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[1993] ZASCA 201
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Performing Arts Council of the Transvaal v Paper Printing Wood and Allied Workers Union and Others (722/92, 16/93, 121/93) [1993] ZASCA 201; 1994 (2) SA 204 (AD); (1994) 15 ILJ 65 (A) (1 December 1993)
CASE NO: 722/92, 16/93, 121/93
IN THE SUPREME COURT OF SOUTH
AFRICA (APPELLATE DIVISION)
In the matter between:
PERFORMING ARTS COUNCIL OF THE TRANSVAAL
APPELLANT
AND
PAPER PRINTING WOOD AND
ALLIED WORKERS
UNION
1ST RESPONDENT
ENOCK MAWASHA AND OTHERS
2ND & FURTHER RESPONDENTS
CORAM:
CORBETT CJ, VAN HEERDEN, GOLDSTONE JJA NICHOLAS et KRIEGLER
AJJA
DATE HEARD
: 15 NOVEMBER 1993
DATE DELIVERED
: 1 DECEMBER 1993
2
JUDGMENT
GOLDSTONE JA:
The first respondent is the Paper
Printing Wood and Allied Workers Union of South Africa ("the trade union"). It
is duly registered
as a trade union in terms of the relevant provisions of the
Labour Relations Act 28 of 1956 ("the Act"). Together with some of its
members
individually ("the employees") it brought unfair labour proceedings in terms of
s 46(9) of the Act against the respondent,
the Performing Arts Council of the
Transvaal ("PACT"). The proceedings arose out of the dismissal of the employees
consequent upon
a strike at the State Theatre in Pretoria on 25 September 1990.
The industrial court made the following determination:
3
"1 The dismissal of the individual applicants on 25 September 1990 by the
respondent was unfair and constitutes an unfair labour practice.
2. The said applicants are reinstated in the employ of the respondent on
terms and conditions no less favourable to them than those
which governed their
employment prior to their dismissal. Their reinstatement with back-pay is made
retrospective for six months
reckoned from the date of this order.
3. The respondent shall fully restore to each of the said applicants all the
rights and benefits, including pension benefits, which
he or she enjoyed on 25
September 1990.
4. The parties shall, within 21 days of the date of this order, draw up an
agreed schedule of the amount due to each applicant in
terms of para 2 of this
order, and such schedule shall be deemed to form part of this determination. The
amount due to each applicant
shall be paid
4
over to him or her by not later than 31 October
1991.
5. The court makes no order as to
costs."
The judgment of the industrial
court is reported at (1992) 13 ILJ 189 (IC).
PACT appealed in terms
of s 17 (21A)(a) of the Act to the Labour Appeal Court (Transvaal Division)
against the determination of the
industrial court. The appeal was argued before
Van Zyl J and assessors. The Court dismissed the appeal. No order as to costs
was
made. The judgment is reported at (1992) 13 ILJ 1439(LAC). An application
for leave to appeal to this Court was dismissed. In consequence
of a petition to
the Chief Justice, in terms of s 17C(l)(b) of the Act, leave to appeal was
granted and it was ordered that the costs
of the application were to be reserved
for decision by this Court.
5 Before considering the grounds of
appeal advanced in this Court, it will be convenient to set out the findings of
fact of the Labour
Appeal Court and the basis upon which it decided that the
dismissal of the employees constituted an unfair labour practice.
The first contact between the trade union and PACT was on 27 February
1990 when the former sent a letter by telefax to PACT proposing
a meeting to
introduce itself as the representative of the majority of PACT's employees. As
such it claimed to be entitled to recognition
by PACT.
The first meeting between PACT and the trade union was held on 5 April
1990. PACT was represented, inter alios, by its deputy general
director, Mr L
Bezuidenhout. The trade union, represented by Mr P Motau, claimed to have
recruited 280 of PACT's employees. Notwithstanding
that they constituted less
than half of PACT's work force, it was agreed that the stop-order
6
forms which had been obtained by the trade union would be submitted to PACT for
verification. Thereafter, said Bezuidenhout, PACT
would be willing to negotiate
with the trade union. He requested the trade union to make available certain
documentation including
its constitution and certificate of
registration.
In a letter dated 18 May 1990 the trade union informed PACT that the
requested documentation had been furnished and suggested that
a further meeting
be held on 30 May 1990. However, on the date proposed PACT addressed a letter to
the trade union stating that it
represented less than 50% of PACT'S employees
and requesting it to explain the basis on which it sought recognition.
On 8 June 1990 a second meeting was held. PACT was represented by
Bezuidenhout and Mr A Oosthuizen, a representative of the employers'
organisation of which PACT was a member. The trade union was represented
by
7 Motau and a number of shop stewards. Oosthuizen stated that
PACT was not entitled to grant the trade union stop-order facilities
without an
exemption from the industrial council. Motau stated that the trade union would
apply to the industrial council for such
exemption. There was also some dispute
concerning the authenticity of certain of the signatures on the stop-order forms
which had
been submitted by the trade union. PACT made it clear, however, that
it was willing to enter into recognition negotiations subject
to satisfactory
proof of paid-up membership of 50% plus 1 of PACT'S employees.
On 19 June 1990 a third meeting was held. In a letter making reference
thereto, dated 22 June 1990, PACT undertook to prepare an interim
recognition
agreement which, inter alia, would provide for the remittance of workers'
membership fees to the trade union.
A fourth meeting was held on 21 June 1990. A few days prior to this
meeting the employees refused to
8 work unless they could first
speak to Bezuidenhout. It would appear that they were dissatisfied because of
the slow progress made
with regard to recognition of the trade union by
PACT.
