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[2020] ZALCJHB 14
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South African Commercial Catering and Allied Workers Union v Transem (Pty) Ltd (JS1004/16) [2020] ZALCJHB 14 (30 January 2020)
THE
LABOUR COURT OF SOUTH AFRICA, JOHANNESBURG
Not
Reportable
Case
no: JS1004/16
In
the matter between
:
SOUTH
AFRICAN COMMERCIAL CATERING
AND
ALLIED WORKERS
UNION Applicant
and
TRANSEM
(PTY) LTD
Respondent
Heard:
8 -11
October 2019
Delivered:
30 January 2020
Summary:
Dismissal for participating in an unprotected strike – lockout
subsequent to heeding the
last ultimatum and return to work –
leavening work place before knockoff time is not a strike but sheer
misconduct –
conduct of the employer in handling the conduct of
the employees subsequent to the calling off of the unprotected strike
created
a confusion and to an extent provocative of further conduct
by the employees – dismissal not appropriate sanction.
JUDGMENT
NKUTHA-NKONTWANA.
J
Introduction
[1]
The applicant, the South African Commercial Catering
and Allied
workers Union (SACCAWU), is challenging the dismissal of its members,
the applicant employees, by the respondent, Transem
Pty (Ltd)
(Transem) for participating in an unprotected strike.
Factual
background
[2]
Transem is a dairy plant with its main activities being
milk
processing, packaging and distribution of dairy products, including
fruit juices mixed from concentrates. Milk is received
from suppliers
in the morning and processed during the day for the deliveries the
next day.
[3]
On 21 October 2015, SACCAWU sought organisational rights.
Despite
discussions on the issue, the parties failed to conclude an agreement
on organisational rights up until March 2016. In
the meantime,
Transem granted SACCAWU the right to stop order facility for the
deduction of union subscriptions.
[4]
Although the parties had not concluded a recognition
agreement,
sometime in March 2016, SACCAWU sought to engage Transem in relation
to its members’ salaries and conditions of
employment. Transem
refused to bargain with SACCAWU, stating that it would rather
conclude a recognition agreement before engaging
in any collective
bargaining with SACCAWU. This stance was confirmed on 24 March 2016.
[5]
Notwithstanding, on 31 March 2016, SACCAWU sent a communication
to
Transem seeking a feedback on its proposal in relation to the issues
of mutual interest. On 1 April 2016, SACCAWU referred a
mutual
interest dispute to the Commission for Conciliation Mediation and
Arbitration (CCMA).
[6]
The conciliation hearing was held on 28 April 2016. Transem
raised a
jurisdictional point, contending that it was not prepared to
collectively bargain with SACCAWU as it had no recognition
agreement
with it and that it had not proved to be a legitimate bargaining
agent. In response, SACCAWU contended that Transem had
already
commenced engaging it before and only raised the issue of eligibility
during the cause of negotiations hence it referred
a dispute of
mutual interest.
[7]
The commissioner, Ms Miranda Mokgosi, issued a jurisdiction
ruling
dated 5 April 2016, dismissing Transem’s point
in limine
.
She found that the CCMA had jurisdiction to entertain the dispute and
issued a certificate of non-resolution of the dispute. It
is not
disputed that the ruling was only received by SACCAWU on 9 May 2016.
[8]
On 20 May 2016, SACCAWU members embarked on a strike
which was not
preceded by a strike notice to Transem. The striking employees were
verbally informed that the strike was unlawful
and unprotected.
SACCAWU was also accordingly informed of its members’
unprotected strike.
[9]
Transem issued three ultimatums. The first ultimatum
was issued at
07h30 directing the striking employees to resume their duties by
10h00, but to no avail. At about 10h00, the second
ultimatum was
issued directing the striking employees to resume their duties by
12h30 and still with no success. The third and
final ultimatum was
issued at 12h45 directing the striking employees to resume their
duties by 14h50. For expediency I deem it
appropriate to quote the
contents of the third ultimatum in full:
‘
1.
You are informed herewith that your refusal to work amounts to an
unprotected strike. This conduct
is unlawful and has serious
consequences for you.
2.
