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[2019] ZALCJHB 43
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National Union of Mineworkers obo Members v Cullinan Diamond Mine A Division of Petra Diamond (Pty) Ltd (JS102/14) [2019] ZALCJHB 43; (2019) 40 ILJ 1826 (LC) (1 March 2019)
the
labour court of South Africa, JOHANNESBURG
Reportable
case
no:
JS102/14
In
the matter between:
NATIONAL
UNION OF MINEWORKERS obo MEMBERS
Applicants
and
CULLINAN DIAMOND MINE
A
DIVISION OF PETRA DIAMOND (PTY)
LTD
Respondent
Heard
:
19-22 February 2019
Delivered
:
01 March 2019
Summary:
A referral in terms of which the applicant alleges unfair
discrimination on arbitrary grounds – A claim for payment of
any
form of a bonus is justiciable in the CCMA under its unfair
labour practice jurisdiction. It does not matter that the alleged
unfair
conduct has elements of discrimination and or alleged
victimisation. As long as the relief sought is that of payment of a
bonus
– the Labour Court lacks jurisdiction. Section 5 of the
Labour Relations Act provides a protection to employees. The only
dispute that this court may entertain is about interpretation or
application of section 5, much the same way as a dispute in terms
of
section 24 of the LRA. The discrimination contemplated in section 5
(1) of the LRA is not the same as one contemplated in section
6 of
the Employment Equity Act (EEA). Where an employee alleges unfair
discrimination on an arbitrary ground, the alleged arbitrary
ground
must be pejorative and somewhat linked to any of the listed grounds.
Paying a bonus to certain employees and not to others
for reasons
related to operational requirements does not amount to discrimination
as contemplated in section 5 (1) of the LRA.
Held: (1) The
applicant’s entire claim is dismissed. (2) No order as to
costs.
judgment
MOSHOANA,
J
Introduction
[1]
This is a
referral in terms of section 10 (6) (a) of the Employment Equity
Act
[1]
(EEA) read with section
10 (4) of the Labour Relations Act
[2]
(the LRA). The applicant alleges that by paying a bonus
[3]
to non-striking employees, the respondent has unfairly discriminated
the striking employees. Further, the applicant alleges that
such a
conduct offends the provisions of section 5 of the LRA. The
respondent disputes any unfair discrimination and/or infringement
of
the provisions of section 5.
Background
facts
[2]
Given the nature of the dispute between the parties it is not
necessary to give some detailed
background facts of this matter.
Suffice to mention that around July 2013, the respondent and the
applicant trade union were engaged
in wage negotiations. Around
August 2013, the parties deadlocked and the trade union called its
members to a protected strike action.
Some members of the trade union
did not participate and production at a reduced rate continued. Prior
to the commencement of the
strike action, employees were looking
forward to a payment of an annual production bonus that gets approved
by the Head Office
every year and payable in September of every year.
In an attempt to avert participation in the looming strike action,
the management
advised employees that the annual production bonus may
be lost and not be paid as a result of the strike action which would
impact
on production. All of that did not deter the applicant’s
members.
[3]
During the strike action, certain employees worked, and the
management took a decision to
reward them for exceptional work they
performed during the strike action. This bonus was termed
“exceptional performance
reward or bonus”. It was paid in
October 2013 a month after the strike action dispute was resolved.
The applicant trade union
contended that the so-called exceptional
performance bonus was in fact a contrived annual performance bonus,
which excluded employees
who participated in the strike action. A
view was held by the trade union that the actions of the respondent
contravened section
5 of the LRA. Soon thereafter a referral was made
to the Commission for Conciliation, Mediation and Arbitration (CCMA).
The dispute
referred could not be resolved and the applicant
approached this Court for a relief. In this Court, the applicant
alleged unfair
discrimination within the meaning of section 6 of the
EEA and the breach of section 5 of the LRA. They also claimed payment
of
the so-called exceptional performance bonus to the striking
members.
Evidence
Led
[4]
The parties agreed in a pre-trial meeting that the applicant shall
commence
with the leading of evidence. Two witnesses were led in
support of the applicant’s case. Mr Makhura has been in the
employ
of the respondent since 2008. At the relevant time, he was a
branch secretary of the trade union. Since
2008, every September, employees of the respondent at the Mine are
paid a performance bonus. At the level which he gets involved,
there
is no approval of the payment of the performance bonus. However, with
reference to various documents he is of the view that
the performance
bonus was approved by the Head Office for payment.
[5]
In his understanding of the various documents written to the
workforce,
the General Manager was intimidating employees not to
partake in the lawful actions of the trade union. The strike
commenced on
29 August 2013 and lasted for two weeks or so. On their
return certain employees who did not participate in the strike action
were
paid an exceptional performance bonus, something that was never
done before and was never repeated thereafter. He believes that
this
exceptional performance bonus was actually a contrived ruse. In
truth, it is the annual performance bonus which was due to
them as
employees. The exceptional performance bonus set out in pages 48-54
of Bundle D is nothing but the annual performance bonus.