At the meeting on 21 June 1990 Motau was not present. However,
Bezuidenhout explained to the shop stewards who were present the nature
of
collective bargaining and undertook to respond to certain issues by the
following day. He warned that should the employees "down
tools" before then,
their conduct could be considered an illegal strike which, in turn, could lead
to their dismissal.
On 28 June 1990 PACT submitted a draft "procedural agreement" to the
trade union. It was discussed at the fifth meeting, held on 19
July 1990, which
was attended by Motau. He had with him the trade union's own draft agreement. It
was shown to PACT'S representatives.
However Motau refused to give them
a
9 copy of it. During the course of the meeting Motau stated that
the trade union intended declaring a dispute with PACT on the ground
that it had
adopted delaying tactics in order to avoid negotiations cm "substantive issues".
Motau had not discussed the declaration
of a dispute with the shop stewards or
the workers. Oosthuizen responded by stating that PACT had acted in good faith
and had every
intention of granting the trade union full recognition once it
proved majority representation.
On 20 July 1990 PACT, by telefax, requested the trade union to submit its
draft procedural agreement to its executive and members
and furnish PACT with
suggested changes. The trade union was also requested to submit to PACT its
draft recognition agreement.
On the same day the trade union sent a telefax to PACT demanding that it
remit stop-order deductions for August 1990, failing which
a dispute would be
declared.
10 Within thirty minutes of the telefax having been sent
to PACT, the trade union declared a dispute in respect of the recognition
of the
trade union, stop-order facilities, "substantive issues" and intimidation of
union members.
On 25 July 1990 PACT responded by letter in which
detailed proposals were made for the resolution of the disputes. There then
followed,
on 26 July 1990, the sixth meeting between PACT and the trade union.
The latter refused to accept PACT'S aforementioned proposals.
PACT nevertheless
undertook to assist the trade union to obtain stop-order facilities. The minutes
of the meeting record the following
arrangements:
"1. The stop-orders will be used to determine representation of the union
in PACT.
2. Negotiations will continue only if the union has 50% plus 1
representation of
all
staff excluding management.
11
3. PACT will respond the moment they receive approval in respect of
stop-order facilities from the Department of
Manpower."
On Motau's
insistence PACT, on 27 July 1990, applied to the Director-General of the
Department of Manpower for leave to implement
stop-order facilities. However, on
1 August 1990 the trade union informed PACT that the dispute remained. On 3
August 1990 PACT requested
the trade union to furnish it with details of the
"substantive issues" and alleged intimidation. The trade union failed to furnish
such detail.
On 20 August 1990 PACT sought to involve the trade union in problems
being experienced in the cleaning department of the state Theatre.
The trade
union refused to assist and gave PACT until the following day to respond to the
stop-order issue. It warned that a
12
failure to do so would result in a deadlock. A
request by PACT for details relating to the subject of the envisaged deadlock
met with
no response.
On 28 August 1990 the seventh meeting was
held. Its purpose was to discuss the problems in the cleaning department. Motau
was not
present. It concluded cm the basis that a further meeting would be
convened to deal with proposals from the employees.
In late August or early September 1990 the Director-General of Manpower
informed PACT that if it wished to implement stop-order facilities
it was
necessary to seek exemption from the industrial council. On 6 September 1990
Bezuidenhout, with the concurrence of Motau,
applied to the Secretary of the
Industrial Council of the Theatre Industry of South Africa for exemption to
introduce stop-order
facilities in respect of the trade union. In a letter dated
12 September 1990 the industrial council requested further information
from
13
PACT. The letter was received on 17 September and
a reply was sent on the following day.
A meeting was arranged with
Motau for 24 September 1990. Its purpose again related to the problems with
regard to the cleaning department.
However those problems were soon thereafter
resolved internally. Although Bezuidenhout cancelled the meeting Motau and the
shop stewards
arrived and were informed by Bezuidenhout that the problems had
been solved. A friendly discussion ensued. During the discussion
Motau agreed to
the terms in which Bezuidenhout proposed to reply to the request from the
industrial council for further information.
He signified his agreement by
signing Bezuidenhout's file copy of the reply.
I come now to the all important strike and consequent summary dismissal
of the employees. It will be convenient to quote from the
judgment of the Court
a
quo
(at 1444C-1445F):
14
"It appears to be common cause that, during the lunch hour on 25
September 1990, the workers engaged in an illegal so-called 'wildcat'
strike.
The workers gathered at the loading zone of the State Theatre in Pretoria.
Bezuidenhout was informed of the gathering of
the workers at approximately
13:45. When he went to investigate he came across certain of the shop stewards,
including Phetla, the
only witness who testified for the workers in the court a
quo
. The evidence of what was said at this brief meeting is divergent.
The fact that Bezuidenhout ordered the workers, through the shop
stewards, to
return to work immediately is, however, common cause.
Since he expected problems with the workers, Bezuidenhout immediately
telephoned PACT'S attorney, Mr van Deventer, whose offices are
a few hundred
metres away from the State Theatre. Van Deventer immediately set off to his
client's premises to investigate the matter.
He arrived at Bezuidenhout's office
a few minutes later, at approximately 14:00. A brief discussion of the situation
followed between
Van Deventer and Bezuidenhout, whereupon Van Deventer enquired
as to the
15
whereabouts of Motau. He was informed that Motau was out of town.
Thereupon he indicated that he wished to speak to the shop stewards.
Mawasha,
Phetla and Temane were summoned. The apparent cause of the strike was PACT'S
failure to provide the workers with stop-order
facilities to pay their monthly
union subscription. Van Deventer explained why the said facilities had not as
yet been granted. He
likewise explained that the work stoppage constituted an
illegal strike. He requested the shop stewards to assist him in ending the
strike. They pointed out that the workers were refusing to return to their work.