You are therefore instructed to end your unlawful conduct and return
to work. You must resume duties
before 14h50 on this 20
th
May 2016.
3.
Should you refuse or neglect to return to work and resume your duties
in terms of the Contract
of Employment on or before the given date
and time, you could be summarily dismissed due to your unlawful
conduct.
4.
Please take note that the period of absence will be dealt with as
absence without remuneration.
5.
If you adhere to the ultimatum the employer still reserves the right
to continue with disciplinary
action against yourself for
participating in an unprotected strike.
6.
The employer further herewith gives you notice of its intention to
lock you out in response to the protected strike should you not
return to work on or before 14h50 on 20 May 2016
.’
[10]
The striking employees returned to work at 13h00 after the
intervention
of the SACCAWU official, Mr Lebogang Masakale. However,
the following employees did not resume their duties (Group A):
10.1.
Bettie Vuyiswa Mangayi;
10.2.
Lenyatso Lucas Tibakae;
10.3.
Vusumzi Josias Pitch;
10.4.
James Maruping Ntasi;
10.5.
Thabiso Teddy Njalinjali; and
10.6.
Goitsemang Petrus Leshowe.
[11]
Whilst the following employees did heed the call to return to work
after
the third ultimatum, it is alleged by Transem that they left
before their work was completed (Group B):
11.1.
Benjamin Kunupi
11.2.
Sampi Mangaba;
11.3.
Thabo Jonas;
11.4.
Tshwarelo Mothupi;
11.5.
Thami Johannes Nkosi;
11.6.
Pitiri Nathaniel Qhazane; and
11.7.
Papi Matthews Mokaleng;
[12]
On 21 May 2016, at about 11h57, Transem sent lockout notices in
relation
to the above mentioned applicant employees to SACCAWU by
email. That was followed by serving the lockout notices on the
following
employees by hand at about 12h00 on the same day:
12.1.
Emmanuel Pakalitha Monaphathi;
12.2.
Tshwarelo Mothupi;
12.3.
Thami Johannes Nkosi; and
12.4.
Papi Matthews Mokaleng.
[13]
The above mentioned employees had commenced with their duties when
they
were served with lockout notices. Upon becoming aware that the
four employees had been issued with lockout notices, the following
employees abandoned their duties and gathered outside the premises of
Transem (Group C):
13.1.
Julia Motlalepule Mohapi;
13.2.
Kaone Charles Koee;
13.3.
Gregory Stoffel Lemek;
13.4.
Vuyani Marman;
13.5.
Aron Mgeshani;
13.6.
Sina Moseki;
13.7.
Boniwa Constance Msebi;
13.8.
Sekwati Lazarus Thoane;
13.9.
Phillemon Bokamoso Zikatile; and
13.10.
Thebeetsile Gordon Seetelo.
[14]
All the above mentioned employees were ultimately locked out. Transem
then charged all the striking employees as follows:
‘
1.
Participation in an unprotected strike on 20 March 2016.
2.
Participation and/or continuation of unprotected strike on 21 May
2016.’
[15]
SACCAWU was allowed to represent the striking employees during the
disciplinary
enquiry. All the striking employees, through SACCAWU,
admitted guilt in relation to the first charge. They were found
guilty but
only received final written warnings.
[16]
When it comes to the applicant employees, classified as Groups A, B
and
C, above, they pleaded not guilty to the second charge.
Nonetheless, all of them were found guilty and summarily dismissed on
27
July 2016 for participating in the unprotected strike under the
circumstances where they either did not unconditionally return to
work in terms of the third ultimatum or did not return to work at all
or left work early on 20 May 2016 or walked out on 21 May
2016.
[17]
SACCAWU referred an unfair dismissal dispute to the CCMA. Following
an
unsuccessful conciliation, the certificate of non-resolution
directed that the matter be referred to arbitration. Indeed, SACCAWU
referred the matter for arbitration. However, it later decided to
withdraw the arbitration and launch this action as the reasons
for
the dismissal of the applicant employees stem from the unprotected
strike. Even though, Transem initially took issue with the
turn of
events, contending that this Court has no jurisdiction to deal with
the matter as the dispute before it was never conciliated,
it has
since abandoned that pursuit, prudently so.
