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[1994] ZASCA 153
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National Union of Metalworkers of South Africa and Others v Henred Fruehauf Trailers (Pty) Ltd (86/92) [1994] ZASCA 153; 1995 (4) SA 456 (AD); [1995] 2 BLLR 1 (AD); (1994) 15 ILJ 1257 (A) (11 November 1994)
IN THE SUPREME COURT OF SOUTH AFRICA
(APPELLATE DIVISION)
CASE NO. 86/92
NATIONAL UNION OF METALWORKERS
OF SOUTH AFRICA AND
OTHERS
APPELLANTS
VERSUS
HENRED FRUEHAUF TRAILERS (PTY) LTD
RESPONDENT
CORAM
: VAN HEERDEN,SMALBERGER, VIVIER, HOWIE
JJA et NICHOLAS AJA
DATE HEARD
: 20 September 1994
DATE DELIVERED
: 11 November 1994
NICHOLAS AJA
2
JUDGMENT
NICHOLAS AJA
:
This appeal arises out of the dismissal
on 11 June 1989 by Henred Fruehauf Trailers (Pty) Ltd (which will be referred to
as "the employer")
of 44 employees at its Wadeville factory ("the 44
employees"). Alleging that the dismissal constituted an unfair labour practice,
the National Union of Metalworkers of South Africa ("NUMSA") and the 44
employees, all of whom were members of the union, applied
to the industrial
court for a determination of the dispute in terms of s.46(9) of the Labour
Relations Act 28 or 1956 ("the Act").
The industrial court decided that the
dismissal was substantively and
/
3
procedurally unfair and constituted an unfair labour practice. It ordered
that the 44 employees be reinstated in their employment on terms
and
conditions no less favourable to them than those which governed their
employment on the date of dismissal.
The employer appealed to the Labour Appeal Court ("the LAC) in terms of
s. 17(21A) of the Act. The LAC upheld the appeal "in part,
in regard to the
relief granted", holding that the reinstatement of the 44 employees "was clearly
not appropriate and should ...
not have been granted." It made the following
order:
"1 The matter is referred back to the court
a quo
for
consideration of the appropriate compensation payable to each of the second to
forty-fifth respondents, with particular
4
reference to the personal circumstances of each of the said |
respondents. 2 The appellant is ordered to pay the costs of the
respondents,
including the costs of two counsel." The judgment of
the LAC has been reported
(Henred Freuhauf Trailers (Pty) Ltd v National
Union of Metalworkers of SA and Others
| (1992) 13 ILJ 593 (LAC).
NUMSA and the 44 employees now appeal to this court with leave duly
granted. The employer noted a cross-appeal in regard to the costs
order, but as
leave in that regard was not sought or granted the cross-appeal must be struck
off the roll with costs. There was no
cross-appeal in regard to the merits. In
terms of Appellate Division Rule 5(4)(i) the
5
parties stated a special case, which set out the agreed facts which
were
extracted from the 1340 pages of the record of the proceedings
in the
industrial court, and the findings of fact made in the judgments of
the
industrial court and the LAC. This material is summarized in
the
judgment of Van Heerden JA.
There is a single question for decision. It was formulated by
the
parties as follows:
"Whether or not the Labour Appeal Court was correct
in
rinding that reinstatement of the dismissed employees
was
inappropriate because they had engaged in an illegal
strike."
In its judgment, the industrial court did not give reasons
for
ordering the reinstatement of the 44 employees. This was in line
with
the approach often adopted in cases of unfair dismissal by the
industrial
court and the LAC. In
Performing Arts Council of the
Transvaal v Paper
Printing Wood and Allied Workers Union and
Others
1994(2) SA 204(A)
("the PACT case") Goldstone JA said at 218H-J that in a number
of
decisions those courts had regarded it as almost axiomatic that, in
the
absence of special circumstances, an unfair dismissal should have as
its
consequence an order for reinstatement. This approach was
exemplified
in the dictum of Goldstein J in
Sentraal-Wes (Koöperatief) Bpk v
Food
Allied Workers Union and Others
(1990) 11ILJ 977 (LAC) at 994
E:
"
Prima facie
, if an unfair labour dismissal occurs the inference
is that fairness demands reinstatement. And it is for the employer to raise the
factors which displace such inference."
Goldstone JA considered this to be far too widely stated. He said (at
219
7
A-C)-
"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
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 ..."
The LAC's view that
reinstatement was not the appropriate remedy was based on what it conceived to
be a matter of legal policy: reinstatement
was not appropriate because the 44
employees had
8
participated in an illegal strike, albeit in the form of a partial or
go-slow strike. It relied on
Tshabalala and Others v Minister of Health and
Welfare and Others
1987(1) SA 513(W), where Goldstone J said at 523
B-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 participated in an
illegal strike. As I have already said, such conduct subverts the very purpose
and being of the profession
[sc. the nursing 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
9
discretion in favour of that
applicant."
In his judgment in the PACT
case however Goldstone JA distinguished the
Tshabalala
case. He pointed
out at 219 C-H that
Tshabalala
was decided under the common law and not
under the unfair labour practice procedure of the Act and that it was not
apposite or relevant
in the latter class of case.
Nevertheless, the fact that dismissed employees have engaged in illegal
industrial action may be highly relevant to the question whether
reinstatement
should be ordered. See the judgment in the PACT case at 218 D-E, where Goldstone
JA referred to a "glaring omission"
in the reasons which in that case caused the
industrial court to order reinstatement -
10
"namely, an appreciation of the effects of the illegal, unreasonable and
prejudicial conduct of the employees in embarking upon the
wildcat
strike."
