IN THE LABOUR COURT OF SOUTH AFRICA
(Held at Port Elizabeth)
Delete whichever is not
applicable:
Reportable : yes / no
Of interest to other
Judges: yes / no
Revised
14 April 1999
Signature
Case No:
P139/97
In the matter between :
NATIONAL UNION OF METALWORKERS
First Applicant
Second to Further Applicants
and
MALCOMESS TOYOTA, A DIVISION OF MALBAK
Respondent
R E A S O N S F O R J U D G M E N T
REVELAS J:
[1] The second to further applicants (“the individual
applicants” or “employees”), all members of the first
applicant (“the union”), were dismissed by the
respondent on 18 September 1997 for their participation
in an unprotected strike. The employees challenged the
fairness of their dismissal and referred the ensuing
dispute to the relevant bargaining council for
conciliation. The dispute remained unresolved on 7
October 1997 and the matter was then referred to the
Labour Court for adjudication, in terms of section 191
(5) (b) (iii) of the Labour Relations Act, No 66 of
1995 (“the Act”, or “the current Act”).
[2] The applicants’ case is that the employees in
question, participated in unprotected strike action on
Tuesday, 16 September 1997 as from 15h00 onwards, and
that they resumed their duties the following day, 17
September 1997. According to their pleadings, no strike
action was embarked upon by the employees on 17 th
September, but according to the evidence of one of the
shop stewards, Mr Lele, the industrial action continued
on the 17 th September 1997, but only as from 15h00, and
not since the morning, as the respondent would have it.
[3] The applicants’ case is further that the
contravention of the Act by the individual applicants
was not of a serious nature and that the strike was in
response to unjustified conduct by the respondent.
[4] They allege that they have been misled by the
respondent’s promise that they would receive an interim
increase and that the prospect of such increase was
linked to an unreasonable demand by the employer.
[5] They contend that their sole “demand” throughout
the strike had been to discuss the matter with Mr
Robertson, and that when he finally appeared, it was
only to dismiss them before the ultimatum had expired.
[6] The applicants aver that the respondent acted
precipitately and prematurely in dismissing the
employees prior to the expiry of the ultimatum, which
required them to return to work by no later than 07h30
on 18 September 1997.
[7] Their case is also that the respondent failed to
afford the applicants a fair hearing prior to their
dismissal.
[8] The applicants seek reinstatement and costs.
[9] According to the applicants’ pleadings the only
ultimatum which they had received from the respondent,
was an ultimatum which had been pinned to the notice
board late on the afternoon of 17 September 1997, after
all the employees had already left. They allege that
the majority of them, only learnt of the contents of
the ultimatum when they arrived to resume their duties
on the morning of 18 September 1997. Amongst
themselves, they discussed the ultimatum and resolved
that they would not participate in any further
unprotected industrial action.
[10] As they were preparing to resume their duties,
which was at about 07h20 on the morning of 18 September
1997, Mr Heuer, the respondent’s divisional manager,
approached them and enquired whether they (the
employees) were going to work. They indicated to him
that they were getting dressed and that about 07h25,
(five minutes later), Mr Heuer returned with Mr
Robertson, the managing director of the respondent, who
informed them that they were dismissed.
[11] It was also the applicants’ case that Mr Lumkhile
Vena employed by the respondent as the cleaner, was
absent and on sick leave on 15, 16 and 17 September
1997 and did not participate in the industrial action.
Yet, he was dismissed for participating in the
unprotected strike action.
[12] On 19 August 1997, Mr Robertson, the managing
director, of the respondent, was approached by two shop
stewards, Ms Pango and Mr Lele, who enquired about the
increases that had always been granted in the past on
1 September. It is common cause between the parties
that the respondent did not negotiate increases and
terms and conditions of employment with its employees,
as this process was conducted at central level through
a national bargaining forum, by the representatives of
both parties.
[13] The applicants contend that on the meeting of 19
August 1997, Mr Robertson promised the employees that
an increase of 8,5% would be implemented. Mr Robertson
did not deny that the possibility had been mooted at
the meeting of 19 August 1997, but stated that it was
“unlikely” since the respondent was bound by the
outcome of central bargaining. He never agreed to the
increase in any event. According to Mr Robertson, he
informed the employees of the bargaining council regime
under which the respondent fell. It was also not
disputed that this regime had been in place for at
least 10 years and that the respondent had never
negotiated wages directly with the individual employees
or with their representative trade union. This was
confirmed by both Mr Robertson and Mr Lele, the shop
steward.
[14] The applicants allege that Mr Heuer, on 8
September 1997, and on some occasions thereafter,
promised the employees that they would receive an 8.5%
increase with effect from 1 September 1997.
