IN THE LABOUR COURT OF SOUTH AFRICA
HELD AT JOHANNESBURG CASE NO : J1086/98
In the matter between :
JACKSON, MARAPULA AND OTHERS Applicants
and
CONSTEEN (PTY) LIMITED Respondent
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JUDGMENT
_____________________________________________________________
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JAJBHAY, A.J.
[1] Strikes and lock-outs are regulated by Chapter IV (Sections
64-77) of the Labour Relations Act No. 66 of 1995 as
amended ("the LRA"). Section 64(1) provides in general
terms that "Every employee has the right to strike and
every employer has the recourse to lock-out" , subject to
certain conditions. These conditions are set out in
paragraphs (a) to (d), read with sub-sections (ii) and (iii).
They comprise an attempt at conciliation in regard to "the
issue in dispute".
[2] In terms of Section 65 of the LRA, "No person may take part
in a strike or lock-out or in any conduct in contemplation or
furtherance of a strike or lock-out" if a collective agreement
prohibits it, the issue in dispute is arbitrable or justiciable, or
(subject to certain exceptions) the person is engaged in an
essential or maintenance service.
[3] Section 68(5) of the LRA provides :
"Participation in a strike that does not comply with the
provisions of this chapter, or conduct in contemplation or in
furtherance of that strike, may constitute a fair reason for
dismissal. In determining whether or not the dismissal is
fair, the Code of Good Practice : Dismissal in Schedule 8
must be taken into account. In terms of Item 6 of Schedule
8, the Code of Good Practice : Dismissals it is stated :
(i) Participation in a strike that does not comply with the
provisions of Chapter IV is misconduct. However, like any
other act of misconduct, it does not always deserve
dismissal. The suspensive fairness of dismissal in these
circumstances must be determined in the light of the facts
of the case, including -
(a) the seriousness of the contravention of this Act;
(b) attempts made to comply with this Act; and
(c) whether or not the strike was in response to unjustified
conduct by the employer.
(ii) Prior to dismissal the employer should, at the earliest
opportunity, contact a trade union official to discuss the
cause of action it intends to adopt. The employer should
issue an ultimatum in clear and unambiguous terms that
should state what is required of the employees and what
sanction will be imposed if they do not comply with the
ultimatum. The employees should be allowed sufficient
time to reflect on the ultimatum and respond to it, either by
complying with it or rejecting it. If the employer cannot
reasonably be expected to extend these steps to the
employees in question, the employer may dispense with
them."
[4] In recent decisions, the Labour Appeal Court has outlined
the basic principles that inform its approach to the task of
interpreting the provisions of the LRA. The Act requires that
the LRA be interpreted to give effect to its primary objects,
and in conformity with the Constitution (Constitution of the
Republic of South Africa Act 108 of 1996) and South Africa's
public law obligations. The purpose of the Act is set out as
follows :
"The purpose of this Act is to advance economic
development, social justice, labour peace and the
democratisation of the work place by fulfilling the primary
objects of this Act, which are -
(a) to give effect to and regulate the fundamental rights
conferred by Section 27 of the Constitution;
(b) to give effect to obligations incurred by the Republic as a
member state of the International Labour Organisation;
(c) to provide a framework within which employees and their
trade unions, employers and employers organisations can -
(i) collectively bargain to determine wages, terms and
conditions of employment and other matters of mutual
interest; and
(ii) formulate industrial policy."
[5] Cameron, J.A. in Chemical Workers Industrial Union v
Plascon Decorative (Inland) (Pty) Limited (1999) 20
ILJ 321 (LAC) at 326 states :
"Conformity with the Constitution entails inter alia that the
provisions of the LRA must be considered against the
background of the Constitution which is the supreme law of
the land and which itself requires that this Court when
interpreting the LRA promote the spirit, purport, and objects
of the Bill of Rights."
