About SAFLII
Databases
Search
Terms of Use
RSS Feeds
South Africa: Johannesburg Labour Court, Johannesburg
SAFLII
>>
Databases
>>
South Africa: Johannesburg Labour Court, Johannesburg
>>
2018
>>
[2018] ZALCJHB 181
|

|

National Union of Metalworkers of South Africa and Others v I G Tooling and Light Engineering (Pty) Ltd (JS763/06) [2018] ZALCJHB 181 (15 May 2018)

Of
interest to other judges
THE
LABOUR COURT OF SOUTH AFRICA,
HELD
AT JOHANNESBURG
C
ase no: JS 763/06
In
the matter between:
NATIONAL
UNION OF
METALWORKERS
OF SOUTH
AFRICA
First Applicant
K
D KUTU AND 352 OTHERS
Second
to further Applicants
and
I
G TOOLING AND LIGHT
ENGINEERING (PTY) LTD
Respondent
Heard
:
5 to 9 June 2017
Delivered
:
15 May 2017
Summary:
(Unprotected strike dismissal – unprovoked strike –
failure of union to assist despite being
kept fully informed of
events – intransigent strikers – final ultimatum a
dismissal ultimatum – no invitation
to make representations
before decision to dismiss those who failed to heed final ultimatum –
subsequent appeal hearing only
partially mitigating absence of
initial opportunity to make representations – dismissal
substantively fair – unlawful
dismissal – failure to hold
an enquiry in breach of contract of employment – even if
dismissal might have been in breach
of contract of employment –
specific performance not appropriate – damages for breach of
contract not pleaded as an
alternative to declaration of nullity and
reinstatement will air)
JUDGMENT
LAGRANGE
J
Background
and preliminary issues
[1]
The 353 individual applicants (‘the employees’), who were
members of the first applicant (‘NUMSA’) were
dismissed
by the respondent (‘IGT’) on 14 July 2006 for their
participation in an unprotected strike, which commenced
on 12 July
2006.
[2]
There was an extraordinary delay in the matter coming to trial.
Despite a draft pre-trial minute being prepared in April 2007,
by
September 2014 the final pre-trial minute had not yet been finalised.
On 5 November 2014, IGT requested NUMSA to agree to the
amendment of
its statement of defence. In December 2014, Numsa invited IGT to file
an application to amend its statement of defence,
but instead of
doing so, IGT only filed an amended statement of response nearly a
year later in November 2015, to which Numsa objected.
Only after the
objection was filed did IGT file notice of intention to amend, which
it only finalised in March 2016. The application
to amend the
statement of defence was heard on 29 July 2016 and leave to amend the
statement of defence was granted, subject to
certain limitations as
to what could be amended.
[3]
A pre-trial minute was eventually concluded on 26 August 2016.
Notwithstanding that, there were further efforts to conclude
a
supplementary pre-trial minute arising from the applicants’
contention that the dismissal of the employees was also automatically

unfair on account of them being selected on the basis of their union
membership which amounted to unfair discrimination. It had
been
alleged in the original statement of claim that the dismissal or
failure to re-employ the employees had been determined on
the basis
of their union membership, though they had not expressly included a
claim for automatically unfair dismissal.
[4]
Although a supplementary minute was never concluded, by the time the
matter came to trial, the parties were agreed that the
court could
determine whether the dismissals for participation in unprotected
strike action were either automatically unfair or,
alternatively,
procedurally and substantively unfair.
[5]
On the Friday, preceding the commencement of the trial on the
following Monday, the respondent brought an application to amend
the
pre-trial minute to place the duty to begin on the applicants. The
application was dismissed and the parties were directed
to hold a
pre-trial minute dealing with the issue of discrimination relating to
dismissals on account of union membership.
[6]
The trial took place on 5 to 9 June 2017 and closing arguments were
submitted by the end of July 2017.
[7]
IGT commenced leading evidence and called the following witnesses: Mr
P Erasmus, former HR manager of the firm (‘ Erasmus’);
Mr
P Maino, a director and shareholder of the firm (‘ Maino’)
and Ms L Harris (‘Harris’),  an HR manager
at a
company known as HR Wheels , which was also part of the CLN group
which owned IGT . Numsa called the following witnesses:
Mr H
Ramashala (‘Ramashala’), a union member; Mr M Robertsons
(‘Robertsons’), at the time a regional organiser
for
Ekhurhuleni; the local organiser, Mr H Tshabalala (‘
Tshabalala’) ; Mr J Tsoaeli (‘Tsoaeli’), a former

shop steward, and Mr H Mphahlele (‘Mphahlele’) a union
member.
[8]
Owing to the lengthy period between the dismissals and the trial,
five of the individual applicants had passed away and the
parties
drew up a list of these applicants together with their details.
[9]
The issues to be decided are:
9.1
Whether IGT ought to have held a disciplinary enquiry before
dismissing the employees, which the
applicants claim the employees
were entitled to in terms of the disciplinary code and procedure.
They claim it was part of their
contracts of employment.
9.2
Whether IGT selectively re-employed or reinstated some employees who
had been striking and whether
that selection was done on the basis of
union membership.
9.3
Whether the dismissals were substantively and procedurally fair.
9.4
Whether the dismissals were unlawful.
Alleged
unfairness of the dismissals
[10]
The applicants contend the dismissals were unfair for the reasons
summarised below.
Procedural
fairness
[11]
Numsa argues that the appeal hearing conducted by IGT was an
insufficient opportunity for dismissed employees to make
representations
to satisfy the requirements of a procedurally fair
dismissal. A related claim is that it was unfair of IGT to dismiss
the strikers
without first conducting collective or individual
disciplinary enquiries, rather than just an appeal process. The
employer contends
that employees had ample warning that they could be
dismissed if they continued with their strike action. Moreover, IGT
had contacted
Numsa during the strike, but it had declined to
intervene and the appeal process provided an adequate opportunity to
make representations
why their dismissals should be revoked.
Substantive
fairness
[12]
Numsa alleges there was a long history of IGT tolerating unprotected
strike action by negotiating with strikers and agreeing
to their
demands without taking disciplinary action. Accordingly the union
argues that IGT was obliged to have alerted the strikers
that on this
occasion it was serious when issuing the ultimatums and the threat of
dismissal. This was particularly so in the light
of the fact that it
had previously issued ultimatums and threatened dismissal but had not
acting upon those threats even when workers
did not heed them. IGT
retorts that the misconduct was serious and strikers simply ignored
the ultimatums, which were unambiguous.
Further IGT argues, contrary
to what Numsa claims, that previous wildcat strike action was not
without consequences, because agreements
to stamp out wildcat action
were concluded, but workers simply did not abide by their obligations
under those agreements. Moreover,
Numsa made no attempt to comply
with the requirements for protected strike action and the strike was
completely unprovoked.
[13]
Numsa further claimed that after the dismissal of its members a
number of other persons who have participated in the unprotected

strike were reinstated or re-employed, without any justification for
distinguishing their conduct from that of Numsa members who

participated in the strike. Further, the applicants claim that this
selective treatment was unfairly discriminatory because it
was on the
basis of union membership. IGT contends that the reason for
distinguishing between some employees and others when it
came to
dismissal for participating in the strike was simply because those
who were not dismissed were not on strike whether they
were Numsa
members or not.
[14]
Numsa also pleads that the outcome of the appeal was a foregone
conclusion.
[15]
In closing argument for the applicants it was also submitted that,
strikers did not have enough time to consider and reflect
on the
ultimatums before they were dismissed. However, this issue was not
pleaded by the applicants as one of the reasons why the
dismissals
were substantively unfair.
Unlawful
termination
[16]
The applicants contend their dismissals were also unlawful because
they were not afforded a disciplinary enquiry before they
were
dismissed in breach of the disciplinary code and procedure which
formed part of their contracts of employment.
Factual
narrative.
[17]
A considerable part of the factual narrative was common cause. This
is summarised together with what emerged from the evidence
on
material issues. Unless specifically dealt with, events narrated were
either common cause in the pre-trial minute or were not
effectively
disputed in evidence. Most of the events surrounding the strike took
place in 2006 and accordingly wherever a date
is referred to without
mentioning the year the year in question is 2006.
Contextual
factors
[18]
IGT was a company that specialised in manufacturing and assembling
pressed components from sheet metal and was an original
equipment
manufacturer (‘OEM’) in the automative engineering
industry, making amongst other things undercarriages for
Toyota. It
falls under the scope of the Metal and Engineering Industry
Bargaining Council (‘MEIBC’). The requirements
of
manufacturing for the automated market required continuous production
and delays in deliveries especially to clients who operated
on a
just-in-time (‘JIT’) basis could result in the production
line at an auto-manufacturer coming to a halt, because
very limited
stock is maintained under a JIT system.
[19]
Since 2015, the company had ceased operating the manufacturing plant
where the industrial action had taken place. According
to Harris,
while IGT remained in existence as a corporate entity, the only
reason it had not been wound up was because of significant
immovable
property holdings which had to be sorted out. IGT no longer owned the
necessary tools or production machinery to continue
operating.
Employees were retrenched when the company reached the end of a
contract with Toyota to produce High-Lux vehicle components
[20]
At all relevant times, the employees and the company were subject to
agreements concluded in the centralised collective bargaining
forum
of the MEIBC.
[21]
At the time of the dismissals, IGT employed approximately 400 workers
and worked a three shift system. Approximately 150 workers
were
engaged on the morning shift which started at 07H00 and ended at
15H00. The remainder were divided roughly equally between
the
afternoon and night shifts which ran from 15H00 to 23H00, and from
23H00 until 07H00 respectively. Approximately 350 of the
employees
were members of Numsa.
Industrial
action in 2006 preceding the July strike
[22]
Before the strike which led to the applicants’ dismissals in
July 2006, there was a history of frequent unprotected strike
action
at the company. Events prior to 2006 were detailed in a letter sent
by IGT to Numsa after the dismissals, and are summarised
later when
dealing with the letter.
[23]
In March 2006, Numsa members were refusing to attend disciplinary
enquiries. After a number of unprotected work stoppages IGT
and Numsa
concluded an agreement on 5 April 2006, which was also signed by shop
stewards. In terms of that agreement, the company
agreed to waive all
pending disciplinary proceedings as at the end of March, and the
employees committed themselves to “meticulous
compliance”
with the disciplinary code and procedure of the company going
forward. It was also agreed that employees would
immediately
discontinue “current unprotected industrial action”.
Further, it was acknowledged that shop stewards were
first and
foremost employees of the company and subject to its rules and
procedures. Erasmus testified that this clause was intended
to deal
with the problem of shop stewards abandoning their workstations to
deal with union issues without first reporting to a
supervisor.
Pursuant to the agreement, the parties also committed themselves to
develop a “protocol of behaviour” for
shop stewards and
management.
[24]
It was put to Erasmus under cross-examination that this agreement
constituted a fresh start regardless of the past history,
but he
disagreed. Rather, he said it was simply an attempt to build a
structured relationship going forward. In his understanding,
the
intention of stating that the company would enforce the disciplinary
code from 1 April 2006 and that employees would be subject
to it, was
simply to reiterate the application of the disciplinary code even
though it ought to have been obvious.
[25]
In the second half of April, management produced a detailed draft
document which was sent to Robertsons on 19 April, but Erasmus
could
not recall ever getting a response from Numsa.
[26]
At the end of April another agreement was reached with Numsa for
workers to take one week of their annual four weeks leave
during the
shutdown of the Toyota plant, which took place between 21 April and 2
May. On 5 May an unprotected strike took place
over a few individuals
who had to remain on duty during the shutdown for operational
reasons. The matter was ultimately resolved
by an agreement that
those individuals would take their leave in May. According to
Erasmus, the resolution of the strike was largely
owing to
management’s efforts and Numsa did not assist in ending the
strike. He did concede that even though the strike had
lasted about
four hours and despite the previously mentioned agreement in April,
no action was taken to discipline those who had
participated, because
the company was afraid it would lead to further production losses. He
denied that management’s decision
not to take disciplinary
action on that occasion was a breach of the agreement similar to the
breaches of the agreement it accused
Numsa members of committing.
[27]
On 21 June, shop stewards submitted a memorandum requesting
negotiations on a productivity agreement, complaining that management

was unwilling to negotiate this but was nevertheless practising a
production monitoring system to maintain productivity standards.
The
proposal was also linked to a demand for a new grading system, which
would have been more costly. The memorandum made it clear
that if an
agreement was not reached, employees would not comply with production
monitoring procedures. IGT responded that these
procedures were part
of normal operations since 2002 and moreover, were required by their
main client, Toyota. IGT’s response
reminded shop stewards that
in 2003 an agreement had been reached after another unprotected
strike action in terms of which employees
had been paid a once off
“spread increase” for the implementation of the
production monitoring system. IGT asserted
that compliance with the
production monitoring regime was part of employees’ normal job
requirements and it was unwilling
in view of the previous agreement
to enter into negotiations on a productivity agreement. Erasmus did
concede that the demand for
a productivity agreement was not the same
issue as grievances relating to the production monitoring system.
[28]
On 27 June, IGT sent a letter to Robertsons, which was copied to shop
stewards, calling on the union and shop stewards not
to support or
encourage rumoured strike action over the issues mentioned above. The
letter reminded the recipients that they were
currently engaged in a
process of “relationship by objectives” exercises which
would be jeopardised by unprotected
strike action. It also warned
that if shop stewards supported unprotected action, it could lead to
management refusing to engage
in negotiations with them in the future
because it had no confidence that members would abide by any
agreement reached. Robertsons
agreed that this was a warning from the
company that, it was anticipating industrial action.
[29]
In any event, it appears that a meeting took place with union
representatives and shop stewards on 3 July at which it was agreed

that the existing production monitoring arrangement would continue.
However on 5 July IGT again wrote to Robertsons and shop stewards.

