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[2019] ZALCJHB 345
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National Association of South African Workers obo Members v Kings Hire CC (J2290/19) [2019] ZALCJHB 345; (2020) 41 ILJ 685 (LC); [2020] 3 BLLR 312 (LC) (29 November 2019)
THE LABOUR COURT OF
SOUTH AFRICA, JOHANNESBURG
Reportable
case
no: J 2290 / 19
In
the matter between:
NATIONAL ASSOCIATION
OF SOUTH AFRICAN
WORKERS obo
MEMBERS
Applicant
and
KINGS
HIRE
CC
Respondent
Heard
:
26 November 2019
Delivered
:
29 November 2019
Summary:
Application for interdict
–
principles considered
– applicant failing to satisfy requirements of clear right –
no case for relief made out –
application dismissed
Urgency
– principles considered – applicant failed to satisfy
requirements for urgency – appropriate in this instance
to
dismiss application for want of urgency
Lock-out
– purpose of lock out considered – underlying dispute
between the parties concerning a 13
th
cheque remain
unresolved – employer entitled to lock out employees until such
dispute resolved – issue must be resolved
by way of collective
bargaining and not by intervention through the Court
Lock-out
– section 64(1)(c) – purpose of notice provisions
considered – unresolved dispute already reached impasse
and
failure to settle in the CCMA – strike notice already given –
employer entitled to give lock out notice –
proper lock out
notice given
Lock-out
– time limit in section 64(1)(c) considered – cumulative
effect of notices considered – overall compliance
with section
64(1)(c) found to exist
Costs
– principles considered – no costs order justified
JUDGMENT
SNYMAN, AJ
Introduction
[1]
The application brought by the applicant
has some novelty to it, and it is a great pity it was not brought
sooner, as the substantial
delays that crept in as a result of the
applicants doing nothing for far too long caused their case untold
harm. I will deal with
this issue in more detail later in this
judgment. A further issue that has been brought to the forefront in
this application is
answering the question as to what extent this
Court should become involved in an ongoing process of collective
bargaining where
the underlying issue in dispute remains unresolved.
[2]
The proceedings before this Court is also
not without some controversy. The application initially came before
Whitcher J on 21 November
2019. In terms of the order recorded by the
learned Judge on the Court file on 21 November 2019, and pursuant to
which a typed
order was also placed in the Court file, the learned
Judge simply postponed the matter to 26 November 2019 to be heard my
me. When
the matter then came before me, I indicated to Mr Marweshe,
representing the applicant, that he was first required to address me
on urgency. He then indicated that Whitcher J had already ordered on
21 November 2019 that the matter be heard as one of urgency.
Mr
Crause, representing the respondent, did not share this view, stating
no such decision had been made. I indicated to Mr Marweshe
that I
could only go on what is indicated on the Court file, and there was
no trace of such an order being made by Whitcher J.
I then indicated
to Mr Marweshe that I still required him to address me on urgency,
which I would still decide, and it was up to
him to decide if he
wanted to do so or not.
[3]
Even though Mr Marweshe elected not to
address me on urgency, I indicated to him that I would nonetheless
consider the merits of
the matter, and that he could then argue the
matter on this basis, which he did. Fortunately, and the course the
argument on the
merits, the issue of urgency was also addressed, in
that it had a direct impact on the merits of the case as well. In the
end,
and as far as I am concerned, the entire matter in all its
aspects was fully ventilated.
[4]
What
the applicants were seeking in this application is final relief.
Because of this, the applicants must satisfy three essential
requirements, being: (a) the existence of a clear right; (b) an
injury actually committed or reasonably apprehended; and (c) the
absence of any other satisfactory remedy.
[1]
The
application is opposed by the respondent not only on the merits
thereof, but also on the basis of a lack of urgency.
[5]
I will now commence deciding this matter,
starting with a summary of the proper factual matrix upon which this
matter must be decided.
For the sake of convenience, I will refer to
the applicant union in this judgment as ‘NASAW’, and its
applicant members
as ‘the employees’.
Relevant
facts
[6]
Fortunately, and in
this case, most of the essential factual matrix is either undisputed,
or common cause.
[7]
This matter arose from a mutual interest
dispute between NASAW and the employees on the one hand, and the
respondent on the other,
concerning the payment of a 13
th
cheque to the employees. The employees were all employed as general
workers. The respondent was unwilling to agree to pay the employees
a
13
th
cheque. When this dispute could not be resolved, NASAW referred a
mutual interest dispute to the CCMA for conciliation, on 3 July
2019.