Cameron, J.A. in the Chemical Workers Industrial Union
case supra goes on to state in paragraph 21 :
"It is plain that the right to strike, conferred without express
limitation in the Constitution, is subjected to a number of
significant, expressly stated, limitations in the LRA. The
statute not only sets formal pre-conditions for the exercise
of the right to strike, but imposes material limitations on
who may strike. Strikers or those acting in contemplation or
furtherance of a strike whose conduct falls outside the
statute's limitations are deprived of the protection Section
67 provides, and are accordingly vulnerable (if employees)
to dismissal and (in any event) to sue for delict or breach of
contract."
[6] Conformity with the Constitution includes the fact that the
provisions of the LRA must be considered against the
background of the Constitution, which is the supreme law of
the land and which itself requires that this Court when
interpreting the LRA promote the spirit, purport and objects
of the Bill of Rights.
(See : Business South Africa v Congress of South African
Trade Unions and Others (1997) 18 ILJ 474 (LAC) at
476F-478I;
Ceramic Industries t/a Betta Sanitary Ware v National
Construction Building and Allied Workers Union
(1997) 18 ILJ 671 (LAC) at 675E-I;
Carephone (Pty) Limited v Marcus N.O. and Others
(1998) 19 ILJ 1425 (LAC) paragraph (8);
Chemical Workers Industrial Union supra at 326G-I.)
[7] The right to strike is enshrined in the Constitution. Section
23(2)(c), provides that every worker has the right to "strike".
That right, though it is expressed in an unlimited form, is
subject to curtailment provided the restriction complies with
Section 36, which permits limitation "to the extent that the
limitation is reasonable and justifiable in an open and
democratic society based on human dignity, equality and
freedom, taking into account all relevant factors" , see
Chemical Workers Industrial Union supra at 327.
[8] The present action stems from the dismissal of Jackson
Marapula and others (Applicants), consequent to their
participation in a strike that did not comply with the
provisions of Chapter IV. The Applicants were employed at
all material times by Consteen (Pty) Limited (Employer).
The Employer operates a brick factory, producing clay and
paving bricks for the building industry and employs
approximately 230 employees. The evidence on behalf of
the employer was tendered by Mr Frederick Kok, Mr Michael
Wright, and Mr Jaco Kok.
[9] On the 2nd of December 1997, approximately 120
employees were engaged in a strike at the premises of the
employer that was not in compliance of the LRA. During
their employment, with the employer, the Applicants were
accommodated in a hostel on the premises within the
confines of the employer's place of business. It was stated
that when access is afforded to the hostel, the admitted
person will then also have access to the remainder of the
company's premises. As a result thereof, certain security
measures had to apply. The employer's security guards
were tasked with the security functions and in addition
thereto, they also attended to certain domestic problems
between employees and their family members.
[10] On the 2nd of December 1997, and at approximately 07h00,
the Applicants together with other people who were also
within the employ of the employer, did not commence with
their daily duties. These individuals who amounted to
approximately 120 people, were standing in front of the
main administration offices of the employer. It was stated
that these workers had commenced with industrial action,
although, at that stage, the employer had not been
informed about their demand or grievance. Mr Wright, the
labour advisor to the employer, was immediately summoned
who attended at the premises of the employer immediately
thereafter. It was emphasised that no attempt had been
made to formulate any demand, or hand a memorandum to
the employer.
[11] All the persons who had testified on behalf of the employer
were certain that the proceedings were peaceful at all
material times. Mr Wright testified that he invited the
workers to sit as gentlemen and discuss their problems. Mr
Wright further testified that on this particular day, he had to
attend at the offices of the Commission for Conciliation,
Mediation and Arbitration (CCMA) at 09h00. The reason for
this meeting, at the CCMA was not related to the action at
the workplace at all.
[12] Mr Wright invited the employees to inform him the reasons
for the employees not having assumed their normal daily
functions. It was at this stage that one of the employees
handed a memorandum to Mr Wright. This memorandum is
in a handwritten form, and it is rather simplistic in its
content. The memorandum is written out on a page of a
diary. At the top is written :
"Sorry for adres" (sic).
