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[2020] ZALCJHB 116
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UASA - The Union obo Members v Impala Platinum Limited (JS409/18) [2020] ZALCJHB 116 (21 January 2020)
IN
THE LABOUR COURT OF SOUTH AFRICA, JOHANNESBURG
Not Reportable
Case
no: JS409/18
In
the matter between:
UASA-THE
UNION obo MEMBERS
Applicant
and
IMPALA
PLATINUM LIMITED
Respondent
Heard:
25 – 27 November 2019
Delivered:
21 January 2020
Summary:
Leave – respondent unilaterally placed its Level D employees on
leave for 5 months during a strike by Amcu in which
they did not
participate – the leave they had to take comprised accrued
leave and future unaccrued leave – the employer
deducted
contractual (non-statutory) leave days – the employees did not
apply for leave – more leave taken than available
- whether
deduction of contractual leave (in addition to statutory leave)
lawful. Employer has no statutory or contractual discretion
and the
policy does not permit the deduction – reliance upon tacit
consent for deduction – consent not established
–
deduction unlawful
JUDGMENT
COETZEE,
AJ
The
parties
[1]
The applicant is UASA-THE UNION ("the
union") acting on behalf of its members ("the individual
applicants")
listed on Annexure "A" to the statement
of claim. At the commencement of the proceedings an amended Annexure
"A"
was handed in reflecting the particulars of 66
(sixty-six) members.
[2]
The respondent is Impala Platinum Ltd,
which is the employer ("the employer") of the 66 members of
the union.
The
issue
[3]
The
applicant approaches the court in terms of section 77 of the Basic
Conditions of Employment Act
[1]
(BCEA) for relief.
[4]
It seeks an order declaring that the
respondent is not entitled to deduct any leave from the leave
entitlement of the applicant's
members who have not agreed thereto on
the strength of the so-called leave regime and default rule
unilaterally implemented by
the respondent and to credit the members
with any leave deducted from them on the strength of the so-called
leave regime and default
rule unilaterally implemented by the
respondent.
[5]
At the heart of the matter is the question
whether the respondent unlawfully deducted leave days from the
individual members.
The
facts
[6]
In terms of their individual contracts of
employment, the individual applicants are entitled to 35 days leave
per annum. Of these
35 days, 21 days are referred to as compulsory
leave ("CL"), and the remaining 14 days are referred to as
accumulative
leave ("AL") or contractual leave. This case
concerns only the AL.
[7]
On 23 January 2014 AMCU members employed by
the employer commenced with a protected wage strike within the AMCU
bargaining unit,
which strike endured until 24 June 2014.
[8]
On Friday, 24 January 2014, and following
various acts of violence, intimidation, breaches of the picketing
rules and other unlawful
conduct, the employer obtained an urgent
interim interdict interdicting AMCU and its members from engaging in
such unlawful activities.
[9]
The individual applicants did not
participate in the strike action and at all material times tendered
their services to the employer
during the 5-month strike.
[10]
On 3 February 2014 the employer
communicated its decision by way of a Strike Brief that all
non-striking employees would be sent
on paid leave until further
notice and that the position would be reviewed on a weekly basis.
[11]
At the time nobody expected the strike to
last 5 months.
[12]
Mr Barnard ("the witness")
testified on behalf of the union and the individual applicants and
was the only witness that
was called during the trial.
[13]
He testified that the communication of 3
February 2014 was made to them orally by the General Manager during a
meeting. The written
Strike Brief did not reach him or the other
employees.
[14]
The employer communicated with the
individual applicants, and its other employees, by way of electronic
communications. They normally
receive the communications on their
computers.
[15]
Their computers were locked away at the
office when they were sent on leave and they had no access thereto
during the strike.
[16]
The employer issued further strike briefs
which they also did not receive until such time as they had access to
their computers
once the strike ended. According to him, they were
told to communicate with their HOD's during the strike.
[17]
The strike brief issued by the employer
explained that the leave would be "
issued
from your current portion of AL
.",
and that if individual applicants did not have sufficient AL, it
would be advanced "
from your next
leave cycle
". This leave
arrangement is referred to as the leave regime.