[8]
The
dispute was unsuccessfully conciliated at the CCMA on 19 July 2019.
The matter was then set down again in the CCMA for the purposes
of
establishing picketing rules for the strike to follow, on 30 July
2019. The parties could not agree on picketing rules, and
on 5 August
2019, the CCMA then issued picketing rules in terms of section 69(5)
of the Labour Relations Act (LRA).
[2]
The CCMA also issued a certificate of failure to settle as
contemplated by section 64(1)(a) of the LRA, on 6 August 2019, which
then opened the way for NASAW and the employees to embark upon
protected strike action.
[9]
NASAW met with the employees on 29 August
2019, and obtained their mandate to commence with strike action. On
the same day, NASAW
then gave the respondent notice as contemplated
by section 64(1)(b) of the LRA, of commencement of strike action. The
notice reflected
that the strike was due to commence on 2 September
2019. The issue in dispute forming the subject matter of the strike
concerned
the payment of the 13
th
cheque to the employees.
[10]
What the respondent next did was to
approach the High Court under case number 65617 / 2019 and obtained
an interim interdict against
NASAW and its members on 30 August 2019,
prohibiting unlawful interference with the respondent’s
business and intimidation
of the respondent’s personnel, and
creating a perimeter of 500 metres around the respondent’s
premises. Why the respondent
approached the High Court, and why the
High Court even entertained the matter is unclear. Be that as it may,
this interim order
had nothing to with interdicting the proposed
strike. The return date for the interim order was 20 September 2019.
[11]
It would seem that this High Court Order
prompted NASAW to suspend the proposed strike. After being served
with the Order on 30
August 2019, NASAW sent a letter to the
respondent on 31 August 2019, indicating that the intended strike
would be ‘
placed in abeyance
’
until the finalization of the High Court case. Presumably, what was
meant by this, is pending the return date of 20 September
2019. There
was no indication in the papers as to what happened on the return
date.
[12]
What is common cause is that on 2 September
2019, being the day the strike was supposed to start, the employees
were not allowed
to report for work. The reason given by the
respondent for this is that the employees had been locked out in
response to the strike
notice, as the underlying dispute still
remained unresolved.
[13]
Upon being informed by the employees of
this lock-out implemented by the respondent, NASAW sent a letter to
the respondent on 3
September 2019, indicating that because the
employees would not be proceeding with the strike as a result of the
High Court order,
there was no ‘necessity’ to implement a
lock-out.
[14]
It is then that the respondent sent notice
to NASAW regarding the implementation of a lock-out. The notice was
sent to NASAW on
3 September 2019, clearly in response to the letter
from NASAW on the same date, as mentioned above. In this lock-out
notice, the
respondent specifically refers to the unresolved
underlying dispute, in respect of which the CCMA had issued a
certificate of failure
to settle, as being the basis for the
lock-out. It was stated that this lock-out would commence on 5
September 2019.
[15]
On 4 September 2019, NASAW answered to this
lock-out notice received by it on 3 September 2019. It
inter
alia
complained that the employees were
locked out as from 2 September 2019, despite not commencing strike
action. It also took issue
with the fact that when the lock-out
notice was given to it on 3 September 2019, which notice indicated
the lock-out would commence
on 5 September 2019, whilst the lock-out
was already in effect. It was finally indicated that the employees
would continue to report
for duty, and it was requested that the
respondent allow them to return to work.
[16]
The respondent’s representatives, Du
Plessis Labour Law Practitioners, answered on 5 September 2019. They
indicated that the
lock-out was called to start on 5 September 2019
in ‘direct response’ to a dispute of mutual interest. It
was indicated
that the respondent remained willing to negotiate the
dispute. There was no response from NASAW to this letter. Nothing
happened
after that, until the end of September 2019, with the
employees remaining locked out.
[17]
The next relevant event in the chronology
took place on 30 September 2019, when the employees were not paid
their salaries for the
month of September. On 30 September 2019, the
attorneys for NASAW at the time, Risenga Attorneys, wrote to the
respondent’s
attorneys (there has been earlier correspondence
between the sets of attorneys on an issue of organizational rights).
In this letter,
it was said that there was no legal basis for the
lock-out, and it was demanded that the respondent immediately
‘desist’
from locking out the employees. It was also
demanded that the salaries of the employees be paid and the lock-out
be uplifted on
or before 2 October 2019, or the Labour Court will be
approached seeking urgent relief.