It is not
even a type of a bonus contemplated in the employers’ policy in
Bundle E
[6]
A dispute of unfair labour practice was referred by the trade union
and
the CCMA declined jurisdiction. In cross-examination, he agreed
that the payment of the bonus depends on the approval of the Head
Office. He disputed a version that the annual performance bonus was
never approved by the Head Office. In his evidence it was approved
but cancelled and replaced with the exceptional performance bonus
which was paid contrary to the provisions of the LRA. The relief
he
still persists with in this court is for the payment of the
exceptional performance bonus.
[7]
Mr Moyo also testified. Other than testifying about his duties and
the
fact that he participated in the strike action, he did not
contribute much to the issues relevant to this dispute. He saw pages
48-54 of Bundle D for the first time and in his understanding there
is a difference between the two bonuses. He was not cross-examined.
[8]
Mr Kemp was the only witness for the respondent. He is the General
Manager
of the Cullinan Diamond Mine, which is a division of Petra
Diamonds. During the wage negotiations, he made all the attempts to
avert participation in a strike action as that would affect
production, which ultimately would affect the anticipated annual
production
bonus. He testified about the process of justifying the
bonus payment to the Head Office. Payment of that bonus is more a
privilege
than a right. He wrote a number of updates to the employees
leading to the commencement of the strike action. Ultimately, the
Head
Office did not approve the payment of the annual bonus as
anticipated. Nobody was paid an annual performance bonus. During the
strike action about 38 % of the workforce attended to production.
With the 34% of the available man-hours, those employees managed
to
achieve 52% of the carat. He considered that to be exceptional
performance. A reward for such exceptional performance was designed
and a particular formula was applied as set out in Bundle D pages
48-54 to pay those employees. Some employees who deserted the
strike
action and participated in production were also rewarded. There was
no differentiation applied. The reward was designed
different from
the annual performance bonus. Bundle E was more a guideline. The 50%
was a base, which got ameliorated by the point
system as agreed to by
the Head Office. There was no discrimination. Once a person performed
work, he or she would be rewarded.
[9]
In cross-examination, Mr Kemp remained steadfast to his evidence. He
clarified
on numerous occasions the basis upon which the exceptional
bonus was paid. He introduced Bundle F, after being probed. Bundle F
demonstrated that prior to 2013 exceptional performance bonus was
paid on the same principles, however the 2013 payment was of
a
different magnitude. I pause to comment that I did not understand the
basis upon which this damaging evidence was probed or elicited.
Having achieved a common cause fact, the applicant through their
counsel probed and brought to light evidence which waters down
the
admission of fact. This approach in my view was unnecessary, since
the parties had agreed on what was common cause. Therefore,
this
Court has no choice but to consider the evidence in Bundle F.
Evaluation
[10]
The applicant’s case is pegged on two legs. Firstly, it relates
to the application
and interpretation of section 5 of the LRA.
Secondly, it relates to alleged unfair discrimination, within the
contemplation of
section 6 of the EEA.
Alleged
Contravention of section 5 of the Act
[11]
Section 5
is located in a chapter that deals with freedom of association and
general protections. This location is important when
one interprets
any section in the chapter. In order to provide a clear understanding
of this section, the starting point, as always,
is the Constitution
of the Republic of South Africa
[4]
(the Constitution). Section 23 (2) of the Constitution provides that
every worker has the right to form and join a trade union;
participate in the activities and programmes of a trade union and to
strike. The right to strike is a separate and distinct right
that
accrues to a worker. Section 18 of the Constitution grants everyone,
worker included, the right to freedom of association.
Section 4 of
the LRA seeks to expatiate on the freedom of association for
employees. It creates a right to participate in forming
a trade union
or federation of trade unions and to join a trade union, subject to
its constitution. The section further creates
a right to an employee,
which is subject to the constitution of that trade union, to
participate in its lawful activities.