[18]
The decision to embark on the leave regime
was explained as follows in the strike brief:
"The Rustenburg
operations have therefore again become ungovernable and it is
necessary to implement measures to protect non-striking
employees and
the company property. We are certain that it is clear from what has
been explained that it is (i.e. the leave regime)
necessary to
protect you from further unlawful acts as the Rustenburg operations
have, to our great sadness and regret, become
ungovernable."
[19]
The strike brief of 3 February 2014
recorded that:
"If
you however have any further questions, please contact your Human
Resources Officer for the Strike Hotline on 0145692499."
[20]
It was common cause that the leave regime
was unilaterally imposed by the employer and remained in place until
the strike ended
on 24 June 2014. On 6 and 13 March 2014 the employer
issued a strike brief advising its individual applicants as follows:
"At this point in
time, the forced leave practice will remain in place for all
employees who qualify for the paid AL arrangement
with the following
options available to these employees:
Take AL due do you. If
you have none at this stage, we will in the days to employees who
qualify, or
Take annual leave, or
Take unpaid leave.
The
decision to send our employees on leave as meant that Impala have no
deaths or injuries because of the strike to date. The safety
of our
team is our first priority."
[21]
The witness confirmed that the individual
applicants did not during the strike receive this strike brief
either. It is common cause
that during the period of the strike the
employer communicated with non-striking employees on a weekly basis,
advising them of
the extension of the leave from week to week. The
electronic communications were not received by the individual
applicants. The
text messages though contained a similar message and
reached the individual applicants.
[22]
It is also further common cause that the
individual applicants did not apply for leave during the period of
the strike or thereafter.
Also that the union and its members never
raised any formal objection to the leave regime during the 5 months
that the strike was
in operation.
[23]
According to the witness the individual
applicants during the strike discussed the leave regime amongst
themselves and with their
H0D's as was the usual practice when they
were at work. Their HOD's advised them to wait for the strike to end
before taking the
matter up with senior management.
[24]
The witness contacted the union during the
strike and received similar advice.
[25]
Those are the reasons, according to the
witness, why no formal objection to the leave regime was raised
during the strike.
[26]
During the strike some of the individual
applicants were called to the workplace to assist with various
functions. The witness was
called to the workplace on between 5 to 10
occasions. Some other employees remained at the workplace throughout
the strike. They
were for instance in the finance department.
According to him the employees (including the individual applicants)
had been informed
to be available as and when called upon by the
employer. It means that during the strike they were not free to use
the time to
go on holiday or to leave their homes.
[27]
The first strike brief stated that adequate
notice would be given to them when they were called back from leave
so that they could
make the necessary plans to return to work. The
witness denied that this was conveyed to them during the meeting
preceding the
issuing of the strike brief that they did not receive.
[28]
On 24 June 2014 the employer concluded a
wage agreement with AMCU, and operations recommenced the next day. By
this time the individual
applicants had negative AL balances as a
consequence of lent/advanced AL that had yet to accrue to them in
future leave cycles.
[29]
On 3 July 2014 the employer's operational
committee formulated leave rules regulating how negative AL balances
would be recovered
and it set the following rule ("the default
rule"):
"AL
accumulates at approximately 1 day per month. This accumulation will
automatically be used to reduce the negative AL balance."
[30]
In addition to the application of the
default rule, the leave rules set out various options the individual
applicants could choose
from to accelerate the reduction of the
negative AL balances, all of which were optional. If none were
chosen, then only the default
rule would automatically apply.
[31]
The employer issued the employees with
leave option forms titled "
Production
of negative AL balance
" and
recording the amount of AL owing, the default rule and options for
accelerated reduction of the negative AL. Amongst
the elections that
the individual applicants could make were these:
"1.
Transfer the current CL balance to reduce the negative AL balance;
2.
Reduce the CL entitlement from 21 to 14 calendar days, automatically
transfer the
remaining seven days to the negative AL balance and
revert to the 21 days CL entitlement once the negative AL balance is
cleared;
3.
Transfer the long service award leave accrue to the employee to the
negative AL balance;
4.
Sacrificed the holiday leave allowance payment for an estimated 14
days to reduce
the negative AL balance;
5.
None of the above, i.e. to
make use of unpaid leave as AL will not exist."