The learned judge of appeal observed at 219 J -220 A
that
important considerations which should be taken into
account in
determining the appropriate relief include the illegal
and unacceptable
conduct of the dismissed employees which clearly constituted an
unfair
labour practice on their part, and also a breach of their
employment
contracts. He said at 220 G-H,
"Employees and their trade unions must take into account the high risk
which they run when the provisions of the law are flaunted
and the whole purpose
of collective bargaining is subverted - for that is the inevitable consequence
of an illegal strike."
11
Thus, it may be relevant to the appropriateness of
reinstatement
that the conduct of dismissed employees
has so impaired the
employer/employee relationship that it would be
unreasonable and unfair
to order that they should be reinstated. Or it may be that in the view
of
the court reinstatement should be denied as a mark of disapproval of the
i
unlawful conduct, or in order to deter employees who might in future
be
minded to engage in unlawful industrial action. Or it may be felt that
the
case is one which calls for retributive justice - that the
dismissed
employees should be made to "pay" for the inconvenience, disruption
and
financial loss caused to the employer.
It was nevertheless submitted on behalf of the appellants that
the
fact that the 44 employees had taken part in the go-slow strike could
not
12
in this case be used in determining the appropriate remedy. The
submission was not that such participation did not have a logical
bearing on the
question, but was based on a narrow technical ground, namely -
"The starting point of the enquiry in any dismissal case,
is
the reason given by the employer therefor at the time of
dismissal. Once established, the employer is bound by that
reason. An
ex post facto
attempt to justify a
dismissal can
never be fair . . .
"The misconduct with which the workers were charged
and
found guilty was not their participation in the go-slow.
It
was for 'deliberately' failing what is referred to as the 'five
hour test'. That test purported to measure each individual
13
worker's productivity over a five-hour period
taken on the
morning of 15 June 1989 . . .
"... Having disciplined the dismissed workers for alleged
acts of individual misconduct, namely the failure of the five
hour test, [the employer] now attempts to introduce a different reason to
justify the dismissal, namely, participation in the go-slow.
This equity will
not permit.
"The [employer] cannot now rely on factors to ward off a reinstatement
order which were never put to the dismissed workers in the
charges they were
called upon to meet." The argument is misconceived. It rests on a failure to
distinguish
14
between the two stages of an enquiry into an alleged unfair labour
practice under s.46(9) of the Act. The first stage is concerned
with the
question whether there was an unfair labour practice, and the second is
concerned with the question of the appropriate remedy.
Here the industrial court decided the first question in favour of NUMSA
and the 44 employees, holding that the dismissal was without
a valid and fair
reason and was not in compliance with a fair procedure. That conclusion was
confirmed by the LAC and it has not
been challenged by the employer, who does
not now seek to justify the dismissal.
It cannot successfully be contended that in the decision of the second
question the court is limited to the facts alleged in the original
15
charges against the employee. In terms of s 46(9)(c) of the Act the
function of the industrial court is to
"... determine the dispute on such terms as it may deem reasonable,
including but not limited to the ordering of reinstatement or
compensation."
The word "reasonable"
imports that the determination should be
reasonable from the point of view of both employee and employer.
The
industrial court must have regard to considerations of fairness
and
unfairness. See
Media Workers Association of South Africa v
Press
Corporation of South Africa Ltd
1992(4) SA 791(A) at 798 D-H. It
is
required to apply both law and equity in the broad and general sense
of
that word. (Cf.
National Union of Mineworkers v East Rand Gold
and
16
Uranium Co Ltd
1992(1) SA 700(A) at 734 H.)
In order to perform its functions under s. 46(9) of the Act the
industrial court must have regard to all relevant information which
is properly
before it. "The correct approach is to give due consideration to the relevant
conduct of the parties and, in the light
thereof, to decade; upon the
appropriate relief..." (per Goldstone JA in the PACT case at 219C). Justice is
not served by the court
putting on blinkers.
Where an employee is unfairly dismissed he suffers a wrong. Fairness and
justice require that such wrong should be redressed. The
Act provides that the
redress may consist of reinstatement, compensation or otherwise. The fullest
redress obtainable is provided
by the restoration of the
status quo ante
.
It follows that it is incumbent on the court when
17
deciding what remedy is appropriate to consider whether in the light of
all the proved circumstances there is reason to refuse reinstatement.
In the present case the only reason advanced in support of a denial of
reinstatement was that the 44 employees participated in an
illegal
strike.
As appears from Van Heerden JA's summary of the facts,
the
question of the go-slow strike was canvassed fully
and in detail in the
industrial court, as a result of which it became common cause
that
"12. During the period 2 May to 16 June 1989, the [employer] experienced
a drop in production at its operations countrywide. This
was caused by illegal
industrial action in the form of an overtime ban and a 'go-slow', participated
in by all of the respondent's
approximately 2000 employees during such
period."