[18]
Needless to say, the respondent did not
comply with the demand. However no urgent application followed. In
fact, nothing happened
for the entire month of October, despite the
lock-out remaining in place and the salaries remaining unpaid. The
employees were
also not paid their salaries for October 2019, as a
result of the lock-out.
[19]
Only on 18 November 2019, some three weeks
later, the current urgent application by NASAW was then brought, on
four days prior notice,
with the matter being set down for 22
November 2019. There is no explanation for this further delay.
Urgency
[20]
Urgent
applications are governed by the provisions of Rule 8 of the Labour
Court Rules. In
Jiba
v Minister: Department of Justice and Constitutional Development and
Others
[3]
the Court applied Rule 8 as follows:
‘
Rule
8 of the rules of this court requires a party seeking urgent relief
to set out the reasons for urgency, and why urgent relief
is
necessary. It is trite law that there are degrees of urgency, and the
degree to which the ordinarily applicable rules should
be relaxed is
dependent on the degree of urgency. It is equally trite that an
applicant is not entitled to rely on urgency that
is self created
when seeking a deviation from the rules.
’
[21]
Another
important consideration to be applied when deciding whether a matter
is urgent, is the determination of whether an applicant
would not be
afforded substantial redress in due course, and the duty is on the
applicant to provide proper reasons in support
of such a case.
[4]
As succinctly described by the Court in
Maqubela
v SA Graduates Development Association and Others
[5]
:
‘
Whether
a matter is urgent involves two considerations. The first is whether
the reasons that make the matter urgent have been set
out and
secondly whether the applicant seeking relief will not obtain
substantial relief at a later stage. In all instances
where urgency
is alleged, the applicant must satisfy the court that indeed the
application is urgent. Thus, it is required of the
applicant
adequately to set out in his or her founding affidavit the reasons
for urgency, and to give cogent reasons why urgent
relief is
necessary. …
’
[22]
In
the case of an applicant seeking final relief on an urgent basis, the
Court must be even more circumspect when deciding whether
or not
urgency has been established.
[6]
In
Tshwaedi
v Greater Louis Trichardt Transitional Council
[7]
the Court said:
‘…
An
applicant who comes to court on an urgent basis for final relief
bears an even greater burden to establish his right to urgent
relief
than an applicant who comes to court for interim relief. …
’
[23]
The
Court must also further consider the interests of the respondent
party, and in particular, the prejudice the respondent may
suffer if
the matter is urgently disposed of. In
Association
of Mineworkers and Construction Union and Others v Northam Platinum
Ltd and Another
[8]
the
Court held as follows:
‘
But
it is not just about the applicant. Another consideration is possible
prejudice the respondent might suffer as a result of the
abridgement
of the prescribed time periods and an early hearing.
’
[24]
Finally,
urgency must not be self-created by an applicant, as a consequence of
the applicant not having brought the application
at the first
available opportunity.
[9]
As the
Court said in
Northam
Platinum supra
[10]
:
‘…
the
more immediate the reaction by the litigant to remedy the situation
by way of instituting litigation, the better it is for establishing
urgency. But the longer it takes from the date of the event
giving rise to the proceedings, the more urgency is diminished.
In short, the applicant must come to Court immediately, or risk
failing on urgency. …
’
[25]
Applying all the above considerations to
the application
in casu
,
I am sorry to say that NASAW has dismally failed to establish that
this matter is urgent. There are a number of reasons for this.
First
and foremost, not only was this application not brought at the
earliest available opportunity, but NASAW has completely
procrastinated where it came to the pursuit of the matter. As far
back as 4 September 2019, NASAW complained that the lock-out was
not
lawful, for the same reasons forming the basis of the current
application. When the respondent answered on 5 September 2019
that it
disagreed, and would persist with the lock-out, NASAW did nothing.
This was the appropriate time to have brought the application
to
Court, but it did not happen.
[26]
Therefore,
the lock-out remained in effect right up to the end of September
2019, without intervention being sought from this Court.
What spurred
NASAW into action was when the employees were not paid on 30
September 2019. However, even this action was severely
lacking. On 30
September 2019, the attorneys for NASAW demanded that the lock-out be
lifted and the salaries of the employees be
paid, and gave a deadline
of 2 October 2019 to comply, coupled with a specific threat that if
this deadline is not complied with,
an urgent application would
follow. The deadline came and went, was not complied with, and yet
again nothing happened. This is
incompatible with any case of
urgency.
