IN THE LABOUR COURT OF SOUTH AFRICA
Held in Cape Town
Case No : C257/98
In the matter between :
SOUTH AFRICAN CLOTHING AND TEXTILE
WORKERS UNION AND OTHERS 1st,andFurther Applicants
and
NOVEL SPINNERS (Pty) Ltd Respondent
JUDGEMENT
ZONDO J:
[1] The first applicant in this matter is the South African Clothing and Textile
Workers Union, a registered trade union, ( “the Union” ). The second up to the
eighth applicants ( “the individual applicants” ) are members of the union. The
respondent is Novel Spinners (SA) (Pty) Ltd, a company that is duly registered
and operates a business in Atlantis, Cape Town.
[2] The individual applicants were employed by the respondent until sometime
in November 1997 when they were dismissed from the respondent’s
employment. They, together with the union, have brought a claim of unfair
dismissal against the respondent and seek certain relief arising out of that
dismissal. The respondent defends the action and contends that the dismissal of
the individual applicants was fair and justified and that they are not entitled to
any relief.
[3] The matter went to trial. Each of the applicants gave evidence. The
applicants also called as a witness Miss Rachel Visser, the union organiser who
was responsible for looking after the interests of the union’s members in the
employ of the respondent. The respondent called among others Mr Pollard, the
factory manager, and Mr Cedras, the personnel officer. It called other witnesses
too. I will only refer to other witnesses if it becomes necessary to do so.
[4] In order to determine whether the dismissal of the individual applicants
was or was not unfair, it is necessary to have regard to the evidence before the
court. Although the parties led extensive oral evidence on numerous aspects of
this case, because of the view I take of the matter, I do not intend dealing with
every aspect of the evidence led by the parties. As far as it is practically possible,
I intend basing this judgement on common cause facts or on facts which the
respondent did not dispute. I now proceed to deal with the facts of the matter as
they emerge from the evidence placed before the court. Where it is necessary to
deal with disputed areas of evidence, I will do so as I proceed with the
consideration of my judgement.
[5] On the 5 th December 1996 the union and the respondent concluded a
recognition and procedural agreement. Clause 1.1. of that agreement stated the
objective of that agreement as being to “enhance the spirit of cooperation and
understanding and generally promote sound and fair Industrial Relations
(sic)” Under the scope of the agreement, the agreement says it would regulate
“the relationship between the two parties as it pertains to procedural
issues”. It goes on to define procedural issues “as issues such as discipline,
grievances, retrenchments and union benefits” .
[6] In terms of the agreement the parties also accepted the disciplinary and
grievance procedures which were then “in use” within the respondent. Lastly at
this stage, the agreement contained a strange clause 2.2. In that clause the parties
said they agreed “to implement the Labour Relations Act, 1995, No 66 of
1995 as a working document” .
[7] The union and the respondent entered into wage negotiations during the
early part of 1997. These negotiations were “concluded” around the middle of
the year. The conclusion of the agreement was partial in the sense that on the
issue of the payment of an annual bonus the parties did not reach agreement. All
they agreed was “to meet in September 1997 to explore the implementation of
annual bonus” . The parties did not sign an agreement in this regard at that stage
but this was done at a later stage. I will return later in this judgement to the
signing of a written agreement in this regard if it becomes necessary to do so.
The wage agreement was to endure from the first pay week in May 1997 until the
last pay week in June 1998.
[8] After the wage agreement had been concluded, albeit not signed, the
respondent proceeded to implement it and effected the wage increase as agreed.
The meeting which the union and the respondent had agreed at the conclusion of
the wage negotiations would be held in September “to explore the
implementation of [an] annual bonus” did not take place.