Van Deventer then decided to address the workers.
He obtained a megaphone,
introduced himself as a representative of PACT and once again explained the
problems relating to the stop-orders.
At approximately 14:20 he requested the workers to return to work by
14:30. Should they do so, no steps would be taken against them.
If they refused
to comply, PACT would seriously consider their dismissal.
Having issued the said ultimatum Van Deventer accompanied Bezuidenhout to
the office of the chief director of PACT, one Reyneke, to
discuss the matter.
Reyneke advised him that,
16
should there be an absolute refusal by the workers to return to work, he
(Van Deventer) would have the authority to dismiss them.
The police were then
called in to be present in case problems should arise.
At approximately 15:00 Van Deventer again addressed the workers. At that
stage they were singing and dancing and appeared to be more
restless than when
he had first spoken to them. He pleaded with them to return to work. Their
concerted reaction was that they refused
to do so. He asked whether there was no
one who wished to return to work. Their reaction remained the same. He then
informed them
that, since they persisted in their refusal, they were summarily
dismissed with immediate effect.
Some of the workers thereafter went to their union office to report on
the aforesaid events. One Masala, a union official, immediately
phoned
Bezuidenhout and informed him that the workers were prepared to return to work.
This offer was rejected. Further offers made
later that day and on the following
day were similarly rejected."
17
It was found by the Labour Appeal Court that
there was concern among the workers that their demand for stop-order facilities
had not
been finalised after having been a bone of contention for several months
(at 1447A). At the time the workers received the ultimatum
from Van Deventer
they "were restless and clearly emotional" (at 1447E).
On the question of the unfair labour practice the broad principles
applied by the Court a qu
o
were the following (at 1446C-H):
(a)
Public policy
does not support the protection of illegal
strikers;
(b)
Nevertheless it
must still be considered whether the dismissal as such was
fair;
(c)
Of paramount
importance in this regard was whether or not the ultimatum issued
prior
18
to the dismissal was fair and
unambiguous;
(d) In judging the
fairness:
"Sufficient time, from the moment of giving the ultimatum, must elapse to
allow the workers to receive the ultimatum, digest and reflect
upon it, and to
respond thereto by either compliance or rejection." (
Liberty Box & Bag
Manufacturing Co. (Pty) Ltd v Paper Wood & Allied Workers Union
(1990)
11 ILJ 427 (ARB) at 435.)
In
the application of those principles the Court a
quo
came to the
conclusion that the ultimatum issued on behalf of PACT was not fair. The reasons
which led it so to conclude were the
following (at 1447A-D):
19
(a) The cause for concern among the workers that their demand for stop-order
facilities had not been finalised;
(b) That it was unreasonable for Van Deventer not to wait for Motau, the
representative of the trade union, before issuing the ultimatum.
It could have
been postponed, or at least extended, until Motau became available.
(c) That the time afforded the workers in terms of the ultimatum, viz. ten
minutes which was extended to forty minutes, was an insufficient
period for the
workers to reflect cm how to react to it. A more adequate period would probably
have
20 resulted in a different decision as was borne out by their offers to
return to work shortly after their
dismissal.
The Court a
quo
went on to hold that although the strike was illegal, the precipitate
and ill-considered ultimatum were circumstances which justified
reinstatement of
the workers as "eminently fair and reasonable" (at 1448B-D).
On behalf of PACT the main grounds of appeal advanced in this Court were
that:
1. The dismissal of the employees was by way of disciplinary action, with a
valid and fair reason and in compliance with a fair procedure
and was therefore
not an unfair labour practice: see the definition of "unfair labour practice" in
s 1 of the Act.
21
2. In any event, having regard to the conduct of the employees, the order
for their reinstatement was inappropriate and
wrong.
I shall consider these grounds in
turn.
This appeal is governed by the provisions of
s
17C of the Act. Ss (l)(a) provides for an appeal
against a decision
or order of the Labour Appeal Court
"except a decision on a question
of fact". The appeal
must therefore be decided on the facts found by
the
Labour Appeal Court. Counsel on both sides were
agreed,
however, that this Court is also entitled to have
regard
to additional facts which appear from the record of
the
industrial court proceedings in so far as they are
not
inconsistent with facts found by the Labour Appeal
Court.
I agree. Were it otherwise this Court would be in
the
invidious position of having to ignore facts (even
if
undisputed) because, for whatever reason, they were not
22
referred to in the judgment of the Labour Appeal
Court. That could not have intended by the draftsman of s 17C of the
Act.
The conclusion of the Labour Appeal Court that PACT committed an unfair
labour practice is not a "decision on a question of fact"
and may therefore be
reconsidered by this Court:
Media Workers Association of South Africa and
Others v Press Corporation of South Africa Ltd ("Perskor"
) 1992(4) SA 791(A)
at 802B-I.
In terms of s 1 of the Act, as it read in 1990, "unfair labour practice"
was defined to mean, inter alia:
"... any act or omission which in an unfair manner infringes or impairs
the labour relations between an employer and employee, and
shall include the
following:
(a) The dismissal, by reason of any disciplinary action against one or
more employees, without a valid and fair reason
23
and not in compliance with a fair procedure
..."
It was not in issue that
the dismissal of the employees constituted disciplinary action against them. I
also did not understand counsel
for the respondents to submit that the dismissal
of the employees was without a valid and fair reason. That is hardly surprising
if one has regard to the illegal, prejudicial and precipitate action they took.
The principal issue which was debated in argument
was whether the dismissal was
in compliance with a fair procedure.