[32]
The leave option form also included the
following acknowledgement:
"I
acknowledge that the following rule will apply to me in terms of the
settling of my negative accumulated leave balance until
such time as
it is cleared and take note of the fact that this default rule will
apply even if this form is not completed and submitted."
[33]
The witness confirmed receipt of the option
form. As the form did not provide for negotiations but a unilaterally
imposed compulsory
reduction of AL, providing some options as to how
it should be done or could be accelerated, and in the absence of a
selection,
the application of the default rule, the individual
applicants did not respond.
[34]
The union met with the employer on 11 July
2014. At the time the employer contemplated an application to the
Minister for a ministerial
determination. The employer contemplated
applying for a determination that section 20(2)(a) of the BCEA be
varied to permit statutory
annual leave (CL) entitlement of
twenty-one days to be reduced to 14 days ("the section 50
application"). The union indicated
that they were supportive of
the section 50 application, but they would canvass the issue with its
members and revert to the employer.
The following is recorded
regarding this meeting:
"Consistent with its
approach dating back to 4 February 2014, UASA did not contest the
lawfulness of the leave regime, with
the meeting being conducted on
the understanding that UASA agreed thereto.
The parties entered into
a discussion about whether UASA would support an application for a
ministerial determination in terms of
section 50 of the BCEA, the
fact that section 20 (2) (a) of the BCEA be varied to permit the
statutory annual leave entitlement
of twenty-one days to be reduced
to 14 days ("the section 50 application"). The need for
such an application arose so
as to regularise the options referred to
above, which were aimed at accelerating the recovery of negative AL
balances over and
above the operation of the default rule.
The
UASA representatives indicated that while they were supportive of the
section 50 application, they would canvass UASA members
and revert as
soon as possible."
[35]
On 21 July 2014 the union's divisional
manager address the following letter to the employer:
"We wish to refer to
the above-mentioned matter and the discussion with Messrs Van Heerden
and Naude on July 11, 2014.
Subsequent to discussions
with our members involved, we hereby wish to inform you that
UASA-THEUNION and its members employed at
Impala Platinum Rustenburg
Operations are in support of your application in order to reduce the
accrued negative contractual leave
balance of employees. UASA-THE
UNION therefore are in support that the Company seeks to reduce the
non-striking employees statutory
leave entitlement from 21
(twenty-one) days per annum to 14 (fourteen) days per annum until the
negative contractual leave balance
has been cleared.
Alternatively, these
employees can opt to transfer the remaining statutory leave to reduce
the contractual leave negative balance
acquired.
However, we wish to
emphasise that our support in terms of section 20 (2) (a) of the BCEA
is subject that (sic) the Company will
only implement that (sic)
these measures by agreement, i.e. only for those employees who agree
thereto.
Should
these conditions be changed without prior consultation/negotiation
with UASA, the union and its members will be forced (sic)
to
reconsider our support for the above-mentioned exemption."
[36]
On 7 August 2014, the Director General:
Labour advised the employer that a determination in terms of section
50 of the BCEA had
been granted for the period 21 July 2014 to 20
July 2016 for the reduction of the twenty-one days to 14 days in
respect of CL.
[37]
The employer, unilaterally, from 25 July
2014, applied the default rule and commenced reducing the negative AL
balances of the individual
applicants by 1 day per month in
accordance with the default rule. The employer reduced the negative
AL balances for the others
in accordance with the options exercised
by them. The reduction still continues in respect of the individual
applicants with negative
AL balances. The witness, for one, after 5
years is still subject to a reduction in terms of the default rule.
[38]
The individual applicants with the shop
stewards prepared a memorandum dated 6 March 2015 which was discussed
at a D level Forum
meeting on 20 March 2015. During a further meeting
on 9 June 2015 the union declared a formal internal dispute with the
employer.
[39]
The union referred 3 disputes for
determination prior to the matter having been referred to the Labour
Court in this matter.
[40]
On 24 November 2015 the union referred a
dispute to the Labour Court alleging that the employer breached
section 34 of the BCEA,
alternatively discriminated against the
employees. The union withdrew this referral.
[41]
On 21 June 2016 union referred a further
dispute to the Commission for Conciliation, Mediation and Arbitration
(CCMA) alleging that
the employer breached the Collective Agreement
that came into existence on 21 July 2014. The essence of the dispute
was the value
of the leave days of the salary adjustments. The
dispute was conciliated and on 7 October 2016 the union withdrew the
dispute.