[9] In a letter dated the 22 nd October 1997 Miss Rachel Visser, the union
organiser, addressed a letter to the respondent in which she requested a meeting
with the respondent for the purpose of discussing “the wage agreement and
related matters” . In her evidence Visser said the reference to “related matters”
included the annual bonus which should have been the subject of a meeting
between the parties the previous month already. She suggested two dates for the
meeting, namely, 30 October 1997 at 12h00 and 31 October 1997 at 10h00. She
asked for a reply by no later than the following day.
[10] By the 3 rd November 1997 Visser had not received any reply in writing
from the respondent to her letter of the 22 nd October nor had the respondent
conveyed to her any acceptance of her request for a meeting nor had it suggested
alternative dates for the meeting she had requested. Accordingly she again sent
another letter to the respondent dated the 3 rd November. In that letter she
referred to her letter of the 22 nd October and expressed the union’s deep concern
about the fact that the respondent had chosen not to respond to her request for a
meeting. She again requested a meeting with the respondent in “an attempt to
resolve the problems” . This time she proposed that the meeting be held on the
5th November 1997 at 15h00. In fact she concluded the letter, probably as a way
of putting pressure on the respondent, by saying, if the respondent did not
respond, the respondent would be taken to be agreeing to the meeting. She asked
for a response not later than Tuesday the 4 th November 1997.
[11] On the 5 th November 1997 Visser went to the respondent’s premises
without making an appointment to try and have a meeting with the management.
According to her the reason why she went to the premisses without making an
appointment is that she had been told by Mr Quinton Alexander, a union shop
steward with the respondent, that when he had asked the management why they
would not meet with the union, he had been told that Visser could come in for a
meeting any time and did not have to make an appointment. The respondent
denied having said Visser could come for a meeting without making an
appointment. On the day in question, Visser was refused a meeting with the
management.
[12] On the 5 th November Visser sent another letter to the respondent once
again requesting a meeting between the parties. In that letter the purpose of the
meeting was stated as the discussion of the incident of that day involving Visser
on the respondent’s premisses, the wage agreement and related matters. Once
again Visser testified that the reference to the “related maters” was a reference
that included the annual bonus. Visser asked for a response not later than the 7 th
November. The date she proposed for a meeting this time was the 11 th
November 1997. Whereas the previous letters to the respondent were meant for
the personnel officer, Mr Cedras, this letter was addressed to the director of the
respondent, Mr Chan.
[13] On the 6 th November Visser addressed to Mr Pollard, the general manager
of the respondent, a letter the contents of which were identical to those of the one
addressed to Mr Chan the previous day.
[14] By a letter dated the 6 th November Mr Chan responded to Visser’s letter
of the 5 th. He said that, as all the relevant authority had been delegated to Messrs
Pollard and Cedras, he was not in a position to deal with a union matter unless
the two gentlemen requested him to. He said he had handed Visser’s letter over
to them to deal with and asked Visser to contact Mr Pollard or Mr Cedras
directly. He expressed the hope that the problem would be resolved.
[15] On the 7 th November Mr Cedras sent a letter to Visser in reply to her letter
of the 6 th November. He said in the letter “.. Due to work constraints, we
cannot accommodate your request for Tuesday, 11 th November 1997". He
concluded the letter by saying “We will, however, in due course, give
notification on a date (sic) and time of availability” .
[16] In each of the letters that Visser sent to the respondent referred to above,
she requested the management to hand a copy thereof to the shopstewards.
[17] On the 11 th November 1997 the individual applicants in this case as well
as certain other employees of the respondent did not perform their duties for the
first two or so hours. Some were required to commence their work at 07h00
whereas others were required to commence at 08h00. The workers stood outside
the respondent’s gate. Visser arrived at the respondent’s gate and persuaded the
workers to go back to work. This was about 09h00 or a little after that. The
workers agreed to start work.
[18] Visser then sought to have a meeting with the respondent’s management.