[12]
The lawful activities of the trade union do not, in my view, mean
participating in a strike
action. A strike action is not an activity
of a trade union but a constitutional right of a worker. As defined
in section 213 of
the LRA a strike means the partial or complete
concerted refusal to work, or the retardation or obstruction of work
by persons
who are or have been employed by the same employer or by
different employers, for the purposes of remedying a grievance or
resolving
a dispute in respect of any matter of mutual interest
between employer and employee, and every reference to work in this
definition
includes overtime work, whether it is voluntary or
compulsory. It shall be observed from the definition that there is no
reference
to a trade union and or its constitution. Therefore, to my
mind, when an employee participates in a strike action he or she is
not participating in the lawful activities of the trade union. It may
well be so that a trade union may call its members to join
a
protected strike action, but if an employee does so, he is not
carrying out the activities of the trade union but is exercising
a
right guaranteed in the Constitution. In any constitution of any
trade union one shall never find as an activity of a trade union
striking as defined in the LRA. Closer examination of section 95 (5)
of the LRA reveals that a constitution of a trade union must
amongst
others provide that before calling a strike it must conduct a ballot
and that members may not be disciplined for failure
or refusal to
participate in a strike. On this point I am fortified by the fact
that only a member and not a worker has the right
to participate in
the activities of a trade union. Section 4 (2) makes reference to a
member and not an employee. In order to understand
what lawful
activities mean, one can think of participating in a ballot,
elections for leadership and functions contemplated in
section 14 (4)
of the LRA. Taking the point further, section 64 (1) grants an
employee the right to strike as guaranteed in the
Constitution.
[13]
Section 67
provides separate protection for exercising the right to strike. For
instance, immunity from delict and breach of contract.
To conclude,
an employee when participating in a protected strike is not advancing
the constitutional activities of a trade union
but exercises a
constitutionally guaranteed right. For these reasons I part ways with
my brother Francis J when he said the following
in
NUM
v Namakwa Sands – A division of Anglo Operations Ltd
[5]
:
[33]…Section
4(2) of the LRA grants every member of a trade union the right
subject to the constitution of that trade union
to participate in the
lawful activities of that trade union.
The
right to strike is one such right
[6]
.
[14]
Having said
that, I now turn to the provisions of section 5. Section 5 (1)
protects an employee from discrimination for exercising
any right
conferred by this Act. I immediately point out that the
discrimination referred to in this section is not the unfair
discrimination as referred to in the EEA and the Constitution.
Section 9 (4) of the Constitution prohibits unfair discrimination,
so
does section 6 of the EEA. Discrimination in this section is to be
given its ordinary grammatical meaning. As a verb, it means
make or
constitute a difference in or between; distinguish, differentiate
[7]
.
For these reasons I disagree with Acting Justice Arendse when he
concluded in
FAWU
v Pets Products (Pty) Ltd
[8]
thus:
[20]
In my view, where a person (such as the respondent employer in this
case) discriminates against employees (such as the individual
applicants) for exercising their right to strike which is conferred
by this Act,
then the unfairness of that discrimination is
presumed
although the contrary may still be established
. In
this regard it is analogous to discrimination on one of the grounds
specified in the Constitution, the unfairness of which
is presumed
until the contrary is established.
[15]
On this
aspect, I find persuasion from the binding judgment of the Labour
Appeal Court (LAC) in
SAFCOR
Freight (Pty) Ltd t/a SAFCOR Panalpina v SA Freight & Dock
Workers Union
[9]
,
where
the LAC said the following:
“
As far as the
anti-discrimination clause in the Constitution (section 9(3)) is
concerned, it prohibits discrimination on the grounds
listed therein,
or on analogous grounds. Union membership is not listed in the
Constitution (nor in the EEA) and it is unlikely
to be considered an
analogous ground because
such discrimination does not involve an
injury to human dignity as contemplated, and adequate legislative
protection is in any event
available in section 5 of the LRA…”
[16]
The LAC went further and said:
Simply
put, the provisions of s5 of the LRA constitute a prohibition against
‘anti-union discrimination’. Although section
5(1) does
not qualify the term discriminate with the adverb ‘unfairly’,
our constitutional and anti-discrimination
jurisprudence generally
require that discrimination be unfair and or unjustifiable in order
to constitute an infringement or violation.
Differentiation which is
fair and or reasonable will not amount to discrimination.
A
contravention of section 5(1) therefore comprises two elements:
discriminatory conduct or action and such being unjustifiable
because
it is irrational, lacking in proportionality, unreasonable or
actuated by improper or illegitimate motives.