Issues
to be decided
[18] The
crisp issues for determination are as follows:
18.1.
Whether the dismissal of the applicant employees was substantively
fair; and
18.2.
Whether the sanction of dismissal was appropriate.
Legal
principles and application
[19]
It is trite
that section 68(5) of the Labour Relations Act
[1]
(LRA) grants the employer a right to dismiss employees who
participate in a strike that does not comply with the provisions of
the LRA.
[2]
However, as
confirmed by the Labour Appeal Court (LAC) in
National
Union of Metalworkers of South Africa (NUMSA) v CBI Electric African
Cables,
[3]
the unlawfulness of the strike is not ‘a magic wand which when
raised renders the dismissal of strikers fair’. As such,
the
determination of substantive fairness of a dismissal pursuant to a
strike must be undertaken in two stages; firstly, in terms
of item
6
[4]
of the Code of Good
Practice: Dismissal, Schedule 8 of the LRA (Code) where a strike
related enquiry takes place and secondly,
in terms of item 7
[5]
of the Code where the enquiry into the misconduct
per
se
takes place.
[20]
In
SACCAWU
obo Bonolo Mokebe and 71 Others v Pick ń Pay Retailers,
[6]
relied
on by the applicant, the LAC referred with approval to the judgment
in
Hendor
Steel Supplies v National Union of Metalworkers of SA and Others,
[7]
where the sanction of dismissal of employees who embarked on an
unprotected strike for seven weeks was found to be disproportionate
to the misconduct and accordingly unfair. The LAC stated:
‘
[34]
The Court in
Hendor
held as follows in relation to the
principle of proportionality (at para 8):
‘
Dismissal is
manifestly the sanction of the last resort (WG
Doney (Pty) Ltd v
National Union of Mineworkers of SA
(1999) 20 ILJ 2017 (SCA) at
paragraph 18). Hence there is a need to examine the arguments of both
parties as to the matter and
conduct of the strike to test whether
dismissal was proportional to the misconduct.’
It went on to hold (at
para 14) that:
‘
In summary, the
use of the most extreme sanction, dismissal in this case was
manifestly disproportionate to the "misconduct"
of the
second and further respondents.’
[35]
The principle that was established in
Hendor
is
not that the dismissal of employees because they were on a short
duration strike will inevitably be found to be disproportionate
and
thus substantively unfair. Rather, the principle established there is
that when determining whether the dismissal of striking
employees is
proportional to the misconduct, a court must examine the conduct of
both the employer and employees ‘as to the
matter and conduct
of the strike’
.’ (Emphasis added)
[21]
In this instance, it is common cause that SACCAWU had referred a
dispute
of mutual interest to the CCMA. Consequent to the dismissal
of Transem’s point
in limine
challenging the
jurisdiction of CCMA and the issuing of a certificate of outcome
declaring the dispute as unresolved, the applicant
employees were
eligible to embark on a protected strike. The only misdirection was
that SACCAWU failed to issue a strike notice,
hence the strike was
unprotected. Clearly, there was an attempt by SACCAWU and the
applicant employees to comply with the provisions
of the LRA.
[22]
Nothing much turns on Transem’s contention that the
jurisdictional
ruling was irregular and that the certificate of
outcome that certified the dispute of mutual interest as unresolved
was defective.
Firstly, Transem failed to challenge the
jurisdictional ruling and as such it is binding. Secondly, section
64(1)(a) of the LRA
require that a ‘certificate stating that
the dispute remains unresolved has been issued or 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’. In essence, the issuing of the
jurisdictional ruling gave the applicant employees a right to strike
even without
an outcome certificate. As stated above, the illegality
of the strike stems from the failure by SACCAWU and the applicant
employees
to comply with section 64(1)(b) of the LRA.
[23]
The contravention of the LRA was not serious. It was the applicant
employees’
evidence that they were under the impression that
the strike was protected. However, as soon as the SACCAWU official
intervened,
the strike was called off and the striking employees
resumed duties. In my view, the fact that all the striking employees
were
given final written warnings in relation to the strike of 20 May
2016 gives credence to the inconsequential nature of the
contravention.
[24]
The crux of the matter is the conduct of the applicant employees in
Groups
A, B and C.