[42]
On 22 February 2017 the union on behalf of
the individual applicants referred a dispute, the third dispute,
regarding the implementation
and application of a collective
agreement that came into existence on 21 July 2014 on the basis that
the employees (the union members)
did not consent to either the
reduction of leave or the implementation of measures to reduce the
negative leave balances. The arbitration
was conducted based on
submissions and on 11 December 2017 the CCMA issued an award to the
effect that the letter of 21 July 2014
did not qualify as a
collective agreement.
[43]
Thereafter the union approached the Labour
Court in this matter.
Leave
policy and customary leave arrangements
[44]
The contracts of employment regulate annual
leave and specify that leave will be regulated by company policy and
procedures.
[45]
The employer introduced a Leave Policy on 1
September 2012. The policy determines that the CL must be taken in
each leave cycle.
The balance of the annual leave in the form of AL
is not required to be taken in each year or cycle and may be
accumulated to be
taken as leave, cashed in or be taken together with
annual leave but then only at the discretion of the company.
[46]
The witness testified that in the past the
employer could and did determine when the employees could take
compulsory leave. In some
instances, compulsory leave was declined
for operational reasons and in other cases employees were directed to
take compulsory
leave for the same reasons. This, however, only
applied to the CL and not to the AL.
Analysis
[47]
The union and the individual applicants
claim that the individual applicants are entitled to all the AL they
were entitled to on
the date that they were sent home for protection
from the strike action together with the AL that accrued to them
during the period
of the strike. They further claim that the employer
is not entitled lawfully to deduct from their AL either the number of
AL days
that they were compelled to use during the leave regime or
the negative balances in respect of AL days as on 24 June 2014 when
the strike ended. In short, they wanted to be credited with all the
AL days whether accrued to them or "lend" to them
by the
employer.
[48]
The individual applicants are of the view
that both the leave regime and the default rule are unlawful, and
that the deduction of
AL leave days consequently is also unlawful.
[49]
The employer justified the deduction of AL
on the basis that it was consistent with the employer's leave policy,
section 20 (10)
(b) of the BCEA and custom and practice that provides
the employer with a discretion to determine the time when leave will
be taken
by its employees.
[50]
The employer further justified the
introduction of the leave regime and the default rule on the basis of
an agreement with the union
binding upon the individual applicants,
alternatively an agreement with the individual applicants. The
employer submitted that
the union had clearly tacitly agreed to the
leave regime, alternatively there was an agreement by quasi-mutual
consent that binds
the individual applicants. The further defence
that the conduct of the individual applicants or that of the union
led to the employer
to believe that they consented to the leave
regime constitutes estoppel, was not pursued in argument.
The
defence that the employer has a discretion to determine the time when
the employees may take leave and that the employer exercised
that
discretion lawfully.
[51]
There can be no doubt that the employer had
such a discretion regarding the CL. This discretion derives from
section 20 (10) (b)
("the statutory discretion"):
"If
there is no agreement in terms of paragraph (a), at a time determined
by the employer in accordance with this section."
[52]
It is common cause that this statutory
discretion by law only applies to the CL. The employer submitted that
consistent thereto
was an entitlement to the employer to treat the AL
similarly.
[53]
The BCEA does not clothe the employer with
such a discretion in respect of the AL simply because it does not
apply to the AL. Secondly,
the leave policy does not clothe the
employer with such a discretion. The leave policy provisions entitled
the individual applicants
to accumulate the AL, to take days as leave
or to cash in on accumulated AL. These provisions militate against
any discretion on
the part of the employer to direct the individual
applicants to take some or all of the AL, whether accrued or still to
accrue.
[54]
The policy therefore does not clothe the
employer with a discretion unilaterally to compel the individual
applicants to take any
of the AL without their consent. The
submission that the employer had such a discretion in respect of the
AL because it is similar
to the statutory discretion is without
merit.
[55]
The employer's first defence to justify the
deduction stands to fail.
[56]
In argument it was submitted on behalf of
the employer, belatedly, that the leave regime in itself constituted
a (new) leave policy
introduced by the employer when the non-striking
employees were sent on compulsory leave.