[17]
I
understand the LAC to be saying that the discrimination contemplated
in section 9 (3) of the Constitution and section 6 of the
EEA is one
that goes to the human dignity and the one in section 5 is not such a
discrimination. If my understanding is correct,
it would be wrong to
presume in section 5 the discrimination contemplated in the
Constitution. I further understand the LAC to
be saying that the
discrimination contemplated in section 5 is one that questions a
conduct that is irrational, improper or tainted
with illegitimate
motives. I may add, in my understanding of the section, if an
employee is differentiated simply because he participated
in a
protected strike action, such a differentiation is illegitimate,
improper and unjustifiable. I therefore cannot agree with
Mr Molotsi,
appearing for the applicant, when he submitted that unfairness should
be read in in section 5 (1). There is no need
to read in unfairness,
the protection is enough. Reading in is an interpretative tool. It
can only be invoked if there is ambiguity
and or absurdity. I do not
see such in section 5(1). Lord Reid in
Federal
Steam Navigation Co v Department of Trade and Industry
[10]
had the following to say:
“
the Judge may read
in words which he considers to be necessarily implied by words which
are already in the statute and he has a
limited power to add to alter
or ignore statutory words in order to prevent a provision from being
unintelligible, absurd or totally
unreasonable, unworkable, or
totally irreconcilable with the rest of the statute”
[18]
The above
being the grammatical meaning of the word discrimination as employed
in this section, in my view, an employee should not
be differentiated
for exercising a right in terms of the LRA. For instance, an employee
may not be differentiated for participating
in a strike action. In
order for an employee to invoke this right, he or she must prove
facts that, firstly, a person has differentiated
him or her by a
particular conduct and secondly that the conduct infringed the
provisions of section 5 (1) in that it was perpetuated
on him or her
because of exercising a right conferred. My sister Whitcher AJ, (as
she then was) in
Ngcobo
Lungile and six others v Chester Butcheries
[11]
had the following to say about the section:
“
[7]
…This section protects employees from
victimisation
for
having exercised a right under the Act. The right to strike falls
within the ambit of this provisions. If the employer’s
conduct
has the effect of discriminating, it will fall foul of the protection
offered by section 5.”
[19]
I agree with the above statement. The stubborn facts in this matter
are that certain employees
worked during the protected strike action
and others did not. By simply not working, an employee does not
necessarily exercise
a right in terms of the LRA. However, if an
employee participates in a strike action, he or she is exercising a
right in terms
of the LRA.
[20]
Section 5(1) employs the word ‘
for’
. This word is
used to indicate the object, aim, or purpose of an action or
activity. It calls for a causal link between the differentiation
and
the exercise of the right. Differently put, the employees must have
been differentiated for having participated in a strike
action. It is
important to note that the legislature does not use words like
directly or indirectly. Therefore, if the reason for
differentiation
is something else other than participating in a strike action, then
section 5 (1) is not infringed. Whitcher AJ
in
Ngcobo supra
went to the extent of saying the following:
“
I say so,
first, taking note of the concessions made by the applicant’s
witness under cross-examination to the effect that
striking members
of the union at other outlets were indeed paid bonuses. This, as a
matter of logic, puts paid to the applicant’s
complaint under
section 5 of the Act that the strike was the cause of bonuses being
withheld from them.”
[21]
Section 9
of the Act sets out a procedure to deal with the dispute. The only
dispute should be about the interpretation or application
of any
provision of the chapter. This type of a dispute is also found in
section 24 of the Act. Therefore, in
casu,
the dispute between the parties is about interpretation and
application of section 5 of the LRA. Section 10 states that a party
who alleges that a right or protection conferred by this chapter has
been infringed must prove facts of the conduct and once the
facts are
proven, then the alleged guilty party (employer) must prove that the
conduct did not infringe any provisions. In relation
to this part of
the case, the applicant had to first prove the alleged conduct
[12]
.
The evidence of Makhura suggests that the respondent failed to pay
the striking employees an annual performance bonus. This being
the
conduct, the applicant had the onus to prove that the respondent
indeed failed to pay the annual performance bonus and the
reason for
that is that the employees participated in a strike action. There is
overwhelming evidence that no employee was paid
any annual
performance bonus. Makhura’s evidence is that the respondent
actually cancelled the payment of an annual performance
bonus and
replaced it with something else. In his letter to Johan Dippenaar, he
stated the following:
“
6. After the
strike the bonus
has been cancelled and management has introduced
an exceptional performance rewards for non-striking workers
…”
[22]
Regard being had to this evidence; it must follow that the vital
organs of the applicant’s
case collapsed from this point. If
the annual performance bonus was cancelled, there is not even a basis
to differentiate. Nobody
was paid the annual performance bonus, that
being the respondent’s case anyway. What then remains for the
applicant is perhaps
an unfair conduct in relation to provisions of
benefits, which is an unfair labour practice claim. This Court lacks
jurisdiction
to entertain disputes about unfair labour practices. I
must state that even if the employees allege victimisation, if the
relief
they claim is that of payment of a bonus, this court lacks
jurisdiction. The true dispute in this case is that the employees are
unhappy about the cancellation of the annual performance bonus. It is
not the applicant’s case that the bonus was cancelled
because
they participated in a strike action. Their case is one that suggests
that the annual performance bonus was contrived as
exceptional
performance rewards. This case has no basis at all. On Makhura’s
own version, the two are different. This was
corroborated by Moyo.
The one was cancelled and the other was introduced. Even if I were to
give credence to the contrivance argument,
on Makhura’s own
version, the annual production bonus is approved at the Head Office
level and he is not privy to the processes
that unfolds leading to
the approval. Therefore, his evidence that the annual performance
bonus was approved by the Head Office,
only to later be cancelled by
the respondent, is weak and lacks probative value.
