 26 March 2013,
it has already been concluded that it cannot be said that it was in
response
to any unjustified conduct on the part of the Respondent. To
the extent that the employees were issued with a final written
warning
in respect of the first strike, there is nothing, contrary to
contentions made on their behalf, that they were
bona
fide
in their actions. This is even moreso on
the evidence of Mahlalela, who had testified that upon the 23
employees being issued with
notices, he had contacted Shakoane, who
had advised him that employees should not go on strike as he would
attend to the matter
on 26 March 2013.
[40]
The disciplinary action against the 23 other
employees was something within the Respondent’s prerogative to
institute. There
is nothing to suggest that the Respondent had acted
unlawfully, unreasonably or irrationally in taking those disciplinary
steps.
The 23 employees were duly notified of the disciplinary
enquiry and had attended that enquiry. As to whether the charges
against
them were to be proven is something else. I will revert to
this issue later in the judgment in the light of the confusion
surrounding
the status of those disciplinary proceedings. On the
whole however, and in the light of all these factors, there is no
basis for
a conclusion to be reached that the dismissals of the
employees were substantively unfair.
Procedural
fairness:
(i)
Was FAWU contacted and did the ultimatum
comply with the provisions of Item 6(2)?
[41]
In view of the conclusions reached in respect of
the first strike action, the focus on procedural fairness in this
case is whether
the ultimatum issued on 26 March 2013
complied with the requirements of Item 6 (2) of Schedule 8, and
whether the Union
was properly contacted prior to the dismissals
being effected. Submissions were made on behalf of the Applicants in
regards to
the issue of whether the Union was contacted, whilst
nothing much was said about the ultimatums issued on 26 March 2016.
[42]
The purpose
of an ultimatum within a strike context has received attention by the
Labour Appeal Court in various instances. Not
so long ago, the Labour
Appeal Court in
Mndebele
and Others v Xstrata South Africa (Pty) Ltd t/a Xstrata Alloys
(Rustenburg Plant)
[14]
reiterated that;
‘
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. …’
[43]
In
Mveltrans
(Pty) Ltd t/a Bojanala Bus Services v Pule and Others
[15]
, it was held that;
“
It is beyond cavil that the
purpose of an ultimatum is to get workers who are participating in
unlawful industrial action back to
work. Although the participation
in an unprotected strike remains a serious misconduct, workers can
avoid the ultimate sentence,
which is dismissal, by complying with an
ultimatum. Those who comply with the ultimatum may not be dismissed,
because compliance
is an act of atonement. Those who do not comply
may be dismissed, after being heard, because non-compliance is an
unacceptable
act of defiance, especially where the employer had
obtained a court order declaring the strike illegal and therefore
unprotected.
It has been said that an ultimatum is as much a
means of avoiding a dismissal as a prerequisite to affecting one”
[16]
(Authorities omitted).
[44]
In this
case, Mahlalela confirmed that at the time that the other employees
had gathered outside or near the hearing room on 26 March 2013,
Engelbrecht came and read a document to them and told them to go back
to work. Malahlela’s contention that the employees
were not on
strike as they had simply gathered and had not sung any songs,
picketed, carried weapons or damaged property is clearly
fallacious.
Strike action merely requires of employees not to perform their
normal functions when they are lawfully required to
do so, or any
form of conduct that falls within its definition under section 213 of
the LRA
[17]
. Thus, any strike
action need not be accompanied by the singing of songs, damage to
property or any such conduct. In fact, any
form of misconduct during
strike action should be met with appropriate disciplinary measures,
irrespective of whether the strike
was provoked or not.
