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[2019] ZALCJHB 216
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Johannesburg Roads Agency (SOC) Limited v South African Municipal Workers Union (SAMWU) and Another (J1000/19) [2019] ZALCJHB 216; [2019] 12 BLLR 1341 (LC); (2020) 41 ILJ 222 (LC) (15 August 2019)
THE
LABOUR COURT OF SOUTH AFRICA,JOHANNESBURG
JUDGMENT
Of
interest to other Judges
CASE
NO: J1000/19
In the matter between:
JOHANNESBURG ROADS AGENCY (SOC)
LIMITED Applicant
and
SOUTH AFRICAN MUNICIPAL WORKERS
UNION
(SAMWU)
First
Respondent
THE PEOPLE LISTED IN ANNEXURE ‘’X’’
HERETO
Second
Respondent
Heard: 13 August 2019
Judgment
delivered: 15 August 2019
JUDGMENT
VAN
NIEKERK J
[1]
This is the return date of a rule
nisi
issued on 12 April 2019. In terms of the interim relief granted on
that date, the first and further applicants were interdicted
from
participating in an unprotected strike. The respondents oppose the
confirmation of the rule
nisi
on the basis that there was no strike.
[2]
A strike is defined in s 213 of the LRA as a ‘
partial or
complete concerted refusal to work, or the retardation or obstruction
of work, by persons who are or have been employed
by the same
employer or by different employers, for the purpose of remedying a
grievance or resolving a dispute in respect of any
matter of mutual
interest between employer and employee…
’.
[3]
It is common cause that the parties were in dispute about an issue
referred to as
‘historical pay progression’. The
applicant contends that the issue was concluded after a meeting with
the first respondent
(the union) on 1 April 2019 and in particular,
that there was no agreement for a later ‘feedback’
meeting. The applicant
avers that on 5 April 2019, the second to
further respondents (the individual respondents) stopped work and
embarked on a ‘wild
cat’ strike by marching to and
gathering at the applicant’s building situated in Pixley
Ka-Seme Street, Johannesburg.
Further, when the individual
respondents arrived at the building, chaos ensued consequent on
unlawful acts committed by the individual
respondents. These include
the breaking down of doors, breaking windows, burning tyres, burning
plastic road cones, smashing pot
plants, barricading public roads,
overturning furniture, threatening to burn down the applicant’s
building, placing garbage
on the steps of the entrance to the
applicant’s building, and blocking access to and egress from
the building. The applicant
annexed photographs to the founding
affidavit in support of these averments. The respondents do not
dispute the authenticity of
the photographs.
[4]
The respondents’ version is that it is the applicant which
should be blamed
for the events that took place on 5 April 2019. The
individual respondents do not dispute that they left their workplaces
and gathered
at the applicant’s building by 9am. By 12.15pm,
when no-one had responded to their gathering, they say that the
situation
‘started getting out of control’. The police
and shop stewards intervened and the situation was later brought
under
control. The deponent to the answering affidavit, the union’s
local chairperson, states that he received a call from the
applicant’s chairperson proposing that the respondents disperse
and return to work. This proposal was rejected by the respondents,
who ‘vowed to remain at the main entrance’ until they had
been addressed. At about 14.45, the applicant’s managing
director addressed the individual respondents, who then returned to
their work stations.
[5]
In so far as 12 April 2019 is concerned, the respondents aver that
the applicant was
advised on 11 April 2019 that no strike action was
planned for that day.
[6]
The respondents complain that the interim order was granted against
the individual
respondents without any evidence linking them
personally to the actions complained of in the founding affidavit.
Further, the respondents
submit that confirming the rule
nisi
will ‘have the undesirable effect of subduing collective
bargaining in the workplace and unduly limiting the respondents’
Constitutional rights’, and further that that they returned to
their workplaces and that ‘the situation appears to
be normal’.
[7]
In so far as the respondents contend that there was no strike because
they were ‘waiting
for feedback’ from the applicant,
there is no merit to this submission. The undisputed facts are that
the individual respondents
left their places of work on the morning
of 5 April 2019, and that by 9am, none of them were at their
workplaces. It is also not
disputed that they failed to return to
work until later the same afternoon, sometime after 3pm. Further, it
is not disputed that
the purpose of the applicant’s leaving
their places of work (and thus refusing to work) was a concerted act
that had as its
purpose the demand that the dispute concerning
historical pay progression be addressed. I fail to appreciate how it
can be said
that there was no strike in these circumstances. There
was a concerted refusal to work (at least between 9am and 3pm on 5
April
2019) for the purpose of remedying a grievance or resolving a
dispute. The respondents do not dispute that none of the procedural
requirements for the exercise of the right to strike were fulfilled.