Dear management first of all I would like to say "Hello" how
is the life according to your side. To our side is moving "tip
top".
We've got a problems about your security. We don't realise
as we can, because of your security you don't say nothing
about it. We as workers we must know that which people
make a production of bricks. Security or workers. All
people care about it. What can we do about security we
take action, before security go, and we go to react, we want
them out immediately, in this premises, we want answer
first if we don't get it we can't work; before it. Somebody
get injury, but you don't say nothing. This is your land as
we know. We must know the work of your security is.
Looking for your lorry, office, not for the people or room.
Yesterday we get another people of your security they take
gun and wys that woman they say this is not your land, is
the land of Frik Kok. We give you a 2 hours. After 2 hours
we want answer?
By member of Consteen"
[13] In response to this memorandum, Mr Wright testified that he
spoke to the workers and informed them that their actions
were improper. He further invited them to talk to their
representative Mr Sam Moyo. Mr Wright was adamant that
the employees refused and insisted that they would not
return to work until the security persons were all dismissed.
[14] During the discussions, it was intimated to the workers by
the employer, to separate amongst themselves and indicate
those who are in favour of continuing with their
employment, and those that did not want to work any
longer. The overwhelming majority of people at this stage
intimated that they would prefer to continue with the
employment at the employer.
[15] Mr F Kok testified that in his opinion some progress was
being made during these discussions.
[16] Mr Wright had attended the offices of the CCMA, when he
was called at approximately 11h00 and informed that the
employees had not reverted to their work stations. Mr
Wright had discussed this issue with Mr Sam Moyo who
purported to represent the workers at the employer's
premises. Mr Wright returned to the employer's premises at
approximately 13h00 on that day. At this time, Mr Wright
observed that there were a few workers standing outside,
who were "polite" and they had informed him that they were
not willing to discuss this matter at all with him. They were
referring regularly to a Beni. Mr Wright testified that he
understood the workers to state that they demanded that
Beni be dismissed immediately. Beni was one of the four
security guards employed by the employer at the premises.
[17] Mr F Kok was adamant at this point in time that all the
workers return to their work stations. An attempt was made
to contact Mr Moyo, however this attempt proved to be
futile. Thereafter Mr J Kok and Mr Wright, debated the
issues, and after some time settled an ultimatum to be
distributed to the employees. The ultimatum is set out on a
letterhead of the employer, and is dated the 2nd of
December 1997. The time reflected is 15h30 (3:00) :
"General Ultimatum issued by management of Consteen
(Pty) Limited to all employees engaged in the unprotected
strike action which commenced at 07h00 this morning.
Issuing of Ultimatum :
This ultimatum is being issued, where possible, to all
employees engaged in the unprotected strike, which started
at approximately 07h00 this morning. Management will
make every effort to issue a copy of this ultimatum to each
employee participating in the unprotected strike and further
with the use of an interpreter, to read this ultimatum and
explain it to the striking employees. Copies of this
ultimatum will be affixed, in as many languages as possible,
to walls in the areas where striking workers are
congregating and will be generally circulated in the living
quarters on the premises. Each employee is entitled to a
copy of this ultimatum.
Purpose of this ultimatum :
1. To encourage employees who are participating in the illegal/
unprotected strike to desist and resume their normal duties
as soon as possible.
2. To ensure that this industrial action does not occur in future.
It should be noted that this is the second time certain
employees have embarked on an unprotected strike. The
first time was Friday November the 14th, 1997 - some two
weeks ago.
3. To categorically state to employees that the illegal go slow
that has been operation for some four months now will not
be tolerated in the future.
4. To advise striking employees that their action is a very
serious breach of their contracts of employment and that
management after considering the facts and circumstances
reserve their right to dismiss employees participating in go
slow and this second unprotected strike.