Group
A applicant employees
[25]
Group A employees, save for Ms Bettie Manganyi (Ms Manganyi), did not
resume their duties as directed in terms of the third ultimatum. It
is common cause that Ms Manganyi had to attend to her sick
child and
subsequently submitted a note from the hospital as proof of her
whereabouts on 20 May 2016. Thus, Transem conceded that
she should
not have been dismissed.
[26]
As for the rest of Group A applicant employees, Mr Vusumzi Josias
Pitch
(Mr Pitch) testified that they were all workshop employees. The
reason they did not resume their duties on 20 May 2016 consequent
to
the final ultimatum is that they went to buy food and did not return.
However, he was adamant that they were not on strike as
it was called
off at about 13h00. Since they did not work on Saturdays, they only
retuned to work on Monday 23 May 2016. They commenced
with their
duties and at about 09h30 they were told to leave the premises of
Transem because they were locked out for participating
in the strike
on 20 May 2016.
[27]
It is not disputed that that the Group A applicant employees were
part
of the strike action. However, their defence was that they went
to buy food and did not resume their duties consequent to the third
ultimatum.
[28]
In
County Fair Foods (Epping), a division of Astral Operations Ltd v Food and
Allied Workers Union and Others,
[8]
the LAC held that it is well within the employers powers to
differentiate between the striking employees who responded to the
ultimatums to resume their duties and those who simply ignored those
ultimatums. In that matter, the employer issued the first ultimatum
and several employees responded and resumed their duties. It was
followed by a final ultimatum and again another group of employees
responded. The group that ignored the final ultimatum and the
extended time to resume their duties were dismissed. The LAC upheld
the employers appeal and found that:
‘
[29]
While the appellant suffered economic harm as a result of the strike,
the evidence show that this harm
was chiefly experienced for first 1½
days after the commencement of the strike and was therefore
attributed to the conduct
of all striking employees and not the
respondent employees alone. However, in concluding that dismissal was
too harsh a sanction
to be imposed on the respondent employees, in my
view the Labour Court did not have appropriate regard that the
unprotected strike
was embarked upon in a critical business period;
the final ultimatum had been issued calling on the respondent
employees to return
to work; the final ultimatum had been extended to
provide the respondent employees additional time within which to
comply with
it; the final ultimatum was ignored by the respondent
employees with no bona fide reason put up to explain why this was so;
that
no remorse was shown for this conduct by the respondent
employees; and the conduct of the respondent employees at the
disciplinary
hearing.’
[29]
In my view,
the
County
Fair Food
[9]
dictum is distinguishable. In the matter at hand, even though the
Group A employees did resume their duties as per the third ultimatum,
their conduct was not deliberately aimed at sabotaging Transem
operations. They just simply disappeared and never returned to work
that day not because they were furthering the strike. At most, they
just went AWOL. In any event, even if their conduct was a furtherance
of a strike, the deadline to resume their duties as per the third
ultimatum was 14h50. Most of the Group A applicant employees
worked
at the workshop. It is not disputed that they commenced their duties
at 07h00 and knocked off at about 16h00. Therefore,
they were on a
strike longer than the rest of the striking employees by only an hour
or two. On Monday 23 May 2016, they reported
for duty as usual and
were prevented by Transem’s lockout from continuing with their
duties.
[30]
To my mind, the sanction of dismissal was clearly disproportionate to
the misconduct committed, especially in light of the fact that there
was an attempt to comply with the provisions of the LRA, the
strike
was not eventful and SACCAWU’s intervention was successful as
the strike was called off. Transem failed to give a
cogent reason for
distinguishing between those who resumed their duties consequent to
the third ultimatum and the Group A applicant
employees.
Group
B applicant employees
[31]
Group B applicant employees did heed the call to return to work on 20
May 2016, but were accused of leaving before finishing their lot for
the day. Mr Thami Johannes Nkosi (Mr Nkosi) testified that
he worked
with Messrs Emmanuel Pakalitha Monaphathi (Mr Monaphathi), Tshwarelo
Mothupi (Mr Mothupi) and Papi Matthews Mokaleng
(Mr Mokaleng). On 20
May 2016, they were given an order to pack and upon finishing the
allocated duties they knocked off. Transem
conceded that Mr Thabo
Jonas (Mr Jonas) was not supposed to be dismissed as he was on the
13h00 shift and had resumed his duties
on 20 May 2016, albeit after
13h00. He was also prevented by Transem’s lockout from resuming
his duties on 21 May 2016.