[45]
Malahlela had nonetheless confirmed that an
ultimatum was issued which the employees had ignored. Mamiza also
confirmed that the
ultimatum was read and translated to the
employees. Shakoane also confirmed that he saw a copy of an
ultimatum. In the bundle of
documents were two ultimatums. The first,
‘
Second Ultimatum To Resume Duties
’
required of the employees to resume their normal duties at 09h30 on
26 March 2013, whilst the second titled ‘
Final
Ultimatum To Resume Duties’
required of
the employees to resume their normal duties at 14hh00. Furthermore,
the ultimatums advised the employees that the strike
was unprotected;
that neglect to adhere to the ultimatum could result in serious steps
being taken; and further that the failure
to adhere to the ultimatum
could lead to a dismissal. There can be no doubt that the ultimatums
clearly complied with the requirements
contemplated in Item 6 (2) of
Schedule 8.
[46]
According to Engelbrecht, the final ultimatum was
issued at 10h00. When the ultimatum was not complied with, it was
followed promptly
at 14h30 with notices of suspension of all
employees who had participated in that strike on that day. It is
significant to note
that the dismissals as a consequence of the
strike action of 26 March 2013 were not summary. The
notices issued required
all the employees to present themselves at a
disciplinary enquiry scheduled for 2 April 2013. The
employees were charged
with participation in an unprotected strike,
and gross insubordination for ignoring the ultimatum.
[47]
The Applicants contend that the dismissal was
unfair as the Respondent failed to contact FAWU before taking a
decision to dismiss
the striking employees. They challenged the
Respondent’s contention that FAWU was contacted on two
occasions via e-mail when
the two ultimatums were sent. Shakoane, who
had testified that he was the only union official at the local FAWU
offices at the
time disputed that copies of the ultimatums were
received. He had nonetheless confirmed that he had seen a copy from
one of the
employees in respect of one of them issued on
26 March 2013 whilst still at the premises, even though he
was not personally
given a copy.
[48]
In its
submissions, the Respondent correctly pointed out that it is required
of an employer prior to dismissing employees on strike,
to contact a
trade union official at the earliest opportunity and discuss
disciplinary action it intends to implement before issuing
a final
and fair ultimatum to employees
[18]
.
Since it has been concluded that the ultimatums complied with the
requirements of Item 6 (2) of Schedule 8, I am not satisfied
that the
Respondent had demonstrated that FAWU was contacted on 26 March 2013
and properly informed of its intended action
prior to issuing a final
ultimatum.
[49]
Shakoane was at the premises on 26 March 2013
to attend to the disciplinary enquiry in respect of the 23 employees.
To
the extent that he had confirmed that he had seen a copy of the
ultimatum on that date, it can only be assumed that it was issued
whilst he was still at the premises to attend to the disciplinary
enquiry in respect of the 23 employees. The letter allegedly
addressed to FAWU sent by fax on that date stated that an attempt was
made to give Shakoane a copy and that he had refused to accept
or
discuss it with the Company. This allegation was nonetheless not
canvassed with him during his cross-examination, which merely
focussed on whether the fax was received or not, after Shakoane had
conceded that the fax number allegedly used belonged
to FAWU.
[50]
At the same time however, and the onus being upon
the Respondent to demonstrate that indeed the fax was sent through
and received,
Engelbrecht confirmed that there was no such proof on
file. Engelbrecht had further conceded under cross-examination that
after
the ultimatums were issued whilst Shakoane was at the premises,
he made no attempt to call him to discuss those ultimatums or the
Respondent’s intended action. In the light of the above
factors, I am satisfied that the Respondent failed to contact the
FAWU prior to issuing the ultimatums or even thereafter. This failure
proved critical in that Shakoane had always proven himself
to be
cooperative and influential, and there is no suggestion that he would
have been unable to convince the employees to go back
to their normal
duties. Upon his intervention on 11 March 2013, the
employees had ended their strike, and the Respondent
clearly failed
to take that into account. This omission is damaging to the
Respondent’s case that it had acted procedurally
fairly in
dismissing the employees.