[15] It is common cause that Mr Robertson wanted the
employees to sign an undertaking, which was distributed
to the employees, and dated 20 August 1997 which reads
as follows:
“I..., [the names of individual employees were inserted here]
hereby pledge my ongoing attendance at work and will not involve
myself in any stay away, strike or industrial action. In return I
wish to qualify myself for one or several of the perks, such as:
housing loan assistance, school bursaries for my children,
Christmas salary advances, financial assistance upon the death of
a family member; all of which are available at the sole discretion
of the Managing Director.
Signed:...”
[16] According to the evidence of Mr Lele, the shop
steward, the employees were informed by Mr Robertson that
they would only become entitled to the 8.5% increase if
they signed the aforesaid document. Mr Lele testified that
the employees also understood from Mr Robertson that they
would have to resign from their union, in addition to
signing the document, to earn the 8.5% increase. This is
denied by the respondent. According to Mr Lele, the
employees decided not to sign the document because they
weren’t prepared to resign from the union.
[17] The respondent’s case is, that the employees
embarked on an unprotected strike from 16 September
1997 since 15h00, and continued with their unprotected
strike until the morning of 18 September 1997 at 07h50,
when they were dismissed.
[18] According to the respondent, the employees who
were on strike were all issued with ultimatums at
10h00, on 17 September which required them to return to
work at 07h30 the following day, 18 September.
Although the employees refused to physically accept the
ultimata, the contents thereof were explained to them
and translated to them.
[19] The respondent’s case is further, that an
ultimatum was pinned to the notice board at the
respondent’s premises, on the afternoon of 17 September
and was brought to the attention of Mr Lele, who
confirmed that the ultimatum was pointed out to him by
Mr Heuer.
[20] The respondents version of the events of the 18 th
of September is that, a few minutes after Mr Heuer
arrived at the change room to enquire from them what
they were doing, he was met with the reply that the
employees still needed to discuss the matter. Mr Heuer
testified that he then gave them five minutes which
then became ten minutes to have a discussion, and when
he went back to the change room, the employees told him
that they needed more time to talk. He then told them
that they had enough time and “that’s it”. Mr Heuer
that they had enough time and “that’s it”. Mr Heuer
then appraised Mr Robertson who had arrived in the
meantime, of the situation. Mr Robertson testified
that he then proceeded to the change room where he (Mr
Robertson) upon enquiry, from the employees, was met
with silence.
[21] The respondent argued that it complied with the
Act, more particularly section 68(5) thereof, and with
the Code of Good Practice in schedule 8 of the Act
(“the Code”), as the employees knew that their strike
action was unprotected, that their demand was
unreasonable, and that the respondent could not grant
an interim increases prior to the conclusion of
centralised bargaining. The respondent contends that it
also complied with the Code in that it endeavoured to
contact the union to intervene and that it gave the
employees a clear and unambiguous ultimatum to return
to work.
[22] According to the respondent, it had also, through
labour consultants, approached Mr Goni, the local
organiser of the union, to intervene in the matter, but
that the latter had indicated that the union could not
bring its members to their senses and they would still
continue with their strike.
[23] The following facts were common cause in this
matter:
[24] The respondent is Malcomess Body Works, a division
of Unitrans Limited, and at the time the dispute arose
it was a division of Malbak Consumer Products (Pty)Ltd.
The local Malcomess division comprises four outlets,
one of them being the “Body Shop” where inter alia,
panelbeating, repairing and painting of vehicles are
done. The nineteen dismissed employees worked here.
[25] On 15 September 1997, the employees informed Mr
Heuer, that they would be embarking upon a strike the
following day, 16 September 1997.
[26] On 16 September 1997, at approximately 15h00, the
employees embarked upon unprotected strike action which
was not preceded by any attempt at conciliation. No
dispute had been referred to the relevant bargaining
council. Mr Heuer, did not indicate the consequence of
noncompliance or stipulate a deadline for their
return, but it was not disputed that he informed the
employees that their intended actions would be illegal.
[27] On the applicants own case, they again embarked
upon industrial action during the course of the
afternoon of 17 September 1997, at about 15h00. Of
course, whether or not they were on strike during the
earlier part of 17 September 1997 is in dispute.
[28] On the unchallenged evidence of Mr Robertson, Mr
Goldberg of Global Consulting Trust, (the respondent’s
labour consultants) and Ms Beckmann, (Mr Robertson’s
secretary), the labour consultants sent a letter to the
respondent company advising it of the cause of action
it should adopt at 09h00 on 17 September 1997. Copies
of the correspondence were exhibits at the hearing.
[29] It was not disputed that at approximately 10h00 on
the same day, (17 September) Ms Beckmann faxed a letter
to the union enclosing a copy of the ultimatum, urging
the union to intervene and protect the “job security”
of the employees.
[30] The undisputed evidence of Mr Goldberg and Mr
Robertson was that at about 12h00 or lunch time on 17
September , Mr Goldberg reported to Mr Robertson that
he had spoken to Mr Goni, the union organizer, who had
indicated to him that he was unable to assist, as the
employees were not prepared to follow his advice, which
was that they should return to work. Exactly what was
discussed between Mr Goldberg and Mr Goni, and at what
time on 17 September they spoke, is in dispute.