[32]
Mr Sampi Mangaba (Mr Mangaba), a Tanker Assistant, testified that he
knocked off when he had finished his duties. Normally, it was not
required of him to report to Mr SP Dunker (Mr Dunker), the Production
Manager, when he was done with his duties and ready to knockoff. On
the particular day, he was never asked to assist anyone with
their
duties. Mr Mangaba was adamant that he did respond to the third
ultimatum but had forgotten to clock out.
[33]
Benjamin Kunupi (Mr Kunupi), a Truck Driver, testified that he went
to
the restroom after clocking in response to the third ultimatum at
about 13h00. When he returned, he found that his stock had been
given
to another driver. He remained in the premises and knocked off at
16h00. On 21 May 2016, he reported for duty as usual. Mr
Dunker told
him not to take his truck but wait for him in the office. Later, he
was served with a strike lockout.
[34]
On the other hand, Mr Dunker testified that it was highly improbable
that the applicant employees could have finished their duties when
they knocked off because at that stage there was a huge backlog
due
to the strike. However, he conceded during cross-examination that he
had no proof of what was the outstanding workload when
the Group B
applicant employees knocked off on 20 May 2016.
[35]
The issue
for determination in relation to the Group B applicant employees is
whether their conduct constitutes a strike or furtherance
of a strike
and as such constitutes either a breach of the contract of employment
or a breach of a workplace rule. In
Transport
and Allied Workers Union of SA on behalf of Ngedle and Others v
Unitrans Fuel and Chemical (Pty) Ltd,
[10]
defining a strike, the Constitutional Court stated that:
‘
[161] The
definition of the word 'strike' in the LRA includes the phrase
'concerted refusal to work'. That part of the definition
– as
opposed to the reference to the 'retardation or obstruction of work'
– is the part applicable to a case such as
the present where
the workers completely refuse to work. It is a basic principle of our
law that, for employees to be said to be
on strike, they must be
collectively refusing to work at a time when, in terms of their
contracts of employment, they are obliged
to be working. 95 If the
time when the workers are not working is a time when they are not
obliged to be working, they cannot be
said to be on strike except
when their conduct constitutes an overtime ban. This is why, if
workers who take their lunch break
from 13h00 to 14h00 collectively
stop working at 13h00 on a particular day and spend their lunch break
singing, toyi-toying and
carrying placards outside of or by the gate
of the employer demanding a wage increase, they are not in law
engaged in a strike.
However, once they do that at a time when they
are obliged to work, they will be on strike and, if the prescribed
statutory procedures
have not been followed, the strike will be an
unprotected strike.’
[36]
Clearly, the Group B applicant employees did respond to the third
ultimatum
and abandoned the strike. Their subsequent conduct could
not have been a furtherance of a strike as they did perform their
duties.
To the extent that they were accused of leaving before
finishing their allocated duties, that constituted a desertion of
duties
but not a strike. Also, Mr Dunker conceded that he had no
proof that they had left their duties incomplete but a sheer
speculation
based on the general average work load allocation.
[37]
It not disputed that the truck drivers and their assistants commenced
work at about 05h00 and knocked off as and when they were finished
with their duties. In my view, Transem failed to prove that
the
conduct of the Group B employees constitutes a strike or furtherance
of a strike.
Group
C applicant employees
[38]
It is common cause that on 21 May 2016 at about 12h00, Messrs Nkosi
Monaphathi
Mothupiti and Mokaleng were served with lockout notices
for allegedly continuing with the strike when they knocked off on 20
May
2016. Mr Nkosi testified that Mr Gordon Seetelo (Mr Seetelo)
asked Mr Dunker as to how was he expecting the rest of the employees
to continue with the production after locking out the four employees.
Mr Dunker told him that they were free to join their friends
who had
been locked out. Thereafter, there was confusion as to who was locked
out and hence all the Group C employees left the
premises. At about
12h30 they were locked out as well.