[57]
This submission is without merit. There was
no evidence that the employer had the right to unilaterally and
without consultation
implement a new leave policy, especially one in
conflict with the existing leave policy.
The
employer's reliance upon custom and practice
[58]
The submission that the employer was
entitled through custom and practice to determine the time when its
employees should take their
leave was based upon the concession of
the witness that in the past the employer declined leave for
operational reasons or determined
the time when employees had to take
leave for the same reasons.
[59]
The evidence was clear that this custom or
practice only applied to CL and not to AL. In addition, this could
not have been a custom
and practice but only an exercise of the
employer's statutory discretion relating to CL. At best it was
customary or a practice
that the employer exercised its statutory
discretion from time to time.
[60]
This defence also fails.
The
employer's defence that the union has agreed to the leave regime and
consequently that the individual applicants consented to
the leave
regime:
[61]
When the leave regime was introduced, it
was done unilaterally without the consent of the individual
applicants or the union. The
employer's case is that through the
conduct of the union, agreement was reached in terms whereof the
union, on behalf of its members
(individual applicants) agreed to the
leave regime.
[62]
The onus to establish the agreement as a
defence rests with the employer. The employer pleaded the agreement
as follows:
"In any event, UASA
(and its members) tacitly agreed to the leave regime, with this being
established and borne out by the
following:
1.
UASA never contested the propriety of the leave regime throughout the
5-month duration
thereof (4 February 2014 to 24 June 2014);
2.
UASA did not advise its members against participating in the leave
regime;
3.
None of the individual applicants tended their services during the
course of the operation
of the leave regime, on the basis that they
were opposed to continuing the accumulated AL;
4.
Although given an option (on 6 and 13 March 2014) to elect unpaid
leave during the
strike (which would have interrupted the
accumulation of a negative AL balance), none of the individual
applicants elected such
an option, and choose instead to continue
with the leave regime;
5.
The knowledge of UASA, the respondent commenced recovering the
negative AL balances
upon the conclusion of the strike on 24 June
2014, with it not raising any objection at the time;
6.
The first time that formal objection was raised about the leave
regime having been
implemented was in the memorandum from UASA shop
stewards received on 6 March 2015, which was discussed at a D level
forum meeting
on 20 March 2015 – this being more than a year
after the leave regime had been implemented; and
7.
The first time that a
formal dispute was declared over the leave regime (and the recovery
of negative AL balances) was on 9 June 2015, at a D level forum
meeting".
[63]
The further alternative defence of a
quasi-mutual consent is based upon the same considerations.
[64]
During its submissions the respondent added
to those considerations some more seeking to rely upon the fact that
the union was the
recognised representative of the individual
applicants; that the union at the meeting of 11 July 2014 conducted
the meeting "
on the basis that you
have so agreed to
" and finally
that the union in its letter of 21 July 2014 formally agreed thereto.
[65]
The respondent never pleaded a formal
agreement.
[66]
The applicant's representative objected to
the respondent relying upon new un-pleaded facts and reasons to
establish a tacit agreement.
The objection further is on the basis
that the respondent never presented any evidence to show that the
respondent relied upon
the pleaded and/or the un-pleaded reasons that
would establish the basis for a tacit agreement.
[67]
The Rules of the Labour Court set out what
is expected of a litigant. In the case of a statement of claim Rule 6
provides that it
must contain:
"(b)(i) a clear and
concise statement of the material facts, in chronological order, on
which the body relies, which statement
must be sufficiently
particular to enable any opposing party to reply to the document;
(b)(ii)
a clear and concise statement of the legal issues that arise from the
material facts, which statement must be sufficiently
particular to
enable any opposing party to reply to the document;"
[68]
A response must, with the changes required
by the context, contain the same information.
[69]
The
Appellate Division (as it then was) considered Rule 18 (6) of the
High Court that regulates pleadings in the High Court. This
Rule is
very similar to the Labour Court Rule. In
Roberts
Construction CO LTD v Dominion Earth-Works (Pty) Ltd and another
[2]
the Court considered the duty of a litigant to plead an implied
contract:
"The
general principle would require a statement of the facts or
circumstances constituting any implied contract relied upon,
or, put
in another way, the facts or circumstances from which such contract
is inferred.
