Chemical, Energy, Paper, Printing, Wood & Allied Workers Union and Others v Polyoak Packaging (Pty) Ltd (JS172/2014) [2019] ZALCJHB 105 (24 April 2019)

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[2019] ZALCJHB 105
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Chemical, Energy, Paper, Printing, Wood & Allied Workers Union and Others v Polyoak Packaging (Pty) Ltd (JS172/2014) [2019] ZALCJHB 105 (24 April 2019)

IN
THE LABOUR COURT OF SOUTH AFRICA, JOHANNESBURG
Not
Reportable
Case
no: JS 172/2014
In
the matter between:
CHEMICAL,
ENERGY, PAPER, PRINTING,
WOOD
& ALLIED WORKERS’
UNION                            Applicant
BALISO
W &
OTHERS                                                     Second–further

Applicants
and
POLYOAK
PACKAGING (PTY) LTD                                  Respondent
Delivered:
24 April 2019
JUDGMENT
TLHOTLHALEMAJE,
J
Introduction:
[1]
The first
applicant (CEPPWAWU), seeks an order declaring the dismissal of its
members (The individual applicants
[1]
)
by the respondent to be automatically unfair, alternatively
substantively and procedurally unfair. It further seeks an order
directing the respondent to retrospectively reinstate the individual
applicants in its employ, or in the alternative, to make an
order of
equitable compensation.
[2]
The respondent not only opposed the applicants’ claim, but also
filed a counterclaim in which it seeks payment of R654 317.89 or
just and equitable compensation for its proven losses attributable
to
the unprotected strike embarked upon by the individual applicants.
The
common cause facts:
[3]
The
respondent is a manufacturer of mainly plastic packaging (for the ice
cream and beverage industry). Its business falls within
the
registered scope of the Metal and Engineering Industries Bargaining
Council (The MEIBC). In October 2012, the respondent
took
transfer of the business of Rheem Packaging Solutions (Rheem) as a
going concern in accordance with the provisions of section
197 of the
Labour Relations Act
[2]
.
[4]
A majority of the individual applicants who were employed by Rheem in
Jet Park were transferred to the respondent’s Germiston Plant
in Roodekop in January 2013 when Rheem closed down. Rheem
had
over the years whilst still in business, obtained an exemption from
paying the MEIBC wage rates. Thus, when its former employees
were
transferred to the respondent, they continued to be paid in terms of
the exemptions obtained by Rheem.
[5]
Following the conclusion of the MEIBC Main Agreement for 2013/2014 in
June 2013, which was to take effect from 1 July 2013, two of CEPPWAWU
shop stewards at the respondent approached the MEIBC and lodged
a
complaint related to alleged underpayment of the prescribed wage
rates. The shop stewards returned from the MEIBC with a circular

containing the wage rates for the 2013/2014 financial year, and
placed it on the respondent’s notice board in the ‘Green

area’ next to a document containing the respondent’s own
wage rates. The respondent subsequently removed the circular.
[6]
It was common cause that an Agent from MEIBC made attempts to
investigate
the matter, but was however not granted access to the
respondent’s premises. The MEIBC subsequently abandoned any
investigations
into the complaints after the dismissal of the
individual applicants.
[7]
On 2 September 2013, the respondent issued a notice
relating
to
inter alia
, weekend work and relationship between
its operations in Dairypack Tubs and Contan. The relevant item for
the purposes of this
dispute provided that;
‘
2.
Dairypack Tubs and Contan Relationship.
It is important to note
that Dairypack Tubs and Contan have different names and sell
different products, and they are part of the
same business, Polyoak
Packaging.
We would like to
officially welcome the Contan employees to the site and encourage all
employees to work together and assist one
another wherever possible.
We may require current
dairypack Tubs employees to work at Contan and current Contan
employees to work at Dairypack Tubs.
We do this in the best
interests of the business and to ensure we maximise on the skills
available.
Please
cooperate with your Team Leaders and Managers to make this
integration happen’
[8]
The significance of this notice will come to light shortly. The
applicants’
case however was that this notice was not brought
to their attention. On 25 October 2014, the respondent
informed packers
working on the Contan machines who are ex-Rheem
employees that some of them would be required to work on the
following Monday on
Dairypack Tub machines and
vice versa
.
This directive was in line with the notice.
[9]
A complaint about these arrangements and disparities in wages ensued,
with the main shop steward, Mr Molefe having an argument with one of
the respondent’s product managers, Mr Barry Smith. Molefe
was
subsequently suspended on the grounds of allegations of insolence. It
was common cause that Molefe was subsequently dismissed.
His dispute
as referred to the MEIBC was settled between the parties.
[10]
On
26 October 2013, CEPPWAWU referred  a dispute to the
MEIBC under the provisions of section 64(1)(a) of the LRA
[3]
,
alleging unilateral changes to terms and conditions of employment of
its members. The complaint was that the respondent had unilaterally

moved employees to different sections and forced them to work
together on different machines whilst they were paid different rates.
[11]
In essence, the individual applicants’ case is that it was
unacceptable that Contan
employees were required to work on Tub
machines they had never worked on before, whilst they were paid below
the MEIBC rates, and
Tub employees earned above the MEIBC rates, in
circumstances where no exemption had been obtained to pay them rates
below the MEIBC
rates after 1 July 2013.
[12]
On 28 October 2013, the respondent’s HR Executive, Ms
Debbie Sinclair,
sent correspondence to CEPPWAWU and denied that it
had effected any changes to the employees’ terms and conditions
of employment.
The Union was advised that should it pursue any form
of industrial action in relation to the referral, the respondent
would regard
that action as being unprotected. The respondent further
reserved its rights to take any appropriate disciplinary action
against
employees participating in any action, including a dismissal.
The Union’s written response was that it still viewed the
actions
of the respondent as constituting unilateral changes to
employees’ terms and conditions of employment, and that its
members
were exercising their remedies under the LRA.
[13]
Without conciliation having taken place or the issuance of a strike
notice, the employees
embarked on a strike on 29 October 2013
before the morning shift commenced. CEPPWAWU was advised of the
strike. On the
same day at about 09h50, the respondent issued an
ultimatum which was also handed to CEPPWAWU’s  Mr Glen
Tshabalala,
who had attended to the strike. The ultimatum required
the employees to return to work within 25 minutes from the time that
they
were served with it, and that should they not return to work,
disciplinary action would be taken, including a dismissal. A copy
of
the ultimatum was also sent to CEPPWAWU’s offices by email.
[14]
A second ultimatum followed at 11h20, advising the employees to
return to work by 14h00,
failing which they should approach Sinclair
by 14h30 to explain why they should not be dismissed for taking part
in an unprotected
industrial action. The employees however remained
outside of the premises for the remainder of the day.
[15]
In the morning of 30 October 2013 at 06h30, a third
ultimatum was issued to the
employees, who were outside of the
premises, in which they were advised that it was a final notice and
ultimatum for them to return
to their workplaces by 10h00 or face a
dismissal. Copies of the ultimatum were put up at the security gates
and left outside of
the premises where the employees had gathered.
The respondent further sent a copy to CEPPWAWU by email at 08h51. At
10h00, the
employees had still not returned to work, and at 11h00,
the respondent had informed them of the cancellation of their
contracts
of service.
[16]
On 5 November 2013, this Court issued a
Rule Nisi
under case number J2485/14, interdicting the employees from
inter
alia
unlawfully interfering with the respondent’s business
operations and from intimidating or causing harm to staff,
non-striking
employees, contractors or visitors. A final order was
obtained on 12 December 2013.
[17]
CEPPWAWU on 8 November 2013 wrote to the respondent and
advised that the employees
would suspend their strike and return to
work on 11 November 2013. The tender was however not
accepted in the light of
the terminations having been effected on
30 October 2013.  A dispute was subsequently referred
to the MEIBC on 13 November 2013,
and when it could not be
resolved on 2 December 2013, a certificate of outcome was
issued.
The
trial proceedings and the issues for determination:
[18]
Midstream the trial proceedings, the applicants had sought an
amendment to their statement
of case, which application the
respondent had opposed. The amendment was granted in terms of a
judgment delivered on  4 October 2017.
As a result of
the amendment, the applicants therefore contended that by not paying
MEIBC rates from 1 July 2013, the
respondent unilaterally
changed the terms and conditions of employment of the employees
within the meaning of section 64(4) of
the LRA.
[19]
The respondent called upon 8 witnesses,
viz
Messrs Johan
Pieterse, Martin Bloom, Francois Hendrick van Heerden, Shadrack
Stander, and Ms Lynn Savage Reid and Ms Sinclair.
The applicants
relied on the testimony of a single witness, Mr Shadrack Seleke.
[20]
In order not to burden this judgment, I do not intent to give a
detailed summary of the
witnesses’ testimony, and propose to
deal with that evidence within the context of my analysis of various
issues for consideration
before the Court, which are;
a)
Whether the strike embarked upon by the individual applicants
was
protected, and if so, whether their dismissal was automatically
unfair;
b)
If the strike is found to have been unprotected, whether it
was
pre-meditated or in response to unjustified conduct by the
respondent;
c)
Whether the dismissal of the individual applicants were an unfair

selective dismissal;
d)
Whether or not the ultimatums were fair;
e)
Whether the dismissals were for a fair reasons and effected
with a
fair procedure;
f)
Whether the respondent is entitled to compensation in
respect of its
counterclaim.
Was the strike
protected?
[21]
Whether the
strike in this case was protected or not would depend on
inter
alia
,
the nature of the issues or the demands that led to it. Section 23 of
the Constitution of the Republic safeguards employees’
right to
strike without any limitation. The provisions of section 64 of the
LRA
[4]
gives
effect to the right to strike, as long as
certain
conditions and/or procedural requirements set out in that provision
are met. Even though the Constitution safeguards the
right to strike
without limitations, the provisions of section 65 of the LRA
nonetheless imposes certain limitations on that right
and obligations
before the right can be exercised
[5]
.
[22]
The respondent’s contention was that the strike embarked upon
by the individual applicants
was not protected and that the dismissal
could not be automatically unfair for the following reasons;
22.1
The dispute referred to the MEIBC by the applicants concerned an
alleged unilateral change to
work conditions of employment,
unilateral restructuring, and a demand to consult before implementing
the restructuring. Such issues
were matters regulated by the MEIBC
Main Agreement.
22.2
Any strike action over matters regulated by the Main Agreement was
barred and thus unprotected,
and accordingly, there was
non-compliance with the provisions of sections 64(1), making the
strike unprotected under the provisions
of 65 of the LRA.
22.3
The payment of wages at the lesser rate than prescribed in the MEIBC
Main Agreement did not amount
to a unilateral change to terms and
conditions of employment.
[23]
The applicants’ case is that the strike was protected, as the
dispute related to
unilateral change to their terms and conditions of
employment within the meaning of section 64(4) of the LRA.  They
further
contended that;
23.1
Under the provisions of section 64(4) of the LRA
read
with section 64(3)(e) and (5) of the LRA, if an employer refused to
comply with a requirement in terms of section 64(4) to
restore the
status quo
or not to implement a change to terms and conditions of employment
unilaterally, the employees concerned may strike without waiting
for
the outcome of conciliation or giving notice of the commencement of
the strike as contemplated in section 64(1) of the LRA.
23.2
The respondent's reliance on section 65(1) of the
LRA was misplaced as the issue in dispute did not only refer to the
reorganisation
that may affect the work of the employees working on
the machines, or the underpayment of wages, but that it also involved
the
unilateral implementation by the respondent on 1 July 2013
of a change to the conditions of employment of employees formally