[23]
If for any reason, I have the appetite to entertain the version that
the exceptional performance
reward is a ruse, the overwhelming
evidence would thwart that appetite immediately. The annual
performance bonus is based on a
fixed percentage applied across the
board. The percentage can only be reduced by having regard to the
issues of conduct of employees
and so on. On the other hand, pages
48-54 of Bundle D sets out a different type of a bonus. Any attempt
to suggest that the guidelines
in Bundle E having not being followed
to the letter, thus the bonus paid is not an exceptional performance
reward is without any
merit and it is thus rejected.
[24]
On the other hand, the evidence of the applicant failed to show a
causal link between the
payment of a bonus and the participation in
an industrial action. Makhura’s evidence was that the trade
union had at the
relevant time approximately 800 members and about
500 employees participated in a strike action. Although Makhura was
not challenged
on this, his evidence does not assist the applicant.
What the applicant did in Annexure A to the statement of case was to
annex
the list of its entire membership. The list contains more than
500 employees. There is no evidence as to who out of the 800
employees
listed, participated in a strike action. This creates a
difficulty on the causal link issue. Only employees who participated
in
a strike action can rely on section 5 (1).
[25]
The list in pages 48-54 of Bundle D also contains almost 500
employees. The unchallengeable
evidence of Mr Kemp was that some
employees who participated in the strike action deserted the strike
at some point and participated
in production. This evidence clearly
exudes that the reason for non-payment of the bonus cannot be
participation in a strike action.
The employees who returned from the
strike action and worked towards the achieved target were rewarded.
It may well be so that
Mr Kemp does not have direct evidence that
some employees were from a strike action or not, however, the
probabilities are that
employees who worked for 1 to 2 days must have
on the other days participated in the plus minus two weeks strike
action. Accordingly,
in my view, the applicant has failed to prove
the facts of the conduct that allegedly infringed section 5 (1) of
the LRA.
[26]
Let me also consider the provisions of section 5 (2) (c) (vi). The
applicant contends that
the conduct of the respondent also infringes
this section. To my mind this section has almost the same effect as
section 5 (1).
The prohibition is that of prejudice because of past,
present or anticipated exercise of a right conferred by the Act.
Since the
Court is considering a dispute about interpretation and
application, I am constrained to give words employed by the
legislature
a meaning.
[27]
The grammatical meaning of the word prejudice means harm or injury to
a person or thing
that may result from a judgment or action
especially one in which his or her rights are disregarded. It shall
be observed from
the meaning that the person to be prejudiced must
have rights that are disregarded. That to my mind means that the
applicant must
first show that the members had the right to the
bonus, be it production bonus and/or exceptional performance bonus.
By denying
them that right simply because of the past, present or
anticipated exercise of the right conferred would be in contravention
of
the section. With regard to annual performance bonus, the evidence
shows that the bonus is discretionary in nature, thus employees
do
not have a right to it. It is not the applicant’s case that the
employees had a legitimate expectation to be paid the
annual
performance bonus and/or the exceptional performance reward.
Therefore, just by denying them these bonuses, without even
considering the ‘
because part’
of it, the
respondent did not disregard any right they have. With regard to the
exceptional performance bonus, the evidence demonstrated
that for an
employee to acquire the right to be paid he or she must have
contributed to the 52% carat achievement and also performed
exceptionally. The applicants before me, do not on the evidence,
qualify for this type of a bonus. Their case is simply that this
bonus is the same as the annual performance bonus, which case on the
evidence before me is untenable. Accordingly, the applicant’s
members were not prejudiced, thus the provision of the section were
not infringed.
[28]
I now turn
to section 5 (3). This section refers to an advantage in exchange for
that person not exercising any right. During wage
negotiations
[13]
,
in my judgment, a party may use any tactic that may avert an injury
to itself. In other words, an employer may promise anything
to avert
a strike action, given its financial impact. Advantage means the
position, state, or circumstances of being ahead of another,
or
having the better of him or her; superiority especially in a contest
or debate. The applicant seems to conflate negotiations
tactics with
an advantage. On Makhura’s own version, Kemp was intimidating
them. Clearly, where one is being intimidated
there is no advantage.
[29]
In a special brief of 27 August 2013, two days before the
commencement of the strike action,
Kemp recorded thus: “
Once
strike action commences, striking employees will forfeit production
bonuses”
. The Industrial Relations Specialist in a letter
addressed to the trade union’s chief negotiator stated the
following: “
All employees who were due to receive production
bonuses will forfeit them if they participate in the planned
industrial action”
. In another special brief, Kemp recorded
that “
any employee who joins the industrial action (even for
just one day) runs the risk of losing the potential bonus payment
schedule
for end September 2013”
. All of the above was
viewed by Makhura as attempts to intimidate the workers from
participating in a strike action. I must emphasize
that the bonus
referred to above is the annual production bonus and not the
subsequent exceptional performance reward. What was
to befall the
employees was a forfeiture of that performance bonus. It is for this
reason that I state that the true gripe is one
of alleged unfair
labour practice on this part of the case.