Warning :
1. If employees participating in the unprotected strike today
and those who have participated in the lengthy go slow do
not desist in their actions, management will dismiss them.
2. Any future illegal strikes or go slows (either this year or next
year) cannot and will not be tolerated and the sternest
action, including dismissal, will be considered.
3. This general ultimatum is the final ultimatum to be issued.
Should any such illegal actions happen in the next 12
(twelve) months, management will take the strongest steps
necessary, including dismissal.
General :
It must be clearly understood that should an employee or
group of employees have grievance relating to the work
environment, this should be handled in the correct manner
e.g following the grievance procedure and not via illegal
industrial action such as unprotected strikes or go slows.
Finally :
All employees are requested to return to work and perform
their duties as required by no later than 07h00 tomorrow, 3
December 1997, and to not again participate in strikes, go
slows etc. Failing which management reserves the right to
take whatever action it considers necessary in order to
protect the business.
J C L KOK"
[18] The services of two interpreters were secured, and the
memorandum was interpreted in several languages
according to Mr Wright. A memorandum was handed to all
persons who were present, and a question and answer
session pursued, however Mr Wright did not understand the
questions that were being asked, and he in fact believed
that the workers were satisfied. The atmosphere was
"peaceful and polite" . The meeting ended at 16h30, when
everybody went away.
[19] Mr Wright testified that he honestly believed that once the
employees had conducted their discussions with Mr Moyo,
they would all revert to work. All of Mr Wright's attempts to
contact Mr Moyo proved to be in vain. On the 3rd of
December 1997, when the Applicants had not reported for
duty, they were dismissed.
[20] It was further testified that the Applicants did not at any
time intend to moderate their demand. They had
assembled in a group, and had no intention of returning to
work as the majority of the workforce had done. The
Applicants did not take up the offer of the employer to
convey constructive proposals via a duly elected or
appointed committee. The employer believed that no
purpose would be served in negotiating any further and the
employees were informed that they were to vacate the
premises on the 12th of December 1997 when the
Respondent closed down for the annual holiday.
[21] It was further testified that the employer had its levels of
production deteriorating to such an extent that the viable
existence of the employer was in jeopardy. The
Respondent's pricing and financial management depended
on certain levels of production of bricks. If these levels are
not maintained, the employer's business would not operate
profitably.
[22] The parties had approached the CCMA on the 14th of
November 1997, with regard to a dispute that revolved
around the unilateral change to the terms and conditions of
the employment. This matter was amicably resolved at the
CCMA. In terms of the agreement entered into at the CCMA,
the union (the SAEUB who acted on behalf of employees at
the employer) agreed to approach "the company in writing
to set up a meeting to discuss other work related issues" .
The evidence of the employer was that this was never done.
[23] Mr Wright testified that he did not meet Mr Moyo (who
purportedly represented the employees) on the premises.
Whilst they had worked together as adversaries, and
respected each other in a professional capacity, the
relationship was within the framework of the law. Mr Wright
stated that he had no intention of inviting Mr Moyo to the
premises of the employer. It must be noted that Mr Moyo at
the time of the trial had passed away.
[24] Mr Jackson Marapula, Ms M.S. Kwatsia Chavalala and Ms
Yimeka Rikhotso, testified on behalf of the Applicants. Mr
Marapula stated that he was authorised to testify on behalf
of all of the Applicants whose names were appended to
Annexure "A" attached to the Applicants' statement of case.
The testimony was that in the overwhelming majority of
instances, the employees are labourers, who have been
working for "a long time" for the employer. The employees
were assaulted indiscriminately by the security guards at
the work premises. Each one of these three individuals
were according to their evidence, assaulted by the security
guard who was known as Beni.
[25] They believed that their complaints were not taken seriously
by Mr Kok and other members of management. Beni
boasted that no action will be taken against him and he is
free to act as he willed. The complaints lodged by the
workers, in terms of the evidence, was treated with
contempt. Their response to the complaint, would invariably
be if you are not happy to work here, then you must find
yourself alternative employment.