In the
past it has been held, in Divisions other than the Transvaal, that
the facts, additional to the terms of an express contract,
giving
rise to an implied term of that contract, should be pleaded. The
considerations leading to this requirement apply with even
greater
force to the case where the whole contract is implied. We have not
been referred to any case, even in the Transvaal, that
states
unequivocally that an implied contract may be pleaded baldly and
left, as it were, in the air without any indication from
what it is
to be inferred. On the contrary, the case of Goodwood Municipality v
Joyce and McGregor Ltd.,
1945 CPD 424
, points the other way. JONES,
J., (FAGAN, J., concurring) states (at p. 428):
'That
conduct unaccompanied by writing or the use of words can constitute
binding reciprocal obligations admits of no doubt. Several
instances
are given in Wessels, Law of Contracts, vol. 1, pp. 82 and 83, of
contracts being formulated by conduct. But when a pleader
wishes to
formulate a claim based on such a contract it is not sufficient
merely to state that such a contract comes into existence
because of
the defendant's conduct. He must go further and set out what the
conduct was. Let me take one of the examples given
by Wessels in
order to ascertain what it would be essential for the pleader to set
out. The running of a tram or a bus between
certain points 'A' and
'B' constitutes a constant offer to carry a member of the public at
the usual fare. Entering and remaining
on the tram or bus constitutes
an acceptance of that offer and involves a liability to pay the fare.
In an action to recover the
fare it would not be sufficient to allege
that defendant's conduct imported a contract involving liability; it
must be alleged
that defendant's conduct in entering and remaining on
the vehicle imported the liability. In other words, the actual
conduct must
be set out.'
This
is in complete conformity with the approach now reflected in the
Uniform Rules".
[70]
The
Court in
Triomf
Kunsmis (Edms) Bpk v AE & CI Bpk en Andere
[3]
referred to the requirement that the conduct relied upon must be
"
unequivocal
conduct which is capable of no other reasonable interpretation
":
"In order to comply
with the requirement of "unequivocal conduct which is capable of
no other reasonable interpretation"
a catalogue of actions and
specific conduct must be averred. Every relevant action or specific
conduct must then be proved. It
must, furthermore, be averred that
the party concerned relies on a thus proven contract from which the
remedies which he seeks
to enforce flow.
[71]
The respondent pleaded the conduct upon
which it relied to establish a tacit contract. The respondent
did not present any
evidence as to these or the other considerations
or conduct that would establish a tacit agreement. The fact that the
non-pleaded
grounds were canvassed with the witness is insufficient
for the respondent only to rely upon in making its submissions. It
should
at least have attempted to amend its pleading to include those
non-pleaded grounds to enable the applicant to deal there with.
[72]
The applicant's objection against including
non-pleaded grounds to establish a tacit agreement is upheld.
[73]
The pleaded basis for the alleged tacit
agreement must further be assessed against the background that the
respondent at all relevant
times acted unilaterally by introducing
the leave regime and the default rule. The employer never intended
the leave regime and
the default rule to be an offer of sorts for
purposes of consultation or negotiation. The employer clearly did not
expect the individual
applicants nor the union, or gave them an
option, to take up an offer extended to them. The various options to
reduce the negative
AL balances established a default rule to ensure
that the individual employees had no option but to refund the AL.
They never
had a choice.
[74]
The respondent therefore solely relies upon
conduct, or the absence thereof, to establish a tacit agreement.
[75]
For the duration of the strike the inaction
of the individual applicants was due to their HODs advising them to
wait for the strike
to end. The criticism that they should have
approached the information centre or in any event caused the union to
protest the compulsory
leave is to be rejected. They did what they
normally did and that was to discuss matters like this with their
respective HODs.
In addition, they did not have access to the Strike
Briefs drawing their attention to the fact that they might take the
matter
up with HR.
[76]
The fact that the union never contested the
propriety of the leave regime throughout the 5 month duration of the
strike and that
it did not advise its members during that period
against participating in the leave regime or that none of the
individual applicants
tendered their services during the course of
the operation of the leave regime, on the basis that they were
opposed to continuing
to accumulate AL do not constitute the basis to
contend that they tacitly agreed there to. The union advised its
members to await
the outcome of the strike which was not anticipated
to endure for 5 months.