[11]
[27]
For the entire month of October 2019, NASAW
still did nothing to pursue the matter. There is no explanation
presented for this failure.
The employees were not paid at the end of
October 2019 and even this was not sufficient to cause NASAW to
approach this Court.
Only approximately a further three weeks later,
again with no explanation for this further delay, the current
application is brought
as one of urgency.
[28]
Thus, in my view, whatever urgency existed
dissipated by the end of September 2019 when the employees were not
paid, the lock-out
persisted, the attorneys for NASAW threatened
urgent legal action, and nothing was done. By the end of October 2019
when the same
pattern followed, the urgency that was already dead was
then buried. This is simply nothing urgent about the current
application.
[29]
NASAW
approached this matter on the basis of simply accepting this matter
was urgent, because of its case that the lock-out was
unlawful. In
other words, the mere existence of an unlawful lock-out was urgency
in itself. This approach is misguided and misconceived.
Even if it
may be so that the lock-out is unlawful, the requirements of urgency
must still be satisfied. The delay in bringing
this application must
still be explained. The fact is that there was no change in the basis
of the application between the beginning
of September 2019 when the
lock-out was implemented, and 18 November 2019, when this application
was finally brought.
[12]
There
is zero explanation for a delay of some two and half months, and the
only action taken in this entire period is one letter
on 30 September
2019.
[13]
NASAW only has
itself to blame for these failures, and the predicament it has placed
its members in as a result.
[30]
I am also of the view that NASAW can obtain
relief for the employees of its own accord, and in the ordinary
course. First, and as
will be discussed further below, all its needs
to do to get the employees back at work is to abandon the demand for
a 13
th
cheque. Next, and insofar as NASAW wishes to claim the unpaid
salaries of the employees which was not paid as a result of the
lock-out, it could have simply instituted a claim on the ordinary
course based on breach of the employment contracts of the employees.
Because the only basis for the non-payment of the employees is the
lock-out, once it is shown that the lock-out is not lawful,
the
employees would be entitled to the payment of their salaries. That I
consider to be substantial redress in due course.
[31]
Considering also the interests of the
respondent, and because the underlying issue in dispute is still
unresolved, it has implemented
a lock-out as part of the collective
bargaining process to resolve this impasse, and this has persisted
for more than two months.
This surely must have conveyed to the
respondent that the current process would not be challenged, and that
the issue would be
resolved in the ordinary course of the collective
bargaining process which, described as simply as possible, means that
he who
folds first, loses. To interfere with this now, after so long,
is unduly prejudicial to the respondent and its right to participate
in the collective bargaining to the full extent allowed by the LRA.
[32]
Therefore,
the applicants have failed to make out a case of urgency. The
requirements of Rule 8 have thus not been satisfied. There
has been
an excessive delay without any explanation for it. The current
alleged urgency is nothing else but a matter of self-created
urgency.
Exceptional circumstances justifying urgent intervention have not
been shown to exist. For all these reasons as set out
above, the
application falls to be struck from the roll, or dismissed. The
Court in
February
v Envirochem CC and Another
[14]
accepted
that urgency was not established, but the Court nonetheless proceeded
to dismiss the matter. For the reasons to follow,
I believe that this
is a similar situation where the matter must be finally disposed of,
and dismissed, and not just struck from
the roll.
The
merits
[33]
The application is
founded on the contention that the lock-out implemented by the
respondent is unlawful. In essence, there are
two reasons for this
contention. The first is that NASAW, despite giving the strike notice
as contemplated by section 64(1)(b),
suspended the strike before it
started, which meant a lock-out was not permitted as there was no
strike. The second is that the
respondent’s lock-out notice in
terms of section 64(1)(c) of 3 September 2019, implementing the
lock-out as from 5 September
2019, was irregular, because the
lock-out had already been effected on 2 September 2019.
[34]
I will first deal
with the issue whether the respondent was entitled to lock out the
employees, even though the strike was, as NASAW
said, held in
‘
abeyance
’.
In answering this question, a number of factual considerations are
critical. First, there clearly existed an issue in dispute
between
the parties, namely the payment of a 13
th
cheque to the employees, which the respondent was unwilling to agree
to. Second, this issue in dispute was referred to the CCMA
where it
was unsuccessfully conciliated and a certificate of failure to settle
was issued. Third, NASAW issued a notice of commencement
of strike
action to the respondent, which notice was never withdrawn. Fourth,
the respondent issued its lock-out notice in response
to this strike
notice. And finally, the underlying issue in dispute was never
resolved.