On behalf of the employees it was submitted in this Court that the delay
by PACT in affording them stop-order facilities was the result
of a stratagem on
the part of PACT to hinder and obstruct recognition being granted to the trade
union. However, having regard to
the events which occurred after the
commencement of the
24
strike it is unnecessary to come to any firm
conclusion on this issue. I shall assume in favour of PACT that it did not act
in bad
faith in its dealings with the trade union. It follows that the appeal
must be determined on the basis that the strike by the employees
was not
provoked by any improper conduct on the part of PACT.
One has the situation, therefore, that up to 24 September 1990 there had
been reasonably amicable if desultory negotiations between
PACT and the trade
union. Although no recognition agreement had been signed, it was alleged in the
respondents' application in the
industrial court that the trade union had been
granted de
facto
recognition by PACT. That was admitted by PACT in its
reply. In all of those negotiations the trade union had been represented by
Motau.
That the employees were impatient at the lack of progress in arranging
stop-order facilities is
25
illustrated by the threat to down tools over that
issue during June 1990.
As far as PACT was concerned, the wildcat strike at lunch time on 25
September 1990 was an unexpected and inexplicable, if not bizarre,
occurrence.
The issue which must now be decided is whether the response to it by PACT, in
all the circumstances, constituted an unfair
labour practice.
Counsel for PACT conceded, correctly in my view, that it would have been
unfair, without more, to have summarily dismissed the employees.
Such an extreme
response would have been unfair, in my opinion, having regard to the following
considerations:
1. Most of the 299 employees had given many years of service to PACT.
Twelve of them had given in excess of 20 years service; 32 had
given in excess
of 10 years service; and 122 in excess of four years service.
26
2. The cause of the unhappiness related to a matter which was of legitimate
concern to the employees in relation to their employment.
3. The employees had not acted in a manner threatening to the safety of
PACT'S personnel or property. The police were called by Bezuidenhout
as a
precaution and not because of any overt threat from any of the employees.
Certainly there was no suggestion that either Bezuidenhout
or Van Deventer was
physically threatened by the employees.
4. On the face of it the very unexpectedness and irrationality of the
behaviour of the employees should have suggested to Bezuidenhout
that something
had gone wrong in the communication between the trade union and the employees.
That suggestion should have been strengthened
by the fact that the trade union
was not associated with the strike.
27
5. The employees, according to Bezuidenhout
and Van Deventer,
were in an emotional
state. They were described by
Van
Deventer as " 'n singende, senutergende
massa
werkers". As mentioned above, the
Court
a quo
found that
they
"were restless and clearly emotional".
6. The workers had been on strike for barely
one
hour.
In all of those
circumstances fairness and good sense dictated that the employees should have
been given a reasonable ultimatum. As
it was put by Van Rensburg J in
Plaschem (Pty) Ltd v Chemical Workers Industrial Union
(1993) 14 ILJ
1000(LAC) at 1006 H-I:
"When considering the question of dismissal it is important that an employer
does not act overhastily. He must give fair
warning
or ultimatum that he
intends to dismiss so that
28
the employees involved in the dispute are afforded a proper opportunity of
obtaining advice and taking a rational decision as to what
course to follow.
Both parties must have sufficient time to cool off so that the effect of anger
on their decisions is eliminated
or
limited."
Before turning to
consider the fairness of the
ultimatum I would like to emphasize
that whether an
illegal strike may fairly be met with an
immediate
dismissal or whether fairness calls for an ultimatum
or
other appropriate action short of dismissal is an
issue
which can only be determined on the facts of each
case.
An illegal strike constitutes serious and
unacceptable
misconduct by employees. The present enquiry is
whether
on the facts of this case it would have been unfair
to
dismiss the employees without giving them a
reasonable
ultimatum - an opportunity to calm down and reflect
upon
the serious consequences for them of continuing to act
in
29 an illegal manner in breach of their obligations to their
employer.
According to the uncontradicted evidence of Bezuidenhout
and Van Deventer, and as held by the Court a
quo
, at 14:20 Van Deventer
addressed the employees and informed them that if they were not back at work by
14:30 they could be dismissed.
Then, forty minutes later he returned. I quote
his own words:
"Ek het weer by dieselfde plek gaan staan. Op daardie stadium het die
toneel redelik meer atmosfeer gedra as die - as die eerste keer.
Daar was weer
die singery, die dansery, die een shop steward PHILIP TEMANE het reg voor my
gedans. Hy het op daardie stadium reeds
van sy hemp, nie ontslae geraak nie,
maar oopgeknoop. Dit was redelik angswekkend gewees. Ek moes ook twee, drie keer
op die megafoon
vra vir stilte om met hulle te praat. Toe ek die stilte kry het
ek vir hulle gesê ek het vir -die ultimatum gegee tot 14h30.
Dit is nou
15h00, 'n halfuur later, hulle is nog nie terug by die werk nie, asseblief, wil
julle nie
30
teruggaan werk toe nie? Op daardie stadium het daar 'n koor van stemme
geskreeu nee, hulle gaan nie terug werk toe nie. Ek het herhalend
gesê dat
die ene wat teruggaan sal geen aantekening kry op 'n personeelleer of enige
dissiplinêre stappe nie, dit word
vergeet. Ek het inderdaad een kant toe
gestaan en uitgewys die van u wat wil teruggaan werk toe, stap by my verby in
die gang af
en dit is die einde van die episode. Daar was geen reaksie nie. Ek
het gevra is daar niemand wat wil teruggaan nie en die koor van
stemme wat
deurgekom met 'n geskreeu en gesê nee, ons gaan nie werk nie. Op daardie
stadium het ek aan hulle gese as dit die
houding is dat julle nie teruggaan werk
toe nie dan is julle ontslaan met onmiddelike
effek."