[77]
Similarly, it cannot be argued that the
individual applicants being given an option on 6 and 13 March 2014 to
elect to take unpaid
leave during the strike and their failure to do
so constituted the basis for the argument that they agreed to the
leave regime.
The submission is that an election to take unpaid leave
during the strike would have interrupted the accumulation of a
negative
AL balance. The evidence was that this option, contained in
a Strike Brief, never reached the individual employees until after
the strike.
[78]
Their conduct during the strike cannot be
relied upon as a basis to establish a tacit agreement consenting to
the leave regime.
Their conduct from the time that the strike ended
until a formal dispute was declared in respect of both the leave
regime and the
default rule has been explained by the witness. The
individual applicants first had to organise themselves into a forum
and then
to approach their union. Upon returning to work they were
involved in activities around an abnormal number of fatalities which
also distracted the attention from the leave issue.
[79]
The further basis for a tacit agreement is
pleaded on the basis that the union knew that the respondent
commenced recovering the
negative AL balances upon the conclusion of
the strike on 24 June 2014 but did not at the time raise any
objection. The witness
has explained the process they adopted of
addressing the leave regime. The delay has also been explained.
[80]
The respondent also relies upon the fact
that the first time that a formal objection was raised about the
leave regime having been
implemented was in a memorandum from the
union shop stewards received on 6 March 2015 and discussed at a forum
meeting on 20 March
2015, being more than a year after the leave
regime had been implemented. Again, the witness explained the reasons
for the delay
and the procedure adopted.
[81]
The respondent has not discharged the onus
to show that it reached agreement
albeit
a tacit agreement, with the union or the individual applicants
whereby they agreed to and accepted the leave regime and the default
rule.
The
employer's defence that the union concluded an agreement by
quasi-mutual consent
[82]
The employer relies upon the same facts for
the submission that the individual applicants through their union
concluded an agreement
through quasi-mutual consent.
[83]
To establish an agreement having been
concluded by quasi-mutual consent the employer must show that the
union's conduct, as pleaded,
made the company to reasonably assume
that the union had agreed to the leave regime and the default rule.
[84]
Again, the employer wishes to go much wider
than the pleaded grounds for such an agreement. Again, there is an
absence of evidence
on the part of the employer to show how it
regarded the conduct of the individual applicants for the union in
respect of those
matters the employer relied upon for the submission
that an agreement had been concluded by quasi-mutual consent.
[85]
A holistic approach on assessing the
evidence led in the trial and the documentary evidence makes it clear
that the individual applicants,
and for that matter the union, never
explicitly or tacitly agreed to the leave regime or the default rule.
While it took more than
a year, the process resulted in litigation
where, initially, various individual aspects of the leave regime and
the default rule
were challenged until eventually both aspects ended
up before the Labour Court in this trial.
[86]
The conduct relied upon cannot be said to
be "
unequivocal conduct which is
capable of no other reasonable interpretation
.
"
The respondent has failed to justify the
unilateral introduction of the leave regime. That being the case the
employer is not entitled
to make any deduction of any AL that had
accrued when the strike commenced or that accrued during the strike.
[87]
Both parties left the question of costs in
the hands of the court. The parties remain in an employment
relationship. There are no
considerations that justify a cost order.
[88]
Therefore the following order is made:
Order
1.
The respondent is not entitled to deduct
any accumulative leave (AL) from the leave entitlement of the
applicant's members whose
details appear on the revised Annexure "A"
next to the statement of claim on the strength of the so-called leave
regime
and default rule unilaterally implemented by the respondent.
2.
The respondent is ordered to forthwith
credit the applicant's members on Annexure "A" (as amended)
with any leave deducted
from them on the strength of the so-called
leave regime and default rule unilaterally implemented by the
respondent.
3.
There is no order as to costs.
____________________
F. Coetzee
Acting
Judge of the Labour Court of South Africa
Appearances:
For the applicant:
Advocate R Grundlingh
Instructed
by:
Bester &
Rhoodie Attorneys
For the Respondent:
Advocate A Myburgh SC with R Itzkin
Instructed
by:
Webber Wentzel
Attorneys
[1]
No.
75 of 1997a, as amended.
[2]
1968
(3) SA 255
at 261F-262A (A)
[3]
1984
2 SA 261
(W)