[8]
In so far as the respondents seek to attribute blame to the
applicant, what they in essence
contend is that the strike was
provoked. This is not a consideration in the determination of the
existence or otherwise of a strike.
It is a matter that is relevant
to the determination of an appropriate sanction for participation in
an unprotected strike (see
item 6 (1) (c) of the Code of Good
Practice: Dismissal). In short: the individual respondent’s
refusal to work on 5 April
2019 constituted an unprotected strike.
[9]
I fail to appreciate how it can be said that the granting of the rule
nisi or its
confirmation will have the effect of ‘subduing’
collective bargaining in the applicant’s workplace. The
respondents
clearly have an impoverished conception of the
institution of collective bargaining, one that extends to a right to
resort to unlawful
action in the form of damage to property in
pursuit of a demand made of an employer. As the recently published
Code of Good Practice
Collective Bargaining, Industrial Action and
Picketing (the Code) notes, good faith bargaining requires that the
parties should
engage each other in a constructive manner and not act
unreasonably. Negotiations should be conducted in a rational and
peaceful
manner in which disruptive and abusive behaviour is avoided.
The individual respondents acted in breach of the Code – they
resorted to what amounts to disruptive behaviour and wanton damage to
property only because the applicant had not acceded to their
demands. In so far as the applicants seek to rely on the right
to strike to justify their conduct, the Code recalls that
the
constitutional right to strike is not unlimited. It is subject to
substantive and procedural limitations, all of which are
designed to
maintain the integrity of the process of collective bargaining and to
protect the constitutional rights of others.
The rights to bargain
collectively and to strike do not extend to the trashing an
employer’s premises and public spaces.
[10] In
so far as the respondents rely on the applicant’s failure to
identify and cite particular
individuals that it has identified as
having committed acts of misconduct, it is not practicable in matters
such as the present
to demand that only individuals positively
identified be cited as respondents. The context in which the
application was brought
is one where the unions’ members were
aggrieved at the applicant’s response to their demands and
where the union and
its members resolved to march
en masse
to
the applicant’s office. Given that the relief sought and
granted prohibited the individual respondents from committing
acts of
serious misconduct (most of which constitute criminal offences), it
was not unreasonable for the applicant to cite the
individual
respondents in the manner it did. That is not to say that all of them
actually
committed acts of misconduct – they were simply
prohibited from doing so. Should there be any disciplinary
consequences
following the events of 5 April 2019, of course, a
different test applies and it would ordinarily be necessary for the
applicant
to identify those employees who perpetrated acts of
misconduct. But for the purposes of an urgent interim order in which
employees
are prohibited from committing acts that are in any event
unlawful, it is not necessary for an applicant to establish that each
and every respondent in fact committed the misconduct complained of.
To the extent that the respondent’s counsel submitted
that the
acts committed were not sanctioned by the union, there is nothing on
record to establish that the union either distanced
itself from those
acts, or that it took any steps to prevent them being committed.
[11] In
short, the rule
nisi
stands to be confirmed.
[12]
Finally, in so far as costs are concerned, the court has a broad
discretion in terms of s 162
to make orders for costs according to
the requirements of the law and fairness. In the present
instance, the respondents
participated in an unprotected strike. They
did so in aggravating circumstances, in the form of the acts of
wanton destruction
that took place at the applicant’s premises.
The costs of the repair of the damage that occurred is ultimately for
the costs
of the ratepayers of Johannesburg. I fail to appreciate why
they should be expected to underwrite the costs of the present
proceedings.
As I have indicated, the union took no steps to prevent
the trashing that occurred, and is unable to point to any
disciplinary
action taken by it against any member for doing so. The
union is accountable for the actions of its members and it seems to
me
that the appropriate order is one that requires the union to pay
the costs, including the costs of the postponement on 6 June 2019
when the matter could not proceed on account of the late filing of
the answering affidavit. The applicant objected to the late
filing of
the affidavit and while that is condoned, the court ought properly to
express its disapproval of the filing of the affidavit
a day prior to
the return date.
I
make the following order:
1.
The rule
nisi
issued on 12 April 2019 is confirmed.
2.
The first respondent is to pay the costs of
the proceedings, such costs to include the costs of 6 June 2019, when
the matter was
postponed on account of the late filing of the
answering affidavit.
André van Niekerk
Judge