[51]
On the
evidence of Engelbrecht, Joubert and Mamiza, the disciplinary enquiry
in respect of the 23 employees charged with misconduct
during the
strike action of 7 – 11 March 2013 did not
take place on 26 March 2013 as scheduled
due to the strike
action. Engelbrecht further testified that the enquiry was
postponed to 28 March 2013, after
which the 23 employees
were dismissed. The record of that disciplinary enquiry
[19]
does not however indicate an outcome even though the 23 employees
were not in attendance. Engelbrecht’s testimony that the
23
employees were dismissed on 28 March 2017 is not supported
by any documentation. That evidence was even more confusing
given his
contention that the 23 employees could not have been dismissed with
the rest of the other employees.
[52]
Engelbrecht’s
evidence in respect of the 23 employees is further not supported by
the notices of suspension or to attend a
disciplinary enquiry issued
on 26 March 2013 after the final ultimatum was ignored.
Mahlalela was one of the 23 employees
identified for separate
discipline. The notices of suspension and to attend a disciplinary
enquiry were nonetheless issued to ‘
Ernest
Mahlalela and 494 others’
.
The only conclusion to be reached is that the disciplinary enquiry of
28 March 2013 in respect of the 23 employees
did not reach
an outcome, whilst that of 26 March 2013 was postponed.
Thus, contrary to what is recorded in the outcome
of the disciplinary
hearing held on 2 April 2013 in respect of all the
employees
[20]
, it is therefore
not correct that the 23 were found guilty in their absence on
26 March 2013. If this was the case, then
there would have
been no need to reconvene their disciplinary enquiry on 28 March 2013
or to charge them together with
others on 26 March 2013.
[53]
At the disciplinary enquiry of 2 April 2013,
all the employees notified had attended and were represented by
another FAWU
official, Catholice Moraba. Mahlalela had testified on
behalf of all the employees. A notice of dismissal was issued on
4 April 2013,
in respect of ‘
Ernest
Mahlalela and 494 others’
. This
therefore implies that the 23 other employees were dismissed with the
other employees. On the evidence before the Court,
it can further be
concluded that the 23 employees were dismissed for participation in
an unprotected strike and gross insubordination,
and not for
misconduct in respect of the 7 – 11 March 2013 strike
action. The Applicants did not raise any challenges
in respect of the
disciplinary enquiry leading to the ultimate dismissal, and
notwithstanding the chairperson’s incorrect
conclusions in
respect of the 23 employees, it cannot be said that the enquiry
itself was flawed.
[54]
To conclude on the issue of procedural fairness
then, the two ultimatums issued on 26 March 2013 complied
with the requirements
in Item 6(2) of Schedule 8. The Respondent
nonetheless failed to contact the Union prior to issuing the final
ultimatum or dismissing
the employees. The individual applicants were
afforded an opportunity of a disciplinary enquiry, which the fairness
thereof they
did not contest. Thus other than the failure to contact
the Union, the dismissals were procedurally fair.
Selective
re-employment:
[55]
It was common cause that upon the dismissal of a
majority of the Respondent’s employees on 5 April 2013,
they were
informed to come back on 8 April 2013 to re-apply
for their positions. All of the dismissed employees except Mahlalela,
‘Lerato’, Phumzile Mfuma, Bongani Mlambo, Nompumelelo
Thabethe re-applied.
[56]
Mamiza’s involvement in the selection and
re-employment of the dismissed employees was limited to compiling the
forms and
the list of those employees that had applied. It was not
for him to decide who to re-employ as that decision was left to
management.
He could not shed light on what criteria was used to
select dismissed employees for re-employment, other than to state
that those
that had re-applied were re-appointed, whilst those that
did not were not considered. Furthermore, all that he knew was that
the
best employees were taken back.
[57]
The parties
were
ad
idem
that selective dismissal and re-employment of employees is not
per
se
unfair as circumstances may justify such action
[21]
.