employed by Rheem. This it did by not paying them the MEIBC rates, to
which they were contractually entitled until an exemption
was
obtained. The respondent however had only obtained an exemption on
7 April 2014.
23.3
The fact that the Main Agreement dealt with
reorganisation and under-payment of wages, did not imply that a
dispute about the unilateral
change to terms and conditions of
employment was a matter contained in the Main Agreement as
contemplated in clause 37 of that
Agreement.
23.4
In
line with authorities referred to
[6]
,
it
was submitted that given the circumstances and the facts of this
case, section 65(1) did not prohibit strike action pursuant
to
section 64(4) of the LRA, and that the strike being protected, the
dismissals were automatically unfair as contemplated in section

187(1)(a) of the LRA.
The requirement to
work at different machines. Did it constitute a unilateral change to
terms and conditions of employment?
[24]
Central to a determination of this issue is whether the demands
leading to the referral
of the dispute related to matters covered
under the provisions of the Main Agreement or not. In the
respondent’s view, the
dispute concerned the interpretation,
application and enforcement of the agreement rather than a unilateral
change to terms and
conditions, necessitating that the dispute be
referred for arbitration under the provisions of section 24 of the
LRA.
[25]
The dispute referred to the MEIBC by CEPPWAWU was summarised as;
‘
Employer
unilaterally moves employees to different sections and forcing
employees with different rates to work together –
restructure’
[26]
The outcome sought was the
restoration of the status quo and for
the respondent to consult
. The respondent had always maintained
that following the section 197 transfer after Rheem was taken over,
and also based on its
notice of 2 September 2013, all that it did was
to assign employees to positions in keeping with the manning
requirements of its
operations.
[27]
For the purposes of a protected strike in respect of disputes
referred under the provisions
of section 64(4) of the LRA, it is
accepted in this case based on the contents of the referral to the
MEIBC that the applicants
had required the respondent to restore the
status quo. I accept further that the applicants did specifically
require the respondent
to restore the status quo for the period of
the conciliation proceedings, but however that they did not issue a
strike notice.
It was nonetheless correctly pointed out on their
behalf that under the provisions of section 64(3)(e) of the LRA, it
was permissible
for the employees to strike without observing the
statutory conciliation and notice requirements.
[28]
A
determination of whether a unilateral change to terms and conditions
of employment took place involves an assessment of whether
what is
alleged to have been unilaterally amended is indeed a term and
condition of employment or a mere work practice. It further
involves
a consideration of whether the terms and conditions referred to
pertained to any contractual entitlement, and whether
or not the
alleged unilateral changes (to the extent proven), had any effect on
the actual contractual terms and conditions or
the essential nature
of the employees’ duties
[7]
.
This is so in that the distinction has its roots in the principle
that employees do not have a vested right to preserve their

conditions of employment completely unchanged from the moment they
are employed
[8]
.
[29]
In further
making that distinction, this Court in
Johannesburg
Metropolitan Bus Services (Pty) Ltd v SAMWU and Others
[9]
(In
the course of determining whether employer’s proposed
introduction of a new shift schedule constituted a unilateral
change),
held that:
‘…
The
question remains whether it [the new shift schedule] amounts to a
unilateral change to terms and conditions of employment. If
the shift
schedules comprise terms of employment, they could only be changed by
agreement; and if it were
to be changed
unilaterally, the unions could embark on a protected strike.
In
SA Police Union v
National Commissioner of the SA Police Services
[2006] 1 BLLR 42
(LC) this court dealt with a very similar question.  In that
case, SAPS implemented an 8-hour shift system in the place of
the
prevailing 12-hour system.  The trade union objected on the
basis that it was a unilateral change to terms and conditions
of
employment.  Murphy AJ commented as follows after having regard
to the relevant collective agreement and contracts of employment:
‘
In
short, it was not a term of the contract of employment that employees
working 12-hour shifts would always be entitled to do so.

Without express, implied or tacit contractual rights to such effect,
the employees do not have vested right to preserve their working

times unchanged for all times.  The alternation of shifts does
not result in the employees being required to perform a different
job
thereby entitling them to claim a material breach or alteration in
the supposition of the contract.  The change in timing
does not
amount to a change in the nature of the job. The shift system was
accordingly merely a work practice not a term of employment.
[30]
The Labour
Appeal Court also had an opportunity to consider such a distinction
in
A
Mauchle (Pty) Ltd t/a Precision Tools v NUMSA
[10]
,
where the issue was whether an instruction to employees to operate
two machines instead of one constituted a unilateral change
to terms
and conditions of employment. In that case, the LAC held as follows;
“
The
evidence of what constituted the terms of employment of the
applicants was vague. Most of the applicants did not sign letters
of
appointment. They were employed as operators in terms of oral
contracts and were trained on machines upon the commencement of
their
employment. The more recently employed applicants signed letters of
appointment in which it was specified that they were
appointed as
operators and required to perform any task that might reasonably be
expected of them.
On those facts it was not
a term of the contracts of employment that the applicants would
operate only one machine. A description
of the work to be performed
as that of “operator” should not, in my view, “. . .
be construed inflexibly
provided that the fundamental nature of the
work to be performed is not altered”:
Wallis
,
Labour and Employment Law, par 45 p7-19.
I agree with the view
expressed by the learned author at p7-23 fn 9 that employees do not
have a vested right to preserve their
working obligations completely
unchanged as from the moment when they first begin work. It is only
if changes are so dramatic as
to amount to a requirement that the
employee undertakes an entirely different job that there is a right
to refuse to do the job
in the required manner. In
Creswell v
Board of Inland Revenue
(1984) 2 All ER 713
(ChD) at 720b-d,
Walton J said:
“
I now turn
straight away to a consideration of the main point on which counsel
for the plaintiffs relied. He put his case in this
way, that although
it is undoubtedly correct that an employer may, within limits, change
the manner in which his employees perform
a work which they were
employed to do, there may be such a change in the method of
performing the task which the employee was recruited
to perform
proposed by the employer as to amount to a change in the nature of
the job. This would mean that the employee was being
asked to perform
work under a wholly different contract and this cannot be done
without his consent . . .”
It is a very fine line
from counsel’s submissions to the submission that employees
have a vested right to preserve their working
obligations completely
unchanged as from the moment when they first begin work. This cannot
surely, by any stretch of the imagination,
be correct…”
[31]
Following the transfer in terms of section 197 of the LRA, it should
be accepted on the
evidence of Sinclair, that  the ex-employees
of Rheem were transferred to the respondent on the same terms and
conditions
as applicable to their employ at Rheem. The evidence of Mr
Barend Meintjies, the respondent’s Production Manager,
pertained
mainly to the respondents operations. He took the Court
through video evidence in regards to the layout of the respondent’s

