IN THE LABOUR COURT OF SOUTH AFRICA
HELD IN JOHANNESBURG
Case no: J 886/97
In the matter between:
South African Scooter and Transport Applicants
and
Diane D Karras t/a Floraline Respondent
JUDGMENT
MLAMBO J
1. The individual applicants in this matter were all dismissed from their employment
on 1 September 1997. They dispute the fairness of their dismissal and seek
reinstatement as well as compensation. The pretrial minute signed by the parties’
representatives stipulates that the issue to be decided by the court is whether in
terms of the Labour Relations act no. 66 of 1995 (“The Act”) the individual
applicants’s dismissal was fair substantively and procedurally and if not
whether they are entitled to compensation.
Background facts
2. On 6 August 1997 the individual applicants walked off the premises of the
respondent alleging that a certain Wilson Nkuna ( “Nkuna”) had threatened them
with death. It is not in dispute that Nkuna came to the premises of the respondent
on 6 August 1997, that he was in possession of a firearm which was in full view of
the public, that he was known to the respondent as the boyfriend to the
respondent’s domestic worker, Evelyn Moatshe, and that on that day (6 August
1997) the respondent had employed his younger brother Daniel.
3. The individual applicants allege that after being threatened by Nkuna they went to
the offices of the union, the First Applicant, to seek help. They did not tender
their services to the respondent on 7 August 1997 and indeed for the whole month
of August 1997. On 7 August 1997 Mr Sibiya, the General Secretary of the union
sent a letter to the Respondent. The letter, headed: “Death threats against our
members by your evil forces on the 6 August 1997.” stated:
“It has been brought to our attention that on 06 August 1997 at about 15h00
a men (sic) wielding or brandind (sic) a firearm entered your premises
accompanied by your maid Evelyn and threatened to shoot all union
members for having given you personal problems. This man did this in your
presence and stated in your presence and that of the affected employees that
he and the taxi owners and drivers from West Street branch will come at
17h00 (knocking off period) to do so.
As a result of these threats our members left your premises at about 16h00
before the arrival of the taxi people. The taxi they were using was identified
by some of them and your maid left with the taxi. We are unable to send
them back to your premises until such time that police and the relevant
authorities including CCMA are notified and they have deliberated on the
matter.
It has been your intention at all times to rid your company of these unioned
employees. This is not the way to do it. We wait your urgent written
guarantee and suggest an urgent meeting to be held at CCMA offices or
alternative venue to discuss same and to find a speedy resolution which will
guarantee the safety of our members, whom are all women. We wait to hear
from you soon, by fax.”
4. On 8 August 1997 respondent’s legal representatives at the time responded, to
the union’s letter in the following terms:
“Concerning your letter dated 7 August 1997 addressed to my client and
bearing the abovementioned heading. We wish to place on record that we
have no knowledge of the allegations made by yourself in this letter. The real
facts of the matter are that your union members as well as yourself (Mr M.K
Sibiya) are threatening management members in many serious ways
including threats to their lives. We therefore await your “urgent written
guarantee” concerning the safety of nonunion members, management staff
including Miss D D Karras.”
5. The respondent’s legal representative sent a further letter to the union on
11 August 1997 stating :
“ Your letter dated 7 August refers:
We have already dealt with your abovementioned letter in our letter dated 8
August 1997. However we wish to add the following as a further reply to
your mentioned letter:
1.1_ Your version will be dealt with in an appropriate forum.
1.1_ 1.2_ Your statement that “We are unable to send them
back to your premises until such time that police and the relevant authorities
including CCMA are notified and they have deliberated on the matte” is, in
our opinion an attempt to create a wrong impression, distort the true facts
and keep your members away from work. We have no objection that the
police and/or a security company be present at my premises to ensure
everybody’s safety. It is our submission that management’s as well as other
employees’ lives are at stake and the presence of the police will be welcomed.
We wish to advice that your members’ absence is illegal and serious and you
are requested to instruct them to return to the premises under the protection
of the police.
If they fail to return we intend to institute appropriate action. We await your
reply by return of fax to my offices today, 11 August 1997.”