The letter complained that Numsa members were still not complying
with production monitoring arrangements and IGT was anticipating
the
submission of yet another memorandum from shop stewards that day. The
letter ended with the following request: “We require
your
urgent intervention with respect to the above mentioned issues and
look forward to your assistance therein.” Robertsons

acknowledged the urgent nature of the request.
[30]
Following the request, a meeting about the production management
system took place on 5 or 6 July. That resulted in an agreement
that
the existing production management system, was necessary and would
continue. Further, management committed itself to engage
with all
employees involved in production monitoring to make sure they had a
good understanding of the client requirements and
the purpose of
having the system. This was all recorded in a letter penned by
Erasmus on 6 July.
The
first memorandum of 5 July
[31]
The same day, Numsa members submitted a different handwritten memo to
IGT, dated 5 July,. It was preceded by a march of workers
led by shop
stewards, though workers returned to work after the march. The memo
demanded that all employees should be paid the
same as employees
operating robots at the company. In particular, they demanded an
increase of R2-00 an hour. The memorandum also
alleged discrimination
on the ground that one of the robot operators in question was a
contractor and the increase was also racially
discriminatory. The
memorandum gave management an ultimatum of 48 hours to respond.
Ramashala said that workers perceived it as
unjust that certain
workers were being paid more, but he had no recollection of the
contents of the letter of demand presented
by shop stewards on 5
July. He was unaware of the memorandum.
[32]
The company responded with a detailed letter on 6 July, which was
given to shop stewards and was also sent to Robertsons, but
he said
he was away in Somerset West at the time and only saw it later in his
pigeonhole at the union office. Tshabalala said he
did not remember
this letter nor did he remember responding to it. The more relevant
aspects of that letter were that:
32.1   Three robot operator
positions had been advertised the previous year and three candidates
were successful, two
of whom were black and the other white. Later
that year one of the black candidates and the white candidate were
appointed after
successfully completing a probation. The other black
candidate’s appointment could not be confirmed owing to medical
problems
and he was moved to the other plant on the premises on his
former conditions of service.
32.2   The white operator
was appointed as a contractor, but was simply paid the rate at which
the job had been graded,
not because he was white.
32.3   IGT complained that
shop stewards had been misleading workers on the issue by falsely
claiming unfair discrimination,
which undermined relationship
building initiatives management had embarked on.
32.4   IGT would not engage
in collective bargaining on wage increases which had to be conducted
at a centralised at the
bargaining council.
[33]
Ramashala had no recollection of shop stewards reporting management’s
response to them.
[34]
According to Erasmus, an arrangement was made with Robertsons to hold
a meeting on 19 July to discuss the issue with the union
and shop
stewards. An earlier meeting could not be convened because the union
was not available before that.
The
second memorandum of 11 July
[35]
In the afternoon of 11 July, shop stewards responded with another
letter of demand reiterating the demand for an across-the-board

increase of R2-00. This time no reference was made to racial
discrimination, but they still claimed that paying a contract worker

a higher rate was contrary to the company policy. No direct mention
was made of anything else contained in IGT’s original
replying
letter but the shop stewards demanded a response before 11H00 on 12
July. Robertsons had apparently not seen this second
memorandum
before he testified. The submission of the second memorandum was also
preceded by a lunchtime meeting and a march similar
to the first.
According to Erasmus, IGT assessed the situation as serious and
attempted to contact Robertsons and Tshabalala, without
success.
[36]
In any event, just before 11H00 on 12 July, IGT issued a letter to
shop stewards in which, amongst other things, it raised
the
following:
36.1   The reasons for the
demand had changed.
36.2   The demand had been
submitted despite an agreement to meet to discuss the issue on 19
July;
36.3   The grading of jobs
was determined by the bargaining council;
36.4   The recruitment
process followed in the appointment of the robot operators was open
to full-time and contract employees
and the ‘policy’
referred to in the memorandum did not exist.
36.5   Management was
concerned that the shop stewards were intent on obtaining an
’illegitimate’ increase
through power-play which would
end badly for both parties.
36.6   Numsa members were
advised that if they chose to embark on unprotected strike action on
account of management refusing
to accede to the demand “they
will  leave management with no alternative but to follow the
procedure in dealing with
Unprotected strike action which will
probably lead to dismissal.”
The
last mentioned point had been emphasised because IGT was concerned
that unprotected strike action was imminent as the second
memorandum
suggested that the workforce was intent on pursuing the issue despite
the pending meeting agreed to with the union.
Erasmus understood the
ultimatum in the second memorandum to mean that if the company did
not respond by the deadline, industrial
action would ensue. It was
suggested to Erasmus that, there was no reason why IGT could not
engage with workers in respect of this
demand in the way that it had
in relation to the implementation of the three shift system and the
payment of the once off amount.
He agreed that the once off amount
was not something catered for in the MEIBC agreement, but maintained
that it was management’s
choice whether or not to make such a
payment. Erasmus also testified that even if it was correct that a
contract worker was receiving
the rate for the higher graded job they
were performing, there was no justification for complaining about
that merely because an
employee was not permanent.
[37]
Robertsons recalls seeing IGT’s letter of 11 July which he
obtained from Tshabalala, but had not seen the second letter
of
demand from the shop stewards before he testified. He became aware of
the strike around that time because Tshabalala probably
contacted him
telephonically. As far as he could recall, it was the first time that
Tshabalala had dealt with such an issue because
previously Tshabalala
had only worked in national strikes. Robertsons was reluctant to
agree that the reason his name was on the
correspondence from IGT was
because the company believed he was intimately involved in issues at
the company. Tshabalala did recall
the second letter of demand by the
shop stewards and the company’s response. It appears that the
company’s letter of
11 July was faxed to the union office
shortly before 11H00 and that this led to Tshabalala sending a letter
to IGT late in the
afternoon of 12 July agreeing to meet with them on
13 July. Tshabalala said he did not actually arrange the meeting with
the IGT
management but was responding to the employer’s request
for intervention. The urgency of the meeting was necessary because

IGT’s letter of 11 July indicated that workers might embark on
unprotected strike action and management warned that this
could
ultimately lead to dismissal. This was a real possibility in his mind
because whenever there was a dispute, employees would
go out on
strike.
Events
of 12 July
[38]
As Erasmus anticipated, on 12 July at 11H30 Numsa members on the
morning shift embarked on unprotected strike action. Although
not all
employees participated in the strike, those who remained on duty
could not continue with operations. Erasmus said he knew
who was not
on strike because certain employees came and told him they were not
participating in it. According to Ramashala the
strike began when
shop stewards told workers that a meeting with management planned for
that day to discuss the issues did not
take place because management
never called them to the meeting. This piece of evidence was never
canvassed with any of management’s
witnesses. Ramashala agreed
that the shop stewards second letter of demand, like the first, did
not specifically mention any meeting
but simply required a response,
this time within 24 hours. He conceded that it appeared that they had
gone out on strike despite
it having been agreed by IGT that it would
meet with Numsa on 19 July.
[39]
When Tsoaeli testified, he stated that when shop stewards submitted
the second memorandum on 11 July, management had promised
to hold a
meeting with them, but no meeting took place because the employer was
“still having visitors” and the next
day they reported to
workers that the meeting did not take place. He agreed that the
memorandum itself did not ask for a meeting
but insisted that they
had requested one when they met management on 11 July. As with other
important aspects of the applicants’
version, management’s
supposed excuse for not meeting them was not canvassed with Erasmus
when he testified. Tsoaeli agreed
that a meeting had been scheduled
for 19 July, but said that employees “realised that would be
too late”. When asked
to explain why it was so urgent to meet
before then, Tsoaeli’s enigmatic answer was that, workers knew
that the employer
would change its mind about the issues dealt with
in the letter. Even though the demand was for an increase and not
because of
any immediate problem in the workplace, employees felt the
matter was urgent. He even claimed that the second memorandum was
issued
to secure an earlier meeting with management, but he was not
willing to concede that it amounted to an ultimatum failing which the

workers would embark on their strike. Nevertheless, he admitted that
the second memorandum effectively called for a written response
from
management and did not ask for a meeting.
[40]
Tsoaeli claimed that workers downed tools and told them to meet with
the employer, which they tried to do but Erasmus “did
not have
time” for meeting with them. He agreed that he had seen
management’s response and understood it. He was also
aware of
the penultimate paragraph in the letter which stated:
“
Numsa
members should note that if they elect to embark on an unprotected
strike action as result of management’s refusal to
accede to
the demand to award a R 2 increase across the board, they will leave
management with no alternative but to follow the
procedure in dealing
with strike action which will probably lead to dismissal.”
Contrary to testimony of other union
witnesses, Tsoaeli said he was concerned what might happen if members
went on strike and that
they might be dismissed according to the
letter. However, when he read it to them they told him that it had
happened before but
nobody had been dismissed. Under
cross-examination he conceded that he was aware that they could be
dismissed for participating
in an unprotected strike and that he told
workers that was the legal position because that was what the union
had advised them
as shop stewards.
[41]
Nevertheless, even though he conceded that a strike would cause the
company to lose money, he thought the company was “enjoying”

unprotected strikes because of the way it handled them. As he saw it,
the company could have resolved the situation by meeting
with them
and agreeing to the demands. He was unwilling to concede that
employees agreeing not to embark on strike action could
also be part
of the solution. He reluctantly agreed that in the past employees had
agreed not to embark on unprotected action at
IGT in exchange for
achieving their demands.
The
first ultimatum
[42]
Erasmus said he attempted to engage with shop stewards but they would
not present themselves for a meeting and attempts to
contact regional
union representatives by phone were also unsuccessful. Accordingly,
just before 13H30, an urgent written notification
was faxed to the
union, with a copy of the first ultimatum it intended to issue.
[43]
Erasmus testified that the union did not respond to this appeal. As
described below, Tshabalala claimed he only saw the correspondence

late in the afternoon of 13 July. Erasmus describe the situation at
the time as volatile: strikers were aggressively chanting and