[26] Mr Sam Moyo was a community leader, and he tried to
represent the workers from time to time at the workplace.
[27] Mr F Kok, had vehemently dissuaded union activity at the
workplace. According to the evidence, he was not in favour
of allowing workers to participate in union activities. Mr
Moyo was not allowed on to the premises of the employer.
[28] On the 2nd of December, according to Mr Marapula, the
employees were "tired of the treatment that was meted to
them" by the security guards. They had decided to confront
management with this problem. Mr F Kok was informed
about the assaults, and he was further told that if these
assaults were not stopped immediately, then the workers
will engage in a work stoppage.
[29] On the 2nd of December 1997, according to Mr Marapula,
almost all of the employees were engaged in the work
stoppage. When the memorandum was handed to Mr
Wright, Mr F Kok retorted that if anyone is not interested in
working, he/she should leave the premises. Mr Marapula
protested that they had confronted management with the
intention of establishing how the issue revolving around the
unlawful assaults being carried out by the security guards
would be resolved. He believed that the members of the
management team were not prepared to address this
particular issue with them. There were joint meetings
between employees on the night of the 30th November
1997 as well as the 1st of December 1997, where an
appropriate cause of action was debated and discussed. It
was pursuant to these meetings that a memorandum was
submitted to the management team.
[30] Mr Marapula testified that the persons acting on behalf of
the management team as interpreters were in fact police
officers from the Muldersdrift Police Station. They were not
clothed in the normal police uniform at the time. These
"interpreters" had informed the workers that if the workers
had not returned to work, the police will come in with dogs
and attack the workers.
[31] Mr Marapula as well as the two ladies who testified were
adamant that their demand was for management to
reprimand the security guards. The abusive tactics of the
security guards according to these individuals had to be put
to an end.
[32] Mr Marapula was cross-examined in great detail, and many
contradictions emanated during this time. However the
same could not be said about the two ladies. In addition to
the contradictions, Mr Marapula was also not clear on many
aspects of his evidence, and at certain occasions I had to
advise him to listen to the questions and answer them to the
best of his ability. There were many inconsistencies in his
testimony.
[33] Insofar as the evidence is concerned, the upshot is that I am
faced with two conflicting versions, only one of which can be
correct. The onus is on the employer to prove that the
dismissal was fair (Section 192 of the LRA) on a
preponderance of probability. In my opinion, the onus is
discharged if the employer can show by credible evidence
that its version is the more probable and acceptable version.
The credibility of witnesses and the probability or
improbability of what they say should not be regarded as
separate inquiries to be considered piecemeal. They are
part of a single investigation into the acceptability or
otherwise of the employer's version, an investigation where
questions of demeanour and impression are measured
against the content of the witnesses' evidence, where the
importance of any discrepancies or contradictions are
assessed and where a particular story is tested against facts
which cannot be disputed and against the inherent
probabilities, so that at the end of the day one can say with
conviction that one version is more probable and should be
accepted, and that therefore the other version is false and
may be rejected with safety. It is on the basis of this test
that I have set out, that I accept the version of the employer
as the more probable one, and accordingly should be
accepted.
[34] Mr Marapula and Ms Chavalala proved to be in error where
their evidence was contradicted by the facts set out in the
statement of case. Ms Chavalala testified that she was
assaulted by the security guard during the day of the 1 st of
December 1997. The statement of case alleges that the
guards had threatened her. I was not afforded a reasonable
explanation setting out the variances. I realise that at least
one version may have been alluded to erroneously: and
error by itself does not establish a lie. However, there was
no attempt on the part of either the witness or the legal
representative to explain these contradictions. Ms
Rikhotso’s allegations were serious. They were not pleaded.