6. Sibiya then referred a dispute to the Commission for Conciliation Mediation
and Arbitration (“the Commission”) for conciliation on 11 August 1997 describing
the dispute as “the intimidation and death threats with a use of a firearm
against the individual applicants by the respondent’s friends (Taxi operators)
allegedly from West Street” . Further correspondence ensued between the parties
but no resolution was forthcoming.
7. On 29 August 1997 the respondent brought an application for an urgent
interdict in this court seeking, inter alia, an order to compel the individual
applicants to desist from what it termed an unprotected strike. A rule nisi was
granted in the following terms:
“A rule nisi is hereby issued calling upon the 2 nd to 28 th respondents to
show cause on 15 September 1997 at 10h00, why an order should not be
made:
1.1_ Declaring the conduct of the 2 nd to 28 th respondents in
refusing to tender their services to the applicant to constitute unprotected strike
action for noncompliance with section 64 of the Labour Relations act 66 of 1995;
1.2 Directing the 2 nd to 28 th respondents cease forthwith the conduct referred
to in 1.1 above;
1.3 That the orders in 1.1 and 1.2 above are to operate with immediate effect
as an interim interdict, pending the return date;
1.4 The 1 st to 28 th respondents must pay applicant’s costs, save relating to the
21 and 27 August 1997 which must be paid by the applicant;
1.5 The return date may be anticipated on 24 hours notice to the other party.”
8. The individual applicants returned to the premises of the respondent on 1
September 1997 allegedly in compliance with the interim order granted on 29
August 1997. The Respondent alleges that they did not comply with the order
because they failed to return to work on the afternoon of 29 August 1997 as the
order was granted before 13h00. When the individual applicants arrived at the
respondent’s gates the situation was very volatile. The respondent alleges that the
individual applicants arrived between 8h00 and 8h30 toyitoying, singing,
shouting, screaming and blowing whistles. According to the respondent, because
of this conduct on their part, it denied them access into the premises and allegedly
issued verbal warnings or ultimata that they would only be allowed entry if they
behaved in an orderly and peaceful fashion. The Respondent’s version of that
morning’s events is disputed by the applicants.
9. The Respondent’s testimony suggests that the alleged verbal ultimata achieved
nothing. As a result of this, so the Respondent’s testimony suggests, a dismissal
notice was issued. This notice is dated 31 August 1997 and reads:
“Your services are hereby terminated with immediate effect due to, amongst
others, your participation in an illegal/unprotected strike.
See “Notice to Floraline Employees” attached.”
The notice attached to the dismissal notice stated the following:
“1. On Friday 29 August 1997, the Labour Court ruled that you are
engaged in an unprotected, and therefore illegal strike.
2. The Labour Court further awarded an order of costs against you (each of the
respondents 3 to 28) and the union (SASTAWU) in respect of the application.
The legal representatives of Floraline estimate that these aforesaid costs that
will have to be paid by you and the union, to amount to approximately R 30
00000.
3. The relationship between employer and employee is one of trust and
confidence, and there is a duty on both to conduct themselves in a manner not
damaging this relationship.
4. Your actions and replies in regard to the unprotected strike, and the replies by
your union, were placed before the Labour Court.
5. Neither you, nor the union, denied these actions.
6. Your misconduct, poor work performance and unprotected and therefore
illegal strike actions have therefore not been denied. The actions of your
union representative have also not been denied.
7. The Appellate Division of the High Court/Supreme Court of South Africa
ruled in the case CSIR v Fijen (1996) 17 ILJ 18(A) that if employees make
themselves guilty of conduct that is in breach of the trust and confidence
relationship which should exist between employer and employee, the innocent
party is entitled to cancel the employment contracts.
8. In view of the above, your contracts of employment have been canceled with
immediate effect.
9. Your dismissal notices will be handed to you outside the main gate of the
premises of Floraline.
10.
11. Kindly note also that further action may be brought against your representative
in the High Court/Supreme Court of South Africa.
WE REQUEST YOU TO RESPECT THE LAWS OF THIS COUNTRY AND
TO LEAVE THE PREMISES OF FLORALINE AFTER YOU HAVE
RECEIVED YOUR DISMISSAL NOTICES IN A PEACEFUL AND ORDERLY
FASHION.”