[30]
Clearly
these threats fell on deaf ears because the workers were resilient
and were not cowed by this tactics, which Mr Redding
SC, appearing
for the respondent, termed “
propaganda
”.
In all the messages there is no advantage to be gained or promised to
the employees before me. Mr Molotsi appearing for
the applicant
rightly conceded that the employees who gained the advantage and
exchanged their rights are not before me. I again
respectfully part
ways with my brother Francis J in
Namakwa
Sands supra,
when
he concluded that the employer’s conduct of paying non-striking
employees a redeployment allowance and the free meals
contravened the
provisions of section 5 (3).
[14]
[31]
It appeared from the facts of that judgment that my brother applied
the provisions of the
section simply because the non-striking
employees were paid an allowance and on that basis alone
contravention was found to the
benefit of the striking employees. In
my judgment, contravention can only arise if the advantage is linked
to an exchange. In other
words, evidence would be required that a
person who exchanged the right to strike did so because an advantage
was given or promised.
Therefore, the only person who can complain
about the contravention must be the one who sold, as it were, his or
her right. To
my mind, the mischief sought to be avoided is one of
employees selling, as it were, their fundamental rights entrenched in
the
Act. That mischief is apparent from a proper reading of section 5
(4) where invalidity is contemplated.
[32]
The employees before me did not exchange their rights, thus they are
incapable of being
advantaged. On Makhura’s own version, the
annual bonus was cancelled and replaced with exceptional performance
reward. They
did not exchange their rights. In my judgment, the
employees before me cannot gain or profit a contravention simply
because some
faceless employees received an “advantage”.
To interpret the section in that manner would defeat the purpose of
the
section. The section is aimed at protecting employees. An
employee cannot gain advantage by an injury inflicted on another
person.
The section contemplates a situation where the exchanger (the
employee who lost the right) and the benefactor (employer who avoided
strike action) can settle a dispute. That being the case, I fail to
see how a non-exchanger (employee who did not lose the right)
can
claim contravention. In my judgment the applicant failed to prove any
infringement of section 5 (3). The applicant must fail
on this part
of the case. The applicant failed to cross the first hurdle (section
10 (a) of the LRA).
The
approaches in the FAWU and Namakwa Sands matters supra
[33]
It is apparent to me that the approach favoured by these two
judgments is one that suggests
that there is something fundamentally
wrong, to a point of contravention of section 5 of the LRA, in paying
a reward to employees
who are not striking. In
FAWU
, the
learned Acting Justice did not find persuasion in the evidence that
the R200.00 voucher was paid to non-strikers for the hard
work they
performed during the strike action and for going the extra mile. If I
follow this reasoning, I must equally come to the
same conclusion in
this matter. With due respect to the learned Acting Justice, I fail
to understand this reasoning. As far as
I am concerned paying
non-strikers any money does not
per se
infringe section 5 of
the LRA.
[34]
In my view, this reasoning seems to ignore the fact that
participating in a strike action
is an individual right of an
employee. If an employee decides not to exercise this right on his
own without being coerced by the
employer, then the employee cannot
be denied the contractual benefits simply because other employees are
exercising the right to
strike. I fail to understand the policy
considerations that would underpin the reasons not to reward in any
manner an employee
who chose not to strike. This reasoning suggests
that an employer should not reward any hard work to employees during
the time
when the full labour contingence has been withdrawn. Such
could not have been the intention of the legislature when the section
5 protection was enacted. To show that that was not the intention,
section 67(3) provides that despite subsection (2), which insulates
a
striking employee from delict and breach of contract, an employer is
not obliged to remunerate an employee for services that
the employee
does not render during a protected strike. The corollary of this
provisions must be that by remunerating a non-striking
employee, the
employer does not offend the LRA. It must be remembered that even in
a strike situation, an employer must still run
its business.
[35]
The very reason why employees withdraw labour is to harm the employer
financially. So if
employer devices a means to stay afloat and reward
those employees who assisted it to stay afloat, such an employer, in
my view,
does not offend any provisions of the LRA nor the
Constitution. Whichever way one looks at it, this is an area of power
play. The
supervisory powers of this Court in this area of power play
are limited.