dancing. Some were making throat-slitting gestures. Whenever any
director or manager went out to where they were assembled, the
crowd
would become more agitated.
[44]
Strikers were issued with a written ultimatum requiring them to
resume work by 14H00. The contents of the ultimatum read:
“
FIRST ULTIMATUM UNPROTECTED
INDUSTRIAL ACTION
YOU ARE HEREBY NOTIFIED THAT THE
ACTION YOU HAVE EMBARKED UPON ATsoaeli1 H 30 TODAY, 12 JULY 2006 IS
UNPROTECTED IN TERMS OF THE
LABOUR RELATIONS ACT, AND SHOULD YOU FAIL
TO RETURN TO WORK AT WORK NORMALLY BY NO LATER THAN 14 H00 HOURS
TODAY, MANAGEMENT WILL
BE FORCED TO TAKE ACTION AGAINST YOU WHICH
COULD LEAD TO YOUR DISMISSAL. PLEASE BE ADVISED THAT WHILST YOU ARE
NOT WORKING, THIS
TIME WILL BE UNPAID.
NOTE THAT MANAGEMENT ALREADY ADVISED
ITS CLIENTS OF THE UNPROTECTED STRIKE ACTION AND WE WERE INFORMED
THAT COMPONENTS WILL BE SOURCED
ELSEWHERE WHICH IN TURN COULD LEAD TO
PERMANENT JOB LOSSES FOR BY I. G. TOOLING EMPLOYEES.
IN ADDITION TO THE ABOVE, NUMSA
MEMBERS MUST REALISE THAT THEY WILL NOT BE ABLE TO REFER TO THE
PROTECTION NUMSA WHILST THEY HAVE
EMBARKED ON AN UNPROTECTED STRIKE
ACTION AS NUMSA DO NOT SUPPORT ACTION OF THIS NATURE.”
The
initial ultimatum was also issued and specifically addressed to the
afternoon and night shifts at 15h00 and 23h00, with respective

deadlines for returning to work at 17H00 and 01H300. Erasmus said
that the memorandum mentioned that Numsa did not support the
strike
action because there had been no official communication about the
strike from Numsa and Numsa’s constitution did not
endorse
unprotected strike action. He denied that this could be interpreted
to mean that workers should not approach the union
because it would
not support them. He agreed that the first ultimatum did not say
strikers would be dismissed but it was an unequivocal
warning that
they could be. The wording of paragraph 1 of the first ultimatum was
similar to the wording of the final paragraph
of a third ultimatum
issued to strikers on 6 June 2005. In that earlier instance, no
action had been taken to dismiss employees.
According to Erasmus that
was because they had ultimately complied with the ultimatum, which
was not disputed.
[45]
Erasmus said that he personally placed the ultimatum on the security
office window at the main gate and the public address
system was used
to convey the ultimatum. Workers also grabbed copies of the ultimatum
from him, but there was no response to the
ultimatum itself. As far
as he could recall shop stewards took copies of the ultimatum and
communicated it but he could not say
if any of the workers actually
read it.
The
second ultimatum
[46]
When the first ultimatum was not heeded, a second ultimatum was
issued at 14H00 instructing employees to return to work by
the
following day, 13 July 2006. It read:
“
SECOND ULTIMATUM UNPROTECTED
INDUSTRIAL ACTION
ONCE AGAIN, I WISH TO INFORM YOU THAT
YOU HAVE EMBARKED ON AN UNPROTECTED INDUSTRIAL ACTION IN TERMS OF THE
LABOUR RELATIONS ACT.
THE FIRST ULTIMATUM ISSUED ATsoaeli2
H00 ON 12 JUNE 2006 FOR RETURN TO WORK BY 14 H00 HAS BEEN IGNORED.
SHOP STEWARDS HAVE BEEN INVITED TO
MEET WITH MANAGEMENT TO DISCUSS THE REASON FOR THE UNPROTECTED STRIKE
ACTION BUT NUMSA MEMBERS
CONTINUED WITH THE UNPROTECTED STRIKE
ACTION.
WORKERS ARE REQUIRED TO RETURN TO WORK
BY START OF SHIFT TOMORROW (13 JULY 2006). SHOULD STRIKING NUMSA
WORKERS NOT RETURNED BY
THIS TIME, MANAGEMENT WILL TAKE ACTION, WHICH
COULD LEAD TO DISMISSAL. PLEASE BE ADVISED THAT WHILST YOU ARE NOT
WORKING, THIS
TIME WILL BE UNPAID.”
(original
emphasis)
Erasmus
testified that the same procedure was followed in issuing the second
and further ultimatums.  As on the first occasion,
the activity
of the strikers was heightened when he went to hand out the
ultimatum, but there was no positive response to the ultimatum

itself. Once again, a copy of the ultimatum was sent to Numsa offices
without any response being received. Unlike in previous wildcat

strikes, Erasmus claimed shop stewards did not come forward of their
own initiative to sit down with management and discuss the
issue at
hand. On this occasion, management had to request them to attend a
meeting before they did so. The second ultimatum had
emphasised that
management would take action in an effort to try to convey the
seriousness of the situation to strikers. This also
distinguished the
ultimatum from one’s issued on previous occasions.
[47]
It was put to Erasmus that shop stewards were not called to any
meeting, as stated in the second ultimatum. Erasmus said there
would
have been no point in mentioning that in the ultimatum if it had not
been the case and that the primary objective of the
company at that
stage was to try and get workers back to work, which is why they did
request a meeting. He also could not understand
why two and a half
hours was insufficient time to consider the first ultimatum which was
very clear.
[48]
When the afternoon shift arrived, they simply joined the congregated
strikers of the morning shift and did not report for work.

Consequently, they were issued with the first ultimatum, with the
necessary changes, requiring them to return to work by 17h00.
Copies
of the ultimatum were issued to workers through the gate, a copy was
placed on the security office and the ultimatum was
announced through
the public address system. Erasmus claimed that he and his assistant
continually tried to contact the union.
Tshabalala denied ever
getting in the message of this nature. When the afternoon shift
failed to respond to the first ultimatum,
a second was issued in a
similar manner requiring them to return to work by the start of the
next afternoon shift at 15H00 the
following day (13 July). A copy of
the ultimatum was also sent to Numsa.
[49]
At 16H21 on 12 July, a fax was sent by Tshabalala to Erasmus
confirming a meeting for the following day after Tshabalala was
due
to attend a CCMA meeting. Erasmus did not dispute this letter but
questioned why nobody else had been sent by Numsa the following
day
to replace Tshabalala if he had been detained at the CCMA. Erasmus
said it was well known how pressurised manufacturing in
the auto
sector was and he could not understand how nothing more could be
expected of the union in those circumstances. The meeting
on 13 June
had been arranged with Tshabalala but he never arrived or contacted
the company to explain his absence. Although Tshabalala’s

letter refers to confirming a meeting with IGT, Tshabalala agreed he
wrote in response to IGT’s letter expressing concern
over
pending strike action despite the agreement to meet with the union on
19 July. The letter dated 11 July had been sent to the
local office
just before 11h00 on 12 July, but Tshabalala claimed he only saw it
after 16H00 because he had been attending a course
and was out of the
office.
[50]
Tshabalala agreed that he took the threat in IGT’s letter
seriously, namely that if workers embarked on strike action,
it would
follow the procedure for dealing with unprotected strikes which would
‘probably lead to dismissal’. He agreed
he thought there
would be a strike because employees went out on strike whenever there
was a dispute. This was why he agreed he
would rush to the plant
after his CCMA meeting. However he denied that he said he would come
to the plant on 13 July because he
had seen the first and second
letters of ultimatum and the urgent notice from IGT requesting union
assistance. He claims he only
became aware of these the next day (13
July) but could offer no explanation why he would not have seen these
documents when they
had all been sent before he arrived at the office
on 12 July.
[51]
When asked why he did not contact shop stewards before the meeting,
he said that the practice was to meet with shop stewards
at the plant
when there were disputes and it did not come to his mind to contact
them beforehand. He then added that he ‘would
have’
phoned the shop stewards to tell them not to strike because the
strike would be unprotected.
[52]
In his testimony, Robertsons agreed that he met with Tshabalala on 12
July but that they discussed other issues and did not
talk about the
strike. However, he conceded that if Tshabalala had been aware of the
strike he would have mentioned it. Robertsons
claimed that if he had
been aware of the strike he would have got hold of shop stewards and
asked them for information, but he
did not recall any contact with
shop stewards on that day. He could not recall if Tshabalala had told
him he was meeting the company
the following day, but he might have.
Tshabalala agreed they had a discussion on how to handle the issues
in the memorandum and
told Robertsons he was going to meet the
following day with IGT and would give him feedback. They would then
see how they could
“move forward”. He could not give any
clear answer whether they decided on a course of action during the
discussion.
Robertsons would not be drawn to comment on the version
that had been put to Erasmus, namely that Tshabalala sent the letter
that
he would meet the company because he was aware of the strike.
When Robertsons was asked whether it was strange that Tshabalala
would be not have mentioned the strike to him when they met, he
explained that this was a matter that he would have discussed with

the union legal officer. He and Tshabalala would only discuss
“operational issues”. His
modus operandi
was that,
if he heard of a problem in a particular local branch he would
communicate with the local organiser. Once they had a
picture of what
was going on, they would assess if it was necessary to contact shop
stewards. He claimed that he and Tshabalala
had a discussion on 12
July on ways of intervening on the various issues raised but did not
elaborate on what concrete steps, if
any, that they decided on as a
result of the discussion. Under re-examination, he did confirm that
he was tasked with dealing with
issues at IGT at that time.
[53]
According to Erasmus, most of the assembled strikers had dispersed by
17H00 or 18H00 on 12 July. Although there were transport
arrangements
in existence to collect nightshift workers from home or from
collection points nightshift workers did not report for
work that
evening. A copy of a similar ultimatum to the first ultimatum was
issued to security officials at the plant in the event
that any night
shift workers came to the plant but did not report for work. That
ultimatum called on nightshift workers to resume
work by 01H30 on 13
July. A second ultimatum was drafted to be issued, if they did not
comply with the first one calling on them
to return to work by 05H00
on 13 July. Neither of these could be issued because the nightshift
failed to report for work.
Events
of 13 July
[54]
Nevertheless, on the morning of 13 July there was a large gathering
of workers outside the gate comprising morning shift and
nightshift
workers. They were chanting and dancing and displaying placards
relating to the R 2 demand, or which attacked management.

Management’s intention that morning was to try and get
officials and shop stewards to meet with it in order to get everyone