In the charged atmosphere that Van
Deventer described, to have expected employees to file past him into the passage
on the way to
resuming work was to have expected an unusual reaction from an
excited group of almost 300 workers. It would have required
exceptional
31 bravery (or stupidity) for any one of them to have
accepted such an invitation. In my opinion Van Deventer's actions and words
in
that respect showed a distinct lack of appreciation of human behaviour.
In my judgment a fair ultimatum in the circumstances of this case should
have been of sufficient duration to have enabled:
(a)
PACT to have
ascertained what had gone wrong and caused the employees to behave as they did
either by direct enquiry from the employees,
the shop stewards, Motau or some
other representative of the trade
union;
(b)
the employees time
to cool down, reflect and take a rational decision with regard to their
continued employment, and for that purpose
to seek advice from their trade
union.
32
The ultimatum given by PACT to the employees was
clearly insufficient. It was of too short a duration by far to have achieved
either
of the aforegoing objectives. It is not necessary to decide what a
reasonable period would have been. I would suggest, however, that
it should not
have expired prior to the commencement of work on the following day.
Having regard to the six factors referred to above, in my opinion there
was a distinct probability that had a fair ultimatum been
given to the employees
the strike would have come to a speedy conclusion. It appears from the evidence
that the trade union was certainly
opposed to the continuation of the strike and
that attitude would, as a probability, have weighed with the employees, at any
rate,
after they had cooled down.
Counsel for the respondents also submitted that the ultimatum given by
Van Deventer was not in clear and unambiguous terms. He suggested
that it did
not convey
33 to the empoyees that the choice given to them was to
return to work or be dismissed. Having found that the period of time given
to
the employees in terms of the ultimatum was inadequate it is not necessary to
express an opinion on this issue.
In considering the issues in this case I have attempted to eschew an
armchair approach. I am fully cognisant of the difficult position
in which the
illegal conduct of the employees placed their employer. I am also conscious that
the use of hindsight can easily result
in unfair criticism. I am of the opinion,
however, that in requiring that PACT should have given a fair ultimatum to the
employees,
and in finding that it failed to do so, I have not judged it
unfairly. Any reasonable employer would and should have taken into consideration
the factors to which I have made reference and in consequence have acted in the
manner suggested.
34
It follows, in my opinion, that the industrial
court and the Court a
quo
correctly decided that in dismissing the
employees PACT committed an unfair labour practice.
The substantive
issue which remains to be considered is whether the order for the reinstatement
of the employees and the order for
back-pay made retrospective for six months
was appropriate relief. The reasons which caused the industrial court to grant
that form
of relief appears from the following passage of the judgment (at
199C-G):
"It is now accepted that the industrial court may come to the assistance
of employees who embark on illegal industrial action provided
they can show good
cause, such as necessity, self-defence, provocation or as in this case,
precipitate action by the employer. In
short, when an employer opposes
reinstatement of dismissed employees on the ground that they
35
participated in illegal industrial action,
he
must also show that his own hands are not
unclean and
that he had acted fairly and
reasonably
before
resorting to
dismissal as a
weapon of last resort. The Labour
Appeal
Court, in
National Union of Metalworkers of
SA
v Tek Corporation Ltd & others
(1991) 12
ILJ
577 (LAC) at 582F has endorsed the view of
the
industrial court that 'even if the actions by
the
applicants may have been unlawful, regard
still has to be had to
both the fairness of
ensuing procedural steps and the fairness
of
the sanction which was meted out in such
procedure'.
(See
SA Chemical Workers Union &
others v Cape Lime
Ltd
(1988) 9 ILJ 441(IC) at
455C-D.) Nicholas AJA has reminded
us that
labour law operates at the interface between
law
and industrial relations. Accordingly,
'its problems are delicate
and complex and not
to be solved solely by statutory fiat or
legal
analysis. Labour law has social, economic
and
psychological dimensions which cannot be
constrained
in legal formulas'. (See Benjamin,
Jacobus & Albertyn
Strikes, Lock-outs and
Arbitration in South African Labour
Law
(1989)
at xxii.)"
36
In my judgment there is a glaring omission from
that analysis, namely an appreciation of the effect of the illegal, unreasonable
and
prejudicial conduct of the employees in embarking upon the wildcat
strike.
The function of the industrial court was to:
"... determine the dispute on such terms as it may deem reasonable,
including but not limited to the ordering of reinstatement or
compensation ..."
(s 46(9)(c) of the Act).
Having found that
the employees were unfairly dismissed the industrial court was required to
decide whether the appropriate relief
was reinstatement or compensation. No
other type of relief was suggested by counsel or suggests itself to me. In this
case, it would
appear that no consideration was given to the grant of
compensation.
37
This question was taken no further by the Court a
quo
. It was dealt with in the following short passage (at
1448C-D):
"On consideration of all the facts and circumstances of the present matter,
I am satisfied that the court a
quo
was entitled to order reinstatement
as it did. It is true that the workers were involved in an illegal strike but it
was of very
short duration and the matter could, to my mind, have been resolved
amicably without Van Deventer's resorting to the drastic action
upon which PACT
had decided. The nature of the ultimatum and the subsequent dismissals were
indeed precipitate and ill-considered.
In the circumstances I believe that
reinstatement was eminently fair and
reasonable."
In a number of decisions of
the industrial court and the Labour Appeal Court it has been regarded almost as
axiomatic that in the
absence of special
38 circumstances an unfair
dismissal should have as its consequence an order for reinstatement. This
approach is exemplified in the
judgment in
Sentraal-Wes (Koöperatief)
Bpk v Food and Allied Workers Union and Others
(1990) 11 ILJ 977 (LAC) at
994E:
"
Prima facie
, if an unfair dismissal occurs the inference is that
fairness demands reinstatement. And it is for the employer to raise the factors
which displace such inference."