Such a meeting took place only at about 10h00. The workers were represented by
Visser and Mr Quinton Alexander whereas the respondent was represented by Mr
Pollard who was later joined by another official of the respondent. At the
meeting Visser informed Pollard that the workers were ready to start work. She
acknowledged that it had been wrong for the workers to strike without following
the requisite procedures. Pollard said the workers would be suspended without
pay until the following day. In evidence the explanation given for this was that
the respondent had already made alternative arrangements for the performance of
the work of the workers involved.
[19] The union says at this meeting it was also agreed that a single disciplinary
hearing would be held into the conduct of the affected workers and that Visser
would represent all the workers. The respondent denies that a single hearing was
agreed upon and says individual disciplinary inquiries were agreed to. With
regard to Visser representing the workers, the respondent does not dispute that
Mr Pollard agreed that Visser would represent the workers but says this was
contrary to the internal procedures in the respondent and it was due to ignorance
of such procedures and provisions of the Act that Pollard agreed to Visser
representing the workers.
[20] In clause 11 of a document purporting to be a summary of what transpired
in that meeting, the following is recorded
“On the matter of the wage agreement it had already been agreed that the
wage agreement would now be signed with the following amendments:
(a) clause 15 would be amended to allow shop stewards access to
equipment to facilitate their functions i.e fax and telephone.
(b) clause 17.1 would be amended to show a meeting concerning the bonus
in September would now take place on 25 th November 97 at 10:00 AM” .
[21] Subsequently the respondent conducted disciplinary inquiries against the
workers who did not perform their duties for the first two or three hours of their
working day on the 11 th November. They were charged with unauthorised
absence from work for that period. They were all found guilty of that charge of
misconduct. Those of the workers who already had final written warnings in their
records were dismissed. Those who did not have final written warnings were not
dismissed but were only given final written warnings. The individual applicants
in this matter all had final written warnings and were, therefore, dismissed. It is
that dismissal which is being challenged as unfair in this matter.
[22] In these proceedings the union and the respondent adopted differing
approaches to the conduct of the workers in not performing their duties on the
morning of the 11 th November. The union regarded the conduct as a strike. In
fact it and the individual applicants admitted that this was an unprocedural or
unprotected strike. The respondent sought to deny throughout the trial that the
conduct of the workers constituted a strike and insisted that it was not a strike but
unauthorised absence from work. It said that it had not been informed on the 11 th
November what the reason was for the conduct of the workers and that that is
why, therefore, it did not regard the conduct of the workers as a strike. This, it
said, was why it had charged the workers with unauthorised absence from work
and not with participating in an unprocedural strike.
[23] The applicants challenged the fairness of the dismissal on numerous
grounds. One of these was that the workers’ conduct on the morning of the 11 th
November was a collective action and in taking disciplinary action against the
workers in regard to such conduct, the respondent should not have dismissed
them while others were only given final written warnings. This contention
implied that such final written warnings as the individual applicants may have
had in relation to individual as opposed to collective misdemeanours should not
have been taken into account in deciding on what penalty should be imposed on
the individual applicants for the collective action on the 11 th November.
[24] The respondent contends that there is no merit in the applicants’
contention. It argues that it was entitled to convene disciplinary inquiries to deal
with the conduct of the workers and, in deciding on the penalty, it was perfectly
entitled to take into account existing final written warnings in respect of those
employees who were on final written warnings. In those circumstances,
contended the respondent, it could not be said that it had applied discipline
inconsistently nor that it had failed to observe the parity principle because the
case of the workers who had final written warnings was different from that of
those who did not have final written warnings. In other words the two cases were
not “like cases” .
[25] Before I proceed further with this judgement, let me hasten to say that
there can be no doubt that the conduct of the workers in not working on the
morning of the 11 th November 1997 constituted a strike. A strike is defined in
sec 213 of the Act as meaning “the partial or complete concerted refusal to
work or the 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” . (my underlining). It is clear from the definition of
strike that a concerted refusal to work would constitute a strike if it was resorted
to by workers for the purpose of “remedying a grievance”. (See also South
African Security Employers’ Association v TGWU & Others (2) [1998] 4
BLLR 436 (LC) at 440EH).