[35]
In the context of the
above core factual considerations, certain principles must be
identified. In this regard, it is prudent to
first have regard to the
definition of a lockout in section 213 of the LRA, which reads:
‘…
the
exclusion by an employer of employees from the employer's workplace,
for the purpose of compelling the employees to accept a
demand in
respect of any matter of mutual interest between employer and
employee, whether or not the employer breaches those employees'
contracts of employment in the course of or for the purpose of that
exclusion’
[36]
It
is thus clear that a lock-out is firstly an exclusion of the
employees from the workplace. But an exclusion to what end?
In
Transport
and Allied Workers Union of SA v Putco Ltd
[15]
it was held as follows in this regard:
‘
The
purpose of a
lock-out
in terms of s 213
is to compel employees whose trade union is party to certain
negotiations to accede to an employer's demand. Its
object is to end
a stalemate reached as a result of an impasse in negotiations between
employer and employee in respect of matters
of 'mutual interest'. A
resolution of a dispute can be reached only between adversaries. As a
matter of logic, then, there must
be a dispute between an employer
and employees or their trade union before a
lock-out
is
instituted. Accordingly, any exclusion of employees from an
employer's workplace that is not preceded by a demand in respect
of a
disputed matter of mutual interest does not qualify as
a
lockout in
terms of s 213 of the LRA.’
[37]
It
follows that there must thus be a demand by the employer which was
not acceptable to the union and the employees.
[16]
It is however important to appreciate that the lock-out notice itself
does not constitute the demand by the employer, but is simply
a
notification of the industrial action to be implemented by the
employer as a result of a demand that already exists. This is
evident
from the following
dictum
in
Putco
supra
:
[17]
‘
The
LRA clearly distinguishes between
a
notice and a demand and does not use the two interchangeably. The
purpose of a lock-out notice is to inform a union and its members
of
an impending lock-out. In other words, recourse to a lawful lock-out
must already be available. An employer is not entitled
to resort to a
lock-out
if it has
not yet made a demand to those employees who are to be excluded from
the employer's workplaces.
’
[38]
The
issue of what constitutes a demand in the context of a lock-out was
further elaborated on by the Court in
United
Transport and Allied Trade Union/SA Railways and Harbours Union and
Others v Autopax Passenger Services (SOC) Ltd and Another
[18]
as follows:
‘
In
addressing this issue, the pertinent question to be answered is what,
in the context of collective bargaining, constitutes a
'demand'. The
starting point in this enquiry is the definitions section in the LRA,
which defines a 'dispute' as 'a dispute includes
an alleged dispute',
and 'issue in dispute' as 'in relation to a strike or lock-out, means
the demand, the grievance, or the dispute
that forms the subject
matter of the strike or lock-out'. What is clear from these
definitions is that to use the word 'demand'
in the context of the
sole subject-matter of a lock-out is not really correct. The
definition provides for both a 'demand' and
a 'dispute' as being
susceptible to forming the subject-matter of a lock-out. The problem
that arises in respect of this issue
is that 'demand' and 'dispute'
are often regarded as synonyms, when they are not.
’
[39]
It
therefore follows that where a trade union tabled a demand relating
to conditions of employment with an employer, and that dispute
is
referred to conciliation but remains unresolved, a lock-out may be
implemented by an employer as part and parcel of the collective
bargaining process to resolve the impasse, irrespective of whether a
strike starts or not.
[19]
As
said in
Putco
supra
:
[20]
‘…
Collective
bargaining therefore implies that each employer party and employee
party has the right to exercise economic power against
the other once
the issue in dispute has been referred for conciliation, and only if
that process fails in one of the manners described
above.
’
The
following
dictum
from the judgment in
Autopax
supra
[21]
is also apposite:
‘
The
right of trade unions and employees to strike and the right of
employers to implement a lock-out are not an end in themselves
but a
means to an end and exist specifically in the context of the process
of collective bargaining. That end is the resolution
of the impasse
which exists in the collective bargaining process at the time when
these mechanisms are invoked.’
[40]
It
is therefore not required that the strike must actually start before
a lock-out can be implemented. As said in
Technikon
SA v National Union of Technikon Employees of SA
[22]
:
‘
S
64 also does not say that once employees have given notice to strike
or once they have begun with their strike before the employer
can
either give its notice to lock-out or can institute its lock-out, the
employer can no longer exercise its recourse to lock-out
under s64(1)
even if all the requirements have been met. Equally, there is no
provision to the effect that, if the employer has
given the notice to
lock-out first or has begun with its lock-out before the employees
can begin with their strike or can give
their notice to strike, the
employees lose their right to strike. This, therefore, means that a
lock-out may commence before, simultaneously
with, or, after, a
strike has commenced. It also means that a lock-out and a strike can
run concurrently between the same parties.