10. On 23 September 1997 the return day of the rule nisi issued on 29 August
1997 the court discharged the rule nisi after reasoning that the conduct of the
individual applicants on 6 August 1997 and thereafter did not constitute an
unprotected strike.
Res judica ta
11. At the commencement of the trial Mr Sibiya, the applicant’s representative,
argued interdict that all issues dealt with in the urgent interdict proceedings
instituted by the Respondent on 29 August 1997 and 23 September 1997 were res
judicata and as such could not be raised again for consideration by this court. The
import of Sibiya’s argument is that everything that happened before 29 August
1997 was finally decided on 23 September 1997 i.e. that the conduct of the
individual applicants was not an unprotected strike. Mr Sibiya argued that the
court should only be concerned with what happened on 29 August 1997 and
thereafter. The court rejected Sibiya’s submissions in this regard. The court ruled
that, after all, the dispute before it involved the dismissal of the individual
applicants on strike related issues. This is apparent from the correspondence
exchanged between the parties. This also clearly appears in the notice of dismissal
and the notice attached thereto.
12. It is common cause that the respondent did not appeal against the discharge of
the rule nisi. It cannot further be said that the stance adopted by the respondent in
the present proceedings is an attempt to undo the order of 23 September 1997. A
reading of the response to the statement of claim reveals that the respondent
mentions or refers to the incidents prior to the 29 August not to resuscitate its case
as presented in the interdict proceedings and in pursuit of the relief it sought then.
Whilst it is correct that the parties before this court are the same parties as in the
interdict proceedings, the similarity ends here. The issue before this court is not
the same and the relief sought by both parties is also not the same as that sought
during the interdict proceedings. For these reasons the court rejected Mr Sibiya’s
argument. In any way the present proceedings are trial in nature where different
considerations apply as opposed to application proceedings.
Reasons for the dismissal
13. The applicant’s statement of claim alleges that the individual applicants were
dismissed for alleged participation in an unprotected strike that started on 6
August 1997. Whilst the evidence presented by the respondent in this suggests
that the individual applicants were not dismissed for participation in an
unprotected strike, the response to the statement of claim states the following
something different. It states:
“It is denied that the “individual applicants” reported for work on 31 August
1997. At no stage did the “individual applicant” tender their services to the
employer after 6 August 1997. On the morning of Monday 1 September
1997 the “individual applicants” formed up outside the premises of
Floraline in a rowdy and unruly manner. The assistance of BBR armed
response and S.A Police Service had to be obtained to disperse them.
The “individual applicants” (apart from Anna Mlombo who was in hospital)
were dismissed as per the letters of dismissal together with a “NOTICE TO
FLORALINE EMPLOYEES”. The “individual applicants” were dismissed
for their participation in unprotected/illegal strike action, their misconduct,
their poor work performance and because they made themselves guilty of
conduct that is in breach of the trust and confidence relationship which is
essential for the existence of an employer/employee relationship.”
14. Diane Karras, (the Respondent), testified that when the individual applicants
arrived on the morning of 1 September 1997 they were rowdy, were toyitoying,
blowing whistles and were swearing and shouting. She testified that this conduct
was the same she had endured from them over the past five months. She testified
that she pleaded with them telling them about the interim interdict obtained on 29
August 1997. She testified that she could not allow them in her premises with that
kind of behavior as they had previously issued death threats against her and her
staff.
15. She testified that she made a call to her legal representative, Marike Bean,
seeking advice. She states that she returned to the individual applicants and again
appealed to them to behave properly but to no avail. She states that she informed
them that they were engaged in an illegal strike. When her pleas did not work, she
states that she telephoned BBR security for help and thereafter issued the
states that she telephoned BBR security for help and thereafter issued the
dismissal notice with its attachment. The individual applicants then left and never
returned.
16. Under cross examination Karras stated that the individual applicants were
dismissed for breaking the trust relationship with her as their employer, they did
not tender their services, they were not dismissed only for their conduct from 6
August 1997. She stated that the dismissal was brought about by a culmination of
a number of things over a period of time. She conceded that their participation in
a strike was mentioned as part of the reasons for the dismissal. She refused to
answer a question whether the individual applicants were also dismissed for
anything they did prior to 6 August 1997. In reply to a direct question she stated
that the individual applicants were not on strike on 1 September 1997.