No reasons are furnished for those conclusions and, in my opinion, they
are far too widely stated. In every case the industrial court
must make a
reasonable determination. In some cases fairness and justice may dictate that
reinstatement is the proper relief. In
others compensation or some other form of
relief may be more appropriate. Each case must depend on its own
39
facts. A rule of thumb, even if applied on a
prima facie
basis, will tend
to fetter the wide discretion of the industrial court (or the Labour Appeal
Court). That result is one to be avoided.
In my opinion the correct approach is
to give due consideration to the relevant conduct of the parties and, in the
light thereof,
to decide upon the appropriate relief: compare
Nomaqumbe and
Others v Multi Office (Pty) Ltd
(1992) 13 ILJ 152 (IC) at
164I-165A.
In a number of judgments of the industrial court and the Labour Appeal
Court in s 46(9) proceedings reference has been made in the
context of
reinstatement to the following passage from the judgment in
Tshabalala and
Others v Minister of Health and Others
1987(1) SA 513(W) at 523B-C:
"As a matter of public policy I do not believe that a Court should order
the reinstatement of an employee who admits or is found to
have
40
participated in an illegal strike. As I have already said, such conduct
subverts the very purpose and being of the profession which
such person is
seeking to join. In other words, the third applicant has not come to Court with
clean hands, as it were, and in my
judgment I should not exercise my discretion
in favour of that applicant."
That case was
decided under the common law and not under the unfair labour procedure of the
Act. It related to a student in the nursing
profession, described in the same
judgment as follows (at 518B-D):
"The nursing profession is a venerable and noble one. The services it
renders very properly can be described as essential services
in the sense that
if they are withheld, the lives or health of many people may be endangered. It
is no doubt for that reason that
the Legislature has seen fit to render strike
action unlawful and punishable by the criminal courts. Similar legislation in
respect
of essential services is by no
means
41
peculiar to this country, and may be found on the statute books of most
Western nations. A strike by members of the nursing profession,
apart from being
a repudiation of their contract of employment, undermines the very fundamental
ethic of their calling and constitutes
a material breach of
contract."
In s 46(9) proceedings the
concept of "clean hands" is relevant only to the extent that the conduct of the
parties must be considered
in the context to which I have already referred. The
passage from the
Tshabalala
judgment is not apposite or relevant in such
cases.
Whether or not reinstatement is the appropriate relief, in my
opinion, must be judged as at the time the matter came before the industrial
court. If at that time it was appropriate it would be unjust and illogical to
allow delays caused by unsuccessful appeals to the
Labour Appeal Court and to
this Court to render reinstatement inappropriate. Where an order for
reinstatement has been
42
granted by the industrial court an employer who
appeals from such an order knowingly runs the risk of any prejudice which may be
the
consequence of delaying the implementation of the order.
The
determination of the industrial court was made on 16 September 1991, i e just
short of one year after the dismissal of the employees.
In my opinion the most
important considerations which should have been taken into account in
determining the appropriate relief were
the following:
1.
The illegal and
unacceptable conduct of the employees which clearly constituted an unfair labour
practice on their part, and also
a breach of their employment
contracts;
2.
The over-hasty
dismissal of the employees which I have already held also constituted an unfair
labour practice;
43
3. The substantial length of service of the majority of the
employees;
4. The short duration of the strike at the time of the unfair
dismissal;
5. The absence of prior improper conduct by the employees.
6. The likelihood that if a fair and reasonable ultimatum had been given to
the employees the strike would have been of very short
duration.
This Court is empowered by the
provisions of s 17C(2) of the Act to:
"... confirm amend or set aside the decision or order against which the
appeal has been noted or make any other decision or order,
including an order
for costs, according to the requirements of the law and
fairness."
44 In my judgment the appropriate relief which should
have been granted to the employees by the industrial court was, as it correctly
held, one of reinstatement. The long service of the majority of the employees
with PACT and their pension rights to which reference
is made in paragraph 3 of
the determination of the industrial court (at 200A) would have made it unfair
and unjust for them to be
have been awarded compensation of one or even a few
months salary.
Indeed, compensation is a rather blunt remedy. In respect of those
employees who might not have found other employment it would have
been
inadequate relief. And, in the case of those employees who might have found
immediate alternative employment compensation would
have constituted an
inappropriate enrichment.
I am further of the opinion that the industrial court should have marked
its disapproval of the
45 misconduct of the employees by refusing
them any backpay. In effect those of them who did not take up other employment
at the same
or a better wage will have lost almost one year's wages - a most
substantial punishment to pay for a couple of hours of unlawful
and
ill-considered conduct. Nevertheless the principle is an important one.
Employees and their trade unions must take into account
the high risk which they
run when the provisions of the law are flouted and the whole purpose of
collective bargaining is subverted
- for that is the inevitable consequence of
an illegal strike.
It is now a little more than three years since the dismissal of the
employees. The effective date of their reinstatement is 16 September
1991, viz
the date of the determination of the industrial court. Problems could arise with
regard to the effect of reinstatement
in a particular case. No argument was
addressed to this Court on this topic and it would therefore be
46
inappropriate to anticipate such problems or their resolution. Should they arise
and not be amicably resolved, the industrial court
would have to be approached
for a determination in terms of the earlier reference of this matter to it under
s 46(9) read with the
provisions of s 17(11)(h) of the Act.