18
It is plain that the 44 employees participated in an illegal go-slow
strike over the period 2 May to 14 June 1989 notwithstanding
requests
by the employer to the trade union to resolve the matter;
an undertaking on behalf of the employees that they would not persist in
their
conduct;
a court interdict; and ultimatums that if they continued
with their action
they would be dismissed,
It is manifest too that a go-slow strike is a most insidious form of
industrial action. It causes continuing financial loss to the
employer while the
employees continue to draw their wages. It is difficult to bring home to
specific employees. There can be no doubt
the conduct of the workforce was
reprehensible in the extreme. In the words of Goldstone JA in the PACT case, it
was "illegal, unreasonable
and prejudicial". But
19
the matter does not rest there. It must borne in mind that the 44
employees were not alone. They comprised only about 2% of the total
workforce of
some 2000 all of whom participated in the go-slow strike. They were engaged in
one shop in one factory belonging to
a company whose operations were
country-wide. The 44 employees were the only employees dismissed: the others,
whose conduct was equally
reprehensible, were left undisturbed in their
positions. The only thing which set the 44 employees apart from the remaining
98% of
employees was the fact that they were the victims of an unfair labour
practice. But they became the whipping boys.
Equity requires that the courts should have regard to the so-called
"parity principle". This has been described as a basic tenet of
fairness
20
which requires that like cases should be treated alike.
(See Brassey, The
Dismissal of Strikers, (1990) 11 ILJ 213 at
229-30). So it has been held
by the English Court of Appeal that the
word "equity" as used in a
United Kingdom statute dealing with the
fairness of dismissals
"comprehends the concept that employees who
behave in much the same
way should have meted out to them much the
same punishment."
(Post
Office v Fennel
(1981) IRLR
221
at 223.) The parity principle has been
applied in numerous
judgments in the industrial court and the LAC in
which it has been
held for example that an unjustified selective dismissal
constitutes
an unfair labour practice. The application of the principle is
not
limited to labour disputes. Thus it was stated in
S v Marx
1989(1)
SA 222(A) at 225 B-C that - "ongelyke strawwe op gelyke
misdadigers
21
ten opsigte van dieselfde misdryf druis teen die algemene gevoel van
geregtigheid in."
In the circumstances of this case, a denial of reinstatement would
not be in accordance with fairness and justice. I
consider that the LAC erred in finding that reinstatement of the 44 employees
was
inappropriate.
I would therefore allow the appeal and make an order which will ! have
the effect of restoring the decision of the industrial court.
In this regard I
must refer to a matter left open in the judgment of Van Heerden JA, namely, the
position of the five appellants
who could not be based, with the result that
power of attorney from them could not be filed. It seems to me that there can be
no
legitimate objection to treating these five as falling within the ambit of
the order to be made, since NUMSA
22
has brought the appeal both in its own name and on behalf of
its
members.
The parties were in agreement that whatever the result of the appeal
there should be no order as to the costs in this court.
The appeal is allowed. The order of the Labour Appeal Court is set aside
and there is substituted therefor an order dismissing the
appeal with
costs.
The cross-appeal is struck off the roll with costs including
the
costs of two counsel.
HC NICHOLAS ACTING JUDGE OF APPEAL
SMALBERGER JA)
CONCUR
HOWIE JA)
JUDGMENT
VAN HEERDEN JA
:
2 The respondent is a manufacturer of
inter alia
trailers and
tankers. During
1989 it employed some 2 000 employees of
whom approximately 600 worked
in its Wadeville factory. In June 1989
a number of the Wadeville employees
were dismissed. They were all
employees as defined in the Labour Relations
Act 28 of 1956 ("the
Act"). After the hearing of internal appeal proceedings
the
dismissals of 44 of those employees were upheld. Subject to what
is said later
in this judgment, they are the second to the
forty-fifth appellants before us.
The first appellant is a trade union registered in terms of the
Act.
Following the confirmation of the individual
appellants' dismissals they and the
union brought an application to the industrial court in terms of s 46 of
the Act.
The main relief sought by them was the reinstatement of the
individual
appellants from the date of their dismissals. The application was opposed
by the
respondent but the industrial court found that the dismissals had
been
"substantively" and "procedurally" unfair and, subject to various
qualifications,
granted a reinstatement order. (For convenience I shall refer to the
first
appellant as the union and to the other appellants collectively as the
appellants,
though a reference to counsel for the appellants will be one to counsel
for all
3 the appellants.)
The respondent then lodged an appeal to the Labour Appeal Court
(Transvaal Provincial Division) against the whole of the industrial
court's
award. The former court upheld the finding that the dismissals constituted
unfair labour practices but set aside the reinstatement
order and referred the
matter back to the industrial court for consideration of the appropriate
compensation payable to the present
appellants. It also ordered the respondent
to pay the costs of the union and the appellants, including the costs of two
counsel.
Having obtained the necessary leave, the union and the
appellants then lodged an appeal to this court. According to the notice of
appeal it is directed against the order granted by the Labour Appeal Court "in
which ....[the court].... refused to order the reinstatement
of the individual
....[appellants]." Without more the respondent filed a notice of cross-appeal
against the costs order made by the
Labour Appeal Court.
The parties
proceeded to state a special case in terms of AD rule 5(4)(i). Before setting
out the question of law formulated by the
parties, it is convenient to summarise
most of the salient facts set out in the special case read with
the
4 decisions of the industrial court and the Labour Appeal
Court.
1)
The appellants
were all members of the union and were employed in shop no 4 in the respondent's
Wadeville factory. The function of
this shop was to manufacture sub-assemblies
("sets") to be used in the assembly of containers at the respondent's plant at
Isithebe,
Natal. Each set manufactured in shop no 4 consisted of six components
and the appellants (and others) were employed in those sections
of the shop
where three of the components were being manufactured. For reasons which are not
material, the appellants were dependent
upon one another's co-operation for
achieving any production
target.