17. The evidence on behalf of the individual applicants was given by Mr
Mfamana, one of them. He testified that they arrived at work at about 8h00 in the
morning. On their arrival the police, BBR Security officials and other unknown
employees were there. He testified that at about 08h25 they moved towards the
gates intending to work but the police and the BBR employees prevented them
from going in. He testified that they were then given the dismissal notices and
told never to return .
1.
18. In cross examination Mfamana denied that when they arrived at work on 1
September 1997 they were blowing whistles nor did he hear any being blown. He
admitted that Karras was there but stated that they did not speak to her. He
conceded that Karras would have been justified not to open the gates if indeed the
employees were rowdy, shouting, screaming, toyitoying and blowing whistles.
19. The parties in their pleadings and in evidence tendered in this court went to
extreme lengths to deal with the events of 6 August 997 and thereafter. The pre
trial minute also contains a number of clauses referring to the events of 6 August
1997 and thereafter. The issue to be decided by this court makes no reference to
the events of 6 August 1997 and thereafter but refers only to 1 September 1997
and thereafter only to the extent that this court deems that to be relevant to the
issues before it.
20. Mfamana testified that he is the one who was accosted by Nkuna on 6 August
1997. He stated that Nkuna told him to inform the other employees to stop
demanding everything from the respondent. He testified that Nkuna told him to
advise the other employees that he would come with others from the taxi rank to
attack them. After Nkuna left, Mfamana testified that he informed other
employees of this and they all became afraid and started screaming and ran out of
the respondent’s premisses to the union offices. Mfamana stated that they left the
respondent’s premises because they were afraid that Nkuna would carry out the
threat to come with other taxi drivers to kill them. He also stated that Karras was
aware of Nkuna’s presence, and that she was told of the threat but did nothing
about it, hence they left the premises to seek assistance from the union.
21. Mfamana confirmed that a charge of pointing a firearm was laid with the
police. He testified that they remained at the union’s offices i.e. daily. He stated
that because of the threat to their lives they would only go back to work under
police protection and an order from the Commission. He confirmed under cross
examination that he saw the letter sent to his union by the respondent’s
representative on 11 August 1997. He further conceded that from the day he saw
that letter (11 August 1997) there was no further threat to their lives as the
respondent had no problem with them coming to work with the police etc. He
could provide no coherent explanation why they never returned to work thereafter
save to state that Sibiya advised them not to go back to work.
22. As regards the alleged threat by Nkuna, it is correct that he went to the
Respondent’s premises on 6 August 1997 and that he wore a firearm visible to all
and sundry. He was not called as a witness though he seems to have been
available to depose to affidavits at the request of the Respondent. His girlfriend
Evelyn testified that she was not present at the Respondent’s premises on 6
August 1997. She was of no assistance as far as the threat was concerned. Her
testimony is important in one respect and that is Mfamana confirmed that he did
not see her at the Respondent’s premises on 6 August 1997. The applicants allege
in their statement of claim that Wilson was accompanied by Evelyn on 6 August
1997. Sibiya even put it to Karras, in cross examination that Johanna Mataboge,
one of the individual applicants, would testify that Evelyn was present on 6
August 1997 when Wilson Nkuna issued his threats. This was also put to Evelyn
when she testified Johanna Mataboge was not called to testify. The court is left
with the uncontested evidence of Evelyn which is a way was confirmed by
Mfamana stated that he did not see her there on 6 August 1997. Mfamana that he
did not see her there on 6 August 1997. As a matter of fact Mfamana should have
seen Evelyn because he is the one who saw Wilson arrive in his taxi and actually
opened the gate for him.
23. It appears justified to find that Evelyn was not present at the Respondent’s
premises on 6 August 1997. Furthermore if indeed the individual applicants were
threatened by Nkuna and were afraid to return to work it is strange that those in
their midst who stayed at the Respondent’s premises were not afraid to go back to
the premises. This is the uncontested evidence of Karras. This leads the court to
find that even though the individual applicants may have been threatened by
Wilson Nkuna, it was not the kind of threat that justified their stay away from
work particularly after 11 August 1997.