What this would mean in
practice is that the strikers would be excluded from the premises of
the employer.
’
[41]
Applying
the facts
in
casu
to the aforesaid legal principles, the issue in dispute concerning
the 13
th
cheque tabled by NASAW, which the respondent was unwilling to agree
to, and which was referred to conciliation but remained unresolved,
constitutes a demand that would legitimately form the subject matter
of the lock-out implemented by the respondent. The strike
notice of
NASAW, and the following lock-out notice by the respondent, are
simply two sides of the same underlying dispute and part
of the same
collective bargaining process, aimed at finally resolving the issue
in dispute of the 13
th
cheque. Their respective purposes are thus identical.
[23]
The argument that because NASAW decided to hold the strike in
‘abeyance’ after giving the strike notice, but before
it
actually started, it meant that the respondent could not pursue a
lock-out, is thus without any substance.
[42]
What remains is the notice requirement for
the lawful lock-out. Once again, the strike notice provisions are
virtually the same
as those relating to lock outs. In this regard,
section 64(1)(c) reads:
‘
Every
employee has the right to strike and every employer has recourse
to
lock-out if — ...
(c)
in
the case of a proposed lock-out, at least 48 hours' notice of the
commencement of the lock-out, in writing, has been given to
any trade
union that is a party to the dispute, or, if there is no such trade
union, to the employees, unless the issue in dispute
relates to a
collective agreement to be concluded in a council, in which case,
notice must have b
een
given to that council.'
[43]
As
to the requirements of the notice itself, the only express
requirement in section 64(1)(c) itself is 48 hours’ prior
notice
to the trade and/or the employees concerned. In
SA
Transport and Allied Workers Union and Others v Moloto NO and
Another
[24]
it
was held that the only certainty required to be reflected in a strike
notice is when the strike will start. In my view, this
equally
applies to a lock-out notice. There is however the proviso that if
there a trade union, the lock out notice only has to
be given to the
trade union and not to the employees.
[25]
As held in
Autopax
supra
:
[26]
‘
The
simple issue is whether the basis of the above reasoning can equally
apply to a lock-out implemented by an employer. I can see
no reason
why not. A lock-out fulfils the same purpose in and is part and
parcel of the same process of collective bargaining.
It is also clear
from the passages quoted above that the court in
Moloto
accepted that the provisions relating to lock-outs should equally not
be restrictively interpreted. The fact is that s 64(1)
(a)
as a point of departure applies to both strikes and lock-outs. It
contemplates one issue in dispute and as such, one notice that
applies to all parties that are affected by the issue in dispute. …
’
[44]
Also,
the
employer has to identify the issue in dispute in its lock-out notice
with sufficient particularly so as to inform the other
parties of
what the issue in dispute and position of the employer is, so that
such parties would know what they need to do to resolve
the same and
thus prevent being locked-out.
[27]
[45]
On
the undisputed facts
in
casu
,
the respondent did give NASAW notice on 3 September 2019 that it
would implement the lock-out effective 5 September 2019. This
clearly
complies with the requirement of 48 hours’ prior notice of the
lock out to NASAW. Also, the notice specifically identified
the issue
in dispute forming the subject matter of the lock-out as being the
same dispute for which the certificate of failure
to settle was
issued. No further detail is required in the notice. In the course of
this 48 hours’ lockout notice period
given to NASAW, it had the
opportunity to reflect on its position and that of the employees, and
decide whether or not to abandon
their demand forming the subject
matter of the unresolved issue in dispute, knowing that once the
lock-out is implemented they
would be excluded from the workplace and
not be paid until the dispute is finally resolved. In
Nasecgwu
and Others v Donco Investments (Pty) Ltd
[28]
the Court held as follows:
‘
What,
however, stands out from all of these cases is the fact that it is
the purpose of the strike or lock-out notice to give the
employer or
the union and employees an opportunity to reflect on the proposed
action and their response thereto. The reason for
allowing the
parties this opportunity is obvious: Once a lock-out is instituted,
the employer does not have to remunerate the locked
out employees.