[35] Pleadings should not be read pedantically, however, they
must be carefully drawn and properly turned out. The rules
of this court does not envisage that pleadings be drawn up
in perfect language. However, the allegations of the parties
should be clearly cognizable, so that each one, as well as
the court, may know what case is to be made out and what
case has to be met.
[36] In the premises, the question I am asked to determine is
whether the employees who had participated in a strike that
did not comply with the provisions of Chapter IV deserved to
be dismissed in the circumstances of this particular case.
[37] The meaning of the right to strike guaranteed in the
Constitution should be determined by an analysis of the
purpose of such a right. In my view, when conducting this
analysis, and in interpreting Section 68(5) of the LRA, a
generous rather than a legalistic interpretation should be
afforded, which is aimed at fulfilling the purpose of a
guarantee and securing for all individuals the full benefit of
the rights protection. The right to strike, that is enshrined in
the Constitution, is in my opinion a breach from a culture of
authority, which rested on a doctrine of management's
prerogative, to a culture of justification. In terms of this
culture of justification, the new order in industrial relations
must be a community that is built on persuasion and not
coercion. It is precisely for this reason, that in my opinion,
Section 68(5) treats the participation in a strike not
complying with the provisions of Chapter IV, as a
misconduct.
[38] When employees engage in a strike that does not comply
with the provisions of Chapter IV, this conduct in appropriate
circumstances can be seen to interfere with the normal
cause of conciliation, set out in the LRA.
[39] The intention of the LRA is to promote innovative
partnerships in collective bargaining and establish an array
of employee involvement programmes that will operate in
the workplace. This has to be built on positive experiences
with productive and co-operative employer/employee
relations.
[40] The LRA endorses and encourages the development and
promotion of fair, speedy and efficient resolution of disputes
at the workplace. Problems arising in labour matters
frequently involve more than legal questions. Political,
social, and economic questions frequently dominate labour
disputes. The nature of labour disputes and grievances and
other problems arising in labour matters dictate that special
procedures outside the legalistic system must be initially
employed in their resolution. The legislative creation of the
CCMA and conciliation boards is primarily focussed on the
fostering of industrial peace and stability.
[41] If these sections are not heeded, the operation and indeed
the whole concept of protected industrial action may be
thrown in disarray. Before engaging in protected industrial
action, the issue in dispute must be referred to conciliation
because the CCMA and bargaining councils have been set
up to operate in areas where specific expertise, experience
and sensitivity to the particular problems involved are
essential to their resolution.
[42] The administrative bodies such as the CCMA, are designed
to function expeditiously, inexpensively and there is little
doubt either of the need for these bodies or the very
important role that they fulfil in industrial relations society.
Through their constant work in this sensitive area, such
bodies develop the special experience, skills and
understanding needed to resolve the complex problems of
labour relations.
[43] In the present matter, it was common cause that the
Applicants had utilised the services of the CCMA in relation
to a dispute approximately three weeks prior to them
engaging in the unprotected industrial action. This was on
the 14th of November 1997. At this intervention, the
employees had largely achieved the desired outcome. The
matter revolved around the unilateral variation to the terms
and conditions in the employment contract. In terms of the
agreement entered into, the employer had agreed to revert
to the original employment contract. The witnesses who
testified on behalf of the Applicants, were all aware of this
particular intervention at the doors of the CCMA, as well as
another dispute that was resolved at the CCMA that was
between the same parties. In my opinion, the Applicants
were aware of the dispute resolution mechanisms in
existence at the time. There are very sound reasons for
referring a dispute for conciliation prior to engaging in
industrial action. The parties to a dispute, should quite
simply exercise deferential caution in their assessment to
engage in unprotected industrial action. The LRA adopts a
legislative policy of postponing the exercise of the right to
strike until all attempts at conciliation have failed. The
conscious decision in the participation in a strike that does
not comply with the provisions of Chapter IV, in the present
matter, constituted a misconduct.