facilities and how the production process unfolded in its Tub3 and
Contan facilities/divisions. Tub3 is mainly part of the plant
(tub
plant) where the respondent manufactures certain products (IML –
In-mould-labelling’). Contan (bucket plant) on
the other hand
referred to where  manufacturing of tubs and pails of different
sizes took place.
[32]
Following the transfer, employees from Rheem were absorbed into the
Contan division. Mentjies
had further testified that once an employee
was employed as a packer in Contan, Tubs or any other division within
the respondent,
the functions were essentially the same within the
Group, even if this required having to work on different machines.
His contention
was that all that the respondent had done was simply
to have ex-Rheem employees work at different machines with a view of
imparting
diverse skills, and to enable them to adjust to the new
environment and working system. A further consideration with the
realignments
was to integrate all the employees in a manner that
suited the respondent’s operational requirements.
[33]
Central to the complaints of the individual applicants employed
as Contan packers
was that they were asked to work at different
machines (Tubs), in circumstances where they were paid different
rates to those enjoyed
by employees in Tubs. However, it is my view
that it cannot be sufficient as argued on behalf of the individual
applicants, that
they had found it unacceptable that Contan workers
were required to work on Tub machines they had never worked on
before, whilst
they were paid below the MEIBC rates. At the very
least, it was required of the applicants to demonstrate how these
changes, which
were mere work practices, impacted on their contracts
of employment or changed the essential nature of their jobs. Their
contracts
of employment having been transferred, I did not understand
their case to be that the respondent could not readjust its
operations
to suit its operational needs, which included moving
employees around different machines whenever so required.
[34]
Having been
employed as packers, the Court was not referred to any provision in
their contracts of employment, that demonstrated
that they would only
work on Contan machines. In fact, their original contracts of
employment from Rheem at clause 3 described
their job description as
being general workers and responsible for all other tasks necessary
for the conduct of the employer’s
business as the employer may
direct from time to time. Clause 4 of the same contract provided that
‘the employee agreed to
obey all lawful and reasonable
instructions and to perform all such functions as he is directed to
perform which falls within his
vocational ability without loss of
remuneration for his normal work, regardless of whether or not such
work fell within the scope
of the post to which the employee is
appointed’
[11]
.
[35]
Furthermore, the applicants had not demonstrated that they had a
vested right to preserve
their working obligations completely
unchanged as from the moment when they were transferred, nor had they
demonstrated that the
requirements to work on other machines brought
about a dramatic change that constituted undertaking a completely
different job
or role.
[36]
It
is trite that this court has a duty to ascertain the true or real
issue in dispute. In doing so, the court is obliged to look
at the
substance of a dispute, and not the form in which it is
presented
[12]
.
Having
heard the evidence of Meintjies in regards to the respondent’s
operations and what it was that was required of the
employees in
regards to those operations, the invariable conclusion to be reached
is that in the end, the applicants’ complaints,
irrespective of
the nature of their referral, mainly related to the fact that they
were not paid the MEIBC minimum rates as prescribed
in the
Main
Collective Agreement, to which they were contractually entitled to
until an exemption was obtained.
[37]
The dispute
in regards to payment of lesser
rates was in effect a different component to their claim of a
unilateral change to terms and conditions
of employment related to
alleged restructuring.
Any contention however on
behalf of the applicants that the requirement that they should work
at different machines constituted
a unilateral change to terms and
conditions of their employment is rejected as being without merit.
This was a classic case of
changes in the employer’s work
practices to suit its operational needs, which had no impact
whatsoever on the substance of
the employees’ contracts of
service.
[38]
To this end, the requirement that the employees
should work at different machines did not qualify as a dispute within
the meaning
of unilateral changes to terms and conditions of
employment, which entitled them to embark on a strike under the
provisions of
section 64(4) of the LRA.
The non-payment of the
MEIBC minimum wage rates:
[39]
The primary issue therefore in considering whether the strike was
protected is whether
the failure to pay the MEIBC rates as from
1 July 2013 constituted a unilateral change to the terms
and conditions of
the individual applicants. It is trite that by
virtue of operation of the provisions of section 23 (3) of the LRA,
the provisions
of the Main Agreement as applicable invariably altered
the employees’ terms and conditions of employment.
[40]
It has been
stated that the provisions of section 64(4) of the LRA are
concerned with the preservation of  the status
quo, pending the
outcome  the conciliation process prescribed by the Act. To
invoke the remedy established under those provisions,
it was
necessary to establish both an existing term and condition of
employment, and the fact of a variation of that term and condition
by
the employer, in circumstances where the employee has not consented
to the variation
[13]
.
[41]
Seleke had
confirmed that the ex-Rheem employees were still paid the rates in
terms of the exemption obtained by Rheem right into
1 July 2013
after the conclusion of the new main Agreement. The respondent’s
contentions was that it had not paid
the minimum wage rates after
1 July 2013 as it had applied for exemption in
August 2013
[14]
. The
application (to pay 65% - 100% of the scheduled rates to all
scheduled employees) was only granted on 7 April 2014.
[42]
The fact that Rheem had obtained an exemption over the years was not
in dispute. As at
the time of the transfer in October 2012,
Rheem had obtained that exemption, which ordinarily would have
expired on 1 July 2013
as confirmed by the respondent’s
witness, Johan Pieterse,  who was the Chief Executive of the
Plastics Converters Association
of South Africa, an employers’
association to which the respondent was a member. This effectively
meant that  the historical
differences referred to by Sinclair
and Pieterse between the wage rates of employees employed at Tubs3
and those in Contan even
though the grade of work was the same, would
have been resolved by the implementation of the new Main Agreement,
at least to some
degree.
[43]
The respondent’s witness, Francois Hendrick van Heerden of
Solidarity and also the
Chairperson of the Exemption Committee,
contended that non-payment of the applicable MEIBC wage rate was
permissible within the
MEIBC rules and policies, pending the decision
on the application for exemption. On van Heerden’s evidence, it
takes the
Committee 45 days to process an application for exemption,
which application the Unions have a right to object to. He further
justified
the non-payment of the applicable rate pending the decision
on the application, as the practice was meant to avoid having to
recoup
the money back from the employees once an application was
successful. This practice, was  further in view of the fact that

exemptions if obtained, are valid for a period of one year,
(normally from 1 July), and further that under the provisions
of
clause 23(2)(f) of the Main Agreement, applications for exemptions
involving monetary issues could not be granted retrospectively.
[44]
Van Heerden had further conceded under cross-examination that parties
to the Main Agreement
are bound by its provisions in respect of the
wage rates applicable from 1 July. He however contended that if an
employer wanted
to seek an exemption, it did not have to implement
the MEIBC wage rate for a period of 30 days whilst it applied for
such an exemption.
If the employer did not apply for exemption, it
was then compelled to pay the MEIBC rates.
[45]
In
Staff
Association for the Motor and Related Industries (SAMRI) v Toyota of
SA Motors (Pty) Ltd
[15]
,
this Court reiterated that any variation to an employee's salary,
irrespective of whether it is increased or decreased, amounts
to a
change in the basic terms and conditions of employment and cannot be
effected unilaterally. In
Vector
Logistics
,
it was held that;
“
The common law
position with regard to change in terms and conditions of employment
is that an employer may not unilaterally change
the terms and
conditions of an employee. Such unilateral change is unlawful and the
affected employee has an election to either
resile from the contract
or to sue for damages in terms of the contract. The Act treats
unilateral variations of the terms and
conditions of employment as a
subject for collective bargaining. However, the employees are not
deprived of any remedy other than
strike action where the employer
has unilaterally changed the employment contract.”
[16]
[46]
Under clause 37 of the MEIBC Main Agreement, the Bargaining Council
is the sole forum for
negotiating matters contained in the Main
Agreement. It is further provided in that clause that during the
currency of the Agreement,
no matter contained in the agreement may
be an issue in dispute for the purpose of a strike or lock-out or any
conduct in contemplation
of a strike or lock-out.
[47]
To the
extent that wages and rates in the MEIBC industry are matters
negotiated and agreed at that level, and further to the extent
that
an exemption from paying minimum wages or rates agreed to in the Main
Agreement is a matter regulated under clause 23 of the
Main
Agreement
[17]
, it is my view
that there is merit in the contention made on behalf of the
respondent that the provisions of section 65 (1) and
65 (3) of the
LRA should find application.
[48]
It is accepted that a dispute about a unilateral change to terms and
conditions of employment
may be one in respect of which a strike may
be competent. However, if those terms and conditions ordinarily
falls within
the ambit of a collective agreement, and where
that agreement makes provision for the resolution of such disputes,
any strike action
embarked upon by employees in that regard would
fall foul of the provisions of section 65 (1) (b) of the LRA.
[49]
In this case, and to the extent that the provisions of section 64(4)
of the LRA were relied
upon, it is not clear what
status quo
the employees could possibly have referred to in the light of the
fact that what they sought was the implementation of new rates
as
prescribed by the MEIBC Main Agreement effective from 1 July 2013.
Any
status quo
sought to be restored could only have been in
respect of the reduced rates, which was the source of discontent. It
follows that
any demand for the restoration of the status quo in
circumstances where the employees’ demands related to the
implementation
of new rates is a clear contradiction for the purposes
of section 64(4) of the LRA.
[50]
There can
be no doubt therefore that since the main issue pertained to the
payment of the applicable MEIBC rates, in terms of the
provisions of
clause 36 (1) of the MEIBC Main Agreement, disputes surrounding
inter
alia
the enforcement of the provisions of agreement were to be dealt with
under the provisions of clause 36(2) of the agreement, which
set out
the dispute resolution procedure to be followed. Under the provisions
of clause 4.2.2 of the agreement
[18]
,
the MEIBC is tasked with the monitoring, enforcement and compliance
with the provisions of the main agreement.
[51]
What the
above effectively means is that to the extent that a complaint was
lodged with the MEIBC in July 2013, which
related to
underpayment of the prescribed wage rates for the 2013/2014, that was
the proper route to follow as correctly pointed
out by Sinclair. An
agent of the MEIBC would then have investigated the matter, and
failing any resolution, the agent would then
have issued a compliance
order. Thereafter the matter would then have been referred for
arbitration by the MEIBC, for a determination
to be made in that
regard
[19]
.
[52]
In the light of the above, it follows that the question whether the
practice as described
by van Heerden in regards to the issue of
exemptions was contrary to the express provisions of the Main
Agreement or not becomes
moot. It is trite that a collective
agreement being a product of collective bargaining, cannot by all
accounts be subordinate to
the MEIBC policies and practices. In any
event, those were issues to be determined within the context of a
dispute referred under
the provisions of clause 36(2) of the Main
Agreement or at most, under the provisions of section 24 of the LRA.
[53]
Furthermore,
and in the light of the above conclusions, nothing turned on the
evidence of Mr Gordon Angus (The Executive Director
of The south
African Engineers and Founders Association, an employer’s
association in the metal industry) in regards to the
interpretation
of clause 23(2)(f) of the Main Agreement. That clause specifically
provides that applications for exemptions involving
monetary issues
could not be granted retrospectively, which provisions are repeated
in the National Exemptions Policy of the MEIBC.
This Court in the
light of the provisions of section 24 of the LRA does not concern
itself with matters of interpretation or application
of collective
agreements
[20]
.
[54]
Further to the extent that it was put to Sinclair under
cross-examination that the respondent
was in breach of the employees’
contracts of service as at 1 July 2013 by paying lower wage
rates than prescribed
by the MEIBC in the absence of an exemption,
the claim would ordinarily be equated to seeking compliance with the
provisions of
the Main Agreement, which is a matter that could be
pursued through the enforcement and compliance mechanisms of the
MEIBC, or
through other legal means other than a strike.
[55]
In conclusion on this issue, it follows from the above that to the
extent that the respondent
in this case had not paid the employees
the prescribed minimum wage rate prior to obtaining the exemption,
and further having done
so without the express consent of the
employees or any discussions with their union, that conduct fell
within the realm of a unilateral
change to the terms and conditions
of employment, which was however not strikable in the light of the
dispute resolution procedures
contained in the Main Agreement, and
the limitations imposed by the provisions of section 65(1)(a) and (b)
of the LRA.
[56]
Accordingly, the strike embarked upon by the employees in pursuit of
the demand that the
respondent should pay the MEIBC wage rates is
found to have been unprotected.
The
substantive fairness of the dismissal:
[57]
In the
light of the conclusions reached that the strike was unprotected,
section 68(5) of the LRA
[21]
provides that participation in such a strike, which is misconduct,
may constitute a valid reason for a dismissal. It is trite however,