[36]
I am unable
to understand why the approach in
Chemical
Workers Industrial Union v BP South Africa
[15]
is no longer befitting in the current LRA as it did under the old
LRA. Almost on similar facts to the ones before me, the defunct
Industrial Court held that in deciding to pay the bonuses, the
employer’s objective was to ensure that its business operations
continued during the course of the strike. The Industrial Court
rejected the union’s contention that the employer’s
payment of the bonuses constituted victimisation of striking
employees. Ultimately, the Industrial Court found that the payment
of
bonuses did not constitute an unfair labour practice under the old
Act. The additional member Copeling had the following to
say, to
which I fully agree:
“
However, the fact
of the matter is that where certain of an employer’s workers
elect to embark upon a strike whilst others
do not, good and
compelling economic reasons do exist for the employer differentiating
in his treatment of striking and non-striking
workers, albeit, as in
the instant case, for the duration of the strike only. In such
circumstances there, cannot, in my opinion,
be talk of any
victimization of striking workers. Moreover, it seems to me
inappropriate to refer to respondent’s payment
of bonuses to
certain of its non-striking employees as ‘victimization’,
even in the broadest sense of the word, when
it is clear that the
respondent’s object in making such payment was not to penalise
the applicant’s striking members,
but rather to preserve its
business operations…”
[37]
I further
fail to understand why the approach of the appellate division in
SACCAWU
v OK Bazaars (1929) Ltd
[16]
is wrong in any manner. The Court in there held that because strikes
are disruptive, measures to discourage them are to be encouraged
and
were legally permissible. Among the measures are the offerings of
financial inducement to non-strikers. It was further held
that threat
of withholding a bonus from strikers or actual withholding thereof
does not affect workers’ freedom to strike.
Grosskopf JA,
writing for the majority concluded thus:
“
It
would in my view
be
unreasonable to deprive workers who did not strike of a bonus merely
because some others, perhaps even very few, engaged in a
strike with
which the non-striking workers might have no sympathy
.
[17]
”
[38]
I agree with this observation. My reading of the current LRA does not
suggest that the
legislature fundamentally altered this position that
reigned under the old Act. In my view, all section 5 does is to
protect employees
from victimisation and not to prevent measures to
sustain a business during the currency of a strike action.
[39]
An
effective strike would remain effective even if other employees
exercise the right not to participate
[18]
.
It becomes illogical to even suggest, as it appears to be the case
here, that policies of an employer that rewards exceptional
performances are to be put on hold simply because other employees are
exercising their fundamental right to strike. What then could
be the
policy consideration for the non-operation of the employer’s
employment policies during the currency of a strike action?
In my
view, there is none. To say so, implies that during the currency of a
protected strike action, the business of an employer
must stop. I do
not subscribe to the view expressed by the learned Acting Justice
when he says:
“
21.5
…Indeed, in my view, in the context of a legal strike, payment
of any reward, incentive, or bonus
should be strictly prohibited.
Such payment is unnecessarily provocative and fuels an adversarial
approach to collective bargaining.”
[40]
It is not clear to me whether the learned Acting Justice suggests
that no incentive and/or
bonus should be earned, in terms of whatever
policy, during the currency of a protected strike or that it should
not be paid but
could be earned. In my mind I imagine a situation
where employees, for a particular period earn a bonus, and it so
happens that
the payment date for such a bonus falls on a date when
there is a legal strike, then such payments cannot be made until the
strike
ends. That seems to be untenable because it may potentially
give rise to a dispute of unfair labour practices, something the LRA
seeks to avoid. Perhaps a better understanding of the view is that
during the currency of a protected strike action, policies relating
to incentives, rewards and bonuses should be put on hold. Better
still, I imagine a situation where an employee does not exercise
a
right to strike, and he or she works during the strike period and in
the process earn certain incentives and or bonuses as per
the
policies of the employer, the employer, on this view, would have a
good reason to withhold payment. To my mind such would not
be in
keeping with the LRA.
[41]
Therefore, in my view, it is unnecessary to elevate the right to
strike to such levels.
Section 5 is not only about a right to strike;
it is there for the protection of a number of rights conferred by the
LRA to employees
including persons seeking employment. Section 5 must
then be interpreted purposively, taking into account the mischief it
seeks
to avoid. It does not mean that because a right to strike is
constitutionally guaranteed, once it is exercised certain rights like
the right to continue in business should be adversely affected. Every
right in the Constitution has limitations. Similarly, I part
ways
with the reasoning in
Namakwa Sands
, when my brother found
that the practice of paying redeployment allowance contravened the
provisions of section 5. For all the
above reasons, I respectfully
decide not to follow these two judgments on the issue of the
contravention of section 5. To my mind,
to that extent only, the
judgments were wrong and not binding on me.
The
alleged unfair discrimination in contravention of section 6 of the
EEA
[42]
In the pleadings, the applicant’s case was foreshadowed in the
following manner:
“
The members were treated differently
because they exercised their rights to participate in industrial
action. The differential treatment
is not fair and is on an arbitrary
ground that is not permitted in terms of the LRA and/or Equity Act.