back to work, but they could not get hold of the officials.
[55]
Erasmus testified that a meeting was held with shop stewards on 13
July, but only because management had invited them in writing
to a
meeting. At the meeting, the shop stewards made clear that the strike
would not end unless strikers’ demands were agreed
to.
[56]
At 11H30 a third and final ultimatum addressed to morning shift
employees was issued instructing them to return to work by
07H00 on
14 July 2006, failing which they would be summarily dismissed,
namely:
“
THIRD AND FINAL ULTIMATUM
UNPROTECTED INDUSTRIAL ACTION
APPLICABLE TO ALL NUMSA MEMBERS WORKING ON MORNING SHIFT
IT IS WITH REGRET THAT MANAGEMENT IS
NOTED YOU HAVE FAILED TO COMPLY WITH THE FIRST ULTIMATUMS ISSUED
ATsoaeli2 H00 ON 12 JULY 2006.
IN THIS ULTIMATUM YOU WERE REQUIRED TO
RETURN TO WORK BY 14 H00 ON 12 JULY 2006.
MANAGEMENT HAS ALSO NOTED THAT YOU
FAIL TO COMPLY WITH THE SECOND ULTIMATUM ISSUED ATsoaeli4 H00 ON 12
JULY 2006.
IN THIS ULTIMATUM YOU WERE REQUIRED TO
RETURN TO WORK BY 07 H00 ON 13 JULY 2006.
FINALLY, WE WISH TO AGAIN INFORM YOU
THAT YOU HAVE EMBARKED ON UNPROTECTED INDUSTRIAL ACTION IN TERMS OF
THE LABOUR RELATIONS ACT.
YOU ARE THUS HEREWITH GIVEN A FINAL
ULTIMATUM TO RETURN TO WORK STATION AND BE WORKING BY 07H00 ON
FRIDAY, 14 JULY 2006.
NOTE THAT IF YOU FAIL TO COMPLY
WITH THIS FINAL ULTIMATUM YOU ARE SUMMARILY DISMISSED AS AT 07H00, 14
JULY 2006.
”
(Original
emphasis)
The
intention of this ultimatum was to make it clear that if the strikers
did not return to work they would face dismissal. It also
followed up
on the second ultimatum which had indicated that management would
take action if the second ultimatum was not complied.
The final
ultimatum was issued in a similar fashion to the previous ones and a
copy was sent to the local union office shortly
before 14H00. Erasmus
claimed that the response of the crowd to the third ultimatum was
even more uproarious because all three
shifts were present. Erasmus
testified that a similar ultimatum was issued in respect of the
afternoon shift and night shifts.
By that stage, the crowd of
strikers consisted of members of all shifts, because workers were no
longer reporting at the company
at the starting times of different
shifts.
[57]
Under cross-examination, it was put to Erasmus that the third
ultimatum was issued without giving strikers an opportunity to
be
heard before they were dismissed. He pointed out that at that stage,
they still had an opportunity to avoid dismissal simply
by complying
with the ultimatum, so by implication there was no need to offer
employees a hearing. Moreover, the company had attempted
to engage
with the union and shop stewards but to no avail. He also emphasised
that the third ultimatum was clearly different to
any other
ultimatums issued by the company in previous strikes. This was not
disputed.
[58]
Ramashala denied that there was any indication that strikers would be
dismissed and there was every reason to suppose that
nothing would
happen to them as in previous strikes. However, he acknowledged that
workers knew the strike was unprotected and
agreed it amounted to
misconduct. Nonetheless they embarked on the strike because that was
the prevailing culture at the company.
In elaborating on what that
culture entailed, he agreed that the company would ask workers not to
strike and workers promised not
to but nevertheless would take strike
action if their demands were not met. Tshabalala also felt the
dismissals were unfair because
every time there had been
misunderstandings with employees in the past, the problem was
resolved. In his view, IGT had been too
quick to make the decision.
[59]
Ramashala agreed under cross-examination that the strikers knew they
could be dismissed even though they did not think they
would be. He
did not think they would be dismissed because ultimatums had been
used previously, which also warned of possible dismissal.
Workers
also did not worry particularly when the second ultimatum was issued.
However he conceded that the third ultimatum, which
threatened them
with summary dismissal was different to the others but they did not
understand it to be different, and shop stewards
did not draw their
attention to the difference. Ramashala did not remember seeing the
first ultimatum and denied that ultimatums
were handed to workers
through the gate. However, later under cross-examination, he agreed
that shop stewards did tell them about
the ultimatums though he did
not see one himself. Shop stewards did not tell them they would be
dismissed if they did not report
for duty on Friday. This too was
never put to any of management’s witnesses and was never part
of the applicants’ case
that they were ignorant of the
ultimatums. It was also at odds with Tsoaeli’s testimony.
[60]
Tsoaeli unequivocally stated that he was aware of all the ultimatums
and they had been explained to members, but members did
not agree to
return to work because they saw the threats of dismissal as empty
ones in view of their previous experiences. As a
result, they were
not even concerned about the final ultimatum warning them of summary
dismissal. Tsoaeli agreed that the language
of the final ultimatum
was clear but simply did not believe they would be dismissed because
of the way things have been done previously.
He would not concede
that there was any difference between the final ultimatum stating
that they would be summarily dismissed if
they did not heed it and
the statement in the company’s response of 11 July which said
that it would follow the procedures,
if workers embarked on
unprotected strike action which would ‘probably’ lead to
dismissal. In any event, he said it
did not matter what he or the
other shop stewards thought about the seriousness of the threat of
dismissal because there was nothing
they could do if the members
wanted to go on strike.
[61]
Tsoaeli agreed that in the past, the regional and local organisers
would help dealing with issues at the plant. He claimed
that he had
left a message at the local office for the local organiser to come to
the plant because of the strike, but could not
remember if it was on
Wednesday or Thursday. He claims he did not have access to a cell
phone to follow up after the factory gates
were locked. Later he
claims that they left two messages at the union office. However,
Tshabalala never mentioned receiving any
messages from shop stewards
at any time during the strike.
[62]
Tshabalala claimed that he only became aware of the strike from the
employees and from the letters received from IGT, which
he only saw
when he returned to the office from the CCMA after 16H00 on 13 July
because he finished late at the CCMA. One of those
letters was
written in bold typeface and addressed to him and MR, and was headed
“urgent notification”. The letter
advised them that their
members were on an unprotected strike, that a first ultimatum would
be issued and that Numsa was requested
to make a representative
available to attend to the situation. It was sent to the local office
shortly before 13H30 the previous
day (12 July). In addition, he saw
all the other letters and the final ultimatums and was aware of the
implications of the final
ultimatum. Nonetheless, even though it was
an unprotected strike, it was not the first time workers had been on
an unprotected
strike and on previous occasions employer would
threaten to fire people but would not even convene a disciplinary
hearing. He conceded
that the language in final ultimatum was
different from previous ones but insisted that even though it was
“serious”,
in the past, dismissals never occurred.
[63]
Tshabalala said that he went to the plant after reading the letters
on 13 July, but there was nobody there but he did not make
any other
attempt to contact anyone at the firm nor did he try to contact shop
stewards. Initially, he claimed not to have had
their cell phone
numbers and implied that the shop stewards had changed frequently.
Subsequently, he conceded that shop stewards
in question were the
same ones since at least September 2005. He then altered his version
somewhat to say that he meant to say
that he did not have their
numbers with him at the time he went to the factory. He accepted that
given the fact that a final ultimatum
had been issued he ought to
have made every effort to contact the shop stewards, but by going to
the factory, he was attempting
to do that. It had never been put to
any of IGT’s witnesses that Tshabalala went to the firm late on
13 July. Despite the
situation, he did not speak to any of the shop
stewards that day.
[64]
In the early evening around 19H00, and after the final ultimatum had
been issued, Erasmus and Maino testified they were able
to contact
Robertsons on the phone and held a joint conversation with him using
a speakerphone. They discussed ways and means of
getting the strikers
back to work, but they were told that the union had lost control of
the workers who did not want to listen.
The union “washed its
hands” of them and management “must do what they must
do”. Despite making it clear
that IGT intended to summarily
dismiss the strikers, Robertsons said the union could not intervene
because it had lost control
of its members. The feedback from
Robertsons was that, the strikers had no interest in Numsa. Erasmus
denied that Robertsons had
merely said that the union did not condone
violence. In Robertsons’ recollection of the conversation, this
was the first
occasion he became aware of the strike, but all he
discussed with Erasmus and Maino was about employees being involved
in intimidation
and violence and he made it clear the union did not
condone those types of action and distanced itself from them. He was
adamant
that Erasmus and Maino made no mention of the ultimatums or
the threat of dismissal, even though that was the first opportunity

the company had had to talk directly with a union organiser since the
strike began.
Events
of 14 July
[65]
Tshabalala said the following day, 14 July, he went to the firm but
there was nobody there because the strikers had been fired.
When he
was asked why he did not make sure that he was at the company before
the ultimatum expired so that he could intervene in
the situation in
which over 350 workers were facing dismissal, his response was simply
that he was covering a very big area and
all the members in the area
were his responsibility. He claimed that he arrived with Robertsons
and Mr Xilongwa, the legal officer,
after 09h00 that morning and that
they tried to speak to Maino. This was mentioned for the first time
under his cross-examination
and was never canvassed with Erasmus or
Maino during their testimony. On the other hand, somewhat
inconsistently, Tshabalala had
testified that he did not engage with
IGT that day because he was dealing with the workers who were
dismissed and discussed things
with Robertsons to arrange a meeting
with IGT.
[66]
Erasmus testified that on 14 July, a massive group of strikers had
congregated and continued with their picketing activities.
Around
07H30, a notification of summary dismissal was issued to Numsa
members “currently on unprotected strike action”,
which
read:
“
RE: Notice of Summary
Dismissal
THIS LETTER SERVES TO CONFIRM THAT YOU
ARE HEREBY SUMMARILY DISMISSED FROM SERVICES OF IG TOOLING &
LIGTshabalala ENGINEERING
(PTY) LTD, EFFECTIVE 07H30, 14 JULY 2006.
THE REASON FOR YOUR DISMISSAL IS BASED
ON THE FACT THAT YOU FAIL TO COMPLY WITH
3 ULTIMATUMS
REQUESTING
YOU TO CEASE UNPROTECTED STRIKE ACTION AND RETURN TO YOUR
WORKSTATION, OF WHICH THE LAST ULTIMATUM REQUIRED DUE TO YOUR

WORKSTATION WORKING BY NO LATER THAN 07H00, ON 14 JULY 2006.
YOU ARE HERE WAS INFORMED THAT YOU ARE
NOT ALLOWED ONTO THE COMPANY PREMISES AS THIS WILL CONSTITUTE
TRESPASSING, A CRIMINAL OFFENCE.
ANY OUTSTANDING MONIES DUE TO YOU WILL
BE CREDITED DIRECTLY TO YOUR BANKING ACCOUNT.
IN ORDER TO REMAIN FAIR, YOU ARE HERE
WAS AFFORDED AN INDIVIDUAL OPPORTUNITY TO APPEAL YOUR SUMMARY
DISMISSAL AND IF YOU WISH TO
MAKE USE OF THE APPEAL PROCESS, YOU ARE
REQUIRED TO COMPLETE THE ATTACHED APPEAL FORM AND RETURN SUCH TO THE
SECURITY OFFICE AT
PLANT 2, NO LATER THAN 14 H00, 21 JULY 2006…”
(original
emphasis)
The
pro forma appeal form attached to the notice provided space for
employees to state why they felt that they have been unfairly

dismissed and why they failed to comply with ultimatums to return to
work. Ramashala also claimed to have had no knowledge of the
notice
of dismissal. It was only on the following Monday that he received
papers showing he had been dismissed
[67]
At around 10H00 the same morning, a notice confirming the dismissals
was sent to Tshabalala and MR. The notice had been drafted
the
previous day in anticipation of the negative response of strikers to
the final ultimatum and read:
“
NOTIFICATION OF SUMMARY
DISMISSAL
PLEASE BE ADVISED THAT YOUR MEMBERS
REFUSED TO COMPLY WITH THE ULTIMATUMS ISSUED TO THEM REQUIRING THEM
TO RETURN TO WORK AFTER
THEY HAVE EMBARKED ON AN UNPROTECTED STRIKE.
PLEASE BE ADVISED THAT THE THIRD AND
FINAL ULTIMATUM REQUIRED ALL STRIKING EMPLOYEES TO RETURN TO WORK AND
BE WORKING BY 07H00,
FRIDAY, 14 JULY 2006.
YOUR MEMBERS REFUSED TO COMPLY WITH
THIS FINAL ULTIMATUM HAD LEFT MANAGEMENT WAS NO ALTERNATIVE BUT TO
SUMMARILY DISMISS ALL STRIKING
NUMSA MEMBERS.
IN COMPLIANCE WITH THE
AUDI
ALTEREM PARTEM
RULE, THE DISMISSED EMPLOYEES ARE GIVEN THE
RIGTshabalala TO APPEAL TO THE SANCTION OF SUMMARY DISMISSAL WHICH
MUST BE COMPLETED
AND SUBMITTED TO THE COMPANY BY NO LATER THAN 14
H00 ON FRIDAY, 21 JULY 2006.
ATTACHED PLEASE FIND THE NOTICE OF
DISMISSAL AS WELL AS THE APPEAL FORM…”
(Original
emphasis)
The
aftermath of the strike
[68]
All in all, the company lost part of the morning shift on 12 July and
the whole morning shift on 13 July as well as afternoon
and evening
shifts on those days. No production took place on the morning shift
of 14 July. Maino claimed that the company lost
approximately R
750,000 on each day of the strike.
[69]
According to Erasmus, the company had decided that it was not
practically possible to hold disciplinary enquiries before taking
the
decision to dismiss employees given the fact that workers refused to
go back to work and the volatile atmosphere which prevailed
at the
premises. Management had decided to proceed with dismissals on this
occasion because the strike was clearly in breach of
the centralised
bargaining arrangements and if IGT conceded to the demand, it would
unravel those arrangements. It was also clear
that, unless management
acceded to the demand, the strike would continue and it would have
lost clients to its competitors if it
had done so. He also emphasised
that on previous occasions, the issue giving rise to unprotected
industrial action had been resolved,
which did not happen in this
case. Neither the union nor shop stewards engaged with the company to
try and resolve the matter while
the strike was in progress.
Moreover, this strike was directly related to bargaining issues that
would impact on the company’s
bottom line. Tsoaeli agreed that
the strike was about workers wanting more and not about being
underpaid. By way of comparison,
in respect of the one day strike
over the shutdown in May that year, it had only lasted a day, the
issue was resolved and it did
not relate to a demand affecting the
main agreement.
[70]
Erasmus testified that it was also not necessary in terms of the
disciplinary code to conduct individual disciplinary enquiries