The parties further agreed that it would constitute a dismissal
within the meaning of section 186 (1) (d) of the LRA when an employer
dismissed a number of employees for the same or similar reason and
offered to re-employ some but not others. It is equally accepted
by
the parties that if the re-employment is carried out in an unfair,
irrational, discriminatory and subjective manner would it
be
considered unfair.
[58]
It was submitted on behalf of the Respondent that
in the light of the charges against the individual applicants, their
conduct and
subsequent breach of a trust relationship, selective
re-employment was justified. The Applicants on the other hand argued
that
the Respondent failed to demonstrate that it had applied some
objective criteria or what that criteria was.
[59]
The submissions made on behalf of the Applicant
clearly have merit in the light of the evidence of Mamiza. On his
version, he did
not know what criteria was applied and he assumed
that only those that had applied were re-appointed. However, there
were 495 employees
dismissed on 4 April 2013. Other than
the five that had not applied for their position as attested to by
Mahlalela, it
is unlikely that a further 186 of the original
applicants would not have applied for their positions.
[60]
In these proceedings, the Respondent failed to
demonstrate who had not re-applied, who had re-applied and was
appointed, and those
that had re-applied and were not appointed.
There was no evidence placed before the Court as to what criteria, if
any was applied
in processing the applications. It is not sufficient
for the Respondent to simply make a blanket statement that those that
were
not re-employed had either not re-applied or had committed some
form of misconduct other than participation in the strike. There
was
no evidence presented in these proceedings as to who amongst the
individual applicants had committed misconduct during the
strike of
26 March 2013.
[61]
The findings of chairperson of the disciplinary
enquiry held on 2 April 2013 merely indicated that all the
employees were
charged with participation in an unprotected strike
and insubordination (for refusal to adhere to the ultimatum). Even if
on Mamiza’s
version only the best of the employees were
re-employed, it is not known what is meant by ‘Best’, and
how that was
determined. To this end, it is concluded that the
Respondent’s decision to re-employ some of the dismissed
employees and
not others was purely arbitrary, and thus unfair.
Conclusions:
[62]
In the light of the issues for consideration
before the Court, it was common cause that the strike action of
26 March 2013
led to the dismissal of the individual
applicants. At the time of the dismissal, the individual applicants
had valid final written
warnings on their records. I have concluded
that the individual applicants’ participation in the strike in
question was not
as a result of unjustified conduct on the part of
the Respondent, and that in fact, the strike was planned. The same
conclusions
pertain to the strike action of 7 – 11 March 2013.
[63]
It has already been concluded that prior to
issuing the final ultimatum on 26 March 2013, and prior to
instituting disciplinary
proceedings against the individual
applicants, the Respondent equally failed to contact FAWU, contrary
to the guidelines set out
in Item 6 (2) of schedule 8 of the Code of
Good Practice. Inasmuch as the Respondent failed in this regard, I am
satisfied that
the ultimatum issued to the employees complied with
the guidelines set out in Item 6 (1) of Schedule 8.
[64]
Other than the issue of the Union not having been
contacted, it was common cause that the final ultimatum was issued at
10h30, imploring
the employees to return to work by 14h00. In my
view, they had sufficient time to reflect on their actions, to digest
issues and
where necessary, to seek advice before making the decision
whether to heed the ultimatum or not. Significant in this case is
that
there can be no doubt that the individual applicants knew the
consequences of their conduct, same having been made clear to them
by
Shakoane on 11 March 2013.
[65]
It was further common cause that prior to the
dismissal, the individual applicants were afforded an opportunity of
a disciplinary
hearing. In these proceedings, the Applicants had not
raised any issues in regard to that disciplinary enquiry. Other than
the
errors I had pointed out in the Chairperson’s findings, I
have no reason to believe that the disciplinary enquiry was flawed.