2)
During the period
2 May to 16 June 1989 the respondent experienced a countrywide drop in its
manufacturing production. This was caused
by illegal industrial action in the
form of an overtime ban and a go-slow on the part of all the respondent's
employees.
3)
On 18 May 1989
the respondent advised the union of the industrial action and requested an
urgent meeting to discuss the situation.
The union's reply was that it had not
called for any such action and therefore saw no purpose in the proposed meeting.
After the
respondent had declared a
dispute
5 with the union it nevertheless
agreed to attend a meeting with the respondent on
24 May.
4)
Having met the
entire Wadeville workforce, a union official and eight shop stewards gave an
undertaking on 24 May that all the Wadeville
employees would resume their normal
duties and would work normal overtime, as also that production would be kept at
normal output
levels.
5)
The
undertaking was not honoured and no overtime was worked by any of the Wadeville
employees on 24 and 25 May. In consequence the
respondent on 26 May launched an
application in terms of s 17(1l)(a) of the Act. The application was not opposed
and on 30 May the
industrial court
inter alia
granted an interim order
directing the respondents in that application (including the present
appellants') "to restore the status
quo which existed prior to the introduction
of ....industrial
action."
6)
Thereafter all
the Wadeville employees resumed working overtime, but in breach of the order
continued with the go-slow resulting in
the respondent's production remaining
below its pre-May levels. Correspondence sent by the respondent to the union in
regard to this
situation met with no
6
response.
7) On 9 June the respondent issued an ultimatum to its
Wadeville
employees working on that day in three sections of shop no
4, viz the front
corner posts, rear corner posts and doors sections.
The ultimatum called upon
those employees to produce in each section
60 sets per 9.25 hour day by 16h45
on 12 June, They were also
informed that if they failed to comply with the
demand "action will
be taken against you which could lead to the termination
of your
services."
8)
Despite the fact
that the targets set in the ultimatum were not met, the respondent did not take
action against any of the employees
concerned. The respondent's reason for its
inaction was that it and the union were due to meet on 13 June and that it
intended taking
up the matter at that
meeting.
9) The go-slow continued and on 14 June the respondent issued
a
further ultimatum to employees working on that day in
the aforesaid three
sections. The ultimatum read :
"You are hereby given notice that if you do not achieve the production
output required from you (measured at 12h00 on
15 June 1989) you
will be
dismissed."
7
10) The ultimatum went unheeded and immediately after the
expiry
thereof the respondent in writing directed the
employees concerned to attend disciplinary hearings that same afternoon. (I will
set
out the contents of the written charge against them when dealing with one of
the contentions of counsel for the appellants.)
11)
At the
conclusion of the disciplinary hearings which were conducted section by section,
all the appellants were dismissed on the ground
that they had deliberately
failed to comply with the final ultimatum. Employees working in one of the
sections were, however, acquitted
since they were found to have achieved the
stipulated target.
12)
An
internal appeal hearing was subsequently conducted under the chairmanship of Mr
Clinton, the respondent's managing director. Further
evidence was led on behalf
of the appellants but their appeals did not
succeed.
The industrial court found that
the appellants' dismissals were unfair because :
(a) the final
ultimatum was vague in that it did not disclose the volume of production
required during the target period;
8
(b) that period was too limited to allow for a proper
assessment
of production levels, in
particular because the production in the five hours from 7 p.m. to noon on 15
June could not realistically
be compared with the output previously achieved
during a full working day plus overtime, and
(c) the respondent had
acted capriciously by selecting only the
employees working in three
sections of shop no 4 for disciplinary action whilst
its whole
workforce had been collectively engaged in the go-slow action.
The
industrial court also found that the dismissals were "procedurally" unfair
because of a number of flaws in the disciplinary hearings.
It would seem,
however, that the court was of the view that, save in one respect, the
procedural irregularities had been cured by
a complete rehearing before the
appeal body under the chairmanship of Mr Clinton. The exception related to a
failure of that body
to take into account the service and disciplinary records
of the appellants before confirming their dismissals.
Having made the above findings the industrial court, under the heading
"Relief and Determination", proceeded to say : "The individual
applicants [i.e.
the appellants] are entitled to a reinstatement order." It gave no reasons for
this
9 terse statement and therefore did not consider the
alternative of compensation.
It would seem that in the court's view an employee who has been
unfairly
dismissed is as a matter of course entitled to
reinstatement.
For purposes of this appeal the relevant determinations of the
industrial
court on 31 October 1990 were as follows
:
"2. Subject to paragraph 3 below, the individual applicants are hereby
reinstated in the employ of the respondent on terms and conditions
no less
favourable to them than those which governed their employment on the relevant
date of dismissal during June 1989.
3. (a)
The order made in paragraph 2 shall run from Monday 19 November 1990 to enable
the parties or their attorneys, to make the
necessary arrangements to give
effect thereto.
(b)
Those
individual applicants who may wish to resume their employment in terms of the
Reinstatement Order shall inform the union by
not later than Friday 12 November
1990 of their intention to do
so.
(c)
Any applicant who
does not wish to resume his employment shall receive only compensation which
shall be equivalent to six months
wages;
(d)
The reinstatement
of the applicants who report for work shall operate retrospectively for a period
of six months calculated from Monday,
19 November
1990;"
On appeal the Labour Appeal Court in effect upheld the findings of
the
10 industrial court set out in (a), (b) and (c)
above. It is, however, not clear
whether it considered that the appeal body acted unfairly in not having
regard
to so-called mitigating factors in respect of each of the
appellants.