[26] The respondent cannot dispute that the workers certainly had a grievance
and that that is why they did not start work on the morning of the 11 th
November. In so far as the respondent relies on the failure of the workers at that
time to inform it of the reason for their conduct or their demands, that did not
render conduct which was clearly a strike into something other than a strike. It is
not an essential element of a strike that the workers must have informed their
employer of the reason for their action.
THE PARITY PRINCIPLE :
[28] The applicant’s argument that it is unfair for the respondent to dismiss
only the individual applicants for the strike because they were already on final
warnings albeit in respect of individual misconduct and not to dismiss the other
workers (who also participated in the strike) simply because the latter were not
on final warning raises the socalled parity principle. That is that workers who
commit the same offence must be treated equally; or put differently, that like
cases must be treated alike. In terms of this principle if two employees are guilty
of the same misconduct and the employer imposes a more severe penalty on the
one and a less severe penalty on the other, that is unfair. (See Prof Brassey in:
“The Dismissal of Strikers” (1990) 11 ILJ 213 at 229; NUMSA & Others v
Henred Freuhauf Trailers (Pty) Ltd 15 ILJ 1257 (A) at 1264AD)
[29] Although the parity principle appears to be a simple and straight forward
principle which should be easy to apply, its application to practical situations is
not always easy. Proof of this is to found in the fact that our courts have given
conflicting judgements in regard to its application in the context of collective
action and the progressive system of discipline. (Mainly those judgements
emanated from the industrial court as well as the Labour Appeal Court as
previously constituted under the Labour Relations Act, 1956 (Act N0 28 of 1956,
as amended)). (See Cholota v Trek Engineering (Pty) Ltd (1992) 13 ILJ
219(IC); National Union of Mine Workers &others v Free State
Consolidated Gold Mines (Operations) Ltd (President Steyn Mine, President
Brand Mine and Freddies Mine) (1993) 14 ILJ 341 (LAC); arbitration award
of Thompson A in FAWU v SA Breweries (1990) 11 ILJ 413 (ARB); Henred
Freuhauf Trailers (Pty) Ltd v NUMSA & others (1992) 13 ILJ 593 (LAC);
Amcoal Colliery & Industrial National Operations Ltd v National Union of
MineWorkers & others (1992) 13 IJL 359 (LAC); National Union of
MineWorkers & others v Amcoal Collieries & Industrial Operations Ltd
(1992) 13 IJL 1449 (LAC); the dissenting judgement of Mr B. Jammy as an
assessor in the Freegold case at (1993) 13 ILJ 341 (LAC) at 360F362D ;
National Union of Mine Workers & and others v Deelkraal Gold Mining Co
Ltd (1993) 14 IJL 1346 (IC); Deelkraal Gold Mining Co Ltd v NUM & and
others (1994) 15 IJL 573 (LAC); the judgement of the industrial court in the
Freegold matter mentioned second above in (1992) 13 IJL 366 (IC)).
[30] Subsequent to the above judgements, the Appellate Division (as the
present Supreme Court of Appeal was then known as) has given judgement in
National Union of Mine workers and others v Free State Consolidated Gold
Mine (Operations) Ltd (1995) 16 ILJ 1371(A). In that matter the workers had
heeded a call by COSATU (of which their union was an affiliate) not to go to
work on certain days. In disciplining the workers who had stayed away from
work, the employer distinguished between workers who had a clean record,
those who had warnings but were not on final warnings and those on final
warnings. The first category was given a warning, the second a final warning but
the third (i.e. those already on final warnings) were dismissed. The previous
warnings related to individual misconduct. The Appellate Division found the
dismissals unfair.