because paragraph 2.7 of the code states:
“
Industrial
relations:
In the event of collective industrial
action by employees, shall not be necessary for the company to
conduct individual disciplinary
enquiries to disciplinary breaches
arising out of such collective industrial action.”
It
was put to Erasmus that this clause did not relieve management of the
obligation to hold a mass disciplinary enquiry. While not
disputing
that implication of the provision or that the code was part of
employees contracts of employment in terms of clause 2.4
of the code,
Erasmus maintained that it was not possible to hold a disciplinary
enquiry in the circumstances and that IGT was entitled
to deviate
from that requirement as envisaged by item 4 of schedule 8 to the
LRA.
[1]
He was convinced that if they had called workers to a mass
disciplinary enquiry, the situation would have flared up, even though

he conceded that there was no violence during the strike.
[71]
On Monday 17 July 2006 a telephone discussion took place between IGT
and Numsa, represented by Erasmus and Robertsons respectively.
Maino
recalled a meeting on the same day that was convened at the request
of a legal representative of the union, who had phoned
him on Sunday.
Management met with him, Tshabalala and two employee representatives.
At that meeting Numsa only wanted to discuss
reinstatement and the
legal representative conveyed that the workers were sorry and all
demands they had made were off the table.
Maino consulted with
managers, who were divided on the issue that some threatened to walk
out if the strikers returned. The union
delegation was recalled and
advised that IGT could not agree to reinstatement.
[72]
This led to a subsequent exchange of correspondence in which Numsa
proposed to make various undertakings namely:
“
1) Reinstatement with no
retrospective, implying that the no work no pay rule will apply.
2) That all employees who participated
industrial action be given a final warning valid for six (6) months.
3) We undertake to ensure there will
be no unprotected industrial action, now or in the future.
4) We undertake that there will be
compliance with lawful work and related instructions and at hearings
to company rules and regulations.
5) We undertake to train to ensure
compliance with contractual obligations.
6) We undertake to train the elected
leadership on all relevant statute, e.g., EEA, BCEA, OHSA, LRA
including the collective main-agreement
of MEIBC.
7) We undertake to embark on a
mind-set (cultural change) adjustment process.
Lastly, we undertake to invoke the
provisions of our Constitution dealing with discipline including
expulsion in situations where
there is non-compliance with the above
mentioned.”
[73]
On the same day, Numsa confirmed that it would file a collective
appeal on behalf of members.
[74]
On 18 July the company applied for an interim order preventing
employees from disrupting or obstructing its business which
this
court granted on 20 July 2006. Erasmus explained that it had been
necessary to go to court because the dismissed employees
were still
gathering outside the premises and preventing the dispatch of
components.
[75]
On 20 July, management responded to Numsa’s request for a
collective appeal, saying it did not object to a collective
appeal
but that it would still consider individual appeal submissions so
that every individual could state their case. The letter
also
requested Numsa to indicate on whose behalf the collective appeal
would be made and extended the deadline for written submissions
of
appeals to 26 July. The collective appeal hearing was set down for 28
July, with a date to be advised for individual appeals.
[76]
On the same day Management responded to the union proposals made on
17 July. It did so in a lengthy and detailed letter. In
summary, the
letter expressed grave doubts about whether any commitment by Numsa
members to refrain from embarking on unprotected
strike action and
generally complying with company rules and instructions could be
taken seriously in the light of previous instances
where similar
agreements were reached but were subsequently disregarded by the
members. In particular, the letter mentioned a catalogue
of
intermittent unprotected strike action and various agreements which
were reached following such action, namely:
76.1   After unprotected
strike action an agreement was reached on 25 February 2005 in terms
of which employees were paid
a once off
ex gratia
payment for
adopting a three shift system and undertook amongst other things that
there would be no work stoppages of any kind
for any reason. In
parenthesis, it must be mentioned at this point that Ramashala
conceded that workers had accepted that there
would be no unprotected
strikes in exchange for receiving the once off payment. He also
accepted that the unprotected work stoppages
were disruptive and
caused losses to company which it wished to avoid.
76.2   Despite the February
2005 agreement there was a brief unprotected strike in April 2005 and
two threats of unprotected
strike action in May 2005 as well as three
days of unprotected strike action from 2 to 6 June2005 and further
unprotected strike
on 27 June 2005. In the strike action in early
June, the initial grievance concerned having to clock in only when
workers were
already wearing their PPE. Then there was a strike over
an employee’s suspension following an assault incident. This
was
followed by a demand to remove a section leader. Management
backed down on the clocking in routine and an agreement was reached

on suspension of the section leader and the employee originally
suspended. In Ramashala evidence he agreed that these work stoppages

were in breach of the undertakings previously made by workers.
76.3   On 5 August shop
stewards threatened to embark on strike action regarding the
appointment of trainee section leaders.
About a month later, this was
followed by night shift staff failing to attend scheduled training on
three days and demands for
the company to pay injured employees
compensation. Shop stewards also advised the management that workers
would not recognise a
newly appointed section leader, Mr Xulu,
because of objections they had to his appointment process.
76.4   In view of all these
infractions, and breaches of the February agreement, management had
called on the union to
motivate why workers should receive the
ex
gratia
payment which was due to be paid in September. The
response from shop stewards was that workers had agreed to the three
shift system
and on all subsequent occasions they had been provoked
by management’s actions.
76.5   Management disagreed.
Nonetheless after consultation with Numsa on 6 and 8 September 2005,
management agreed to
reinstate the once off
ex gratia
payment
after an acknowledgment by Numsa it was not strictly obliged to. The
written agreement incorporating the arrangement included
other
pertinent conditions, including the following:
“
3)
There shall be no work stoppages of any kind for any reason;
…
f)
Numsa membership will remain committed to development and training
and will be receptive to in-house and externally arranged
training
programs.
g)
Numsa membership will ensure that, in the event of the dispute,
legislated dispute resolution procedures are complied with prior
to
embarking on unprotected [
sic
] industrial action as part of
their commitment to the success of the company.”
76.6   The agreement in
September 2005 did not put an end to unprotected strike action. On 29
September IGT again wrote
to Numsa regional and local offices and to
shop stewards complaining of a “concerted effort” of shop
stewards to undermine
management and prevent relationship building
initiatives. Tshabalala said that every time there were problems like
this he would
intervene.
76.7   In February and March
2006, further work stoppages culminated in yet another agreement
concluded on 5 April 2006
in terms of which management waived its
right to discipline employees in respect of all disciplinary
processes pending at the end
of March 2006, but the parties agreed
that with effect from the beginning of April, management was entitled
to apply the disciplinary
code and procedure in respect of any
employee transgressions. MR testified that he probably signed the
agreement because he had
been delegated to do so by the regional
Secretary. Pertinent provisions of that agreement were:
“
5.
It is specifically agreed that employees will, with immediate effect,
refrain from continuance of the current unprotected industrial
action
and will be committed to the required minimum standard of efficiency.
6.
Employees agreed to waive the ensuance [
sic
] of any pending
and/or previously addressed grievances against any employee or member
of Management, and Management agrees to be
committed to the peaceful
resolution of any grievance line with the Company’s Grievance
Procedure with effect from Saturday,
1 April 2006.
7.
Parties agreed that shop stewards of first and foremostly [
sic
]
employees of the company and this subject to compliance with company
rules and procedures.
8.
Parties agreed to engage in negotiation in establishing a “Protocol
of Behaviour” applicable to Management and Shop
Stewards in
order to facilitate communication between the parties. It is agreed
that the “Protocol of Behaviour” should
be finalised by
30 June 2006.”
The
unprotected action resulting in the conclusion of this agreement was
also referred to in IGT’s letter of 20 July 2006,
as further
evidence of its claim that the pattern of unprotected strike action
continued notwithstanding agreements that were made
and undertakings
being given by Numsa membership, which gave the company little
confidence that the pattern would change if workers
were reinstated
on the terms proposed by Numsa. Ramashala could not recall this
agreement in particular but did recall that there
are a number of
agreements, though he never remembered shop stewards saying they must
stop striking.
[77]
Under cross-examination, it was suggested to Erasmus that in respect
of previous strikes where ultimatums had been issued warning
of
possible dismissal, no action had been taken against workers. He
agreed that on those occasions IGT had not dismissed strikers
but the
reason for that was that on all those occasions the underlying issue
was resolved after discussions with shop stewards
or union officials.
In the three-day strike in July 2006, shop stewards were reluctant to
meet with management and union officials
said they could not offer
any assistance, so there was not even an opportunity to resolve
issues. Further, on the other occasions
the matters giving rise to
the strike did not have a significant impact on the company’s
bottom line, whereas the impact
of the demand for R2,00 an hour
increase clearly would have.
The appeal
[78]
On 24 July, Numsa called upon IGT to agree with it on the joint
appointment of a chairperson to hear the appeal. Numsa also

emphasised that it was mandated to appeal collectively on behalf of
all members and that IGT should ignore individual appeals.
The
company decided to ignore individual appeals by Numsa members but to
consider individual appeals by non-members. IGT confirmed
in a letter
to Numsa on 26 July that it would reluctantly ignore individual
appeals. The following day, Numsa submitted grounds
of appeal as
follows:
“
·
Substantive aspect
·
Consistency in the application of discipline
·
Selective reinstatement/reemployment of employees who were dismissed
for
the same reasons but refused to reinstate others
·
Breach of the applicant’s contract of employment
·
The applicant’s were not aware they will be dismissed for
partaking
in an illegal strike
·
The punishment was too harsh and severe under the circumstances
·
The union was not consulted prior to the dismissals of the applicants
to
discuss the course of action the company intended to adopt
·
Procedural irregularities
·
No disciplinary enquiries or hearing were held prior to the
dismissals
of the applicants.”
(
sic
)
[79]
One of the individuals who suffered as a result of Numsa’s
insistence that IGT should ignore all individual appeals by
Numsa
members was Mphahlele. He had been booked off ill from 12 July to 17
July and had handed a doctor’s note to his supervisor
on 17
July. He had also filed an individual appeal on 20 July, on the basis
that he was not striking, but did this on his own without

communicating with Numsa even though he was a Numsa member. No case
had been pleaded on behalf of individuals like Mphahlele, who
said
under cross-examination that he believed that Numsa would have
pursued his appeal.
[80]
After the collective appeal decision was handed down on 8 August 2006
Numsa challenged the fairness of the appeal process in
a letter. The
appeal outcome was never conveyed with written reasons. Numsa’s
letter was sent on 11 August but was
erroneously dated 2 August
2006. The letter reiterated that the union had objected to the
appointment of an external presiding
officer at the appeal hearing
without it being involved in the choice of the officer. Numsa
proposed a fresh appeal hearing with
a presiding officer appointed by
Tokiso. The union complained that the chairperson of the original
appeal hearing had ignored the
evidence of selective reinstatement
and had not distinguish between an enquiry and an appeal. Another
reason for asking for a rehearing
was that, the company had refused
to disclose clocking information for the period 14 to 28 July 2006. A
dispute had arisen over
the provision of clock records during the
strike. IGT was initially unwilling to provide these arguing that
they were confidential
and Numsa contended that the failure to make
them available confirmed its belief that the company had acted
selectively in deciding
whom to dismiss. By 4 August IGT relented
somewhat and agreed to provide clocking records of individual
specified by Numsa, but
the union insisted on being provided with all
clock card records of all employees. Erasmus testified that the
clocking record during
the strike was not consistent because
sometimes owing to the volatile situation outside the premises,
workers were released without
clocking out.
Evidence
on selectivity
[81]
Erasmus denied that IGT had been selective in dismissing or
re-employing staff. He claimed that, there were certain workers
who
presented themselves for work and they were not dismissed, but they
were sent home for their own safety or were locked in their