[31] The following facts are in dispute:
(1) Whether or not Mr Robertson and Mr Heuer promised
an increase of 8.5% to the employees if the employees
signed the undertaking;
(2) Whether or not the employees worked on 17
September 1997;
(3) Whether or not the respondent issued ultimata at
approximately 10h00 on 17 September 1997;
(4) Whether or not Mr Lumkhile Vena was at work on 17
September 1997;
(5) The content and time of day of the discussions
between Mr Goldberg and Mr Goni;
(6) Whether or not Mr Robertson terminated the
employment contracts of the employees on 18
September 1997 prior to the expiry of the
stipulated deadline being 07h30;
(7) The extent to which, if at all, the individual
applicants rendered themselves guilty of
intimidation and other forms of misconduct on the
days following their dismissal.
[32] THE CIRCUMSTANCES WHICH GAVE RISE TO THE STRIKE
According to the employees, the alleged breach of
the undertaking to grant an 8.5% increase and the
alleged conditions attached thereto (the
undertaking) effective from 1 September 1997, was a
source of concern, frustration and provocation to
the employees, which culminated in them downing
their tools.
[33] If the respondent reneged on its promise, this in
my opinion, was of such a serious nature, that one
would have expected the union to take up the issue with
the respondent, or at least, that the applicants would
have pleaded the circumstances of the breach more
specifically.
[34] On the applicants’ own version, the issue arose at
least ten days prior to the unprotected strike action.
If regard is had to the undertaking, which was
allegedly a prerequisite to the increase, the dispute
arose on 20 August 1997, which is more than twenty days
before the unprotected strike action.
[35] The undertaking itself, makes no reference to
terms and conditions of employment, or an increase or
the fact that the employees should resign from the
union. In this regard I cannot except Mr Lele’s
evidence that Mr Robertson had requested the employees
to resign from the union, or that the signing of the
undertaking, was a prerequisite to an 8.5% increase.
[36] It is unlikely that the respondent, knowing that
any increase negotiated at national level would have,
as a matter of law, have to be added to any “interim
increase”, would make a promise to give an interim
increase in the first place. There was also no
suggestion that the respondent was under pressure to
implement increases prior to the conclusion of the
national negotiations.
[37] Even if I were to accept that Mr Robertson
attempted to persuade employees not to strike by
proposing financial incentives, I cannot, due to the
time period between this letter and the actual strike
action, come to the conclusion that this was the reason
why the employees went on strike. If the undertaking
was linked to an increase, there is surely no
indication of that in the document itself. It is also
difficult to understand why the respondent would wish
to incur the financial obligations as alleged by the
applicants, before further financial obligations would
be imposed on it as a consequence of the national
negotiations. In this regard, I agree with counsel on
behalf of the respondent, that this proposition is
contrary to the inherent probabilities.
[38] What was put to the respondent’s witnesses during
the course of crossexamination was that the promise of
an 8.5% increase (which was not pleaded), was made
conditional upon the employees signing the undertaking.
conditional upon the employees signing the undertaking.
The undertaking in the document says nothing of the
kind. It is also unlikely, in my view, that the union
would not have immediately taken up the about a
document, attempting to get employees to sign away
their right to strike and a condition of resignation
from the union, as a prerequisite to an increase.
[39] Even if the question of the 8.5% was discussed on
19 August 1997, I am unable to accept, on the
probabilities and evidence, that Mr Robertson had
agreed thereto.
[40] It was put to Mr Heuer that on 15 September 1997,
Mr Lele specifically proposed to him, that the
respondent offer an 8.5% interim increase which could
then be adjusted dependant on outcome of the national
negotiations. However, when Mr Lele was questioned
about whether he had made any specific proposals on the
day in question, he replied that he had merely made
enquiries regarding the timing of the increase, in
other words, when they were to be implemented.
[41] Mr Lele also made no reference to any meeting
which took place on 8 September 1997 with Mr Heuer,
even though it was put to both Mr Robertson and Mr
Heuer that Mr Heuer had made a specific promise to Mr
Lele on 8 September 1997.
[42] In all the circumstances I have to accept that the
undertaking which the respondent wanted the employees
to sign, had nothing to do with wages but was related
to benefits and that there was nothing sinister about
the undertaking and, if there was, this should have
been pleaded.
[43] I consequently reject the version of the
employees, regarding an increase which was promised to
them.
[44] The demand of the employees throughout was that
the employees wanted to speak to Mr Robertson, who did
not want to adhere to this demand.
[45] The probabilities rather indicate that the
employees had become accustomed to an increase on 1
September each year, and when this did not happen in
1997 they were disappointed and upset and embarked upon
an unprotected strike, because, as Mr Lele put it, they
wanted to give Mr Robertson “a fright”.