[39]
Mr Dunker denied that he told the Group C employees to join their
friends
who had been served with locked out notices. When he asked
them why they were leaving the premises, they just ignored him.
[40]
Mr Bernard Myburgh (Mr Myburgh), Transem’s legal advisor,
testified
that he advised Transem to lock out the Group B applicant
employees because their conduct in knocking off early on 20 May 2016
constituted a furtherance of a strike. Also, he advised Transem to
lock out the Group C applicant employees because their conduct
in
abandoning their duties on 21 May 2016 constituted a furtherance of
the strike that commenced on 20 May 2016. That is so, despite
the
fact that the strike had been called off at about 13h00, on 20 May
2016. It is also clear that these applicant employees had
responded
to the third ultimatum by resuming their duties and had not been
accused of knocking off early on 20 May 2016.
[41]
When Mr Myburgh was teased about his understanding of a strike and
what
was the demand on 21 May 2016, he was found wanting. In my view,
Mr Myburgh’s advice to Transem was the source of confusion.
He
clearly misconceived the purpose of a lockout. It is mindboggling
that the employer would target individual employees who had
resumed
their duties and lock them out retrospectively as a result of a
strike that had been called off. It is even more telling
in this
instance as Mr Myburgh asserted himself as a legal expert.
[42]
If indeed the conduct of the Group C applicant employees constituted
a strike, it was clearly consequent to the ill-conceived advice by Mr
Myburgh to lock out employees when there was no strike. As
such, it
could not have been a furtherance of the unprotected strike that was
called off on 20 May 2016. In fact, Mr Myburgh
conceded under
cross examination that the conduct of the Group C applicant employees
constituted a new strike. However, he failed
to involve SACCAWU or
issue new ultimatums.
[43]
In my view, the sanction of dismissal was disproportionate to the
misconduct
if regard is had to the circumstances of this matter. The
Group C applicant employees resumed their duties when the strike was
called off on 20 May 2016; they were busy attending to their duties
on 21 May 2016 when their colleagues were called out of their
work
stations and served with lockout notices; they were caught in the
confusion that was brought about by the locking out of their
colleagues on 21 May 2016; and Transem did not involve the union or
issue fresh ultimatums as the work stoppage on 21 May 2016
had
nothing to do with the strike of 20 May 2016. Put otherwise, the
strike that was embarked upon on 20 May 2016 had been called
off and
the conduct of the Group C applicant employees was prompted by the
conduct of Transem when it issued lockout notices for
Group B
applicant employees. Also, these employees had commenced with their
duties and were about to knock off at 13h00. In essence,
the strike
was less than two hours at most.
Conclusion
[44]
In all the
circumstances, Transem failed to show that the dismissal of the
applicant employees was substantively fair. Transem clearly
ignored
the well-established principle that dismissal should only be
considered as a last resort.
[11]
Remedy
[45]
On the issue of the remedy, Mr Dunker testified that it is not
possible
for Transem to reinstate or re-employ any of the Applicants,
due to the fact that no vacancies exist, and that it is currently
downscaling its business. On the other hand, the applicant employees
submitted that, in the absence of evidence that the continued
relationship is rendered intolerable by breach of trust, they are
eligible to reinstatement.
[46]
Strangely, despite Transem’s concession that Ms Manganyi and
Jonas
were not supposed to be dismissed, it opposes their
reinstatement as well.
[47]
The defence
of ‘Not reasonably practicable’ must mean more than
inconvenient, troublesome or uncomfortable;
[12]
but refers to that which is effectively fair, calling for an
objective value judgment predicated on evidence.
[13]
In
SACCAWU
v Woolworths (Pty) Ltd,
[14]
the Constitutional Court held that ‘not reasonably practicable’
requires evidence of a compelling operational burden.
[48]
To this
extent, I find the works of
Kanamugire
and
Chimuka
[15]
apposite when they say ‘
The
fact that an employer has replaced an employee does not render
reinstatement “not reasonably practicable” and “was
not a factor to be taken into account as the respondent had created
the situation by its own unfair conduct”
.