that an unprotected strike did not automatically justify a dismissal
as the only appropriate sanction. This is so in that a dismissal
is
manifestly the sanction of the last resort. To that end,  there
is a need to examine the arguments of both parties as to
the matter
and conduct of the strike, to test whether a dismissal was
proportional to the misconduct
[22]
.
[58]
The substantive fairness of a dismissal for participation in an
unprotected strike must
be considered within the guidelines set out
in Item 6 of the Code of Good Practice: Dismissal in Schedule 8. Item
6(1) of the Code
provides that the substantive fairness of the
dismissal must be measured against:
(i)  the seriousness
of the contravention of the LRA;
(ii)  the attempts
made to comply with the LRA; and
(iii) whether or not
the strike was in response to unjustified conduct by the employer.
[59]
The seriousness of the contravention of the provisions of the LRA
needs to be assessed
against the common cause facts, as already
outlined somewhere in this judgment. To reiterate however,  CEPPWAWU
shop stewards
had initially lodged a complaint with the MEIBC related
to non-payment of the minimum wage rate. I appreciate that this
complaint
has got nothing to do with compliance with the provisions
of section 64(1) of the LRA. It is however important to the extent
that
it demonstrates that an attempt was made to resolve the issues
in dispute.
[60]
A second important consideration however is that it was common cause
that a dispute in
terms of section 64(4) of the LRA was indeed
referred to the MEIBC,
albeit
the employees or the Union in
particular, had not issued a strike notice nor waited for attempts at
conciliation.
[61]
On the whole, even though the strike was unprotected, and further
since the applicants
had not waited for conciliation or issued a
strike notice, it would be incorrect to conclude that the applicants
had not made any
attempt to comply with the provisions of the LRA.
Ultimately, those attempts in my view makes the contraventions of the
LRA less
serious.
[62]
A further consideration in my view in determining the seriousness of
the contravention
is that CEPPWAWU’s stance on the matter
throughout was that the strike was protected. I have no reason to
doubt that its
belief was
bona fide, albeit
erroneous in the
light of the background to dispute and the circumstances of the case.
This was evident from the referral of the
dispute and stance upon the
response of the respondent to the referral, despite being advised of
the consequences, and its stance
during engagement with the
respondent upon the commencement of the strike. To this end, even
though the strike was unprotected,
there is no basis for any
conclusion to be reached that applicants’ contravention of the
provisions of the LRA was serious,
or that they had not made any
attempts to comply with the provisions of the LRA.
[63]
The next issue for determination is whether the strike was
premeditated or provoked.  The
respondent denied that the strike
was in response to unjustified conduct on its part, as it did not
effect any unilateral change
to the employees’ terms and
conditions of employment.
[64]
In circumstances where a dispute was referred to the MEIBC,
irrespective of whether the
referral was ill-advised or not, it
should be concluded that a strike consequent upon that referral was
premediated.
[65]
It was submitted on behalf of the applicants that the strike was in
response to unjustified
conduct on the part of the respondent as it
never properly dealt with the concerns raised by the employees in
relation to underpayment,
and by further failing to address issues
surrounding whether an exemption had been obtained for the purposes
of paying less than
the MEIBC rates. Furthermore, it was contended
that the suspension of Molefe when he made attempts to address the
issue with the
employees aggravated the already heated situation.
[66]
It has been
stated that
as
a concept, provocation requires at least some form of wrongful
conduct or
mala
fides
or
material breach of employment conditions or employment contract by
the employer or its representatives (management), and that
on the
whole, some ‘turpitude’ on the part of the employer is
necessary
[23]
.
Whether
the strike was provoked or not has to be determined within the
context and history of the dispute itself,
as
the Court must examine the conduct of both the employer and
employees, in relation to the matter and conduct of the strike.
[67]
The issue of underpayment and the respondent’s application for
exemption are intrinsically
linked. Significant with the shop
stewards’ complaint is that it was lodged on 11 July 2013,
immediately after the new Main
Agreement took effect, and before the
respondent had submitted its application for exemption. Surely the
employees’ grievances
were legitimate in the absence of an
application for exemption at the time.
[68]
That
complaint was brought to the attention of the respondent, and on
26 August 2013, Pieterse had responded by stating
that an
exemption application  was filed. The MEIBC’s attempts on
14 August 2013 to investigate the matter
could not take
place because the respondent’s HR Manager, who was based in
Cape Town, was unavailable. The Agent could thus
not gain access to
the premises.
[24]
. In the
meanwhile, Pieterse on 26 August 2013 advised the MEIBC in
response to the complaint that an application for
exemption was
before the Regional Council and would be dealt with at some ‘later
stage’.
[69]
The MEIBC’s
Sheldon Rondganger on 27 September 2013 sent an email to
Pieterse to advise on the way forward. In another
email to Pieterse,
Rondganger expressed his displeasure at the manner with which
Pieterse sought to attend to the complaint and
further advised him to
comply with clause 28 of the Main Agreement
[25]
.
In a response to MEIBC by Pieterse on 2 October 2013, he
again confirmed that an application for exemption was submitted,
and
invited the Council for further discussions on the matter.
[70]
On 24 October 2013 employees had held a meeting in what is referred
to as ‘Green
Area”. They had without notice, called
Meintjies to that meeting, who had in turn addressed the employees in
regards to the
complaint related to underpayments. Mentjies had
informed the employees that the respondent had submitted an
application for exemption.
He could not however provide any details
or  produce any proof that indeed such an application was made.
All that Mentjies
did was to undertake  to enquire with the HR
department about the matter.
[71]
Sinclair under cross-examination could not shed light on the issue of
exemption for the
Roodekop operations. In fact her evidence pointed
to lapses and non-compliance with the exemption provisions as
contained in the
Main Agreement. I appreciate that the issues
surrounding the validity of the application for exemption are not
before this Court.
It would however be remiss of the Court to ignore
the fact that according to Sinclair, an application for exemption was
made in
August 2013 by the respondent from its operations in
Aeroton in Cape Town and on behalf of all the respondent’s
regions.
Clause 23(2)(a)  of the Main Agreement however
provides that ‘
all applications must be in writing and fully
motivated and sent to the Regional Office of the Council for the area
in which the
applicant is located
’. Sinclair under
cross-examination confirmed that the MEIBC heard applications per
region.
[72]
When it was put to Sinclair that the employees and the shop stewards
at Roodekop were not
made aware of the application, she conceded that
she did not speak to those employees or their union representatives
about it,
even though she assumed Rogers of the respondent might have
done so. She conceded the application form, which was made though the