Likewise, once the employees embark on strike action because the
employer does not wish to accede to their demands,
the principle of
no work no pay will apply. The economic consequences of any decision
taken during the 48-hour notice period are
therefore important to
both parties. The possibility of settling the dispute either by
making a counter-proposal which may eventually
settle the dispute or
acceding to a demand in order to avert the strike or even abandon the
strike or lock-out, is of equal importance.
It is therefore, in my
view, clear that the legislature had intended to afford parties an
opportunity to reflect on the consequences
of the lock-out or strike
notice. Section 64(1)
(c)
read in its proper context and read against at least two of the
primary objects of the LRA, which are to promote collective
bargaining
and to promote the effective resolution of labour
disputes, must be interpreted to mean that the 48-hour notice serves
as an opportunity
to parties to reflect on the consequences of the
strike or lock-out notice.
’
[46]
Because
the underlying issue in dispute still remained unresolved, and with
the respondent having implemented the lock-out, the
respondent was
entitled not to accept the employees’ tender of services. It is
insufficient for NASAW to simply suspend the
strike, or hold it in
abeyance, to secure the uplifting of the lock-out and the return of
the employees to work. The reason for
this is that for as long as the
underlying issue in dispute remains unresolved, NASAW and the
employees can at any time resume
the strike. In
Transportation
Motor Spares v National Union of Metalworkers of SA and Others
[29]
the Court said:
‘…
the
employer is entitled at the stage of the proposed return to work on
the part of the strikers to lock them out until the dispute
over
which they had gone out on strike has been resolved. It is therefore
up to the employer to enquire from the strikers when
they seek to
return to work what the basis is for their return to work and to
decide whether he will allow them to resume their
duties or not and
if he will, then on what terms they will be so allowed.
’
[47]
I
was informed, even when this matter was argued in Court, that the
underlying dispute had still not been resolved. It is only once
this
dispute is settled, or the demand for a 13
th
cheque abandoned by NASAW, that the lock-out is uplifted and the
employees can demand their return to work. The employees are
consequently not be entitled to be paid, until this happens.
[30]
[48]
It does not matter, for the purposes of
deciding whether the lock-out was lawful, if the employees were
already excluded from the
premises as from 2 September 2019. At best
for them, they would be entitled to claim payment of their salaries
for the period between
2 and 5 September 2019. However, and after 5
September 2019, there was clearly a proper and lawful lock-out that
had been implemented,
and the employees are not entitled to payment
for as long as this endures.
[49]
In conclusion therefore, it is my view that
NASAW had failed to make out a case that the lock-out implemented by
the respondent
as from 5 September 2019 was unlawful. I am satisfied
that there existed an underlying issue in dispute between the parties
that
remained unresolved, and this issue in dispute had been referred
to conciliation and a certificate of failure to settle was issued.
The lock-out notice itself was issued in response to the strike
notice, and itself complied with all the procedural requirements
under section 64(1)(c).
[50]
It is now squarely in the hands of NASAW
and the employees to have the lock-out uplifted. All they need do is
to abandon their demand
for a 13
th
cheque, which will resolve the underlying issue in dispute, and
remove the cause for the lock-out. In such circumstances, the
respondent would have to allow the employees to immediately return to
work.
[51]
For the aforesaid reasons, the applicants
have failed to demonstrate a clear right to the relief sought. For
this reason as well,
the applicants’ application must fail, and
falls to be dismissed.
Costs
[52]
This
then only leaves the issue of costs. The parties have an ongoing
relationship. I do not believe the applicants were unreasonable
in
pursing this matter. The application did raise some novel legal
issues.
In
Zungu
v
Premier
of the Province of KwaZulu-Natal and Others
[31]
it
was held that the rule that costs follow the result does not apply in
employment disputes, and that a costs order should not
be made unless
fairness and equity dictates it.
Therefore,
and even though the applicants were not successful, I do not believe
that a costs order would be appropriate. Exercising
the wide
discretion I have in terms of section 162(1) of the LRA, I believe
that this is a case where fairness dictates that no
order as to costs
be made.
[53]
In the premises, I make the following
order:
Order
1.
The applicants’ application is
dismissed.
2.
There is no order as to costs.