”
[43]
Section 6 of the EEA prohibits unfair discrimination. I have already
found that the discrimination
in section 5 of the LRA is not one
contemplated in this section. That being so, I must conclude that
section 6 has not been contravened.
However, on the assumption that I
am wrong in so concluding, the discrimination alleged by the
applicant is not on the listed grounds
but on arbitrary grounds.
Section 11(2) of the EEA provides that the applicant such as the one
before me must prove on the balance
of probabilities that the conduct
complained of is not rational, amounts to discrimination and the
discrimination is unfair.
[44]
The conduct
complained of is the non-payment of a bonus to striking employees.
For the purpose of this part of the case, for sake
of argument, I
depart from the premise that the bonus paid to non-strikers was
indeed the annual performance bonus as alleged by
the applicant. The
immediate question I must turn to is whether by paying the annual
performance bonus to the non-striking employees
as such is
discriminatory or not? The discrimination prohibited by the EEA is
one that is unfair, one that impairs human dignity.
When an employee
is not paid any form of a bonus his or her dignity is not being
impaired. The reason fathomed by the applicant
for such non-payment
is that it is because they participated in a strike action.
Participation in a strike action is not a listed
ground, nor could it
be analogous to any of the listed grounds. In any event, evidence
shows that the basis for differentiation
was having contributed to
the achievements and not the participation in a strike action
per
se
. An
arbitrary ground is a ground that is founded on, or subject to,
personal whims, prejudices and/or caprice. However for
such a ground
to found a claim under the rubric of unfair discrimination it must be
pejorative and be closely connected to one
of the listed grounds
[19]
.
[45]
The evidence of the applicant does not even begin to get off the
starting blocks in this
part of its case. Makhura’s evidence
does not even begin to prove on the balance of probabilities that the
conduct of the
non-payment of the annual performance bonus, as they
allege that that was what the respondent paid and not exceptional
performance
bonus, is not rational. On his own version, in order to
pay the bonuses, Head Office must approve. Employees did not have a
right
to be paid such a bonus. That being his evidence, can this
Court objectively conclude that the conduct was irrational? In my
view
not. It becomes even worse for the applicant if I take into the
equation the evidence of Mr Kemp. If I do, as I am supposed to,
on
the balance of probabilities payment made to the employees who
worked, was for the achievements and the exceptional performance.
The
applicant’s members did not contribute to the achievement nor
did they perform exceptionally. Differentiating them on
those basis
does not amount to an unfair discrimination, nor could it be said,
that the differentiation is not endowed with reason
or is illogical.
[46]
Therefore, in my view, the applicant failed to discharge its onus in
terms of section 11(2)
of the EEA and is bound to fail.
[47]
In the results, I make the following order:
Order
1.
The applicant’s claim is dismissed in its
entirety;
2.
There is no order as to costs.
_______________________
GN Moshoana
Judge
of the Labour Court of South Africa
Appearances:
For
the Applicants
: Advocate H. Molotsi.
Instructed
by
: MS Molebaloa Inc, Pretoria.
For
the Respondent
: Advocate A. Redding (SC)
Instructed
by
: Mervyn Taback Inc, Parktown.
[1]
55 of 1998.
[2]
66 of 1995, as amended.
[3]
The applicant’s contention being that this was the annual
performance bonus disguised as exceptional performance reward.
[4]
108 of 1996.
[5]
[2008] 29 ILJ 698 (LC).
[6]
Page 718H-J of the judgment.
[7]
See: Shorter Oxford English Dictionary.
[8]
[2000] 21 ILJ 1100 (LC)
[9]
[2013] 34 ILJ 335 (LAC)
[10]
1974 2 All ER 97.
[11]
Case D268/2011 delivered on 08 May 2012
[12]
This Whitcher AJ referred to as a
prima
facie
case that would put the respondent to a defence. She said at
paragraph 9 of the judgment that in this regard, they were required
to establish only a credible possibility that the non-payment of
their bonuses was based on the fact that they had participated
in
the strike in question.
[13]
In NUM and another v Eskom Holdings Soc Ltd [2012] 33 ILJ 669 (LC),
I had an opportunity to state that parties can bargain about
anything and with anybody. The current Act adopts a voluntarism
approach. See also the authorities cited therein. Paragraphs
23-25 of the judgment page 678.
[14]
At page 722 para 42 G-I
[15]
[1991] 12 ILJ 599 (IC).
[16]
[1995] 7 BLLR 1 (A).
[17]
Page 9A-C of the SACCAWU judgment.
[18]
Generally, not all employees participate in a strike action. It
would be fundamentally wrong, in my view, to attempt to give
impetus
to strike actions by gaging employers from paying bonuses due, under
the guise that such would stifle collective bargaining
and thus in
contravention of section 5.
[19]
See: Mothoa v SAPS
[2007] 9 BLLR 879
(LC) and the authorities cited
therein.