Aeroton operations, did not bear the signature of the Union
representatives.
[73]
Clearly in the light of the above, the application for exemption was
not in compliance
with the provisions of clause 23, as first, it was
not made specifically for the Roodekop operations contrary to the
provisions
of clause 23 (2 (a) of the Main Agreement, and second, the
application, to the extent that it was not discussed with the Union
or employees, or signed by any union, was not in compliance with
clause 23(2)(c) of the Main Agreement, as the views of the Union
were
not sought  when it was filed, nor was the Union consulted.
[74]
An application for exemption from paying prescribed minimum wages has
a huge impact on
the livelihood of employees, and it is not a matter
to be taken lightly. There was a clear responsibility on the part of
the respondent
to fully engage and consult with the Union over the
matter, and to properly appraise the employees on progress in that
regard.
Meintjies' response to the employees’ enquiries on 24
October 2013 was unhelpful.
[75]
It was held
in
South
African Clothing and Textile workers Union and Others v Filtafelt
(Pty) Ltd
[26]
that;
‘
In
National
Union of Mineworkers and Others v Power Construction (Pty) Ltd
the Court dealt with a situation where the
employer relied on a provision in Sectoral Determination 2: Civil
Engineering Sector
SA, which in effect determined that if employees
could not work due to inclement weather, they would not be paid for
the day not
worked.  There was a dispute as whether the employer
was entitled not to pay the employees on this basis, and the
employees
embarked upon unprotected strike action because of this.
Of relevance to the matter now at hand, the Court said:
‘
It
cannot, in my view, be said that the strike was in response to
unjustified conduct by the employer. … the second reason
—
that they wanted management to deal with the grievance regarding the
application of the sectoral determination —
is an issue that
they should have referred to the bargaining council …
’
The point that emerges
from this
dictum
is that the individual applicants,
if they believed that they were either entitled to the increases as
of right, or should
be paid the increases despite the pending
exemption, had alternative avenues open to them.  They could
have pursued enforcement
proceedings of the collective agreement at
the council.  Or they could have engaged in the exemption
application, opposed
it, and then exert pressure through the first
applicant’s direct membership of the council to expedite the
determination
thereof.  None of this was done.  There was
simply no necessity for the strike.’
[76]
I am fully agree with the above. The proviso however is that there
must be certainty and
transparency about the application for
exemption. The union or at least their employees must have been
properly consulted and informed
of the application, even if they did
not agree with it, and the employer had persisted with it.
[77]
In this case, the uncertainty and lack of transparency in regards to
the application for
exemption in especially regards to the Roodekop
operations in my view exacerbated matters, as all that the employees
were told
was that an application had been made, when they were not
afforded any proof at the time or any certainties in that regard.
[78]
The above however cannot be said to be unjustified conduct on the
part of the respondent
for the purposes of Item 6(1)(c) of the Code.
I appreciate as already indicated that the respondent was hardly
transparent about
its application for exemption. The fact however
remains that the shop stewards had already raised complaints about
the issue of
underpayment. CEPPWAWU, which was clearly familiar with
the procedures related to applications for exemptions did not raise a
whimper,
when advised that an application had been made. To the
extent that a complaint for non-compliance with the wage rates was
lodged,
it was for CEPPWAWU to pursue that complaint in order to get
answers from both the MEIBC and the respondent, rather than being
steadfast on its stance that there was a unilateral change to terms
and conditions of employment. The strike could therefore not
have
been as a result of the respondent’s unlawful conduct, in
circumstances where the applicants had commenced a process
to address
their concerns about non-compliance with the MEIBC rates, and where
the enforcement and compliance mechanisms
of the MEIBC were available
to them to address any perception of unlawfulness or non-compliance.
[79]
The submission that the strike was further provoked by the suspension
of Molefe is also
without merit. It was common cause that on
25 October 2013, Molefe was issued with a notice of
suspension. The charges
preferred against him in a notice issued to
him 12 November 2013 related to various allegations of
misconduct, to which
the respondent was entitled to act upon in
accordance with its prerogative to discipline its employees
irrespective of their status
in the Union. The mere fact that Molefe
may have been a shop steward did not insulate him from any
disciplinary action by the respondent
where the circumstances called
for it. It was further common cause that Molefe was subsequently
dismissed on account of those charges.
[80]
Any further arguments pertaining to the fact that Molefe was not
permitted to be at the
premises and to assist in diffusing the strike
as he was more familiar with the issues did not take the applicants’
case
any further, as he was already suspended at the time.
[81]
In regards to the items to be considered under Item 6(1) of the Code
of Good Practice,
I am satisfied that on the whole, the applicants
held a
bona fide
belief that the strike embarked upon was
protected. Even though the strike was unprotected, the applicants had
made reasonable
attempts to comply with the provisions of the LRA,
and to the extent that there were contraventions of those provisions,
these
were not on their own serious. Furthermore, having had regard
to the conduct of the parties in relation to the strike, I am
satisfied
that notwithstanding the respondent’s lack of
transparency in regards to the application for exemption, that
conduct on its
own cannot be said to have triggered the strike, as
there were enforcement and compliance mechanisms pf the MEIBC, which
were at
the applicants’ disposal to the extent that they sought
to challenge the exemptions.
The
fairness of the ultimatums:
[82]
The question whether the ultimatums were fair or not goes to the
procedural fairness of
the dismissal. Item 6(2) of the code provides
that;
“
Prior
to the 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.”
[83]
The
minority judgment
Transport
and Allied Workers Union of South Africa obo Ngedle and Others v
Unitrans Fuel and Chemical (Pty) Ltd Limited
[27]
explained the provisions
of Item 6(2) as follows;
‘
[53]
The procedural fairness of a dismissal effected in terms of item 6 of
the Code of Good Practice, which concerns
dismissals effected in
response to unprotected strikes, is determined in light of item 6(2)
of the Code. Item 6(2) provides that
when effecting a dismissal
within its ambit, the employer must first contact the strikers’
union “at the earliest possible
opportunity to discuss the
course of action it intends to adopt”; if this step produces no
result, the employer may issue
an ultimatum. Item 6(2) can therefore
be sub-divided into two requirements: first, that the employer should
contact the strikers’
union; and, second, that the employer
must issue an ultimatum prior to effecting the dismissals.
[55]
Therefore, the first purpose of item 6(2) is that at the very
earliest opportunity a union official should
be allowed to make
representations on behalf of striking workers (who are not given an
opportunity to make representations individually).
In this regard,
item 6(2) embraces the
audi alteram partem
principle in the
context of a strike dismissal under the provisions of the LRA,
compelling an employer to engage with
the workers’
union. Only once it becomes clear that the union’s attempts
will prove fruitless or merely seek to extend
the strike, the
employer may issue an ultimatum.
[56]
The second stage entails consideration of whether the ultimatum was
fair; and, if so, whether the dismissals
effected pursuant to the
ultimatum were fair. If the ultimatum was unfair, the second question
does not arise, namely whether an
unfair ultimatum renders the
dismissals procedurally unfair. When assessing the fairness of an
ultimatum, the factors to be considered
are the background facts
giving rise to the ultimatum, the terms thereof and the time allowed
for compliance.’
[84]
In regards to the first requirement, it was common cause that
CEPPWAWU was advised of the
strike as soon as it commenced on
29 October 2013. Tshabalala, who had not previously dealt
with management of the respondent
had attended a meeting scheduled
for 08h15 on that date, which was also attended by Mentjies and
Sinclair amongst other members
of management.
[85]
It was common cause that when Tshabalala failed to persuade the
employees to return to
work, he had excused himself from the meeting
as he had another engagement to attend to. To this end, I am
satisfied that the Union
in accordance with the requirements of Item
6(2) of the Code was timeously contacted, and as shall be discussed
below, it was made
aware of the course of action the respondent
intended to adopt.
[86]
In regards
to ultimatums, the minority judgment in
South
African Transport Workers Union obo Ngedle and Others v Unitrans Fuel
and Chemical
(Pty) Ltd
[28]
had summarised
the purpose of ultimatums as follows;
“
The
time period conferred by an ultimatum must be viewed in the context
of whether the ultimatum provided an adequate opportunity
for the
workers involved to engage with its contents and respond accordingly.
This is in line with item 6(2) of the Code encompassing
the
audi
alteram partem
principle, which extends into the terrain of
unprotected strike action. Further, the importance of conferring an
adequate period
of time for both parties to
the
dispute to “cool-off” must be emphasised. An adequate
cooling-off period ensures that an employer does not act in
anger or
with undue haste and that in turn the striking workers act rationally
having been given the opportunity to reflect.”
[87]
Sinclair’s evidence was that prior to Tshabalala leaving to
attend to his other engagements,
she had asked him to assist in
issuing an ultimatum to the employees. Tshabalala had refused, and
rightly so, telling her that
it was her job and that of management to
communicate the ultimatum to the employees. Tshabalala had signed
acknowledgement of a
receipt of a copy of the ultimatum before he
left. Sinclair had followed up the ultimatum by sending a copy to
Ramothata by email.
[88]
The first
ultimatum
[29]
issued at 09h50
was elaborate, and advised the employees that they were on an
unprotected strike. The employees were instructed
to return to their
workstations within 25 minutes from the time that the ultimatum was
served, and that should they fail to comply
with the ultimatum, they
would face disciplinary action which may lead to a dismissal. The
ultimatum further advised the employees
that should they comply, they
would be indemnified from normal disciplinary proceedings.
[89]
Under cross-examination, Sinclair testified that even though
the employees were given
25 minutes within which to return to work,
at most, she expected them to do so within the time stipulated. She
conceded that there
was a disagreement between the union and
management as to whether the strike was protected or not.
[90]
Sinclair’s
further testimony as supported by her contemporaneous diary
[30]
was that Tshabalala left the premises at 10h00. She had also asked
the shop steward to distribute the copies of the ultimatum and
that
they had refused. The employees, who were then gathered at the
smoking area when confronted with the copies had also refused
to take
them. Sinclair had nonetheless read the contents of the ultimatum to
them, told them of the  seriousness of the matter,
and left
copies on the floor and left. Sinclair conceded under
cross-examination that no action was taken against the employees
for
not complying with the first ultimatum after the 25 minutes had
lapsed, and this gave an impression that the threat was not
serious.
[91]
In regards to the first ultimatum, I am satisfied that its contents
were sufficiently clear
as further read to the employees as to what
was required of them and the consequences to follow should they fail
to comply. The
time given however to the employees to comply with the
ultimatum was clearly insufficient for them to reflect on their
conduct,
especially in circumstances where Tshabalala had left the
premises after signing acknowledgement of receipt of a copy.
[92]
At most, Sinclair conceded that the 25 minutes given to the employees
was clearly not sufficient,
albeit
she had hoped that it would
make the employees reflect on their actions. She had further conceded
that to the extent that the ultimatum
was not acted upon, this may
have created an impression that the threats in the ultimatum were not
being taken seriously by the
respondent.
[93]
The fact however remains that the ultimatum was issued, and its
contents were made clear
to the employees, even if a conclusion was
reached that it could not reasonably have been expected of the
employees to properly
reflect on their actions and respond
appropriately to it.
[94]
At about 11h25, a second ultimatum (Titled ‘
Final
Ultimatum’
) was issued, and again Sinclair had read it to
the employees and expressed the severity of the situation. The
ultimatum reiterated
that the employees must be back at their
workstations by 14h00. Sinclair again left copies of the ultimatum on
the floor. She also
sent an email to Ramothata expressing her
concerns that Tshabalala had not returned since he left earlier, and
further informed
him that a second ultimatum had been issued.
Tshabalala’s response was that he would be available to consult
at 15h15 as
he was still busy in arbitration proceedings.
[95]
At about between 12h39 and 13h25, Tshabalala was at the premises and
had expressed concerns
about the ultimatums and the fact that
the respondent was ‘
putting a gun to his head’
in
regards to having to negotiate the return to work with employees. He
further complained about the timeframes outlined in the
ultimatum and
stated that he was not being given enough time to consult with the
employees. When Ramothata arrived at about 15h30,
he again reiterated
that the strike remained protected. After Ramothata consulted with
the employees, they had dispersed and left
the premises. Again, the
respondent took  no action against the employees after the
deadline of 14h00.
[96]
The second ultimatum was issued in clear and unequivocal terms to the
employees. It was
read to them and it can be accepted that they were
made aware if its contents and the consequences of non-compliance.
The union
was made aware of the second ultimatum and despite the time
it had stipulated, Tshabalala and Ramothata had an opportunity to
consult
with the employees, particularly since no action was taken by
the respondent after the deadline.
[97]
It is further my view that the fact that the respondent had not acted
on the ultimatum
and that the employees had held their meetings
thereafter was an opportunity for them to properly reflect on their
actions overnight.
This was a clear opportunity for both parties to
‘cool off’. Irrespective of the differences of opinion as
to whether
the strike was protected or not, and despite the ultimatum
not having been acted upon, there was an opportunity for the
employees
overnight to reflect on the matter.
[98]
On 30 October 2013, Sinclair arrived early at the premises
and instructed security
officers at the main entrance to only allow
access to employees who wanted to render their services. She
contended that this step
was necessitated by reports of intimidation
of staff members the previous day. The employees allegedly
intimidated had personally
reported the incident to Sinclair.
[99]
Sinclair
had in the morning at 06h30, issued a final ultimatum
[31]
which copies were posted at the security offices, advising the
employees that they had until 10h00 to report for duty failing which

they would be deemed to have repudiated their contracts of
employment. As she left the security offices where the ultimatum was