_____________________
S Snyman
Acting
Judge of the Labour Court of South Africa
Appearances:
For the Applicants:
Mr
Marweshe of Marweshe Attorneys
For the
Respondent:
Advocate J Crouse
Instructed
by:
Henk Klopper Attorneys
[1]
Setlogelo
v Setlogelo
1914 AD 221
at 227;
V
& A Waterfront Properties (Pty) Ltd and Another v Helicopter &
Marine Services (Pty) Ltd and Others
2006 (1) SA 252
(SCA) para 20; Telkom (supra) at para 6;
Royalserve
Cleaning (Pty) Ltd v Democratic Union of Security Workers and Others
(2012) 33 ILJ 448 (LC) para 2;
Van
Alphen v Rheinmetall Denel Munition (Pty) Ltd
(2013) 34 ILJ 3314 (LC) para 7.
[2]
Act 66 of 1995 (as amended).
[3]
(2010)
31 ILJ 112 (LC) at para 18.
[4]
Mojaki v Ngaka Modiri Molema District
Municipality and Others
(2015) 36 ILJ
1331 (LC) at para 17;
East Rock Trading
7 (Pty) Ltd and Another v Eagle Valley Granite (Pty) Ltd and
Others
[2012] JOL 28244
(GSJ) at para
6.
[5]
(2014)
35 ILJ 2479 (LC) at para 32. See also
Transport
and Allied Workers Union of SA v Algoa Bus Co (Pty) Ltd and Others
(2015) 36 ILJ 2148 (LC) at para 11.
[6]
Ntombela
and Others v United National Transport Union and Others
(2019) 40 ILJ 874 (LC)
at para 28.
[7]
[2000]
4 BLLR 469
(LC) at para 11.
[8]
(2016)
37 ILJ 2840 (LC) at para 26. See also
IL
& B Marcow Caterers (Pty) Ltd v Greatermans SA Ltd and Another
1981(4) SA 108 (C) at 113D-114C.
[9]
See
Golding
v HCI Managerial Services (Pty) Ltd and others
[2015] 1 BLLR 91
(LC) at para 24;
National
Union of Mineworkers v Lonmin Platinum Comprising Eastern Platinum
Ltd and Western Platinum Ltd and Another
(2014) 35
ILJ
486 (LC) at para 50.
[10]
Id
at para 26. See also
Sihlali
and Others v City of Tshwane Metropolitan Municipality and Another
(2017) 38 ILJ 1692 (LC) at para 18.
[11]
See
National
Union of Metalworkers of SA and Others v Bumatech Calcium Aluminates
(2016) 37 ILJ 2862 (LC)
at
para 30.
[12]
Bumatech (
supra
)
at para 28.
[13]
Compare
Ntombela
(
supra
)
at para 34.
[14]
(2013)
34 ILJ 135 (LC) at para 17. See also
Bumatech
(supra
)
at
para 33;
Bethape
v Public Servants Association and Others
[2016]
ZALCJHB 573 (9 September 2016) at para 53;
Ntombela
(
supra
)
at para 37
.
[15]
(2016)
37 ILJ 1091 (CC) at para 32.
[16]
Putco
(
supra
)
at para 34.
[17]
Id at para 36.
[18]
(2014)
35
ILJ
1425 (LC)
at
para 60. See also the authorities referred to in para 61 of the
judgment.
[19]
Putco
(
supra
)
at para 45;
Autopax
(
supra
)
at para 42;
Technikon
SA v National Union of Technikon Employees of SA
(2001)
22 ILJ 427 (LAC) at par 16
.
[20]
Id at para 46.
[21]
Id at para 40.
[22]
(2001)
22 ILJ 427 (LAC) at par 29.
[23]
Autopax
(
supra
)
at para 44.
[24]
(2012)
33 ILJ 2549 (CC) at para 86.
[25]
Moloto
(
supra
)
at para 87.
[26]
Id at para 46.
[27]
Autopax
(
supra
)
at para 65.
[28]
(2010)
31 ILJ 977 (LC) at para 16. See also
National
Union of Metalworkers of SA on behalf of Members v National
Employers' Association of SA and Others (2)
(2015) 36 ILJ 753 (LC) at para 13.
[29]
(1999)
20 ILJ 690 (LC) at para 18. See also
National
Union of Metalworkers of SA on behalf of Members v National
Employers’ Association of SA and Others (1)
(2015) 36 ILJ 743 (LC) at para 28;
Bumatech
(
supra
)
at paras 9 – 10.
[30]
Autopax
(
supra
)
at para 58;
S
A Commercial Catering and Allied Workers Union and Others v Rea
Sebetsa
(2000)
21
ILJ
1850 (LC)
at
para
20
.
[31]
(2018)
39 ILJ 523 (CC) at para 24.