[66]
What needs
to be determined ultimately is whether a sanction of dismissal was
appropriate in the circumstances. In line with the
approach in
CBI
Electric African Cables
[22]
,
the guidelines set out in
Item
7 of the Code of Good Practice must be considered. Other guidelines
to be considered are those enunciated in
Sidumo
and Another v Rustenburg Platinum Mines Ltd and Others
[23]
.
Equally so, factors to consider within the context of strike
dismissal include 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
[24]
.
[67]
Applying the above principles to the facts of
this case, I am bound to conclude that the sanction of dismissal was
appropriate for
the following reasons, some of which are worth
repeating;
(a)
The two strike actions were unprotected, with no
effort being made to comply with the provisions of the LRA;
(b)
In both instances, the strikes were not
spontaneous but were clearly planned;
(c)
The individual applicants were issued with final
written warnings on 19 March 2013 for participation in the
unprotected
strike action of 7 – 11 March 2013.
Their Union official, Shakoane had warned them about the consequences
of their actions. The same message was conveyed to them by management
on various occasions, including through various ultimatums
since
7 March 2013 and also on 26 March 2013.
(d)
Within a week of being issued with final written
warnings, the employees had again embarked on an unprotected strike.
This was in
circumstances where Shakoane had again warned them on
29 March 2013 not to embark on any action as he would
attend to
the matter. Any suggestion in the light of these factors
that the individual applicants deserve further progressive discipline
is misplaced.
(e)
It is accepted that the final strike was only for
one day and was peaceful. This however cannot be a mitigating factor
since the
individual applicants had been warned against the folly of
embarking upon such action.
Relief:
[68]
It has been concluded that the Respondent failed
to comply with the guidelines set out in Item 6 (2) of Schedule 8 in
that it failed
to contact FAWU prior to the issuing of the final
ultimatum on 26 March 2013. Furthermore, it was found that
the selective
re-employment of some of the dismissed employees was
not based on any objective criteria. These factors on their own
however in
the light of the other findings made elsewhere in this
judgment cannot entitle the individual applicants to a reinstatement.
To
this end, relief by way of compensation is deemed appropriate.
[69]
It is trite that any amount of compensation to be
awarded for a dismissal that is unfair is the subject of a discretion
to be exercised
by the court. Such compensation must be just,
equitable and reasonable in the circumstances, considering all
relevant facts and
circumstances. In this case, and in the light of
the factors pointed out in paragraph 65 above and elsewhere in this
judgment,
it is deemed just and equitable to order compensation
equivalent to two months’ salary to be payable to the
individual applicants
as identified in the Applicants written heads
of argument marked “A”.
Costs:
[70]
Having taken into account the requirements of law
and fairness, and further in view of the applicants being partially
successful,
it is concluded that a cost order is not warranted in
this case.
Order:
[71]
In the premises, the following order is made;
1.
The dismissal of the individual applicants was
substantively fair but procedurally unfair.
2.
Each of the individual applicants identified in
the Applicants’ written heads of argument marked “A”
is awarded
compensation in a sum equivalent to 2 (two) months’
salary, to be calculated at their rate of remuneration as applicable
on the date of their dismissal.
3.
There is no order as to costs.
__________________
E. Tlhotlhalemaje,
Judge
of the Labour Court of South Africa
APPEARANCES:
On
behalf of the Applicants:
Adv. T Manchu
Instructed
by:
Cheadle Thompson & Haysom Inc.
On
behalf of the Respondent: Adv.
PSAJ Jacobz
Instructed
by:
Barnard Inc.
[1]
Pages 64 –
73 of the Consolidated Bundle of Documents
[2]
Page 75 of the
Consolidated Bundle of Documents
[3]
“
200
.
Representation of employees or employees
(1)
A
registered
trade
union
or registered
employers’
organisation
may act in any one or more of the following capacities in any
dispute
to which any of its members is a party -
(a)
in
its own interest;
(b)
on
behalf of any of its members;
(c)
in
the interest of any of its members.