[46] THE DURATION OF THE STRIKE AND THE ULTIMATA
If I accept the applicants’ version that they did
in fact work on 17 September 1997, I have to accept
that Mr Mollendauer (not a member of management),
Mr Wright (the foreman at the Body Shop) and Mr
Heuer, all conspired to lie to Mr Robertson, and
fabricate evidence that all the employees were on
strike on 17 September. This I find most
improbable. There was no reason why the employees
should have returned to work. None of their demands
had been met. In fact, they were informed by Mr
Heuer that Mr Robertson would not come to see them
and that the subject of increases had been closed,
as it had been discussed previously.
[47] I found nothing about the demeanour of the
respondent’s witnesses, or their evidence, which could
suggest to me that they were lying about the fact that
the employees did not work on 17 September. In
addition, Mr Lele stated that on the 17 th the employees
resumed their strike at 15h00, a further important fact
which was, surprisingly, not pleaded. This
contradiction, in addition to the aforesaid
improbabilities persuaded me to reject the version that
the applicants worked on 17 September.
[48] The further question which now has to be decided
is whether the applicants’ version regarding the
issuing of the ultimata is true or false.
[49] If the only ultimatum issued was the one which was
pinned on the notice board late in the afternoon of 17
September, then as the applicants contend, the question
arises why the respondent would have personalised the
ultimata if it had no intention of handing them to the
respective individuals.
[50] The applicants’ case as pleaded, is that the
majority of the employees only learnt of the contents
of the aforesaid ultimatum when they arrived for work
on 18 September 1997 (Pleadings bundle: paragraph 6.4
at page 3.4).
[51] The pretrial conference minute dated 11 November
1998, specifically records the following exchange:
“the respondent’s representative enquired from the
applicants’ representative as to which of the second and
further applicants alleged that they only found out about
the ultimatum on 18 September 1997. The applicants’
representative advised that all of the second and further
applicants, only Kelvin Lele (the thirteenth applicant)
found out about the ultimatum on 17 September 1997. The
balance of the second and further applicants only learnt of
the ultimatum on 18 September 1998."
[52] Mr Lele’s gave evidence to the effect that he
informed at least nine of the employees of the
ultimatum on the afternoon of 17 September 1997 and
that he had told them to report for duty the following
day.
[53] Mr Mollendauer, Mr Wright and Mr Heuer testified
as to how they attempted to serve the ultimata and how
the contents thereof were explained to the employees.
[54] The above two versions are mutually exclusive. In
the circumstances, and for the same reasons and
considerations which are applicable to the question of
whether the employees went to work or not, I accept the
respondent’s version that the ultimata were issued to
the employees personally, who refused to accept them.
[55] MR VENA’S PRESENCE
The next question which I had to decide was whether
Mr Vena was at the respondent’s premises on 17
September 1997.
[56] It is common cause that Mr Vena was absent on 15
and 16 September 1997 and he produced a medical
certificate which reflected that he suffered from
bronchial pneumonia and an inflamed thyroid.
[57] It is clear from the certificate that Mr Vena was
not required to be off sick on 17 September 1997 and
that he could return to work. Mr Vena said that on this
particular day he was so sick and he vomited blood and
therefore he could not go to work, but felt better the
next day since he was taking medication and returned to
work only on 18 September to be dismissed.
[58] On both the testimonies of Mr Wright and Mr Heuer,
whom I have found to be credible witnesses in this
matter, Mr Vena was amongst the striking employees on
17 September, when the ultimata were issued to them. Mr
Heuer said that he pointed out to Mr Wright that Mr
Vena was present. This he had done because Mr Vena had
been absent the previous two days and, as he was a
cleaner, his presence was noted. I have no reason not
to believe these two witnesses. They couldn’t have a
motive to lie about Mr Vena.
[59] Mr Vena, on the other hand, did not obtain a
doctor’s certificate in respect of 17 September 1997 so
as to ensure that he received payment or that he was
excused for his absence.
[60] I find that Mr Vena’s version is improbable and in
the circumstances I find that he was present on 17
September 1997 and therefore the same considerations
regarding the participation in unprotected strike
action should apply to him, as in the case of the other
employees.
[61] THE UNION’S FAILURE TO INTERVENE
The next factual question which I had to decide was
the nature of the discussions between Mr Goldberg
and Mr Goni, and when, on 17 September 1997, these
discussions took place.
[62] According to Mr Goldberg, he phoned Mr Goni at
approximately midday on 17 September, and enquired from
him whether he could intervene and salvage the
situation of the striking employees at the respondent’s
premises.
[63] Mr Goni, according to Mr Goldberg, was appraised
of the fact that the employees were on an unprotected
strike and that an ultimatum had been issued calling
for their return to work.