The reason why the Labour Appeal Court set aside that part of
the
determination of the industrial court relating to
reinstatement, appears from the
following passage :
"In the present matter I believe that the doctrine of clean hands is
applicable because the respondents in question were engaged in
an illegal
strike, albeit in the form of a partial or 'go slow' strike. This was not
considered by the court
a quo
in coming to its finding on the relief
which should be granted. In my view reinstatement of the said respondents was
clearly not
appropriate and should, with respect, not have been granted. I have
no quarrel with their being awarded compensation. This, however,
can only be
considered with reference to the personal circumstances of each individual
respondent. Such personal circumstances include
factors such as length of
service, seniority, employment record and the like."
I revert to the special case. The question of law formulated by the
parties
reads as follows :
"Whether or not the Labour Appeal Court was correct in finding that
reinstatement of the dismissed employees [i.e. the appellants]
was inappropriate
because they had engaged in an illegal
strike".
11
The parties' contentions on this question are set out in some detail in
the special case. They were, however, elaborated upon in counsels'
heads of
argument and during argument before us and therefore need not be separately
enumerated. I should, however, mention that
the final contention of the
respondent in the special case was that, having regard to the conduct of the
appellants the Labour Appeal
Court, erred in ordering the respondent to pay
their costs.
It is convenient at this stage to deal with an
application for condonation lodged by the union. For reasons which need not be
set
out, the powers of attorney of eight of the appellants were not filed within
the period prescribed by AD rule 5(3)(b). The union,
on behalf of those
appellants, accordingly sought condonation of the late filing of those powers of
attorney. This application was
not opposed and was granted at the hearing of the
appeal with the rider that wasted costs be paid by the union and those
appellants,
i.e. appellants 9, 10, 11, 14, 17, 33, 38 and 39.
It
appears from the application, however, that five other appellants could not be
traced and that consequently no powers of attorney
could be procured
12
from them. In the result the union asked that those five be included
within the
ambit of any order made on appeal in favour of the union
and the other appellants. In view of my ultimate conclusion and the parties'
agreement regarding the costs of this appeal, to which I shall revert, it is
unnecessary to comment on that prayer.
I must dispose of two further
matters before dealing with the merits of the appeal. In
Media Workers
Association of South Africa v Press Corporation of South Africa Ltd
('Perskor')
[1992] ZASCA 149
;
1992 (4) SA 791
(A) 802 H - I and 803F, this court held that a
decision on the remedy to be granted pursuant to a finding that an unfair labour
practice
has been committed, does not involve the determination of a question of
either law or fact within the meaning of s 17A(3)(e)(ii)
or s 17C(l)(a) of the
Act. AD rule 5(4)(i), however, provides for the submission of a special case
only if the decision of a matter
on appeal is likely to turn exclusively on a
question of law. Now, the purpose of rule 5(4)(i) is clearly to enable the
parties to
submit a special case - in lieu of lodging copies of the record -
when this court is not called upon to decide any factual dispute.
I therefore
have little doubt that a question of law is used in rule 5(4)(i)
in
13 contradistinction to a question of fact. It follows that the
phrase "a question of
law" should be construed as including the third category of questions
discussed
in Perskor. For this reason the special case was properly
submitted.
A final preliminary question is whether an award made as
a result of the perpetration of an unfair labour practice involves the exercise
of a discretion in the narrow sense of the word as outlined in
Perskor
at
p 800 E - F. If it does, the relief granted by the industrial court (or, on
appeal, by the Labour Appeal Court) cannot be assailed
in this court unless the
court's discretion was unjudicially exercised. As will appear, however, in
casu
both the industrial court and the Labour Appeal Court failed to
exercise a proper discretion. It is therefore unnecessary to answer
the above
question. (In passing I may mention that both parties accepted that the
discretion in question is one in the wide sense
of the word.)
After this rather lengthy prelude I turn to the merits of the appeal. At
the outset I have to deal with an issue which was debated
at some length in
argument before us; i.e., whether the appellants were still participating in the
go-slow during the five hour period
covered by the final ultimatum of
14 14 June 1989 (para 9 above). In submitting that they were, counsel for
the
respondent relied upon para 12 of the special case. It reads thus
:
"During the period 2 May to 16 June 1989, the respondent experienced a drop
in production at its operations countrywide. This was
caused by illegal
industrial action in the form of an overtime ban and a 'go-slow', participated
in by all of the respondent's approximately
2 000 employees during such period."
(My emphasis.)
In so far as material this paragraph in
my view permits of one construction only; viz, that during the period mentioned
all the respondent's
employees, including the appellants, participated in the
go-slow. And the test was, of course, conducted on 15 June. Counsel for
the
respondent countered by arguing that on this construction the relevant findings
of the industrial court (and also the Labour
Appeal Court) as to the unfairness
of the final ultimatum would be meaningless. I do not agree. As stated, those
findings were that
the ultimatum was vague and that the five hour period was too
limited for a proper assessment of production levels. Neither court
made a
positive rinding that the appellants were at the critical time no longer
participating in the go-slow.
I am mindful of the fact that during the proceedings in the industrial
court
15 the appellants did not admit that they were
engaged in a go-slow during the test
period. Nor, however, did they admit that prior thereto they had taken
part in
(illegal) industrial action.