posted, she had noticed other employees picking up some of the copies
and tearing them up. A copy in this regard was also emailed
to
Ramothata some two hours later at about 08h50. Sinclair knew that
Ramothata was to attend to the premises at 10h00.
[100]
At 11h00, a letter was then issued to the employees informing
them that the company had accepted the
repudiation of their contracts
of employment due to their participation in the strike, and had also
failed to comply with ultimatums
issued on both 29 and
30 October 2013. The employees were advised that their
contracts were cancelled, but that they
nonetheless had an
opportunity to present reasons why those contracts should not be
terminated.
[101]
During her cross-examination, Sinclair confirmed that letters of
cancellation of contracts were issued before
Ramothata came, whilst
she was made aware that he was on his way. She had telephonically
contacted Ramothata, who had assured her
that he will be at the
premises at 10h00. Her contention was that the respondent was
concerned because Ramothata had not arrived
at the time he was
expected the previous as expected notwithstanding the urgency of the
matter. Ramothata only arrived at about
13h00. She further confirmed
that the issue of intimidation at the time was not the reason for the
dismissal, and that the main
reason for the cancellation of the
contracts was that the employees had not heeded the ultimatum by
11h00.
[102]
In
Mndebele
and Others v Xstrata SA (Pty) Ltd t/a Xstrata Alloys (Rustenburg
Plant)
[32]
,
it was held that:
‘
The Code does not
suggest how the ultimatum should be distributed or required that it
must be in writing. Furthermore, it states
that the issuing of an
ultimatum is not an invariable requirement. The purpose of an
ultimatum is not to elicit any information
or explanations from the
employees but to give them an opportunity to reflect on their
conduct, digest issues and, if need to be,
seek advice before making
the decision whether to heed the ultimatum or not. The ultimatum must
be issued with the sole purpose
of enticing the employees to return
to work, and should in clear terms warn the employees of the folly of
their conduct and that
should they not desist from their conduct they
face dismissal. Because an ultimatum is akin to a final warning, the
purpose of
which is to provide for a cooling-off period before a
final decision to dismiss is taken, the
audi rule
must be
observed both before the ultimatum is issued and after it has
expired. In each instance, the hearing may be collective
in nature
and need not be formal’
[103]
In the end, the three ultimatums issued between 30 and
31 October 2013 served the purpose envisaged
by item 6(2)
of the Code. It was argued that since Sinclair knew that Ramothatha
was on his way, she should have at least waited
for him to try and
convince the employees once more that they should go back to work.
[104]
Ordinarily,
and in line with
County
Fair Foods (Epping), a division of Astral Operations Ltd v Food and
Allied Workers' Union and Others
[33]
,
a dismissal for failing to heed an ultimatum would be justified. In
this case, I am willing to accept that the time period stipulated
in
the last ultimatum leading to the dismissals was insufficient. The
fact remains however that it was a third ultimatum issued
in sequence
of the events, and should not be read and treated in isolation.
Effectively the applicants had 1½ day within
which to reflect
on their conduct and to consider the contents and consequences that
may flow from the ultimatums.
[105]
Even if Sinclair had conceded that the failure to act on the first
two ultimatums may had created an impression
that the respondent was
not serious, that in itself did not give the employees a licence to
call her bluff. In fact, they had demonstrated
this attitude by
picking up the copies of the last ultimatum only to tear them up in
pieces in a clear sign of defiance and audaciousness.
[106]
Of importance in this case is that the Union did not equally take
these ultimatums seriously. Ramothata
appeared to have adopted an
approach of indifference, and failed to treat the matter with the
seriousness and urgency it deserved.
On the other hand, the
respondent was desperate to end the strike. Thus, even if there might
be a semblance of precipitousness
on the part of the respondent, that
itself cannot lead to a conclusion that the final ultimate was
grossly unfair.
[107]
A further issue for consideration in this regard is whether having
waited for Rabothata would have served
any purpose. It is appreciated
that maybe, just maybe, he might have persuaded the employees to
return to work. But this is doubted
for the following reasons;
107.1   It was
common cause that upon his arrival at 13h00, a meeting was held
between the Union and management.
107.2   In that
meeting Ramothata raised several complaints which were not really
relevant to the resolution of the strike.
He had insisted that the
strike was protected. In the end however, Ramothata had then
indicated that he needed to consult with
the employees. Prior to
leaving, he had asked whether employees would be taken back whilst
discussions continued. Management’s
response was that it was
not prepared to do so at the time, but would get further mandate on
the issue. The meeting ended at 16h00.
107.3   On 31
October 2013, Sinclair sent an email to Ramothata confirming that
management was still to take a decision
as to whether employees
should be taken back.
107.4   At some
point in the morning, Sinclair called Ramothata to establish whether
any progress had been made about
speaking to shop stewards and
whether he was doing anything, Ramothata's response was to tell her
to ‘
go to hell’
. That evidence remained
uncontradicted and essentially sums up Ramothata’s attitude.
107.5   It was
common cause that after the cancellation of the contracts, employees
had continued to gather outside of
the premises. Reports of
intimidation of other employees seeking to report for duty were
received. There were reports of intimidation
and assault on employees
received on 31 October 2013, including an assault on a
pregnant female employee. Sinclair had
closely monitored events and
had testified that on 2 November 2013, she had observed
employees drinking alcohol,
with some wielding an assortment of
weapons including axes, sjamboks, sticks and hammers. The conduct of
the employees had necessitated
the respondent approach this Court for
an urgent interdict, which was obtained on 5 November 2013
unopposed. As already
indicated, the
rule nisi
obtained was
confirmed unopposed.
107.6   It was
only after a process of selectively taking back some of the employees
had started that on 08 November 2013,
that Ramothata or the
Union, had sent correspondence to the respondent, recording that the
strike was suspended, and that the employees
would return to work on
11 November 2013.
107.7   Prior
to then, no indication was given that Ramothata or the Union was
willing to talk with the aim of ending
the strike.
[108]
Given the above facts, the probabilities are that having waited for
Rabothata before the last ultimatum
was acted upon would not have
changed anything, as his approach and that of the employees
throughout was that the strike was protected.
To reiterate, to the
extent that it might be said that the respondent acted in haste, such
conduct cannot be construed to be grossly
unfair, or entirely vitiate
the procedural fairness of the dismissals.
The
overall fairness of the dismissal:
[109]
Item 7 of
the Code, to the extent that participation in an unprotected strike
is viewed as misconduct, provides guidelines and a
consideration of
various factors
[34]
in determining whether the dismissal was fair. Where an employer
seeks to rely on misconduct on the part of employees to justify
a
dismissal even within the course of a strike, the onus remains on the
employer in accordance with the provisions of section 192(2)
of the
LRA, to demonstrate that that dismissal was the appropriate and fair
sanction. In
Chemical
Workers Industrial Union v Algorax
[35]
,
it was held that;
“
When either the
Labour Court or this court is seized with a dispute about the
fairness of a dismissal, it has to determine the fairness
of the
dismissal objectively. The question whether dismissal was fair or not
must be answered by the court. The court must not
defer to the
employer for the purpose of answering the question. In other words,
it cannot say that the employer thinks it is fair,
and therefore, it
is or should be fair.”
[110]
The facts subsequent to the cancellation of the contracts of
employment are fairly common cause. Of importance
is to point out
that  on 1 November 2013, a bulk SMS was sent to some
41 employees advising them that following
the cancellation of their
contracts, they would be informed when they would be afforded an
opportunity to submit their mitigating
factors as to the reason the
cancellation of their contracts should be reconsidered.
[111]
As at 4 November 2013, the respondent’s Sinclair,
Stephanie and Monique had started to process
some of the forms
submitted with mitigating factors. They made an assessment as to
which employees to take back based on video
footage of the striking
employees together, which was viewed  with employees’
managers. Witnesses (unidentified) were
also spoken to.
[112]
The process followed was such that based on the mitigating factors
submitted, if an employee participated
in the strike, he/she would
not be taken back. If mitigating factors pointed to employees having
been intimidated into participating
in the strike, or where there was
evidence that some employees had stayed at home during the strike, or
where employees called
their managers to report that they were
scared, they would be taken back.
[113]
On 6 November 2013 employees were informed by SMS to submit
their mitigating factors in writing
if they so wished. On the same
day, SMS were sent to 58 employees whose contracts would not be
renewed. On 7 November 2013,
some employees were granted
access into the premises to hand in copies of their mitigating
factors. Bulk SMS were sent to employees
to remind them to submit
their mitigating factors. Notices were further issued to employees
notifying them of an opportunity to
submit mitigating factors by
8 November 2013. Other employees had also signed
‘Notification of intention to resume
work following
unprocedural industrial action form’, confirming that they had
taken part in the strike but that they intended
to enter the company
premises on 30 October 2013 to resume work.
[114]
It was common cause that notwithstanding an undertaking by the
respondent on 1 November 2013 that
employees would be
called in on a date and time to be decided to submit their mitigating
factors in person, that process was upon
advice, abandoned
according to Sinclair.
[115]
It is
accepted that observance of the principle of
audi
alterem partem
when contemplating the dismissal of strikers does not necessitate a
formal enquiry, and might, depending on circumstances even
be
satisfied by giving the relevant union an opportunity to make written
representations why its members should not be dismissed
[36]
.
However, in circumstances where an employer such as in this case
undertook to make certain processes available to the employees
to
consider why they should not remain dismissed after not heeding an
ultimatum, and thereafter changes its tune and elects to
adopt a
different approach, that in my view cannot be fair.
[116]
To the extent that the respondent chose to follow the procedure
as described above in reinstating
or setting aside the cancellation
of some of the employees’ contracts of employment,
prima
facie
, the approach as outlined above in taking back other
employees also appears to have been arbitrary and clearly
selective.
[117]
The applicants’ case was that not all employees who had
participated in the strike were not taken
back. The evidence of
Johannes Seleke was that he had participated in the strike and his
manager  had simply told him to sign
a notice indicating
his intention to resume work, and he was taken back despite being
actively involved in the strike. He was not
a member of CEPPWAWU at
the time and following his reinstatement, he was subsequently
retrenched.
[118]
Sinclair’s contention was that she was not privy to the facts
surrounding Sekele’s reinstatement,
but had contended that not
every employee who was not at work was dismissed, as others chose to
stay at home because of the intimidation.
She contended that only
people that had actively participated in the strike were dismissed,
and in particular, for their failure
to heed the final ultimatum.
[119]
In my view, the incident with Seleke demonstrated one incident of
arbitrariness and selectivity. The applicants
had not presented
evidence to demonstrate which of the other dismissed employees were
treated in the same manner as Seleke, and
how their non-selection was
unfair.
[120]
It would be therefore be indefensible for the Court to make a general
conclusion based on the evidence of
Seleke that the non-selection of
the other employees was unfair. To that end, it is concluded that the
non-selection of the dismissed
employees was not unfair.
Conclusions
[121]
In
South African Transport Workers Union obo Ngedle and Others v
Unitrans Fuel and Chemical
(Pty) Ltd, Zondo J (as he was) in the
majority decision held that;
‘
Dismissal
as a sanction for misconduct is a sanction of last resort. It has
sometimes been referred to as the “death penalty”.
This
is said in the light of the harsh consequences it may have on an
employee who is dismissed. For that reason dismissal is only