[64] Mr Goldberg said that Mr Goni informed him that he
had already communicated with the employees in an
endeavour to secure their compliance with their
ultimatum. He was, however, unsuccessful in his
endeavour as the employees were not prepared to listen
to him or to act on his advice.
[65] On the other hand, Mr Goni had a very different
account of events. In the first place, he denied that
he ever received the fax requesting his intervention,
to which a copy of the ultimatum was attached. He said
he only received this at a later stage, apparently
after the dismissal. However, Mrs Beckman (Mr
Robertson’s secretary), testified that she faxed this
herself to the union’s offices.
[66] Mr Goni stated that he had been out of his
offices, prior to receiving a call about the strike,
after working hours, from Mr Goldbergon 17 September.
He testified that when he spoke to Mr Goldberg, after
hours, stage he knew nothing about the strike and
informed Mr Goldberg that the union would require an
“extension”. Mr Goldberg, according to Mr Goni, then
said that he would discuss the matter with the
respondent and revert to Mr Goni.
[67] It is common cause that the letter requesting the
union’s intervention was faxed to the union’s head
office at 10h00 on 17 September 1997. It is not
disputed that Mr Robertson visited Mr Goldberg’s
offices at approximately noon or lunch time on 17
September, and that the respondent’s attorney of
record, Mr Kirschmann was also present. It is not
disputed that Mr Goldberg then contacted Mr Goni in Mr
Robertson’s presence, and reported later that Mr Goni
despite his best efforts, could not take the matter any
further.
[68] Counsel on behalf of the respondent raised the
question as to why Mr Goldberg would report on a
conversation which, on the applicants’ version, had not
yet occurred.
[69] Mr Goni agreed with the proposition put to him
that, when important and urgent documents are faxed to
the offices of the union, the union’s administration
personnel or some other responsible official would be
present to deal with such matters. If Mr Goni was not
in his office, it is highly unlikely, in my view, that
a responsible union official, upon reading the contents
of the letter and the ultimatum, would not make any
contact with the respondent. It was a very serious
matter, where 19 employees stood to be dismissed at
7h30 the next day.
[70] It also remains unexplained to what time Mr Goni
wanted an extension. On his own version, he was at the
time completely unaware as to when the ultimatum was
due to expire. I also gained the impression that Mr
Goni’s memory in respect of some incidents was
particularly detailed, whereas he was not able to
recall other events, which is more consistent with the
memory of someone recalling events which took place
almost two years ago.
[71] In my view, Mr Goldberg’s version is more credible
than that of Mr Goni and also more consistent with the
inherent probabilities and undisputed facts which were
evidence before me.
[72] THE TIME OF DISMISSAL
I now turn to the question of whether or not the
respondent, having imposed its own deadline
(07H30), elected to ignore that deadline and
terminate the contracts of employment of the
employees in question, prior to 07h30.
[73] Mr Robertson stated that he had arrived 15 or 20
minutes after the ultimatum had expired on 18 September
1997, to “allow the employees to change their minds”.
The respondent argued that this seemed strange if Mr
Robertson was serious about the terms of the ultimatum.
Mr Robertson also told the court that he met Mr Heuer
and Mr Wright on arrival, who informed him that the
employees had been given “five minutes” to discuss the
matter. When he went to the change room and asked them
whether they intended working, he was met with silence,
where after he dismissed the employees.
[74] On Mr Heuer’s version the five minutes given to
the employees expired at 07h40 and when the employees
indicated that they wanted more time, Mr Heuer,
according to his evidence, informed them that had
enough time and “that’s it”. According to the evidence
of Mr Robertson and Mr Heuer the services of the
employees were terminated at 07h50. With regard to the
timing of the dismissal, the applicant’s counsel put
forward the following propositions in relation to the
testimony of these events.
(1) Mr Wright’s version of the timing of events, is
that all the events occurred about ten minutes later
than on the version of Mr Heuer, except for the actual
timing of the dismissal, which was on both versions at
07h50, and this discrepancy was important.
(2) Mr Heuer’s evidence was that the bell that rings
to signal the start of the work day actually rings at
07h20, ten minutes before the actual starting. It was
argued, that it made no sense that this would be the
time that Mr Heuer would go the workers and give them
five minutes.
(3) It was also argued that it made no sense that Mr
Robertson, aware of the deadline and serious about
it, arrived at work prior to its expiry. Therefore
the possibility that the events described by the
applicants, actually occurred before 07h30, cannot
be rejected.
[75] On the applicants’ version the employees were
ready to work prior to 07h30 but were fired. I
respectfully agree with counsel on behalf of the
respondent that this proposition is inconsistent with
the respondent’s efforts to engage the applicants to
get to work the previous day.
[76] On the version of the employees, they only became
aware of the ultimatum on the morning of 18 September
1997. In those circumstances it is hardly likely that
the employees arrived at work shortly before 07h25,
read and discussed the ultimatum and thereafter
resolved to return to work, despite the situation that
none of their demands were met.