(2)
A
registered
trade
union
or a registered
employers’
organisation
is
entitled to be a party to any proceedings in terms of
this
Act
if one or more of its members is a party to those proceedings.
[4]
(2016) 37 ILJ
2593 (LAC)
at
paras 39 - 45
[5]
In reference to
Transport
and General Workers Union and Others v Coin Security Group (Pty) Ltd
(2001)
22 ILJ 968 (LC) at [160] – [161]
[6]
See
also
AMCU v
Patcon
Construction and Civil Engineering Contractors (PTY) LTD Case No: D
1489/17
(Delivered
on 13 December 2017)
[7]
Government
Gazette, 5 February 2013
[8]
See also
NUPSAW
v National Lotteries Board
[2014] 7 BLLR 621
(CC)
at para 69 where Froneman J held that;
“
Employees
have a constitutional right to strike. The [Labour Relations] Act
regulates the manner in which that right can be exercised.
There is
no obligation on employees to use the regulated dispute-resolution
procedures under the Act, but there are consequences
if they do not.
If they start by using these regulated procedures, but then abandon
them and simply stop working, they are not
committing a crime. They
are, in that sense, still acting “lawfully”. But that
“lawfulness” does not
afford them the benefits of a
protected strike under the Act. By failing to adhere to the Act the
strike becomes unprotected,
and an employer will be in a position to
take disciplinary steps against them for not coming to work.”
[9]
[2014] 1 BLLR 31
(LAC)
at
paragraphs 26 - 28
[10]
See paragraph 29 - 30 where Zondo AJA
(as he then was) held that;
“
In
my view the determination of substantive fairness of the
strike-related dismissal must take place in two stages, first under
item 6 when the strike related enquiry takes place and secondly,
under item 7 when the nature of the rule which an employee is
alleged to have contravened, is considered. It follows that a
strike-related dismissal which passes muster under item 6 may
nevertheless fail to pass substantive fairness requirements under
item 7. This is so because the illegality of the strike is not
“a
magic wand which when raised renders the dismissal of strikers fair”
(National Union of Mineworkers of SA v VRN
Steel (1991) 12 ILJ 577
(LAC)). The employer still bears the onus to prove that the
dismissal is fair.”
And,
“
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.”
[11]
Mndebele and Others v Xstrata SA
(Pty) Ltd t/a Xstrata Alloys (Rustenburg Plant)
(2016)
37 ILJ 2610 (LAC)
at para
34
[12]
In reference to
MM
& G Engineering (Pty) Ltd v NUMSA 2005 ILJ 1326 (LAC)
[13]
(2014) 35 ILJ 3205 (LC).
[14]
(
2016)
37 ILJ 2610 (LAC)
at
para 27. See also
Modise
v Steve’s Spar Blackheath
[2000]
5 BLLR 496
(LAC)
at para
73 where it was held that:
‘
The
purpose of an ultimatum is to give the workers 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.’
[15]
(
JA
72/13)
[2014] ZALAC 63
(23 October 2014)
[16]
At para 55
[17]
“
strike”
means the partial
or complete concerted refusal to work, or the retardation of
obstruction of work, by persons who are of have
been employed by the
same employer or by different employers, for the purpose of
remedying a grievance or resolving a
dispute
in respect of any matter of mutual interest between employer and
employee
,
and every reference to ―work in this definition includes
overtime work, whether it is voluntary or compulsory;
[18]
See
National
Union of Mineworkers & Others v Billard Contractors CC and
Another (2006) 27 ILJ 1686 (LC)
[19]
Pages 11 –
21 of the Consolidated Bundle of Documents
[20]
Pages 62 –
63 of the Consolidated Bundle of Documents
[21]
Rickett &
Colman (SA) (Pty) Ltd v CWIU
1991
12 ILJ 806 (LAC)
[22]
supra
[23]
at para 78, where it was held that;
‘
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.
’
[24]
CBI Electric African Cables
at
para 30