24. As far as the events of 1 September are concerned the evidence suggest that
the individual applicants arrived en masse. Mfamana stated that they (individual
applicants) arrived at 8h10 and at 08h25 they went to the gates intending to work.
Karras testified that they arrived in a group. Probabilities suggest that if they
arrived as a group, given their rather acrimonious relationship, given the fact that
the individual applicants had been away for about three weeks, it is possible that
they did not arrive quietly. The court is therefore satisfied that they arrived
singing and toyitoying. Karras testified that she expected them to tender their
services peacefully and therefore could not allow them inside her premises singing
and toyitoying . Given the state of their relationship this court accepts that Karras
had indeed called the police and the BBR personnel to be at the premises that
morning. The court therefore accepts Mfamana’s evidence that when they arrived
the police were there.
25. Karras states that she verbally communicated with the individual applicants to
tender their services peacefully to no avail. Whilst it might be so that she did
everything she says she did, at no stage did she contact Sibiya or anyone else from
the union to intervene. After all she was well aware that they had a union
representing them. In the court’s view her failure to involve the union proves that
she had reached the end of her tether with the individual applicants and their
union. After all the applicants were responsible for taking the Respondent to the
Attorney General’s office for underpayment of wages, they had taken her to the
Commission in not less than four referrals, in her mind their stay away from work
from 6 August 1997 was an unprotected strike, they failed to comply with the
interim interdict by not coming to work on Friday 29 August 1997, therefore their
conduct on 1 September 1997 is what can be referred to as the straw that broke the
camel’s back.
26. Karras tried very hard in her testimony to shy away from the fact that she
dismissed the individual applicants for taking part in an unprotected strike. When
pressed about the reasons for dismissing the individual applicants she stated that
she dismissed them for poor work performance in the past, for blowing whistles in
her face, which she said was their conduct for the past five months, she testified
that they had over the past five months degraded and humiliated her, she stated
that she realized that the relationship had broken down completely and therefore
she was not prepared to take them back, she then dismissed them.
27. There is no doubt in the court’s mind that the true reasons for the dismissal of
the individual applicants is that, in the Respondents mind, they had participated in
an “illegal” strike from 6 August 1997. In the application for an urgent interdict
the Respondent stated that:
1. “It is submitted that the conduct of the union members, when they
walked off Floraline’s premises on the afternoon of 6 August 1997 at
approximately 16h00 and their failure to return to work constitutes an
unprotected strike. (My emphasis) The provisions of Chapter IV of the
Labour Relations Act no. 66 of 1995 were never complied with and no
attempts were made (according to my knowledge) to comply with Chapter IV
of the Labour Relations Act..) In my opinion the actions of the union
members from approximately 16h00 on 6 August 1997 amongst others were
premeditated and were by no means in response to unjustified conduct by
another party to the dispute. It is therefore my humble submission that they
should not enjoy any protection since approximately 16h00 on 6 August 1997
from the Honourable Court.”
28. The dismissal notice dated 31 August 1997 mentions the fact that the reason
for dismissal is, amongst others, participation in an illegal/ unprotected strike.
The court is therefore satisfied that the Respondent dismissed the individual
applicants for participating in an unprotected strike. Section 213 defines strike as:
“The partial or complete concerted refusal to work, or retardation or
obstruction of work, by persons who are or have been employed by the same
employer or by different employers, for the purpose of remedying a grievance
or resolving a dispute in respect of any matter of mutual interest between
employer and employee, and every reference to ‘work’ in this definition
includes overtime work, whether it is voluntary or compulsory.”
29. The conduct of the individual applicants from 6 August 1997 fell short of
qualifying as a strike in terms of the Act because it was not for the purpose of
remedying a grievance or resolving a dispute regarding a matter of mutual interest
between the parties. It is a moot point whether from 6 August 1997 they had a
grievance (threat) which may bring their conduct within the definition of a strike
in terms of the Act. However the situation changed after 11 August 1997 as their
grievance was remedied. Du Toit & Others in “The Labour Relations Act of
1995" 2 nd edition at page 194 describing conduct which may be regarded as
similar, states:
1. “The employees were simply exercising collectively their right to
refuse to work and were not using the refusal as an economic lever to extract
concessions from the employer”
This was the reason for the discharge of the rule nisi on 23 September 1997 and
the finding by the court that the conduct of the individual applicants was not a
strike.