department at the plant. He also testified that some Numsa members
were not dismissed because they complied with an ultimatum.
Likewise,
some non-members of Numsa were dismissed for participating in the
strike. Numsa submitted a list of 17 employees, whom
it claimed had
been dismissed and reinstated without any procedure been followed. Of
those 17, Erasmus was able to identify sixteen
who were Numsa members
and were recorded on clocking records as having worked on most, if
not all of the days of the strike. A
further four Numsa members not
mentioned among the 17 were also recorded as working and a number of
others were recorded as being
absent for other reasons unrelated to
the strike. Only one of those listed by Numsa did not appear to be
recorded as having worked
on any of the days in question, but was
recorded as reporting for work on Monday 17 July. He was Mr S
Mabuyakhulu. As far as Erasmus
could recall he was a welder, who had
been sent home for his own safety. Another employee who was recorded
as only being absent
on 14 July, Mr V Masimong, was a section leader
who did not strike but Erasmus did not know the reason he was
recorded as being
absent on that day. Ramashala initially identified
seven individuals on the list as having been present during the
strike. Under
cross-examination he could not say if all seven were
part of the strike after 12
th
July.
[82]
Erasmus disputed the union’s claim that they were not notified
of the dismissals before they were implemented on the
basis that the
ultimatums made it very clear what the course of action was and the
union made it equally clear that it had no control
over the strikers
and management must take whatever action thought was necessary.
Moreover, management had attempted to get Numsa
officials to attend
to the strike, without success. Similarly, shop stewards would not
meet with the company. The persistent failure
of the strikers to
adhere to the ultimatums left it with no choice, but to dismiss
employees. Employees could not been in any doubt
that they would be
dismissed if they ignored the ultimatums.
[83]
After the appeal decision had been handed down, a request was made by
Numsa’s Regional Secretary, Mr S Chosane, for a
meeting with
Maino to try to find a solution to the dismissals. He intimated that
Numsa’s president would also attend such
a meeting. IGT
responded on 18 August that it preferred Numsa to make a written
proposal to which it would respond. None was forthcoming
and on 23
August Numsa referred an unfair dismissal claim to the bargaining
council.
Evaluation
Alleged
automatically unfair dismissal
[84]
The applicants had claimed that, there were 17 employees identified
on a list which they drew up who were on strike, but who
were not
Numsa members and were either not dismissed or were reinstated.
Consequently, they contend that this showed that the company

discriminated when sanctioning strikers on the basis of whether or
not they were numsa members.
[85]
The first difficulty the applicants have is that, on the evidence, at
least six of the persons mentioned were Numsa members
namely L
Kiyane, L Mofokeng, L Malaleka, E Mlambo, E Masondo and S Zwane.
Assuming that all 17 of those identified were ultimately
retained by
IGT after the strike and assuming that they had been on strike right
up until the expiry of the final ultimatum, the
fact that more than a
third of them were Numsa members immediately casts serious doubt on
their claim that strikers were not dismissed
on the basis of their
union affiliation.
[86]
Moreover, in order to compare like cases with like, the applicants
needed to establish that the individuals in question were
on strike
and also failed to return to work before the expiry of the final
ultimatum. The only evidence led by the applicants in
this regard was
provided by Mr Ramashala. Although he claimed to recall seven of the
persons on the list participating in the strike
on the first day
(12th July), he could not say whether they were still on strike for
the remaining days up to and including the
expiry of the final
ultimatum. That evidence was insufficient to make out a
prima
facie
case of automatically unfair dismissal.
[87]
It was suggested that Mphahlele’s case was a glaring example of
how IGT treated Numsa members harshly. This is an extremely

disingenuous and unprincipled argument given that it was Numsa which
insisted that IGT should not consider individual appeals.
IGT
reluctantly acceded to that demand. To now try and rely on IGT’s
compliance with that undertaking as proof of unfair
discrimination
towards Numsa members is hypocrisy to say the least. The
probabilities are that, if Numsa had been willing to permit,
if not
support, individual appeals on behalf of non-strikers like Mphahlele,
he would have been reinstated. It is most likely that
Numsa is
responsible for his misfortune.
Were
the dismissals unlawful because disciplinary enquiries were not held?
[88]
Quite apart from whether or not
their dismissals were unfair, the applicants submit that the failure
to hold either collective or
individual disciplinary enquiries
constituted a breach of IGT’s disciplinary code and procedure
which “formed part
of their contracts of employment”.
Consequently, they argued that their dismissals were unlawful and
seek a declaratory order
and presumably appropriate consequential
relief though an order of specific performance was never stated as a
form of relief distinct
from the unfair dismissal claim relief of
reinstatement. There was certainly no alternative claim of
contractual damages. If they
sought reinstatement on the basis of a
declaration of unlawfulness, they also failed to plead that they
tendered their services,
which they ought to have (see
SA
Cooling Services (Pty) Ltd v Church Council of the Full Gospel
Tabernacle
[2]
)
I do not think IGT could have been aware that, merely because they
alleged their dismissals were in breach of their contracts
that they
were also demanding specific performance on tender of their services.
Be that as it may, I will discuss the merits of
the claim as it seems
the parties’ heads spoke past each other on this issue.
[89]
IGT disputed that the code and procedure formed part of employees’
contracts of employment and, in the alternative that
the code and
procedure did not require a disciplinary hearing in the case of
dismissal for participation in industrial action.
IGT also relied on
clause 2.7 of the code, which is repeated again for convenience:
“
Industrial relations:
In
the event of collective industrial action by employees, shall not be
necessary for the company to conduct individual disciplinary

enquiries to disciplinary breaches arising out of such collective
industrial action.”
[90]
Erasmus was the only witness who was canvassed on this issue. He did
not dispute that the code might be construed as part of
employees’
contracts of employment, but in argument the applicants conceded that
the examples of individual contracts of
employment did not
specifically incorporate the code and sought instead to impute it
into their contracts of employment by relying
on the agreement
concluded in April 2006 in which the parties committed themselves to
‘meticulous compliance’ with
the disciplinary code and
procedure. The applicants’ reliance on that agreement is
completely different from the pleaded
version that the employee’s
contracts of employment included the code, whatever they were
referring to when they mentioned
the contracts of employment. In this
regard, it is trite that if reliance is placed on a contract, it must
be stated whether that
contract is written or oral.  The
pleading was generic. It did not state if the contractual term was
written or oral and did
not attach a copy of the contract embodying
the term relied on.
[91]
Clause 3.2 of the procedure made it clear that if any disciplinary
sanction more serious than a verbal warning was a possible
outcome,
then a formal enquiry would be convened. That requirement was
qualified by clause 2.7, referred to earlier, which stipulated
that
it would not be necessary for the company to conduct individual
inquiries for misconduct arising out of collective industrial
action.
The only issue that would then be in dispute is whether clause 2.7
necessarily implied that no disciplinary enquiry of
any sort needed
to be held in cases of strike -related misconduct, or whether it is
implicit that joint disciplinary enquiries
were necessarily intended.
[92]
IGT argued that to conclude
that such an obligation existed in the code in the absence of it
being stated expressly amounts to an
assertion of the existence of a
tacit term that a mass enquiry should be held in circumstances where
the misconduct arises from
collective industrial action. A tacit term
must be pleaded
[3]
and will only be inferred if it is not only reasonable or desirable
but also necessary to give efficacy to the document embodying
the
agreement.
[4]
I am inclined to think that had the applicants pleaded such a tacit
term, the most reasonable interpretation of that provision,
and the
only interpretation that would have addressed the enquiry procedure
for strike related misconduct on which the code was
silent, would be
that joint enquiries
were
intended. Had it been
intended that no enquiry proceedings for such misconduct would be
held there would have been no need to state
that ‘individual’
enquiries would not be held. That qualification would have been
superfluous and it would have stated
that no enquiries needed to be
held.
[93]
However, even if the failure to plead a tacit term was overlooked,
and if I did conclude that the employer was contractually
obliged to
hold a joint disciplinary enquiry before terminating the strikers’
services and the failure to do so rendered
their dismissals unlawful,
it is very unlikely that the court would make an order of specific
performance as a form of relief,
even if it had been properly
pleaded. An order of specific performance is a discretionary one and
even if the applicants’
pleadings could be most generously
construed as encompassing a claim for specific performance of their
contracts following a failure
to accept a tender of their services,
it is highly improbable under these circumstances that the court
would consider such relief
appropriate on common law principles,
after so many years have elapsed, especially given the evidence that
reinstatement would
be impracticable.
[94]
In any event, since the applicants ultimately relied on a contractual
term which was never properly pleaded having conceded
that their
written contracts of employment did not incorporate the terms of the
code and procedure, the unlawfulness point falls
away.
Procedural
unfairness
[95]
IGT concedes that it did not hold a disciplinary enquiry before
dismissing the strikers but advanced two reasons why that did
not
mean the dismissals were procedurally unfair. Firstly, it discussed
its planned course of action with Robertsons during the
telephone
conversation late on Thursday, 13 July 2006. Secondly, by immediately
granting dismissed employees the right to appeal
the decision, any
procedural unfairness occasioned by not holding an enquiry prior to
the dismissal was remedied by providing an
appeal hearing.
[96]
IGT’s account of the content of the conversation with
Robertsons was a matter of dispute. On its own version, the company

had contacted him to seek the union’s intervention to persuade
workers to return to work before the expiry of the deadline
which
would trigger the dismissal of the strikers the following day. It
claimed that Robertsons clearly indicated that the company
must do
what it considered appropriate because the union was unable to
influence the strikers in any way. However, even on its
own version,
IGT did not use the opportunity to invite Robertsons to make
representations why the strikers should not be dismissed
nor to ask
him to at least convey the opportunity to make such representations
to the strikers, even if the union was unable to
persuade them to
return to work.
[97]
IGT also cites two judgements in support of the first reason, namely
Mzeku & Others v Volkswagen SA (Pty) Ltd & Others
[2001]
8 BLLR 857
(LAC) and
NULAW & others v Bader Bop Ltd &
others
[2004] 8 BLLR 799
(LC). In both cases the employers were
dealing with implacable strikers. In
NULAW
it is clear that in
the course of interacting with the shop steward leadership in efforts
to end the strike that, the opportunity
to make representations why
strikers should not be dismissed if they did not heed the ultimatums
was unambiguously conveyed to
them, viz:
Management prevailed upon NULAW’s
leadership to intervene. The union leadership was afforded an
opportunity to persuade the
workers to return to work. When this did
not eventuate, the shop stewards were required to provide reasons why
an ultimatum to
return to work or be dismissed should not be issued.
The various meetings between
management and the shop stewards, including those where the union
leadership was present, constituted
the audi alteram partem which the
company was obliged to afford the strikers. Indeed, this was recorded
as common cause in the
pre-trial conference minutes as follows:
“
During the meetings held, the
representatives of the strikers were given a number of opportunities
to make representations as to
why they should not be dismissed if
they did not return to work.”
The
witnesses for Bader testified that the representatives did not avail
themselves of these opportunities. I find this to be the
case.
[5]
[98]
By contrast, in
Mzeku
the LAC took the view that as the union
itself had accepted that the strike was indefensible there was
nothing more it could have
said and in any event nothing prevented it
from making representations on why the strikers should not be
dismissed, viz:
“
[50] There can be no doubt that
the union had no representations to advance to the first respondent
to justify the conduct of employees
who refused to return to work
even after all reasonable efforts had been exhausted to get them to
return to work. This is not surprising
because the union accepted
that the strike was illegal and unjustified and itself saw no reason
why the strike should be continued
with at such great risk to the
jobs of thousands of employees in the plant and in the region. In any
event, if the union had any
further representations to make, it had
ample opportunity to make them but failed to do so. The
representations it made to the
first respondent to avoid the
dismissal of the striking employees, were the only representations
available to it, namely, to persuade
the first respondent to be
tolerant of the employees’ unlawful and unacceptable conduct
for more than two weeks while it
made all efforts to get the workers
back at work so that they would not be dismissed. In the light of the
above the finding by
the commissioner that there was no invitation by
the first respondent to the union “to explain why” the
employees’
conduct should be tolerated or why an ultimatum
should not be issued and why they should not be dismissed is
difficult to understand.”
[6]
[99]
The LAC also found that in circumstances where the strikers were only
prepared to accept the suspended shop stewards as their