[77] On their own version, the respondent had not done
anything which would have mollified their attitude.
They had been on strike for at least two hours on 16
September and on 17 September 1997 and their union
could not persuade them to return to work. There is no
rational explanation why they would in these
circumstances, decide collectively, to return to work.
After all, Mr Robertson had not come to see them and
the question of the increase had not yet been resolved
at that stage.
[78] The case advanced by the applicants, in this
regard is, that the only intervention came when Mr
Robertson terminated their services prior to 07h30. In
other words, there had been no meeting with Mr Wright
and Mr Heuer. Consequently, what needed to be explained
is that according to the applicants’ pleadings, Mr
Heuer had arrived and asked them at about 07h20 whether
they were going to work and they replied that they were
getting dressed. It further needs to be explained why
Mr Lele testified that Mr Heuer (and not Mr Robertson)
had approached the employees, prior to Mr Robertson and
enquired as to their intentions for the day and
terminated their contracts of employment. It was put to
Mr Heuer and Mr Wright that Mr Robertson prematurely
terminated the services of the applicants. It was
therefore surprising when Mr Lele testified that it was
Mr Heuer, and not Mr Robertson, who terminated their
contracts of employment. These contradictions cast
serious doubts on the credibility of the applicants’
version regarding the events in question.
[79] Considering the inexplicable inconsistencies and
the inherent improbability that the respondent would
wish to terminate the employees’ services prior to the
expiry of the ultimatum, I have to accept the
respondent’s version in this regard. I have also
considered the overall credibility of the applicants on
other disputes of fact in deciding this question.
[80] INTIMIDATION
The Act provides that if a dismissal is found to be
unfair the court must order reinstatement or re
employment unless the exception provided for in
section 193(2) of the Act is to apply. The basis on
which the respondent seeks to resist reinstatement,
apart from alleging that the dismissal was fair, is
by relying on alleged misconduct on the part of
some of the applicants after their dismissal. In my
opinion, the respondent has failed to prove that
the applicants were collectively guilty of any
misconduct as that there was simply not enough
evidence to support such a finding. None of the
persons who were intimidated testified or made any
attempted to give some form of evidence. An onus
rests on the respondent to show that the
relationship between itself and its former
employees had deteriorated to such an extent by
virtue of their conduct.
[81] It was the unchallenged evidence of Mr
Mollendauer, who understands Xhosa and translated the
ultimatums to the employees, that he heard the 9 th and
14th applicants threatening one of the employees, that
if he returned to work he would be killed. This
evidence does not prove a common cause amongst all
nineteen of the dismissed employees, and only relates
to two of them. However, I do not find it necessary to
decide the question whether the relationship between
the respondent and the two employees has broken down to
the extent that they may not be reinstated.
[82] THE FAIRNESS OF THE DISMISSAL
The respondent is obliged to show that it had a
fair reason to dismiss these employees in the
circumstances, and it follows that the events which
occurred just prior to the dismissal of the
employees, need to be scrutinised carefully.
[83] Having found that the applicants engaged in an
unprotected strike on 16 and 17 September 1997, I
consequently have to consider the strike in its full
context, with all its distinct features.
[84] The applicants argue that the respondent had
conducted itself “by the book” until the point, just
minutes before the dismissal. According to the
applicants, the respondent had issued a model
ultimatum, specified the time to return to work in
clear and unambiguous language, and specified the
consequences of not complying. Yet, according to the
applicants’ submissions, “the book” was departed from
on the expiry of the ultimatum.
[85] The applicants counsel argued that on the
respondent’s version, the deadline stipulated in the
ultimatum, was never expressly or tacitly renewed. Mr
Heuer’s cryptic “that’s it” , did not renew the
deadline, nor did Mr Robertson when he appeared to ask
the applicants about their intentions and dismissed
them because they had not resumed work by 07h30.
[86] My attention was also drawn to the fact that the
employees weren’t hardened trouble makers but were
regarded as valuable workers who had not been on strike
before, and that many of them had rendered years of
valuable service.
[87] It was argued on behalf of the applicant that Mr
Robertson appears to have resolved, not to act in terms
of the deadline, before he even set out for the Body
Shop on the morning of 18 September. It was submitted
that the very least Mr Robertson could have done, and
should have done, was to advise the employees that the
extended deadline was to end at 08h00 and he could have
waited until then.
[88] It was further submitted that once an employer
decides to wave the enforcement of a deadline set in
the ultimatum, it is bound to issue a clear, new
ultimatum, which was never done.
[89] It was further submitted by counsel for the
applicants that the employees were caught by surprise
when Mr Robertson came in and dismissed them, and that
their silence in fact was indicative of confusion and
uncertainty rather than a sullen defiance as Mr
Robertson apparently understood it.