Jurisdiction
30. The question that arises is whether this court has jurisdiction to adjudicate the
matter. In this regard section 191(5)(b)(iii) provides that:
“(b) the employee may refer the dispute to the Labour Court for adjudication
if the employee has alleged that the reason for dismissal is
iii) the employee’s participation in a strike that does not comply with the
provisions of Chapter IV.”
Section 191 deals with disputes about unfair dismissals. In this case the dispute
between the parties is about the fairness of the dismissal of the individual
applicants and not about whether they were engaged in a strike.
31. The dispute that was referred to conciliation by the applicants was for an
unfair dismissal for alleged participation in an unprotected strike. After all the
certificate issued in terms of section 135 states clearly that the dispute related to
the dismissal of the individual applicants for alleged participation in an
unprotected strike. When conciliation failed the applicants did not refer the
dispute to arbitration. They came to this court because of section 191(5)(b)(iii).
The applicants’ stance is rather ambivalent if not downright opportunistic.
Throughout their papers and in evidence they justify their stay away from work
based on alleged fear. Nowhere do they deny that they were engaged in what the
Respondent viewed as an unprotected strike. Their comment is simply to the
effect that this court refused to declare their conduct to amount to a strike.
32. In the court’s view the main issue, in this matter is, and for that matter in any
dispute in terms of section 191, whether the dismissal was for a fair reason. It is
correct that in determining this issue it must be established if the employees’
conduct amounted to a strike. However the answer to this question is not always
determinative of the question whether the dismissal was for a fair reason.
Furthermore if it transpires during the court’s deliberations that the alleged strike
is in fact not one as defined in the Act it does not necessarily mean that the court
should either refer the matter back to the Commission for arbitration or that the
court should continue to determine the matter but as an arbitration.
33. In the court’s view the division of section 191(5) into two parts is significant.
Part (b) deals with disputes with a collective element and all disputes under this
part must be referred to this court for adjudication. It cannot be that the purpose
of this section is to accord jurisdiction to this court to deal only with those
disputes where the conduct of the employees qualifies as a strike in terms of the
Act and that other conduct, which also has an element of a collective withdrawal
of labour, should be arbitrated by the Commission simply because that conduct
does not qualify as a strike in terms of the Act.
34. The conduct in both instances has one overriding element and that is the
withdrawal of labour which has economic or financial consequences either way.
It seems logical that the fairness of any dismissal arising from such conduct either
way be determined by one forum. After all the considerations would be the same
in determining the justifiability of the conduct in relation to the fairness of the
dismissal irrespective of whether the conduct qualifies as a strike in terms of the
Act.
The present case
35. In casu the fact of the matter is that the individual applicants engaged in
conduct which prompted the Respondent to dismiss them. It therefore remains to
be determined whether the Respondent was justified in dismissing the individual
applicants. The court has already stated that there was no justification for the
individual applicants to stay away from work on the basis of the alleged threat
issued to Mfamana especially after 11 August 1997.
36. Despite the lack of justification for the withdrawal of labour from 6 August
1997 the Respondent elected to sit it out until it approached the court on 29
August 1997 for an urgent interdict. Having gone that route the Respondent could
only claim justification for dismissing the individual applicants if they did not
comply with the interim interdict. Whilst it is correct that the individual
applicants did not return to work in the afternoon of 29 August 1997 when the
interim interdict was granted there is no evidence of any communication between
the parties that afternoon.
37. The fact of the matter is that the individual applicants showed up at the
Respondent’s premises on 1 September 1997 after an absence of some three
weeks. There is no dispute that the only reason they turned up was because of the
interim interdict in particular clause 1.2 thereof ordering them to cease their
conduct of refusing to tender their services. As already stated, the court accepts
the testimony by Karras that they did not arrive quietly. According to Karras it is
this rowdy and unruly behaviour of the individual applicants that eventually
prompted her to dismiss them.
38. Karras testified that she did not allow the individual applicants to enter her
premises whilst they were behaving in an unruly and rowdy fashion. The fact that
employees sing, toyi toyi, shout and blow whistles, in itself, does not lend
justification to their dismissal. This conduct if accompanied by criminal conduct
such as intimidation and violence could lend justification to a decision to dismiss.