The deletion of that part of the order of the industrial court relating
to back-pay for six months prior to the date of its order
represents substantial
success for PACT. The average salary of each employee was in excess of R550 per
month. The wages of the 299
employees for six months would amount to
approximately Rl million. On the other hand PACT failed on the main issue in the
appeal.
In these circumstances I am of the opinion that there should be no order
as to costs in the Labour Appeal Court, in respect of the
petition for leave to
appeal, or in this Court.
47
The following order is made:
A. The order of the Labour Appeal Court is set aside and it is replaced by
the following:
''1. The appeal succeeds to
the extent that the determination of the industrial court is amended by the
deletion of -
(a) the second sentence of paragraph 2
thereof;
(b) paragraph 4 thereof.
2. No order as to the costs of the appeal is made."
48
B. If any dispute arises between any such employee and PACT concerning a
claim arising out of the order for reinstatement that dispute
shall be
determined by the industrial court in terms of the provisions of s 46(9) read
with s 17(11)(h) of the Labour Relation Acts,
28 of 1956. The procedure for
resolving such a dispute shall be determined by the President of the Industrial
Court.
C. No order is made as to the costs
of the appeal or of the application for leave to appeal.
R J GOLDSTONE JUDGE OF APPEAL
CORBETT CJ) NICHOLAS AJA) KRIEGLER AJA) CONCUR
UITSPRAAK
VAN HEERDEN AR
:
2 Met die oog op die
omskrywing van "onbil-like arbeidspraktyk" in art 1 van die Wet op
Arbeids-verhoudinge 28 van 1956, soos dit
in 1990 gelui het, is ek bereid om ten
gunste van die respondente te veronderstel dat die ontslag van die betrokke
werk-nemers in
die afwesigheid van enige ultimatum wel so 'n praktyk sou gewees
het. In hierdie veronderstel-ling is ek egter van mening dat die
ultimatum wat
wel gegee is nie onredelik of onbillik was nie.
Die ultimatum moet
in die lig van die volgende geëvalueer word.
1) Die appellant
was nie te blameer vir die vertraging wat in verband met die toestaan van
aftrekorderfasiliteite ondervind is nie;
veral nie vanaf Junie 1990 nie. Reeds
op 8 Junie het Motau gesê dat hy die Nywerheidsraad om 'n vrystelling sou
nader. Om redes
wat hy as onopgeroepte getuie nie verduidelik het nie, het hy
egter nooit die daad by
3 die woord gevoeg nie. Daarna was dit hy
wat in Julie daarop aangedring het dat so 'n aansoek aan die Departement van
Mannekrag gerig
moes word.
2)
Toe daardie
aansoek futiel geblyk te wees het, het Motau weer nie handelend opgetree nie.
Dit was inteendeel Bezuidenhout wat toe
die aansoek aan die Nywerheidsraad gerig
het.
3)
Op die vergadering
van 24 September waarop Motau, en van die vertrouensmanne wat deur die
werknemers verkies was, teenwoordig was,
is Bezuidenhout se optrede nie
bevraagteken nie. Motau het inteendeel aangedui dat hy daardie optrede aanvaar
het en as blyke van
sy instemming 'n afskrif van die skrywe aan die
Nywerheidsraad
geteken.
4)
Met toestemming
van die appellant het die vertrouensmanne die volgende dag 'n
inlig-tingsvergadering vir die werkers gehou. In alle
waarskynlikheid het hulle
toe die werkers vertel wat-
4 die vorige
dag gebeur het. In elk geval was die appellant se amptenare volkome geregtig om
te aanvaar dat hulle dit wel gedoen het.
5)
Daar was dus nie
die geringste objektiewe rede nie vir 'n weiering om te werk totdat die genoemde
fasiliteite toegestaan sou word.
Dlt kan trouens aanvaar word dat die werkers
meegedeel was dat sonder die vergunning van die Nywerheidsraad - wat nog nie
toegestaan
was nie - die fasiliteite nie bewillig kon word
nie.
6)
Geen kennis van 'n
voorneme om te staak is aan die respondent gegee nie. Die eerste keer dat
Bezuidenhout van probleme bewus geword
het, was toe hy 'n mededeling van die
hoof van die teater-afdeling ontvang het. Op pad na die vergaderplek is hy toe
deur 'n vertrouensman
meegedeel dat die werkers nie na hul werk sou terugkeer
nie tensy die fasiliteite nog daardie selfde middag
beskikbaar
5 gemaak sou word. Hulle was dus
toe reeds aan die staak.
7)
Voordat hy die
werkers toegespreek het, is Bezuidenhout op sy navraag meegedeel dat Motau
uitstedig was. Hy is voorts meegedeel dat
"die enigste persoon op kantoor by die
vakbond se kantoor is 'n mnr Masala en hy het ook vir hulle [die werkers]
gesê hulle
moet gaan werk, maar die mense wil nie". Hieruit kan afgelei
word dat Masala se mededeling - waarskynlik aan een van die vertrouens-manne
-
aan die werkers oorgedra was. 'n Oproep van Bezuidenhout aan Masala sou dus
vrugteloos gewees
het.
8)
Indien die werkers
wonder bo wonder nie bewus was dat die fasiliteite volgens die opvat-ting van al
die belanghebbendes nie terstond
toege-staan kon word nie, het Van Deventer dit
vir hulle duidelik gemaak. Hy het dit trouens meermale
gedoen.
6 Eerstens het hy aan drie van die
vertrouensmanne 'n volledige verduideliking vir die vertraging gegee, wat weens
hul kennis skaars
nodig was. Daarna het hy aan die werkers stap vir stap
verduidelik waarom die fasiliteite nog nie beskikbaar was nie, en in hierdie
verband na die korrespondensie met die Departement van Mannekrag en die
Nywerheidsraad verwys. Om-streeks 3 nm het hy sy uiteensetting
herhaal, maar die
werkers se reaksie was om uit te klok of ander-sins die gebou te
verlaat.