appropriate as a sanction for dismissal in those cases where the
misconduct of which the employee is guilty is one that at least
the
employer considers to render a continued employment relationship
intolerable or unacceptable’
[37]
[122]
Several
factors from which an assessment of the fairness and appropriateness
of a sanction of dismissal could be determined were
also considered
by Zondo J
[38]
. For the
purposes of this dispute, the salient conclusions to be reached on
the appropriateness of the sanction in the light of
the overall
circumstances of this case are the following;
122.1   The
strike was unprotected, and the applicant had a
bona fide,
albeit
misplaced or erroneous belief that it was protected. It
is accepted that the applicants had made attempts to comply with the
provisions
of the LRA, and any contravention of those provisions was
not serious, but for the consequences of the strike, and the fact
that
those were not the procedures to follow in the light of the
issues in dispute.
122.2   The
strike was however clearly premediated and was not in response to
any  unjustified conduct on the part
of the respondent. The
strike was over a period of 1½ day before the final ultimatum
was acted upon, resulting in financial
prejudice as evident from the
counterclaim.
122.3   The
respondent complied with the provisions of Item 6 (2) of the Code in
regards to the issuance of the three
ultimatums, which were by all
accounts fair. To the extent that the final ultimatum as acted upon
by the respondent was not fair,
that unfairness did not vitiate the
overall procedural fairness of the dismissal.
122.4   Some
employees who had participated in the strike and had not heeded the
final ultimatum were taken back, and
the selection of employees taken
back or not evinced  a level of arbitrariness. No case however
was made as to which of the
individual applicants’
non-selection was unfair other than general submissions.
122.5   Despite
having undertaken to afford the dismissed employees an opportunity to
have their mitigating factors considered
in person, the respondent
for reasons that remained unexplained chose to abandon that fair
process, and instead chose to
arbitrarily decide on those
mitigating factors from the written submissions. This led to a
position where as matters stand in these
proceedings, it is not known
on what basis the employees’ mitigating factors were rejected.
At most, given the totality and
the circumstances of the events that
led to the strike, the individual applicants deserved to have been
heard to the extent that
the respondent had opened that avenue.
122.6   As
evident from the interdict obtained, the ‘strike’ after
the dismissal was violent, and the evidence
of Sinclair in regards to
having witnessed some of the employees wielding an assortment of
weapons was uncontradicted.
[123]
In the light of the above factors and conclusions, and further having
had regard to the overall circumstances
of this case, and the conduct
of both the respondent and the applicants ‘as to the matter and
conduct of the strike’,
the dismissal of the individual
applicants following their participation in the unprotected strike
was substantively fair and proportional
to their misconduct.
[124]
In regards to procedural fairness, and further taking into
account the conclusions in regards to the
final ultimatum and the
failure to afford the employees an opportunity to present their
mitigating factors in person as the respondent
had initially
intended, it is found that the dismissals fell short of procedural
fairness.
Remedy:
[125]
Given the limited procedural flaws already pointed out, it follows
that the only remedy available to the
individual applicants is that
of compensation. Any amount of compensation to be awarded for a
dismissal that is only procedurally
unfair is the subject of a
discretion to be exercised by the Court. Section 194(1) of the LRA
requires that any award of compensation
must be just and equitable
taking into account all relevant facts and circumstances, but which
may not be more than the equivalent
of 12 months calculated at the
employees’ rate of remuneration on the date of dismissal.
[126]
In this case, the major procedural flaw related to  the
respondent’s failure to invite the individual
applicants to
present their mitigating factors in person contrary to its earlier
undertaking to do so. I accept that this does
not imply that the
written submissions in that regard were not considered. At the same
time however, once an employer elects to
adopt a particular procedure
to decide the fate of the employees and however fails to carry that
procedure through for reasons
that are not clear, this in my view
ought to warrant some compensation. In my view, compensation in the
amount of two months’
salary to each of the individual
applicants ought to be considered as just and equitable.
The
counterclaim:
[127]
To
the extent that a strike was unprotected, this Court is enjoined
under the provisions of section 68(1)(b) of the LRA
[39]
to
order
the payment of just and equitable compensation for any loss
attributable to the
strike
.
The court had had occasion to determine similar claims
[40]
.
In
Rustenburg
Platinum
,
it was held in regards to the requirements in section 68(1)(b) of the
LRA that;
‘
It is manifest
that in relation to a strike, three requirements must be satisfied
before the question, whether compensation as contemplated
in
sub-section 1(b) is to be awarded, and if so, in what amount, arise
for determination. In the first instance, it must be established
that
the strike does not comply with the provisions of Chapter IV of the
Act. Secondly, the party invoking the remedy must establish
that it
has sustained loss in consequence of the strike. Thirdly, it must be
demonstrated that the party sought to be fixed with
liability
participated in the strike or committed acts in contemplation or in
furtherance thereof. This much is evident from the
provisions of
sub-section 1(a) which, in its delineation of the nature of the acts
which might legitimately form the subject matter
of an interdict or
restraint, identifies who might be held accountable therefor. The
Legislature plainly intended to embrace the
same class in relation to
the Court’s competence to award compensation.’
[41]
[128]
The purpose
of the provisions of section 68(1)(b) of the LRA is not punitive, but
it is meant to compensate the employer for losses
actually suffered,
which places the onus on the employer to prove the extent of the loss
attributable to the unprotected strike
or conduct in furtherance of
the strike. In
Algoa
Bus Company v SATAWU & others
[42]
,
this Court held that these provisions require that compensation for
unlawful strikes to be “just and equitable”. This
Court
has not readily accepted that a union would always and automatically
be held liable for the actions of its members. That
much came from
PTAWU
obo Khoza Bongani & 1054 others v New Kleinfontein Goldmine
[43]
,
where
the Court held that;
‘
While unions
cannot escape liability simply because it would be onerous
financially, it is important that compensation claims are
not used as
a device to cripple a union‘s ability to operate or to deal it
a terminal blow. While I am reluctant to allow
the union to escape
the consequences of pursuing the unprotected strike, I am also
concerned that the issue of liability for compensation
under section
68(1)(b) was only raised with it after the event, at a stage when
PTAWU could not have done anything to minimise
its exposure to such
liability. Had it been made aware of the potential liability faced at
an earlier stage that might well have
concentrated the minds of the
union leadership to consider more seriously the wisdom of persisting
with the strike action.’
[44]
[129]
It has been concluded in this case that even though the strike was
unprotected, there were attempts to comply
with the provisions of the
LRA, and that the contraventions of the LRA were not serious. It has
further been accepted that the
strike was premeditated and was not as
a result of any unlawful conduct on the part of the respondent. It
has however also been
accepted that the Union genuinely believed that
the strike was protected. The strike as also indicated took place
over 1½
day, and it has been accepted that the respondent
suffered financial loss.
[130]
It is however my view that a claim under section 68(1)(b) of the LRA
cannot always be successful even if
the actual losses attributable to
a strike are proven. A strict approach ought to be adopted in
determining whether such claims
should be successful, taking into
account the effect and impact on the employees’
constitutionally guaranteed right to strike.
[131]
The circumstances of this case are such that the demands leading to
the strike were legitimate (
albeit
not strikable), and flowed
from the MEIBC Main Agreement. The strike was not just a mere
knee-jerk reaction, and as already pointed
out, it related to
underpayment contrary to the provisions of the Main Agreement, which
affected the employees’ livelihood.
In circumstances where the
respondent had not come out clearly as to the basis of the
underpayments at least until the strike had
commenced, it would be
iniquitous for an order of damages to be made against them or their
union, particularly since they have
now been dismissed.
[132]
It is further my view that in claiming damages, at the very least,
and given the fact that the claim arises
out of an employment
relationship, there should be an obligation on the employer to
demonstrate that at least it made attempts
to mitigate its loses.
This can be through a direct and unequivocal warning to the Union
before the strike commences or immediately
thereafter that such
damages would be sought if the unprotected strikes proceeds or is not
ended; or through immediate steps to
interdict the strike.
[133]
In this case the interdict was not sought immediately upon the strike
having commenced. It was obtained
long after the dismissal and was
merely in relation to the conduct of the dismissed employees. To this
end, there is no basis for
the claim to be successful.
Costs:
[134]
An order of costs is awarded upon a consideration of the requirements
of law and fairness. The applicants
are partially successful with
their claim, and I did not understand the respondent’s case to
be that its relationship with
CEPPWAWU has irretrievably broken down
as a consequence of the strike. Accordingly, no order as to costs
ought to be made.
Order
1. The dismissal of
the individual applicants for their participation in an unprotected
strike was substantively fair but procedurally
unfair.
2. The respondent is
ordered to pay to each of the individual applicants listed in
Annexure ‘A1’ to the Notice
of  the Applicants’
Amendment, compensation in the amount of two months’ salary
calculated at their rate of pay
as at their date of dismissal.
3. There is no order
as to costs.
____________________
Edwin Tlhotlhalemaje
Judge
of the Labour Court of South Africa
Appearances:
For
the Applicants:                         JG

van der Riet SC, instructed by Cheadle Thompson & Haysom
Incorporated
For
the Respondent:
G Pretorius SC, instructed by Anton Bakker Attorneys
[1]
Listed in Annexure ‘A1’ to the Notice of  the
Applicants’ Amendment
[2]
Act
No 66 of 1995
[3]
64.
Right to strike and recourse to lock-out
;
(4)
Any
employee
who or any
trade union
that refers a
dispute
about a unilateral change to terms and conditions or
employment to a
council
or the Commission in terms of
subsection (1)
(a)
may, in the referral, and for the period
referred to in subsection (1)
(a)
–
(a)
require the employer not to implement unilaterally the change
to
terms and conditions of employment; or
(b)
if the employer has already implemented the change unilaterally,

require the employer to restore the terms and conditions of
employment that applied before the change.
(5)
The employer must comply with a
requirement in terms of subsection (4) within 48 hours of
service
of the referral on the employer.
[4]
64.
Right to strike and recourse to lock-out
(1)
Every
employee
has the right to strike and every employer has recourse to lock-out
if -
(a)
the
issue in
dispute
has been referred to a
council
or to the Commission as required by
this Act
,
and
(i)
a certificate stating that the
dispute
remains unresolved has been issued; or
(ii)
a period of 30 days, or any extension of
that period agreed to between the parties to the
dispute
,
has elapsed since the referral was received by the
council
or the Commission; and after that -
(b)
in the case of a proposed
strike
,
at least 48 hours‘ notice of the commencement of the
strike
,
in writing, has been given to the employer, unless –
(i)
the
issue in
dispute
relates to a
collective
agreement
to be concluded in a
council
,
in which case, notice must have been given to that
council
;
or
(ii)
the employer is a member of an
employers’
organisation
that is a party to the
dispute
,
in which case, notice must have been given to that
employers’
organisation
; or
[5]
65.
Limitations on right to strike or recourse to
lock-out
(1)
No person may take part in a
strike
or a
lock-out
or
in any conduct in contemplation or furtherance of a
strike
or
a
lock-out
if –
(a)
that person is bound by a
collective agreement
that prohibits
a
strike
or
lock-out
in respect of the
issue in
dispute
.
(b)
that person is bound by an agreement that requires the
issue in
dispute
to be referred to arbitration;
(c)
the
issue in dispute
is one that a party has the right to
refer to arbitration or to the Labour Court in terms of
this Act
or any other employment law;
(d)
…
(2)
…
(3)
Subject to a
collective agreement
, no person may take part in
a
strike
or a
lock-out
or in any conduct in
contemplation or furtherance of a
strike
or
lock-out
–
(a)
if that person is bound by –
(i)
any arbitration award or
collective agreement
that regulates
the
issue in dispute;
or
(ii)
any determination made in terms of section 44 by the
Minister
that regulates the
issue in dispute
; or
(b)
any determination made in terms of Chapter
Eight of the Basic Conditions of Employment Act and that regulates
the
issue in dispute
,
during the first year of that determination.
[6]
Monyela
v Bruce Jacobs T/a LV Construction
(1998) 19 ILJ 75 (LC) at 82I – 83B;
Mitusa
v Transnet Ltd
[2002] 11 BLLR 1023
(LAC) paras 106 and 107
[7]
See
Cheadle et al
,
Strikes
and the Law (LexisNexis 2017) at page 62 - 63
[8]
Ram
Transport SA (Pty) Ltd v SATAWU and Another
(
2011)
32 ILJ 1722 (LC)
[9]
[2011] 3 BLLR 231
(LC) at para 36 - 37
[10]
[1995]
4 BLLR 11 (LAC)
[11]
Page
46 of the Consolidated bundle of documents; See also
Vector
Logistics v Lencoane and Others
(JA
26/11)
[2013] ZALAC 31
(4 October 2013) at para 39, where it was
held that;
‘
It
is significant to note that all these decisions emphasised the fact
that there was no contractual right, based either on the
employment
contract or collective agreement, providing a right to the employee,
expressly, tacitly or impliedly, against unilateral
change to
working terms and conditions. This means, therefore, that if the
contracts of employment or the collective agreements
provided
otherwise, changing the shift patterns or systems would not be
regarded as a mere work practice, but a term of employment