[44] In my opinion, there is no doubt as to the seriousness of the
contravention, in addition thereto, there were simply no
attempts made by the Applicants to comply with the Act.
On the Applicants' own version, they were dissuaded from
engaging in any conduct in contemplation of a work
stoppage by Mr Moyo. The Applicants heeded to this advice
during the evening of the 30th of December 1997. The
Applicants engaged in the unprotected activity on the 2nd of
December 1997. It is important to note for the purposes of
the present matter that the operations of the employer were
to have stopped for that particular year on the 12th of
December 1997. Merely ten days after the action entered
into by the Applicants.
[45] There may well have been difficulties with the general
conduct of the security guards at the workplace.
Unfortunately no evidence was placed before me to
convince me that attempts were made to comply with the
Act, more particularly there was simply no credible evidence
that anything was in fact done in order to bring the
grievance of the Applicants to the attention of management
at the employer.
[46] In attempting to build a new order on persuasion and not
coercion, our Courts must be careful to avoid
constitutionalising any qualities of power in the workplace.
"The underlying values and principles of a free and
democratic society are the genesis of the rights and
freedoms guaranteed by the Constitution and the ultimate
standard against which a limit on a right of freedom must be
shown, despite its effect, to be reasonable and
demonstratively justified." (See : R v Oaks (1986) 1 SCR
at 136.)
[47] In labour relations we are dealing essentially with people
who, because of their mutual involvement in the work
situation, have been placed in a specific relationship with
one another. The relationship formed is a human one, and
as such will contain elements common to all other
relationships such as friendship, marriage, business
partnerships, social, religious and political liaisons. What
makes these relationships work should also promote a
sound labour relationship. Consequently, it could be
postulated that, like all other relationships, the labour
relationship will be nurtured by mutuality of interests, the
verbosity of support, understanding, trust, facilitative
communication, shared goals and shared values; and that it
will falter should one or more of these qualities be absent.
Also as in the case of all other relationships, the labour
relationship is a dynamic and ever-changing one, such
change being dependant on the evolving status, needs,
attitudes and perceptions of the parties concerned. In my
opinion, it is important to emphasise the institutionalisation
of relationships, structures and procedures in the sphere of
industrial relations. With this in mind, it is noteworthy in the
present matter, the Applicants chose not to accede to the
requests of the employer to delegate a committee that
would appraise the employer of the concerns regarding the
Applicants. As I understood the evidence, the attitude of the
Applicants was simply in a form of a demand to dismiss the
security guards forthwith. This demand was unreasonable
in the circumstances.
[48] Human communication is ethical to the degree that it
reflects and fosters participant attitudes of geniuses,
accurate empathetic understanding, unconditional positive
regard, mutual equality and understanding. Within the
context of their relationship the parties to the employment
relationship would do well to demonstrate an affinity for
dialogue prior to engaging in industrial action. This is
contemplated by the provisions of Chapter IV of the LRA.
The promotion of effective resolution of labour disputes
should commence at the workplace. On the evidence before
me, I find that the Applicants had contemplated industrial
action as early as Sunday the 30th of November 1997. It
was envisaged at this meeting that there will be a "work
stoppage".
[49] I am not satisfied that the strike in the present matter was
in response to unjustified conduct by the employer. There
were allegations about the alleged assaults committed by
the security guards. Unfortunately for the Applicants, the
evidence does not establish this particular concern. The
attorney who acted on behalf of the Applicants omitted to
provide this particular version to the witnesses who had
tendered evidence on behalf of the employer. In addition
thereto, despite allegations of certain individuals being
admitted to hospitals, not a single record to this effect was
placed before me. A finding of this nature can only be made
on the basis of credible evidence. In this matter there was
none. There were vague allegations that complaints had
been lodged with the South African Police Services and that
these individuals were being bribed by the employer.
However I am not able to place any weight to this evidence.
Save for these bald allegations I have not been furnished
with any corroborative evidence to establish the veracity of
these allegations.