[90] Of great importance when considering the arguments
put forward by counsel on behalf of the applicant in
the above regard, is that these arguments are based on
the respondent’s version of events and was not on the
case pleaded by the applicants.
[91] According to the employees, they were dismissed
prior to the expiry of the ultimatum. They did not say
that they were confused at 07h25. They also did not
tender their services on the morning of 18 September
1997 at 07h30 or before, when they had been on strike
for part of a day and a whole day. They also did not
admit that they were on strike on the 17 th. Had they
been honest and advanced their case along the lines now
argued, namely that they seriously needed more time to
reflect on their actions of the previous day, and the
day before, this may have cast a different light on
matters. However, they chose to deny being on strike on
17 September.
[92] In the case of National Union of Mineworkers v
Black Mountain Development Company (Pty) Ltd [1997] 4
BLLR 355 (A), it was held that striking as such, did
not amount to misconduct and there was accordingly an
important distinction between dismissal for misconduct
and dismissal in consequence of strike action. It was
held further, that it would follow that considerations
relevant to dismissals for misconduct (my emphasis) are
not necessarily relevant to dismissals for
participation in strikes (my emphasis)and that it was
undoubtedly so, that in a sense the dismissal of
striking workers could be said to be a last resort (at
364I to 365B).
[93] The aforesaid decision was handed down in terms of
the Labour Relations Act, No 28 of 1956(“the former
Act”).
[94] The current Labour Relations Act specifically
makes provision for the proposition that participation
makes provision for the proposition that participation
in a strike that does not comply with the provisions of
the Act, may constitute a fair reason for dismissal.
Section 68(5) of current Act provides that in
determining whether or not the dismissal is fair, the
Code of Good Practice Dismissal in Schedule 8 (“the
Code”) must be taken into account. The relevant
provision of the Code is item 6 of Schedule 8 which
defines participation in a strike that does not comply
with the provisions of chapter 4, of the Act, as
“misconduct”.
[95] This is a departure from the principles which were
often applied under the former Act. According to item 6
of the Code of the current Act, the substantive
fairness of such a dismissal must be determined in the
light of the facts of the case, including
(a) the seriousness of the contravention of
the Act
(b) attempts made to comply with the Act
(c) whether or not the strike was in response to
unjustified conduct by the employer.
[96] The Code further provides that prior to dismissal
the employer should at the earliest opportunity contact
a trade union official to discuss the course of action
it intends to adopt.
[97] The employer should issue an ultimatum in clear
and unambiguous terms that should state what is
required of the employees and what sanction will be
imposed if they do not comply with the ultimatum.
[98] The employees should be allowed sufficient time to
reflect on the ultimatum and to respond to it whether
by complying with it or rejecting it.
[99] If the employer cannot reasonably expected it to
extend these steps to the employees in question the
employer may dispense with them.
[100]All the aforesaid requirements were followed by
the respondent.
[101]The provisions of the Code that relate to
dismissals for other misconduct, are dealt with
separately
in item 7 of the Code, which in my view, indicates that
different principles apply to these two types of
dismissals.
[102]The right to strike is protected by the
Constitution and the current Act. Employees who
participate in a protected strike are therefore
protected from dismissal. This right to strike and the
protection from dismissal is earned, by following the
correct procedures. It is a right which is relatively
easy to earn. In the current matter, no attempt was
made by the employees in question to follow the
procedures set down in the Act.
[103]It is also very difficult to understand upon a
reading of the applicants’ case, what their dispute
with the respondent was really all about.
[104]I have already found that it appears to be that
the employees were disappointed because they did not
receive their increases on 1 September 1997. This was
not the fault of respondent. To punish the respondent
or to “give Mr Robertson a fright” by embarking on
unprotected strike action, in my opinion, amounts to
unreasonable behaviour on the part of the employees.
[105]There was no unjustified conduct, on the part of
the respondent. On 16 September 1997, Mr Robertson was
out of East London and therefore it was not possible
for him to speak to the employees. He had explained to
the employees before, at a meeting, that the parties
were bound by the central bargaining process in respect
of increases. Employees should not be entitled to
obtain the presence of their employer by embarking on
unprotected strike action.
[106]The employees continued with their strike action
17 September 1997. They received ultimatums at 10h00 in
the morning and did not at any stage, on that day or
thereafter, tender their services.
[107]The noncompliance with an ultimatum to return to
work under the current labour dispensation, is to be
viewed in a more serious light than was the case under
the former labour dispensation. The protection against
dismissal following participation in unprotected strike
action is now limited. This limitation is demonstrated
by the introduction of the Code into the Act, which
classifies this type of conduct as “misconduct”.
[108]The employees in question did have enough time to
reflect upon their actions. They were given 22 hours
to rectify the situation caused by them and did not do
so.