Similarly, in
Volkswagen
SA (Pty) Ltd v Brand NO,
[16]
Landman J referred with approval to the statement of Brassey that:
‘
[reinstatement]
will also be invoked when the employee’s job has been filled by
a replacement, but care must be taken lest
this become a ready means
by which an employer can escape her obligations. In cases of this
sort, an employee should normally be
reinstated and the employer be
left to do what he or she traditionally does when there are too many
employees on the payroll –
commence the process of dismissal
for operational requirements.’ (Footnotes omitted)
[49]
In the matter at hand, there is no evidence of compelling operational
burden that would justify an order denying the applicant employees
the primary remedy of reinstatement. Any submission to the contrary
is negated by the fact that the other striking employees were issued
with final written warnings for participating in an unprotected
strike that lasted almost half a day.
[50]
On the issue of back payment, I am of the view that a 12 months back
payment would be fair under the circumstances.
Costs
[51]
I am
disinclined to award costs. In any event, it is now an established
principle that costs do not follow the result in this Court
[17]
.
[52]
In the premises, I make the following order:
Order
1.
The dismissal of the applicant employees whose names appear in
annexure A of the Notice of Motion
is substantively unfair.
2.
The applicant employees are reinstated with a backdated period of 12
months from the date of this
order.
3.
There is no order as to costs.
__________________
P
Nkutha-Nkontwana
Judge
of the Labour Court of South Africa
Appearances:
For
the Applicants:
Mr P Ngoato, SACCAWU Official
For
the Respondent:
Mr H Wissing of Henk Wissing Incorporated
[1]
Act 66 of 1995 as amended.
[2]
See:
Vodacom
(Pty) Ltd v CWU
[2010] 8 BLLR 836
(LAC) at pars 10 and 11, where it was held
that despite the procedural compliance with section 64, a strike
will be unprotected
if it is prohibited in terms of section 65
of LRA.
[3]
[2014] 1 BLLR 31
(LAC) at para 29. See also
National
Union of Mineworkers of SA v Tek Corporation Ltd and Others
(1991) 12 ILJ 577 (LAC).
[4]
Items 6 provides:
‘
(1)
Participation in a strike that does not comply with the provisions
of Chapter IV is misconduct. However, like any other
act of
misconduct, it does not always deserve dismissal. The substantive
fairness of dismissal in these circumstances must be
determined in
the light of the facts of the case, including -
(a)
the seriousness of the contravention of
this Act;
(b)
attempts
made to comply with this Act; and
(c)
whether or not the strike was in
response to unjustified conduct by the employer.
(2)
Prior to 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.
[5]
Item 7 provides:
Any
person who is determining whether dismissal for misconduct is unfair
should consider -
(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;
the rule or standard
has been consistently applied by the employer;
and
(iii)
dismissal was an appropriate sanction
for the contravention of the rule or standard.’
[6]
(2018) 39 ILJ 201 (LAC) at paras 34 and 35.
[7]
(
2009)
30 ILJ 2376 (LAC).
[8]
(2018) 39 ILJ 1953 (LAC).
[9]
Ibid.
[10]
See:
Transport
and Allied Workers Union of SA on behalf of Ngedle and Others v
Unitrans Fuel and Chemical (Pty) Ltd
(2016) 37 ILJ 2485 (CC) at para 160.
[11]
Pick ’n Pay Retailers
supra
n 6; see also
W G Davey (Pty) Ltd v National Union of Mineworkers of SA
1999 (3) SA 697 (SCA); (1999) 20
ILJ 2017 (SCA) at para 18.
[12]
Equity
Aviation Services (Pty) Ltd v CCMA
(2011)
32 ILJ 590 (LC) at para 36.
[13]
NUMSA
obo Members v Aveng Trident Steel
[2018]
5 BLLR 500
(LC) at 520.
[14]
[2019] 4 BLLR 323
(CC).
[15]
Reinstatement
in South African Labour Law: Mediterranean Journal of Social
Sciences
:
Vol No.9, May 2014.
[16]
(2001) 5 BLLR 558
(LC at para 102.
[17]
See:
Zungu
v Premier of the Province of KwaZulu-Natal and Others
(2018)
39 ILJ 523 (CC).