No evidence was led in this court that the socalled unruly and rowdy conduct of
the employees was accompanied by criminal conduct.
39. Unruly and rowdy conduct could conceivably also justify a decision to dismiss
if it takes place inside the premises of the employer. In this case it is common
cause that the singing, toyitoying and whistle blowing took place outside the
premises of the Respondent. The court can therefore find no substantive
justification for the dismissal of the individual applicants based on their collective
absence and conduct on 1 September 1997. After all section 17 of the Bill of
Rights in the Constitution of the Republic of South Africa Act no. 108 of 1996
guarantees the right to assemble and demonstrate.
40. The court also has a problem with the manner in which the Respondent went
about implementing its decision to dismiss i.e. if the Respondent viewed their
conduct as misconduct. The courts have stated in numerous decisions that when
faced with a work stoppage, strike or collective misconduct an ultimatum
couched in clear terms should be issued to the employees. The ultimatum should
in clear terms warn the employees of the folly of their conduct and warn them that
should they not desist from their conduct they face dismissal. They should be
afforded sufficient opportunity to reflect on their conduct and the ultimatum. If
there is a union that represents the employees it should be involved timeously and
be given a sufficient opportunity to intervene. See Item 6 clause (2) of the Code of
Good Practice: Dismissal. See also National Union of Mineworkers & Others v
Goldfields Security Limited (unreported Labour Court judgment) case no. J
890/97 per Landman J. None of these steps were implemented in this matter.
Under the circumstances the court must therefore find that the dismissal of the
individual applicants was also procedurally unfair.
41. In considering what relief is to be awarded to the individual applicants the
court takes into account the fact that the relationship between the individual
applicants and the Respondent has broken down completely. Their relationship is
charecterised by acrimonious correspondence, aggression on both sides at any
given point and general mistrust. The conduct of Sibiya and his union also did not
help. Karras gave detailed evidence, which is uncontested of the extent of the
breakdown of the relationship. In view of this state of affairs the court is of the
view that it is not reasonably practicable for the Respondent to reinstate or
reemploy the individual applicants.
42. The court must therefore consider what compensation should be awarded. In
awarding compensation the court has taken into account the following factors.
42.1 The applicant did not delay in referring the dispute to the Commission and
to this court.
42.2 The parties held a pretrial conference on 5 December 1997 and the matter
was enrolled for trial on 1 June 1998.
42.3 However on that date the court rejected the pretrial minute as being
defective and ordered another pretrial conference.
42.4 The desired pretrial minute was filed on 12 October 1998 and the matter
was enrolled for trial on 24 February 1999.
42.5 However it could not be heard on 24 February 1999 and could only be
accommodated on 16 March 1999.
42.6 In the court’s view both parties are to blame for the period from 1 June
1998 to 2 October 1998 because they filed a defective pretrial minute. This
period will therefore be deducted from the compensation due to the individual
applicants.
43. The period from the date of dismissal to the last date of the proceedings is 19
months and when 4 months are deducted (from 1 June 1998 to 2 October 1998)
the balance is 15 months. As this is a dismissal that is both procedurally and
substantively unfair the court deems it just and equitable to award each individual
applicant twelve (12) months compensation save for Anna Mlombo who was not
dismissed on 1 September 1997; and Thomas Moloi and Elizabeth Mndawe who,
according to the uncontested evidence of the Respondent, were no longer
employed by her on 1 September 1997. These individuals also failed to testify as
to their status on 1 September 1997.
44. The order of the court is therefore:
1. The dismissal of the individual applicants was procedurally and
substantively unfair.
2. The Respondent is ordered to pay compensation of twelve (12) months
to each individual applicant save for Anna Mlombo, Thomas Moloi and Elizabeth
Mndawe.
3. There is no order as to costs.
MLAMBO J
Date of judgment: 25 May 1999.
For the applicants: Mr M.K Sibiya of South African Scooter and Transport Allied
workers Union.
For the Respondent: Mr B. Leech instructed by Fluxman Rabiwowitz Raphealy
Weiner.