representatives and not the union but where the shop stewards had
also declined an invitation to represent the strikers, the employer

was entitled to deal with the union and did not have to engage
directly with the informal leadership of the strikers. It should
be
mentioned that the strike in
Mzeku
was an extraordinary one as
the strikers were demanding that the union lift the suspension of the
shop stewards and that by the
time the dismissals took place:
“
The parties agreed that the
first respondent would re-open the plant on 31 January and that, if
employees persisted in the strike,
the first respondent would take
disciplinary action which “will include dismissal”.  if
strikers did not return
to work”
[7]
[100]
Clearly, the circumstances in
this matter were not the same as in
NULAW
as there was no express invitation to make representations why
dismissals should take place. Also, on IGT’s own version and

unlike in
Mzeku
,
the regional organiser did not expressly agree that it was entitled
to dismiss strikers, but simply that the union could not play
any
role in ending the strike and IGT should do what it considered
necessary. It was never contended in evidence that management

understood Robertson’s stance to amount to waiver by the union
of its members’ rights to an enquiry before dismissal,
but
merely that the union could not play any meaningful role in the
situation. In
Modise &
others v Steve’s Spar Blackheath
[8]
,
the LAC also cautioned against lightly inferring a waiver of the
right to a hearing.
[9]
[101]
In the same case, the LAC highlighted the distinction between the
purpose of the ultimatums and the purpose of an enquiry:
[151] An ultimatum is, unlike a
disciplinary enquiry, not directed at establishing the existence of
an offence and then imposing
a sanction. It is, in the first place, a
device for getting strikers back to work. It presupposes the
unlawfulness of the strike,
otherwise it could not be given but it
does not sanction the misconduct of the strikers. It is as much a
means of avoiding a dismissal
as a prerequisite to effecting one. One
is tempted to say that strikers are put in mora. The point is that
both under the 1956
regime and under the present one the question of
dismissing a striker can only logically arise after non-compliance
with an ultimatum.
[10]
[102]
By the time the discussion took place with Robertsons, the final
ultimatum had already been issued and in it management had
made its
intention clear that dismissals were going to take place if the
ultimatum was not complied with. Even if it could be argued
that the
phone call that evening provided him with an opportunity to make
representations, the decision had been taken dismissals
would take
place if the ultimatum was not complied with. Accordingly, the scope
for intervention by that stage was confined to
whether the union
could intervene to ensure that workers returned before the expiry of
the ultimatum. In my view, it would be artificial
to interpret that
opportunity for intervention as an opportunity to make
representations why dismissals should not take place.
The issuing of
the ultimatum in the form it took clearly did not encourage or
suggest that representations of that kind would be
entertained with
an open mind at that stage. Accordingly, I do not think the company’s
failure to hold any sort of enquiry
or invite representations can be
justified on the first reason IGT advanced.
[103]
In relation to whether the
subsequent automatic right of appeal rectified the absence of an
opportunity to make representations,
I accept that it has been held
that an appeal can sometimes cure the procedural defect of not
conducting an original enquiry or
procedural failures in the initial
inquiry.
[11]
It is not an inviolable rule and will depend on the circumstances. As
the LAC stated in
Semenya
& others v CCMA & others
:
[30]
I have referred to the Slagment decision to illustrate the point that
in that case the Appellate Division held that the rules
of natural
justice had been complied with where there had been no hearing before
the employees were dismissed but there had been
one albeit in the
form of an appeal hearing after they had been dismissed. The court
found that the appeal hearing had effectively
undone whatever
unfairness had been occasioned by the absence of a hearing before the
dismissal. My reference to the Slagment case
should not be construed
as in any way an endorsement of the view or proposition that where a
person is entitled to a hearing at
first instance as well as to an
appeal or where he is entitled to two hearings, the holding of a fair
appeal hearing when there
was a defective first hearing or no first
hearing at all, or the holding of one fair hearing instead of two or
the holding of a
first defective hearing and a second fair hearing
satisfies the requirements of the audi alteram partem principle. I
say no more
than simply that, where a person is entitled to an
opportunity to be heard before a decision is taken and he is not
given such
an opportunity, in certain circumstances an opportunity to
be heard can be given after the decision and one of those
circumstances
is where the employee is offered a disciplinary hearing
that is as fair, if not fairer, as the hearing that he or she was
entitled
to have been afforded before the decision could be taken. I
also make the point that, where as in this case the employee is
offered
a hearing that would be chaired by a chairperson of the
employee’s choice who would make the relevant decision, then
the
audi alteram partem rule is complied with and such employee
cannot complain about procedural unfairness if he or she rejected the

offer or chose not to make use of it.
[12]
[104]
In
Semenya,
the employee was actually
offered a hearing
de novo
before a chairperson of her own choice. In this instance, the
chairperson was not an employee of the company, but was also not
a
consensual appointee. More importantly, the chairperson had to decide
an appeal, where employees are trying to overturn an existing

decision, rather than answering to a case against them. Moreover,
employees had a contractual right to a hearing, even if that
right
was only to a joint hearing. It is also not a case where there was an
initial hearing which was perhaps flawed in certain
respects and
those flaws could be corrected on appeal.  In this case, a major
consideration is that, IGT did not have a sound
justification for not
providing even an attenuated form of
audi
that is acceptable in
strike dismissals
before
it took the decision to issue the dismissal ultimatum. In addition,
although the LAC in
Steve’s
Spar
expressly left open
the question whether an opportunity to be heard should be offered, in
a case such as this where the final ultimatum
is not merely issued
with the threat of subsequent disciplinary action which could result
in dismissal, but is issued with a pre-determined
sanction, the
imperative for inviting representations before giving effect to it,
is even more compelling. In this regard, the
following dictum in the
case of
National Union of
Metalworkers of South Africa (NUMSA) v CBI Electric African
Cables
[13]
is also of relevance:
[36] Contrary to the court a quo’s
finding, I am not satisfied that the respondent complied with its
obligation to provide
the employees with an opportunity to be heard
before effecting the dismissals after the expiry of the ultimatum.
Prior to the pre-dismissal
meeting held on 26 June 2007,
it is
apparent that the respondent had already taken a decision that the
employees who took part in “illegal industrial action”

would be dismissed
and that the day shift employees who walked
off at between 12pm and 1pm would receive a final written warning.
Therefore no amount
of persuasion by the Union that the strike had
nothing to do with the introduction of the new shift system but with
the late and
wrong payslips would have convinced the respondent to
change its preconceived stance because the respondent believed that
“after
30 meetings plus the previous action, the relation [was]
irreparable”.
There was a duty on the respondent to afford
the affected employees an opportunity to be heard before a decision
to dismiss them
was taken. The respondent’s failure to do so
rendered its decision to dismiss the affected employees procedurally
unfair
. (Mamabolo v Rustenburg Regional Local Council, supra, at
144B–C). For these reasons I hold that the employees’
dismissals
were procedurally unfair.
(emphasis added)
[105]
Further, even if I assume its favour that it was impractical to
convene a mass enquiry at the time, it did not even attempt
to call
for representations before taking the decision to dismiss. It may
have been a different matter if that had also been genuinely

impractical, but there were no exceptional circumstances which
prevented it from asking the union to make representations by the

afternoon before the deadline ran out as to why it should not dismiss
the strikers. The right to a hearing prior to dismissal would
be
severely diluted if the court treated the absence of a hearing as
something that would always be cured by offering a subsequent
appeal,
when there is no good justification for the failure to hold an
enquiry in the first place.
[106]
Consequently, I am satisfied that the employer has not established
that the dismissals were procedurally fair. The fact that
an
opportunity to make representations after the fact may mitigate that
does not detract from the fundamental unfairness of denying
the
strikers an opportunity to make representations beforehand.
Substantive
fairness
[107]
In
National
Union of Metalworkers of South Africa (NUMSA) v CBI Electric African
Cables
[14]
the LAC set out the test for substantive fairness in the dismissals
for participation in unprotected strike action:
[27] Item 6(1) and (2) of the
Code deals with the substantive fairness of strike dismissals and
provides as follows:
“
6. Dismissal and industrial
action. –
(1) Participation in a strike that
does not comply with the provisions of Chapter IV is misconduct.
However, like any other act
of misconduct, it does not always deserve
dismissal. The substantive fairness of dismissal in these
circumstances must be determined
in the light of the facts of the
case, including –
(a) the seriousness of the
contravention of this Act;
(b) attempts made to comply with this
Act; and
(c) whether or not the strike was in
response to unjustified conduct by the employer.
(2)
Prior to dismissal the employer should, at the earliest opportunity,
contact a trade union official to discuss the course of
action it
intends to adopt. The employer should issue an ultimatum in clear and
unambiguous terms that should state what is required
of the employees
and what sanction will be imposed if they do not comply with the
ultimatum. The employees should be allowed sufficient
time to reflect
on the ultimatum and respond to it, either by complying with it or
rejecting it. If the employer cannot reasonably
be expected to extend
these steps to the employees in question, the employer may dispense
with them.”
[28] It is clear from the provisions
of section 68(5) that participation in a strike that does
not comply with the provisions
of Chapter IV (strikes and lock-outs)
constitutes misconduct and that a judge who is called upon to
determine the fairness of the
dismissal effected on the ground of
employees’ participation in an illegal strike should consider
not only item 6 of the
Code but also item 7 which provides as
follows:
“
7.
Guidelines in cases of dismissal for misconduct. –
Any
person who is determining whether dismissal for misconduct is unfair
should consider –
(a)Whether
or not the employee contravened a rule or standard regulating conduct
in, or of relevance to, the workplace; and
If
a rule or standard was contravened, whether or not –
the
rule was a valid or reasonable rule or standard;
(ii)
the employee was aware, or could reasonably be expected to have been
aware, of the rule or standard;
the
rule or standard has been consistently applied by the employer; and
(iii)
dismissal was an appropriate sanction for the contravention of the
rule or standard.”
[29] In my view the determination of
substantive fairness of the strike-related dismissal must take place
in two stages, first under
item 6 when the strike related enquiry
takes place and secondly, under item 7 when the nature of the rule
which an employee is
alleged to have contravened, is considered. It
follows that a strike-related dismissal which passes muster under
item 6 may nevertheless
fail to pass substantive fairness
requirements under item 7. This is so because the illegality of the
strike is not “
a magic wand which when raised renders the
dismissal of strikers fair
” (
National Union of
Mineworkers of SA v Tek Corporation Ltd and others
(1991) 12
ILJ 577 (LAC)). The employer still bears the
onus
to
prove that the dismissal is fair.
[30] In his work Grogan
,
expresses the view that item 6 of the Code is not, and does not
purport to be, exhaustive or rigid but merely identifies
in general
terms some factors that should be taken into account in evaluating
the fairness of a strike dismissal. He, therefore,
opines that in
determining substantive fairness regard should also be had to other
factors including the duration of the strike,
the harm caused by the
strike, the legitimacy of the strikers’ demands, the timing of
the strike, the conduct of the strikers
and the parity principle. I
agree with this view as the consideration of the further factors
ensures that the enquiry that is conducted
to determine the fairness
of the strike-related dismissal is much broader and is not confined
to the consideration of factors set
out in item 6 of the Code.
Factors
in item 6 (1) of the code
[108]
The impact of the unprotected strike was serious. IGT lost at least
two days production and incurred losses of R 1.5 million.
The strike
was also not an isolated incident but just the latest in an ongoing
pattern of wildcat strike action over more than
a year and it was one
of the more serious incidents.
[109]
The strike was premeditated and the memoranda allowed management
little time to respond. Even when it did, its detailed response
was
simply ignored. Workers just changed the rationale for the demand
slightly and pressed ahead with their demands issuing yet
another
short term ultimatum. They also paid no heed to the meeting arranged
with the union on 19 July to discuss the issues but
submitted the
second memorandum of demands with a 48 hour deadline.
[110]
The strike was unprovoked by management and the cause of the strike
was simply to use the upgrading of robot operators as
a pretext for
demanding a general wage increase. Management’s detailed
response to the memoranda showed that it did not simply
ignore the
demands but attempted to engage with them. The union attempted in
evidence to suggest the strike had been provoked by
management’s
failure to meet with the shop stewards and that this led to workers
downing tools on 12 July. It is possible
that, that is what might
have been reported to workers by shop stewards, but neither of the
memoranda submitted called for a meeting.
Both simply called for a
response and it was obvious that if the response was not acceding to
the workers’ demands that they
would take action. In any event,
it was never pleaded that the strike was provoked by the employer and
this proposition was never
canvassed with management. Judging from
Ramashala’s evidence, it was the shop steward leadership which
was driving the wage
demand, and the memoranda did not emanate from
the general workforce. The implacable stance of the shop stewards was
still evident
nearly nine years after the event, when Tsoaeli was
very reluctant to concede under cross-examination that there could
have been
any other way the strike could have been resolved except if
management gave in to the demands.
[111]
The subject matter of the demand was something that had to be dealt
with at industry level and accordingly could not be the
subject
matter of a protected strike at company level. Furthermore, the
strikers were indifferent to the warnings from IGT that
the strike
would be unprotected.
[112]
The strike proceeded despite it having been agreed with the union
that the parties would meet to discuss the issues on a later
date
arranged at the convenience of the union official concerned,
Robertsons.
Factors
under item 6 (2) of the code
[113]
The company warned the union of the prospect of imminent strike
action as soon as it became apparent that was a possibility.