In baie gevalle vereis billikheid dat aan stakende werkers 'n
substansiële tydperk gegun word om oor die konsekwensies van 'n
moontlike
ontslag volgende op 'n ultimatum te besin. Dit is egter geen onwrikbare
reël nie. So byvoorbeeld kan 'n baie kort
ultimatum billik wees indien die
werkgewer as 'n kwessie van dringendheid alternatiewe staf in diens sal moet
neem indien nie aan
sy ul timatum gehoor
7 gegee word nie. Ander
faktore wat ter sprake kan kom, is die al of nie billikheid van die werkers se
eise, die werkgewer se vermoë
om daaraan te voldoen, die werknemers se
reaksie op die werkgewer se ver-duidelikings en ultimatum, ens.
Ten
koste van herhaling moet die klem nou op die volgende geplaas word. Die werkers
se griewe was nie terug te voer na voorafgaande
onredelike optrede van die
appellant nie. ('n Betoog dat die appellant opsetlik erkenning van die vakbond
en die toestaan van aftrekorderfasiliteite
probeer vertraag het, het niks om die
lyf nie.) Geen kennis van 'n voorneme om te staak wat onderhandelinge moontlik
sou maak, is
gegee nie. Die werkers se eise was tot hul kennis grof onredelik.
Hul reaksie na die finale ultimatum en pleidooie om na hul werk
terug te keer
was een van 'n finale besluit om met die staking voort te gaan deurdat hulle
uitgeklok en die gebou
8 verlaat het. Dit was ook nie asof hulle nog
advies van die vakbond afgewag het nie - hulle was reeds deur Masala geadviseer
dat
hulle nie moes staak nie. Ten slotte was die werkers bewus dat dit vir die
appellant baie moeilik sou wees om daardie aand sy produksies
aan te bied indien
die staking sou voortgaan. Vanaf Bezuidenhout se eerste versweë ultimatum
aan die vertrouensmanne wat stellig
aan die werkers oorgedra is, het ongeveer 'n
uur verloop waarin die werkers kon besin het. Om onder hierdie omstandighede aan
te
voer, soos die respondent wel gedoen het, dat die ultimatums onredelik kort
was, staan gelyk aan die stel van 'n premie op 'n summiere
staking en grof
onbillike optrede van die werkers in verband daarmee.
Maar selfs al sou die appellant 'n langer ultimatum moes gegee het, volg
dit nie dat die ontslag onbillik was nie. Dit sou die geval
ge-
9
wees het slegs indien wat as 'n redelike tydperk vir besinning beskou word nie
tot ontslag sou gelei het nie. Immers, indien dit
volgens een of ander
bewys-maatstaf vasstaan dat 'n redelike ultimatum in elk geval nie tot 'n
beëindiging van die staking sou
gely het nie, kan die ontslag na 'n korter
ultimatum nie as onbillik aangemerk word nie. En waar die werkers
in casu
hulle daaroor bekla dat die appellant hom aan 'n onbillike arbeidspraktyk
skuldig gemaak het, rus die las na my mening op hulle om
juis dit te bewys.
Hulle moet dus ook bewys dat indien hulle 'n redelike tyd vir oorweging gehad
het, hulle nie ontslaan sou gewees
het nie omdat hulle aan die ultimatum gehoor
sou gegee het.
Nie een van die werkers, behalwe Phetla, het getuig nie. Ek meen dan ook
dat die appellant hom met reg bekla het oor die selektiewe
wyse waarop die
respondente getuies opgeroep het, of liewer nie
10 opgeroep het nie.
Trouens, die respondente se enigste getuie was Phetla wat heel toevallig die
enigste vertrouensman was wat nie
die byeenkoms van 24 September bygewoon het
nie. Daar is dus geen direkte getuienis dat indien die ultimatum gelui het dat
die werkers
die volgende oggend op hul poste moes wees, hulle die staking sou
beëindig het nie.
Die respondente vra egter dat 'n afleiding in
hulle guns gemaak moet word. Hulle wys naamlik daarop dat Masala reeds kort na
die werkers
se ontslag aangebied het dat hulle na hul werk sou terugkeer. In
eerste instansie is daar egter niks wat daarop dui dat Masala hierdie
aanbod
namens die werkers gemaak het nie. Uit Phetla se getuienis blyk naamlik dat op
hierdie stadium slegs die vertrouensmanne en
'n handvol werkers by die vakbond
se kantore was - die grootste gros werkers was reeds huistoe. Tweedens is 'n
reaksie na 'n afdanking
hoegenaamd nie met een tydens die duur van 'n
11
ultimatum gelyk te stel nie. Die waarskynlikhede is dat die werkers die
middag toe die ultimatums gerig is, gemeen het dat die appellant
met 'n blufspel
besig was en dat die appellant dit nooit sou waag om die daad by die woord te
voeg nie. Daar is dan ook niks wat
daarop dui dat indien die ultimatum eers die
volgende oggend sou verstryk, hul opvatting van die blufspel enigsins anders sou
gewees
het nie. En indien dit die geval was, sou hulle gereageer het eers nadat
dit die volgende dag geblyk het dat hulle hul aangaande
die appellant se erns
misreken het. Dit blyk vir my dus nie as 'n waarskynlikheid dat 'n langer
ultimatum die werkers tot hulle sinne
sou geruk het nie.
Ek sou dus
die appèl handhaaf en die bevel van die hof a
guo
en die
toekenning van die nywer-heidshof tersyde stel.
H J O VAN HEERDEN AR