I now turn to the main submissions put forward by counsel for
the
appellants. They may conveniently be summarised as
follows :
(1)
In the
employment context dismissal is the most drastic sanction, having severe
consequences. Hence, if employees were unfairly dismissed
the only remedy that
can "properly and fully" alleviate those consequences, is
reinstatement.
(2)
This is
all the more true of an unjustified selective
dismissal.
(3)
The so-called
unclean hands doctrine is largely irrelevant to the determination of the
appropriate relief to be granted to an unfairly
dismissed
employee.
(4)
As a result of
the formulation of the charge and the way in which the disciplinary proceedings
were conducted, the appellants' previous
participation in the go-slow was in any
event irrelevant. This is so because that conduct did not constitute the reason
for the
dismissals.
16
(5) Whilst the respondent's treatment of the appellants - as
distinguished from
its other employees - was inconsistent and
arbitrary, the appellants' blameworthy conduct was not
reprehensible.
(6) The respondent failed to take into account the
personal circumstances of
each appellant.
Save as indicated below, I shall deal with these submissions
consecutively.
Submission (1)
:
Counsel for the appellants argued that because of the effect of a
dismissal upon the livelihood of an employee and his family there
can never be a
fair reason for dismissal if something less will suffice. I must confess to
having difficulty in grasping what "something
less" is. It is, of course,
possible that an employment agreement may make provision for, say, the
suspension of, or the levying
of a fine on, an employee who misconducts himself.
As a rule, however, the only effective remedy available to an employer is the
dismissal of an employee taking part in an illegal strike. Provided that he acts
fairly before actually dismissing the employee,
the dismissal as such cannot be
stigmatised as an unfair labour practice.
17 Be that as it may, the main thrust of the submission of counsel for
the
appellants appears to have been that, having regard
to the deleterious
consequences which an unfair dismissal may have,
the employee(s) concerned
should as a rule be granted reinstatement.
This submission is fatally flawed.
In
Sentraal-Wes
(Koöperatief) Bpk v Food and Allied Workers Union
(1990)
11 ILJ 977 (LAC) 994 E, Goldstein J said :
"
Prima facie,
if an unfair labour dismissal occurs the inference is
that fairness demands reinstatement. And it is for the employer to raise the
factors which displace such inference."
Having quoted this passage in
Performing Arts Council of the
Transvaal
v Paper Printing Wood and Allied
Workers Union
1994(2) SA 204(A),
Goldstone JA went on to say (at
p 219 A - C) :
"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 facts... 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..."
18 The fact that reinstatement may be the only remedy which can
fully
alleviate the consequences of an unfair dismissal,
is therefore only a factor,
albeit often an important one, to be
taken into account in deciding what
consequential relief should be
granted.
Rather belatedly counsel also argued that, unless there has been
an
irretrievable breakdown in the employment
relationship, an unfairly dismissed
employee is as a rule entitled
to reinstatement. This submission also runs
counter to the
dictum
in
Pact
quoted above. If there has been such
a
breakdown, it is hardly conceivable that reinstatement will
nevertheless be
granted.
Non constat
, however, that in the
absence thereof reinstatement is the
appropriate remedy. In almost
every case where an ultimatum is issued, it is
implicit that the employees will not be dismissed if they comply
therewith and,
therefore, that the employment relationship is not
beyond salvage. Yet, in
Pact
where there was non-compliance
with an ultimatum but no other misconduct of
the employees during the period thereof, it was held that in deciding
upon
appropriate relief due consideration must be given to the relevant
conduct of the
parties. In my view such conduct clearly includes behaviour which may
not
19 have brought about a total collapse of the employment
relationship.
It is convenient to deal, under the present heading, also with submission
(3). The The of the contention is this. The sole reason
why the Labour Appeal
Court refused to uphold the reinstatement order was that the appellant's hands
were not clean in that they
had engaged in illegal industrial action. However,
in
Pact
this court held that the doctrine of unclean hands is largely
irrelevant to the exercise of a discretion as to whether or not reinstatement
is
the appropriate relief.
It is true that the Labour Appeal Court seems to have been under
the
mistaken impression that as a matter of policy
reinstatement should not be
granted if an unfairly dismissed employee was himself guilty of illegal
or unfair
conduct which led to his dismissal. For the rest, however,
counsel's submission
is based on a misconception of the relevant reasoning in Pact. In
Tshabalala
v Minister of Health
1987 (1) SA 513
(W)
523 B - C Goldstone J had said (at
p 523 B - 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 participated in an
illegal strike."
20 In
Pact
(at p 219 E) Goldstone JA explained that
Tshabalala
had been
decided under the common law and not under the
unfair labour procedure of the
Act, and that the quoted passage does
not apply to such procedure. He also said
that the concept of
unclean hands is relevant only to the extent that the conduct
of the
parties must be considered when deciding upon appropriate relief. It
is
clear, therefore, that the "unclean hands" of a dismissed
employee who, e.g.,
took part in an illegal strike does not by
itself prevent reinstatement. At the risk
of repetition it must,
however, again be emphasised that such conduct is a
relevant, and in
some cases, a highly relevant factor to be taken into account
when
deciding whether reinstatement or compensation is the suitable
remedy.
In conclusion, under this heading, I should say that the
industrial court also misdirected itself by not taking into account the conduct
of the appellants, and by proceeding from the premise that an unfair dismissal
calls for reinstatement.