irrespective of what effect or difference the unilateral change
would have on the employee’s work.
[12]
See Coin
Security
Group (Pty) Ltd v Adams & others
(2000)
21
ILJ
925 (LAC) at 930B); See also
National
Union of Metalworkers of SA and Others v Bader Bop (Pty) Ltd and
Another
4 (2003) 24 ILJ 305 (CC) at para 52, where it was held;
‘
It
is the duty of a court to ascertain the true nature of the dispute
between the parties. In ascertaining the real dispute a
court must
look at the substance of the dispute and not at the form in which it
is presented. The label given to a dispute by
a party is not
necessarily conclusive. The true nature of the dispute must be
distilled from the history of the dispute, as reflected
in the
communications between the parties and between the parties and the
Commission for Conciliation, Mediation and Arbitration
(CCMA),
before and after referral of such dispute. These would include
referral documents, the certificate of outcome and all
relevant
communications. …’
[13]
Cape
Clothing Association v Southern African Clothing And Textile Workers
Union and Another
(C1006/2011) [2011] ZALCCT 75 (19 December 2011)
[14]
The deadline for exemption applications was 31 July 2013 according
to a circular issued by the MEIBC on 3 June 2013 at page 71a
of the
Consolidated Bundle
[15]
(1997) 18 ILJ 374 (LC) at 378
[16]
Vector
Logistics
at para 36; See also
Monyela
& others v Bruce Jacobs t/a LV Construction
(1998) 19 ILJ 75 (LC
)
at 82J-83A
[17]
23
EXEMPTIONS
1.
General
(a)
Any person bound by this Agreement may apply for
exemption.
(b)
The authority of the Council is to consider applications
for
exemptions and grant exemptions.
[18]
4.2.2
Enforcement of Collective Agreements by the Council
(1)
Despite any other provision the council may monitor and enforce
compliance
with its collective agreements in terms of this clause or
a collective agreement concluded by the parties to the Council.
(2)
For the purposes of this clause the collective agreement is deemed
to
include-
(a)
any condition of employment of any service covered by the collective

agreement
(b)
…
(3)
The council may refer any unresolved dispute concerning compliance
with
any provision of a collective agreement to arbitration by
another arbitrator appointed by the Council
(4)
…
(5)
…
(6)
…
(7)
…
(8)
An arbitrator conducting an arbitration in terms of this clause may

make an appropriate award, including-
(a)
ordering any person to pay any amount owing in terms of a collective

agreement
[19]
See
Rukwaya
and Others v Kitchen Bar Restaurant
(2018) 39 ILJ 180 (LAC);
[2018] 2 BLLR 161
(LAC) at para 18,
where
it was held that;
‘
A
bargaining council is empowered in terms of s33A
of
the LRA to enforce a collective agreement, which it has concluded.
The dispute resolution procedure provided for in clause
28(a) of the
collective agreement seeks to do precisely that. It is binding on
both the appellants and the respondent, and it
provides each of them
with a remedy which they are obliged to pursue in the event of
non-compliance by the other party.’
[20]
See
NUCW
v Oranje Mynbou en Vervoer Maatskappy Bpk
[2000]
2
BLLR
196
(LC)
at paras 8 –9, where it was held that;
‘
Whether
a dispute about the “application” of a collective
agreement, referred to in section 24(1) of the Act, would
include
the enforcement of a collective agreement when it is breached, is a
further question which needs to be decided.’
Enforcement of an
agreement only becomes an issue when there is some form of
non-compliance with that agreement. When a party
wishes to enforce
the agreement it would be, at least inter alia, because
it believes the agreement is applicable
to the party who is in
breach thereof. Therefore a “dispute about the application of
a collective agreement” (section
24(1) of the Act) applies to
the situation where there is non-compliance with a collective
agreement and one of the parties wishes
to enforce its terms.
Consequently, the CCMA, and not the Labour Court, should entertain
disputes arising from the non-compliance
with collective
agreements.’
[21]
Section 68(5) of the LRA provides that;
‘
(5)
Participation in a strike
that does not comply with the provisions of this Chapter,
or conduct
in contemplation or in furtherance of that strike, may constitute a
fair reason for dismissal. In determining whether
or not the
dismissal is fair, the Code of Good Practice: Dismissal in Schedule
8 must be taken into account’
[22]
Hendor
Steel Supplies v National Union of Metalworkers of SA and Others
(
2009)
30 ILJ 2376 (LAC) at para 8
[23]
SACTWU
& others v Filtafelt (Pty) Ltd
(JS263/15) [2017] ZALCJHB 483 (14 November 2017) at para 43
[24]
The
MEIBC ‘Report’ on page 71f of the Consolidated bundle.
[25]
‘
28
AGENTS
(1)
The Council shall appoint one or more
specified persons as agents to assist in giving effect to the terms
of this Agreement. For
the purposes of enforcing or monitoring
compliance with this Agreement, as the case may be, an agent of the
Council shall have
the right to enter and inspect premises, examine
records and question the employer and/or his employees in any manner
that he
deems appropriate, provided that such rights be exercised
only as is reasonably required for the purpose of enforcement of, or

monitoring compliance with the Agreement’
[26]
At
para 41
[27]
Transport
and Allied Workers Union of South Africa obo Ngedle and Others v
Unitrans Fuel and Chemical (Pty) Ltd Limited
[2016] ZACC 28
;
2016 (11) BCLR 1440
(CC);
[2016] 11 BLLR 1059
(CC);
(2016) 37 ILJ 2485 (CC) at para 53
[28]
At
para 65
[29]
Page
364 of the Consolidated Bundle of Documents
[30]
Pages
51 – 55 of the Consolidated Bundle
[31]
Page
166 of the Consolidated Bundle
[32]
(2016) 37 ILJ 2610 (LAC) at para 27
[33]
2018] 8 BLLR 756
(LAC); (2018) 39 ILJ 1953 (LAC); See also
Modise
and Others v Steve’s Spar Blackheath
2000 ILJ 519 (LAC)
as
follows:
“
...
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."’
[34]
Namely,
(a)
whether or not the employee contravened a rule or standard
regulating conduct in, or of relevance to, the workplace;
and
(b)
if a rule or standard was contravened, whether or not –
(i)
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;
(iii)
the rule or standard has been consistently applied by the employer;

and
(iv)
dismissal with an appropriate sanction for the contravention of the
rule or standard.’
[35]
(Pty) Ltd (2003) 24 ILJ 1917 (LAC);
[2003] 11 BLLR 108
(LAC) at para
69
[36]
Modise
& others v Steve's Spar Blackheath
(2000) 21 ILJ 519 (LAC) at 551-552, para [97], where it was held
that:
‘
I
have no hesitation in concluding that in our law an employer is
obliged to observe the audi Rule when he contemplates dismissing

strikers. As is the case with all general Rules, there are
exceptions to this general Rule. Some of these have been discussed

above. There may be others which I have not mentioned. The form
which the observance of the audi Rule must take will depend on
the
circumstances of each case including whether there are any
contractual or statutory provisions which apply in a particular

case. In some cases a formal hearing may be called for. In others an
informal hearing will do. In some cases it will suffice
for the
employer to send a letter or memorandum to the strikers or their
union or their representatives inviting them to make
representations
by a given time why they should not be dismissed for participating
in an illegal strike. In the latter case the
strikers or their union
or their representatives can send written representations or they
can send representatives to meet the
employer and present their case
in a meeting. In some cases a collective hearing may be called for
whereas in others - probably
a few - individual hearings may be
needed for certain individuals. However, when all is said and done,
the audi Rule will have
been observed if it can be said that the
strikers or their representatives or their union were given a fair
opportunity to state
their case. That is the case not only on why
they may not be said to be participating in an illegal strike but
also why they
should not be dismissed for participating in such
strike.
[37]
At
para 173
[38]
At
para 172
[39]
68
Strike
or lock-out not in compliance with this Act.—
(1)
In the case of any strike or lock-out, or
any conduct in contemplation or in furtherance of a strike or
lock-out, that does not
comply with the provisions of this Chapter,
the Labour Court has exclusive jurisdiction-
(a)
…
(b)
to order the payment of just
and equitable compensation for any loss attributable to the strike
or lock-out, or conduct, having
regard to
(i)
whether
(a)(a)
attempts were made to comply with the
provisions of this Chapter and the extent of those attempts;
(b)(b)
the
strike
or
lock-out
or conduct was premeditated
;
(c)(c)
the
strike
or
lock-out
or conduct was in response to
unjustified conduct by another party to the
dispute
; and
(d)(d)
there was
compliance with an order granted in terms of paragraph
(a);
(i)
the interests of orderly collective
bargaining;
(ii)
the duration of the
strike
or
lock-out
or
conduct; and
(iii)
the financial position of the employer,
trade union
or
employees
respectively
[40]
Mangaung
Local Municipality v SAMWU
[2000]
JOL 10582
(LC); In
Rustenburg
Platinum Mines Ltd v Mouthpiece Workers Union
[2002]
1 BLLR 84
(LC);
Buscor
(Pty) Ltd v Transport and Allied Workers Union of South Africa and
Others, Transport and Allied Workers Union of South
Africa and
Others v Buscor (Pty) Ltd
(J 2316/10, J1604/10) [2013] ZALCJHB 277 (24 October 2013)
[41]
Rustenburg
Platinum Mines Ltd v Mouthpiece Workers Union
at 89.
[42]
[2010] 2 BLLR 149 (LC)
[43]
(2016) 37 ILJ 1728 (LC)
[44]
At
para 74