[50] In the present matter, I believe that the impasse was
reached as a product of the inflexible conduct on the part of
the Applicants. The deadlock would have been averted if
the employees had heeded to the advice of Mr Wright. This
gentleman requested the Applicants to furnish him with
facts so that he could investigate the grievances. This was
simply not presented. The dictates of the moment which
predicated an invitation to set up a "committee" and to
further discuss the grievances were not adhered to. Mr
Marapula had taken up the cudgels on behalf of the
aggrieved workers. In truth Mr Moyo was requested to
furnish in writing to the employer any work related issues in
respect whereof the Applicants had grievances. He did not
take up the invitation. This invitation was extended as early
as the 14th of November 1997.
[51] In terms of the ultimatum that was submitted to the
Applicants, an opportunity was afforded to the Applicants in
clear and unambiguous terms to desist from the
"illegal/unprotected strike and resume their normal duties
as soon as possible". An important fact set out in the
ultimatum was that the Applicants were advised in no
uncertain manner once again that "Should an employee or
group of employees have grievance relating to the work
environment, they should be handled in the correct manner
e.g. following the grievance procedure and not via illegal
industrial action such as unprotected strikes or go slows" .
The Applicants were again afforded the opportunity to
"return to work and perform their duties as required by no
later than 07h00 tomorrow, 3 December 1997" . A clear
warning in relation to the implications of the Applicants not
returning to work was then set out as follows "Failing which
management reserves the right to take whatever action it
considers necessary in order to protect the business" . In
other words, the employer issued an ultimatum in clear and
unambiguous terms and further the employer stated what
sanction will be imposed if the workers did not comply with
the ultimatum.
[52] The Applicants discussed the contents of this ultimatum at a
meeting on the evening of the 2nd of December 1997, and
persisted in their attitude. Clearly they were allowed
sufficient time to reflect on the ultimatum and respond to it.
The conduct of the Applicants in the present matter was
subversive to conducive negotiations and consequently
detrimental.
[53] Despite its collective nature, the dismissal of striking
workers is a dismissal nonetheless; just as all other
dismissals, it operates to terminate the services of the
individual. The code of good practice in my opinion does
not contemplate a separate inquiry.
[54] The employer had indicated that it was indeed open to
negotiation on the issue. However the Applicants did not
modify their initial demand as set out in their memorandum.
An important factor in this regard, is that the majority of the
workers heeded the ultimatum and returned to work the
next day. It appears that despite realising that there was
progress in developments, the Applicants lost sight of the
real implications of their memorandum. In my view, this
was done to their own detriment in the circumstances. The
circumstances did not justify their position. There were
ways in which the dispute could have been settled, and in
the present matter, the Applicants chose not to adopt
alternate methods to amicably resolve their dispute.
[55] The employer appreciated the need for a process to be
established in the circumstances, and suggested this in the
ultimatum. The Applicants did not take up this invitation.
[56] In the circumstances, the dismissal of the strikers was both
substantively and procedurally fair. In my opinion, the
Applicants disobeyed the provisions of the LRA and
committed a misconduct. This misconduct was in flagrant
breach of the purpose of the Act. It is important for
employees to understand that such flagrant disregard of the
provisions of the LRA, will have devastating consequences.
[57] The representatives of both the parties in this matter agreed
that costs must follow the cause.
[58] In the premises, I make the following order :
1. That the application of Jackson Marapula and Others is
dismissed with costs.
________________________________
M JAJBHAY
Acting Judge of the Labour Court
SIGNED and DATED on this the 23rd day of APRIL 1999
DATE OF HEARING : 12, 13, 14 and 15th of April 1999
DATE OF JUDGMENT : 23rd day of April 1999
FOR THE APPLICANT : Mr W.A. Van der Walt of Truter Crous and Wiggill Inc.
FOR THE RESPONDENT : Mr R.P. Maddern of Wright Rose-Innes Inc.
MJ0002