Submission (2)
:
Counsel for the
appellants laid great stress on the so-called parity principle in terms of which
an unjustified selective dismissal
of striking
21 employees
constitute an unfair labour practice. He went on to argue that when
a dismissal is unfair precisely because the employer acted inconsistently
by
dismissing only some of his employees, whilst all were guilty of
the same
misconduct, fairness demands that the inconsistency be
redressed by the granting
of reinstatement.
In the
absence of a cross-appeal on the merits it must, of course, be accepted that the
appellants' dismissals were unfair because,
inter alia
, the final
ultimatum was issued only to those employees against whom disciplinary action
was taken. It seems to me, however, that
the extent of the arbitrariness, and
the motives which led to the issuing of that ultimatum, are factors to be taken
into account
when assessing the degree of the respondent's blameworthiness. They
are hence factors to be considered in deciding what consequential
relief is
appropriate.
This was not a case in which an employer was bent on victimising a
particular employee or a group of employees whilst others were
guilty of the
same misconduct. It is true that the respondent had little doubt that all of its
employees were engaged in the go-slow,
but proof of that was another
matter.
22 The Labour Appeal Court held that the unreasonableness of
the ultimatum was
compounded by the fact that the employees concerned were dependent on
one
another's co-operation in achieving any production target. The
same could
probably have been said of ultimatums relating to
employees in the other
Wadeville shops. In any event, the respondent
gave reasons for confining the
final ultimatum to employees working
in three sections of shop no 4. They
were that that shop was a
critical part of the respondent's operation and that
production
levels in it could be monitored more easily than in other
shops.
Counsel for the appellants rightly conceded that, whatever
else may be said
about these reasons, they represented the
subjective view of the respondent. It
is clear, therefore, that the
respondent was not actuated by an ulterior motive.
Unlike the industrial court, the Labour Appeal Court found that the
second
reason was the one that really carried weight
from the respondent's point of
view. That court went on to say
:
"It was hence convenient for the appellant to select shop no 4 for its
disciplinary purposes and unfortunate for the respondents that
they happened to
be employed there,
I have little doubt that this is a totally arbitrary and patently unfair
reason for selecting a small number of miscreants from a
collective whole.
It
23 cannot be said that the basis of the selection is justified. On the
contrary, it is clearly indicative of inconsistent and unequal
treatment of an
arbitrarily selected group of individuals who were, at all relevant times, part
of a larger group of persons, all
of whom were allegedly engaged in the same
form of misconduct."
I rather doubt whether in the
circumstances of this case the reason under consideration was a "totally
arbitrary and patently unfair"
one. On the reasoning of the Labour Appeal Court
the ultimatum would have been unfair even if it was impossible or very difficult
to monitor production levels in other shops or, for that matter, in other
factories. Be that as it may, as already stated 1 must
accept that the ultimatum
was unfair because of its selective nature. That does not mean, however, that
overriding weight must be
attached to that unfairness when weighing up the
blameworthy conduct of the parties.
It has not been suggested that
the respondent could have dealt with the go-slow in any other manner which would
have resulted in a
fair dismissal of its entire workforce or part thereof. As
submitted by counsel for the respondent, a go-slow is in a very real sense
the
most insidious form of a strike precisely because it may be impossible, or
difficult, to establish that a particular employee
24 is a
participant. This may result in employees enjoying the best of two
worlds;
they continue to draw full wages whilst with impunity causing serious
loss to
their employer. The fact that the respondent was morally
certain that all its
employees were taking part in the go-slow
therefore does not render the
unfairness of its unequal treatment of
the appellants of a high order.
Submission (4)
:
The charge against the appellants read as follows :
"The charge against you will be that in spite of the Industrial
Court
order served on you on 1 June 1989, an ultimatum issued to you on 9 June
1989 which expired at 16h45 on 12 June 1989 and a further
ultimatum issued to
you on 14 June 1989 which expired at 12h00 on 15 June 1989 you have deliberately
not achieved the required output
production level in your
section."
The evidence of the respondent's general
manager was that the disciplinary inquiry was confined to the alleged deliberate
failure
of the employees concerned to comply with the final ultimatum. He said
that the reference in the written charge to the court order
and the ultimatums
of 9 June 1989 was merely to give the employees "a precis of the events
which
25 had happened until then."
Because of the formulation of the charge and the general manager's
evidence, counsel for the appellants submitted that their previous
participation
in the go-slow was irrelevant. He argued that an employer is bound by the
reasons for a dismissal, or a contemplated
dismissal, given by him at the
relevant time, and that unless an employee knows the precise allegations against
him he cannot properly
defend himself. In
casu
. so the argument
continued, the only charge against the employees concerned was one of failing
the five hour test, which failure
was also the only reason for the appellants'
dismissals. Hence the respondent could not later be heard to rely on the
appellants'
previous participation in the go-slow.
I shall assume,
without deciding, that when considering the fairness or not of a dismissal a
court may not have regard to a reason
which did not actuate the employer at the
relevant time. On this assumption the position is in my view different when the
relief
to be granted to an unfairly dismissed employee falls to be
considered.
Assume that in perceived furtherance of a strike one of the strikers
(X)
26
moderately assaulted two non-striking fellow employees (A and B).
Assume
also that in a separate incident on the same day a third
non-striking employee (C) was assaulted by an unidentified mob as a result
of
which he became crippled for life. Assume, finally, that X was dismissed because
of his assault on A and B, but that prior to
a hearing of an application in the
industrial court it was established that X had been the leader of the mob. On my
initial assumption
that court may not have regard to the assault on C in
determining whether the dismissal of X constituted an unfair labour practice.