[109]On the evidence which I have accepted, the
respondent had, as it was required to do, by the
Code of Good Practice, contacted the union and
requested the union to intervene. A union official then
informed the respondent that the employees did not heed
the union’s advice, to return to work. Their inflexible
attitude therefore was not based on a reasonable
demand, or the unjustified conduct of their employer.
[110]Considering these factors, it cannot be argued
that there was a duty on Mr Robertson to extend the
deadline set out in the ultimatum, as argued by the
applicants. The fact that some minutes had elapsed
since the deadline, in these circumstances, creates no
necessity to hand down any further ultimata in writing.
The employees did not tender their services and there
was no indication that they were going to do so.
[111]The aggravating feature of the misconduct in this
case was the unreasonableness of the conduct and the
demand of the employees. The enquiry is not whether one
or other cause may have been more preferable, or more
successfully employed to end the strike, or whether Mr
Robertson should have endured the strike for longer. He
followed the Code. The employees ignored the Act. The
followed the Code. The employees ignored the Act. The
enquiry is whether in all the circumstances, having
accepted that the employees are guilty of misconduct,
the dismissal can be said to have been for an unfair
reason. In my opinion, the dismissal was for a fair
reason.
[112]The Act was contravened by the employees. It
cannot be argued that this contravention was not
serious. The employees were on strike for a whole day
and part of a day. They had made no attempts to comply
with the Act and I have already found that their strike
was not in response to unjustified conduct by the
respondent, but rather the result of an unjustified and
unreasonable attitude on their part.
[113]Confusion, uncertainty and surprise are not good
reasons to embark on industrial action. Disputes
which lead to such a state of affairs should be
identified and referred to conciliation. There is no
reason why this course was not followed in this matter.
[114]It is highly significant that, immediately after
their dismissal, there was no attempt to tell their
employer that there had been confusion and frustration
and that they immediately tender their services.
[115]Not once did the employees tender their services.
PROCEDURAL FAIRNESS
[116]The respondent’s position is that there was no
legal obligation on it to give hearings of any kind
to the employees after their dismissal.
[117]In the normal course, hearings should be held to
establish whether there was misconduct and whether
or not dismissal is in fact necessary, in cases where
misconduct is alleged.
[118]It was argued that if participation in a strike is
misconduct, it must follow that the requirements
for dismissals for misconduct should be followed. I
respectfully disagree with the aforesaid. Hearings are
held prior to dismissal, to enable the employee to
understand the charges levelled against him or her, be
given an opportunity to state their case and to give
all concerned an opportunity to evaluate the facts and
circumstances surrounding the subject matter of the
enquiry.
[119]In a strike situation, particularly an unprotected
strike, where employees are warned of dismissal in an
ultimatum, it would hardly make sense to conduct a
hearing just before the dismissal is imposed. Apart
from the fact that it promises to be very impractical
to have hearings during an unprotected strike about
participation in the strike itself, a requirement for
disciplinary hearings to be held prior to taking action
during an unprotected strike, would also mean that the
employer’s endeavours to bring an end to unprotected
action, is seriously hampered.
[120]A requirement to have hearings after the dismissal
had already taken place, would be, in my opinion,
tantamount to the employer second guessing its own
decision. Such a process could not serve in any
meaningful way to resolve the issues at hand.
[121]A reasonable step to take, for example, would be
for the employer to invite all dismissed employees to
show , if able to do so, that there was a good reason
for their participation in unprotected industrial
action eg, that they were intimidated. In this
particular case, none of the employees put forward a
case that they would have provided such an explanation,
had they been given an opportunity to do so in some
form of an enquiry or an appeal. This was not the case
pleaded by them and since the Act does not require the
employer to follow this course or hold any hearing for
dismissals following participation in unprotected
strikes, there is no reason to find that the dismissal
was procedurally unfair, simply because no such process
had been followed. In any event, the facts of this
matter, do not suggest that there was an obligation on
the respondent to take such a course.
[122]I do not agree, that all the principles applicable
to dismissal for misconduct as set out in the Code,
should be followed in the case of dismissal for
should be followed in the case of dismissal for
participation in unprotected action. The legislator has
deemed it fit to deal with these matters separately.
[123]Item 6 of the Code is clearly an attempt to codify
the law as it pertains to substantive and procedural
requirements pertaining to the unprotected strike
situation. In Cheadle et al : Current Labour Law 1997 at
page 97 et seq it is stated that predismissal hearings
do not generally have to observed in respect of
strikers who have been given an ultimatum.
[124]In the circumstances I find that the employees
were dismissed for a fair reason and that their
dismissal was not only substantively fair but also
procedurally fair and the application should fail.
[125]There is no reason why costs should not follow the
result in this matter.
[126]Consequently, the application was dismissed with
costs.
E REVELAS
For the applicants: Advocate J G Grogan
Instructed by : PRETORIUS HERBERT & BARNES
For the respondent: Advocate R B Wade
Instructed by : LINDE, DORRINGTON & KIRCHMANN INC
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