Continued to keep the union updated on events from the submission of
the memoranda which led to the strike until the final ultimatum.
The
company also attempted to contact the officials directly but were
unsuccessful. They claimed to have had at least one meeting
with shop
stewards at which the shop stewards simply reiterated the demands in
the memoranda. The details of that meeting are hazy.
Tsoaeli claimed
shop stewards wanted to meet with management but management refused
to do so. Once again the details of those requests,
such as who was
approached and when are extremely vague. What is clear is that,
management responded in great detail to the memoranda
and did not
ignore the representations made.
[114]
Apart from agreeing to meet with the company at a later date, the
union was largely unresponsive to the employer’s increasingly

frantic efforts to get officials to intervene. The pace of
communications between the union and the company was dictated by when

union officials found the time to catch up with their correspondence.
It is true that Tshabala announced his intention to come
to the
company after his CCMA matter on 13 July, but when those proceedings
overran their expected duration, he made no attempt
to contact the
company to reschedule the meeting or even to explain his absence
despite the obvious urgency of the situation.
[115]
The union officials also made no demonstrable efforts to communicate
urgently with the shop stewards, and vice-versa. I am
also not
convinced that Tsoaeli left messages at the union offices as he
claimed. Tshabala made no mention of receiving any messages
from the
shop stewards. At best, he thought he would have tried to contact
them. As often seems to happen during strikes, the use
of cell phones
as an easy and commonplace method of direct and instant communication
did not occur. Ostensibly, this was attributed
to a lack of access to
a cell phone (Tsoaeli) or telephone numbers (Tshabalala). Tshabala
would have the court believe that the
only way he could have
communicated with shop stewards was by physically going to the
company premises on the off chance of meeting
them there. Robertsons
and Tshabala would also have us believe that they meet at the office
late on 12 July and were completely
oblivious to the strike and spoke
of anything but the strike.
[116]
Similarly, Robertsons claimed that all the company wanted to talk to
him about the following day was violence during the strike,
which he
solemnly assured them the union condemned. Given the tenor of the
written communications from IGT to the union and its
desperate
attempts to prevent strike action or bring it to an end, it is wholly
implausible that the company would not have requested
him to
intervene as a matter of urgency, given that the final ultimatum was
due to run out the following morning. Those issues
were clearly
paramount in the mind of management at the time. Because Robertsons’
version is so implausible, I am more inclined
to believe that indeed
the union officials did have little, if any, control over the course
of the strike, which was being driven
by the shop steward leadership
and the organisers knew that their intervention would be fruitless.
Accordingly, in my view, it
is quite plausible that Robertsons
confirmed the disconnection between the union and its members and the
union’s inability
to do anything when he spoke to management on
Thursday evening and left it in management’s hands how they
should respond
to the situation. That inference is reinforced by lack
of any serious interest on the part of the shop stewards in engaging
with
the union officials. The disjuncture between the shop steward
leadership and the union officials was starkly illustrated by the

submission of the second memorandum despite IGT having agreed to meet
the union on 19 July. It is not unknown for plant level union

leadership to operate relatively autonomously in relation to the
union and that the bond between shop stewards and members can
often
be stronger than the bond between members and the union officials.
The upshot of this was that to all practical intents and
purposes,
Numsa left management to deal with the strike without the union’s
assistance.
[117]
Turning to the ultimatums issued, they were clear and unambiguous. It
was never suggested that workers did not understand
them and it was
common cause that the shop stewards read them to workers and that
copies were available and were distributed amongst
the strikers. It
was also common cause that they had sufficient time to consider them.
It is also common cause that they were ignored
even when the final
ultimatum was issued, warning them of their dismissal if they did not
report for work on 14 July.
[118]
In essence, the applicants claim they were entitled to ignore the
ultimatums because management had not dismissed them during
previous
wildcat action. They simply did not believe the threats contained in
the ultimata even though they knew that management
was entitled to
take disciplinary action and could dismiss them. Tsoaeli acknowledged
this but claims when he explained this to
workers, they dismissed the
threat as a hollow one. However, during previous unprotected strike
action, it was not disputed that
IGT had never previously received a
decisive ultimatum like the final one and no plausible reason was
advanced, other than their
own belief and willingness to take a
chance, why they also treated that as a hollow threat that would not
happen.
[119]
The witnesses did concede that on those previous occasions with
no action had been taken against them and they had succeeded
in
winning their demands, they had also made commitments not to embark
on unprotected action in the future. It is therefore not
correct that
management simply acceded to strikers’ demands without
extracting undertakings. However, those commitments were
not honoured
by the workforce. The applicant’s attitude was that, because
they had previously flouted those undertakings,
it was unfair of the
employer to now dismiss them for flouting them yet again. However, it
is important not to lose sight of the
fact that at no stage did
management not condemn wildcat action: rather it always sought to
hold workers to their undertakings
not to embark on wildcat strike
action, such as when it threatened to withhold the lump sum payment
for agreeing to the new shift
system when workers broke the
unprotected strike action undertaking in. In September 2005, the
company had obtained an absolute
commitment not to embark on work
stoppages for any reason. As recently as April 2006, the parties
signed an agreement committing
themselves to meticulous compliance
with the disciplinary code and procedure. IGT was constantly trying
to improve workplace conduct
and get the buy-in of the workforce. It
cannot be said it was complacent about these issues.
[120]
It is true that in May the company did not take disciplinary action
over a four hour stoppage because it did not want to precipitate

further action that would exacerbate the losses. However,  that
stoppage was hardly comparable with the one in July which
would have
entered its third full day on Friday and where ultimatums and a
notice of imminent termination had been issued.
In the
circumstances, IGT had done all it reasonably could to curtail the
strike and get workers to end it voluntary. The strikers
completely
carried on relentless, and made a choice to ignore even the most
starkly worded final ultimatum. They took a reckless
gamble knowing
that it was not without risk and knowing that IGT was intent on
reasserting control over employees conduct in the
workplace.
Other
considerations
[121]
It is clear from the above analysis that, I am persuaded that the
rule against unprotected strike action was well known and
was flouted
by the workforce on a regular basis in a battle of wills with
management. Agreements had been concluded that the practice
was
unacceptable. It was the workforce that contemptuously flouted those
agreements. There was no evidence to contradict Erasmus’

account that, save for one occasion, management did not have to
implement ultimatums on previous occasions because the problem
was
resolved and strikers returned to work. Repeatedly flouting a rule
you had undertaken to comply with and which the employer
had never
waived but had sought to impose does not mean the rule did not exist
or that there was never a risk that serious breaches
would be
appropriately sanctioned.
[122]
Moreover, there was also no previous instance where a final ultimatum
had been issued like that issued on 13 July. The strikers
gambled in
estimating the risk they were running, but they knew there was a real
risk and they pursued the strike regardless and
in spite of the
unequivocal warning in the final ultimatum that decisive action was
imminent and depended on how the strikers responded
to it.
[123]
I have already mentioned in the discussion above some of the
factors which made the unprotected strike an unjustified
one. The
fact that nothing less than compliance with the demands in the
memoranda would have brought the strike to an end, and
the
unwillingness of workers to even wait for the meeting with the union
before starting the strike and their heedless disregard
of all forms
of unambiguous ultimatums made the strikers conduct serious. It
should also be mentioned that from the first intimations
of imminent
strike action management warned of the possible consequences of
embarking on it in the response to the memoranda. The
company cannot
be responsible if the shop stewards as the employees’
representatives decided not to share that with their
members. They
knew they had made commitments not to embark on work stoppages and
that the company was trying to ensure an orderly
working
relationship. They had ample warning of the consequences of
persisting.
[124]
It was only after the fact of the dismissal that conciliatory
proposals were made by the union. However, the company had been

attempting to build a constructive relationship for many months and
commitments had previously been made by the workforce which
were not
worth the paper they had been written on. It is understandable that
the employer had no faith in any further commitments
of that kind and
it was not unreasonable for it to believe that it could not trust
them in the future to adhere to them particularly
when this more
conciliatory approach had been completely absent when management was
so desperately seeking the union’s assistance
and the workforce
to desist from its obdurate pursuit of the strike, in flagrant breach
of previous commitments not to engage in
such conduct.
[125]
In light of all the above, I am satisfied that the decision to
dismiss the strikers and not to reverse the decision subsequently
was
a reasonable and fair response to their conduct. Accordingly the
dismissals were substantively fair
Relief
[126]
The only relief I must consider is compensation for procedural
unfairness. In the circumstances, I am satisfied that the failure
to
at least invite representations on why strikers should not be
dismissed if they did not comply with the final ultimatum, some

compensation for procedural unfairness is warranted. I have taken
into account that an automatic right of appeal was afforded to
all
employees which to some extent mitigated the absence of a hearing
before the dismissal, but that could not entirely cure the
absence of
an opportunity to make representations beforehand.
[127]
In the circumstances, an award of six weeks’ remuneration as
compensation seems appropriate.
Order
[1]
The dismissal of second to further applicants was procedurally unfair
but s
ubstantively fair
[2]
The respondent must pay each of the applicants or their estates, as
the case may be, who
are listed on Annexure “A” hereto an
amount of six weeks’ remuneration calculated on the basis of
the hourly
rates of pay as at the date of their dismissals set out
therein, within 30 days of the date of the judgment.
[3]
No order is made as to costs.
_______________________
Lagrange
J
Judge
of the Labour Court of South Africa
APPEARANCES
APPLICANT:
T
Govender instructed by Ruth
Edmonds
Inc.
RESPONDENT:
L
Frahm-Arp of Fasken
Martineau
[1]
It would appear this was a reference to item 4(4) of the Schedule
which states:
“
In
exceptional circumstances, if the employer cannot reasonably be
expected to comply with these guidelines, the employer may
dispense
with pre-dismissal procedures.”
[2]
[1955] 3 All SA 257
(D) at 261.
[3]
See
Roos v Engineering
Fabricators (Edms) Bpk
[1974]
3 All SA 136
(A) at 140
[4]
See
Transnet Ltd v
Rubenstein
[2005] 3 All SA
425
(SCA) at 430, para [18]
[5]
At 805.
[6]
At 873
[7]
At 863
[8]
[2000] 5 BLLR 496 (LAC)
[9]
At 512-3, para [46].
[10]
At 545.
[11]
E.g.
Slagment (Pty) Ltd v
BCAWU & others
[1994]
12 BLLR 1
(AD) at 13.
[12]
[2006] 6 BLLR 521
(LAC) at 530-531.
[13]
[2014] 1 BLLR 31 (LAC)
[14]
[2014] 1 BLLR 31
(LAC)