It
would, however, be wholly artificial to go a step further by holding that the
assault on C should therefore also be ignored when
the question of possible
reinstatement of X arises. Clearly at that stage all relevant factors relating
to the conduct of the parties
must be taken into account.
In any event, the charge could have left the appellants in no doubt b'ut
that their failure to meet the target set out in the final
ultimatum was seen by
management as a deliberate continuation of the go-slow which had been in
progress for some time. In its reply
filed in the industrial court the
respondent pertinently raised the appellants' prior conduct and they
consequently had an
27 opportunity, if so minded, to deny the
relevant allegations. They failed to do
so and, as we have seen, in the special case indeed admitted their
prior
participation in the go-slow. The fact that the inquiry was
confined to the
appellants' failure to meet the above target is
therefore irrelevant in the present
context.
Counsel for
the appellants also relied upon the doctrine of election. He argued that since
the respondent failed to take action when
the targets set in the first ultimatum
were not met, it could not for any purpose later rely on that failure or indeed
on any conduct
of the appellants prior to the date of that ultimatum. The
submission has little merit. We are concerned with the question whether,
and to
what extent, the appellants' participation in the go-slow may be taken into
account in relation to appropriate relief, and
not with the question whether the
respondent elected to abandon reliance on non-compliance with the first
ultimatum as
justification for the dismissal of the appellants
.
In the result the appellants continued participation in the go-slow was,
and is, a highly relevant factor to be considered when deciding
upon appropriate
relief.
28
Submission (5)
:
I have already set out the reasons for the findings, of both the
industrial court and the Labour Appeal Court, that the dismissals
were unfair.
By contrast, submitted counsel for the appellants, even assuming that they
deliberately failed the five hour test their
conduct can hardly be categorised
as reprehensible or intolerable behaviour.
It follows from what has
been said above that this submission takes too narrow a view of the relevant
conduct of the appellants. They
formed part of a workforce which had been
engaged in an illegal go-slow from 2 May 1989. On 24 May an undertaking was
given on behalf
of the entire Wadeville workforce that they would resume their
normal duties and that production would be kept at the normal output
levels.
This was not honoured. In breach of an interim order granted by the industrial
court on 1 June 1989 the respondent's employees
continued with the go-slow.
Thereafter the ultimatums went unheeded. Attempts by the respondent to enlist
the intervention of the
union mostly met with no response. Finally, at least
until the conclusion of the present proceedings in the industrial court, the
appellants did not admit the existence of
29
a go-slow and their participation therein. It seems to me, therefore,
that the
appellants' conduct over a considerable period was indeed reprehensible.
Submission (6)
:
The industrial court did not decide that
because of their personal circumstances some of the appellants should be
reinstated. Nor
did counsel for the appellants submit that twelve of the
appellants who had had more than ten years of service with the respondent
should, as regards reinstatement, be treated differently from the other
appellants. His contention was that all of them were entitled
to
reinstatement.
In any event, all the appellants participated in a
collective go-slow. What is more, during the disciplinary proceedings the
appellants
elected to be dealt with collectively. A decision to dismiss only
those appellants who had not been employed for a period of more
than, say, five
years, would therefore probably have been assailed on the basis that the
respondent had unfairly discriminated between
two groups of employees who had
been guilty of the same, collective, misconduct. Therefore, assuming that the
respondent should have
taken personal circumstances into account, its failure to
do so can carry but little weight in the
30 context under
consideration. (In passing I may mention that the Labour Appeal
Court referred the matter back to the industrial court for the specific
purpose of
a consideration of the appellants' personal circumstances
in regard to the extent
of compensation payable to
each.)
Having considered the submissions of counsel for the
appellant I should stress a further relevant factor. It is this. Because no
evidence
was led by the appellants in the industrial court, we do not know why
they and the respondent's other employees engaged in illegal
industrial action.
It must therefore be accepted, in favour of the respondent, that such action was
not actuated by a legitimate
grievance; in other words, that the respondent was
not guilty of prior unfair conduct.
In the light of all the circumstances and considerations set out above, I
am firmly of the view that the order of the Labour Appeal
Court as to
consequential relief cannot be faulted. Put differently, the appellants in
fairness were not entitled to reinstatement.
Little need be said about the cross-appeal. In terms of s 17 C (l)(a) of
the Act a party to proceedings before the Labour Appeal Court
may appeal
to
31 this court against a decision or an order of the former court
(except a decision
or an order on a question of fact), provided that the prescribed leave to
appeal has been granted. In
casu
the respondent failed to apply for, and
consequently did not obtain, leave to cross-appeal. That failure is fatal,
because a cross-appeal
under s 17 C (l)(a) is "simply an appeal which is tacked
on to another appeal" :
Goodrich v Botha
1954(2) SA 540 (A) 544, and see
also
Gentiruco AG v Firestone SA (Pty) Ltd
1972 (1) SA 589
(A) 607 - 8.
As was conceded by counsel for the respondent at the hearing of this appeal, the
cross-appeal noted by the respondent
must therefore be struck off the roll with
costs.
Finally, I must record that in terms of an agreement between
the parties no order as to the costs of the appeal falls to be
made.
I would therefore dismiss the appeal and strike the
cross-appeal off the
roll with costs.
VAN HEERDEN JA
Agree
: VIVIER JA