[31] A reading of the judgement of Nestadt JA, who wrote the unanimous
judgement of the Appellate Division, does not reveal with certainty that in
concluding that the dismissal was unfair, the Appellate Division settled the
controversy over the application of the parity principle in factual situations such
as those the conflicting judgements dealt with. However in so far as it can be
argued that it did not, there can be no doubt that that principle played an
important role in the decision that the dismissals were unfair.
[32] I was urged by the applicants to follow the approach which was adopted
by the Supreme Court of Appeal in the Freegold matter referred to above. There
are certain similarities between the facts in that matter and the facts in this case.
In that matter certain workers did not work when they were supposed to work.
That is the case in this matter as well. In that case the employer chose to charge
workers with absenteeism and did not regard their conduct as collective action. In
this case that is what the respondent did too.
[33] With regard to the penalty, in that case the employer distinguished
between those workers who had no warnings, those with warnings but not final
written warnings and those on final written warnings already. Those with no
warnings at all were given warnings. Those with some warning but not final
written warnings were given final written warnings. Those already on final
written warnings were dismissed. In this case the respondent distinguished
between those either on final written warnings or on probation and those not on
final written warnings or probation. Those who were not on final written
warnings or not on probation were given final written warnings and were not
dismissed. Those already on final written warnings were dismissed. The
warnings relied upon by the employers in both these cases related to individual
misconduct and not collective action. As in that case, in this case, too, the
conduct of the workers during the collective action was peaceful.
[35] The duration of collective action in that case was two days. In this case at
most the collective action lasted three hours in respect of those workers who
were supposed to have started work at 07h00 and two hours in respect of those
who were required to have commenced work at 08h00.
[36] When the Appellate Division dealt with the Freegold matter, it was called
upon to decide first and foremost whether or not, as a matter of principle, the
dismissal for collective action of workers already on final written warning for
previous individual misconduct was unfair for its violation of the parity principle
when their colleagues who participated with them in the same collective action
but who were not already on final written warning for previous individual
misconduct were not dismissed but were given final written warnings.
[37] When one reads the judgement of the Appellate Division it does not appear
that the Learned Judges of Appeal decided the matter on the basis of the
principle. Certain passages in the judgement tend to suggest that they decided the
matter on principle. However, other passages give contrary signals. I will refer to
a few examples in this regard.
[38] Nestadt JA said that the basis on which he had come to the firm conclusion
that the dismissal was an excessive and therefore an inappropriate response was
the cumulative weight of various factors.(See p1379CE ). These factors included
the duration as well as the peacefulness of the collective action. Those two
factors would be irrelevant, in my view, if the Court decided the matter on
principle. I say this because, even if the collective action was violent and had
been of long duration, that would not make it fair for the employer to dismiss
some of the workers involved in such violent and protracted action but not to
dismiss others who had participated in exactly the same conduct. If, however, the
challenge of the fairness of the dismissal was not in terms of the parity principle
but in terms of some other ground, the peacefulness or otherwise of the collective
action as well as its duration may well have been relevant.
[39] Furthermore the Appellate Division said dismissal was too harsh a
sanction. If the matter was decided on principle, it should not have mattered, in
my view, whether or not dismissal was too harsh a sanction. That is because
even if dismissal would ordinarily have been an appropriate sanction, it would
have become an inappropriate sanction once some workers were given a less
severe penalty than others for engaging in the same unacceptable conduct.
[40] The other matter I wish to refer to which, I consider, tends to suggest that
the Appellate Division did not intend to decide the matter on principle is that
Nestadt JA referred to the circumstances of the collective action in that case as
being exceptional. Lastly, there were numerous conflicting judgements of both
the industrial court as well as the Labour Appeal Court on the applicability of the
parity principle in this kind of situation which, one would have thought, the
Appellate Division would have referred to and dealt with in the course of its
judgement before laying down the law for future guidance if it had intended to
decide the matter on principle.
[41] There are also some areas of the judgement which tend to suggest that the
Appellate Division decided the matter on principle. The one is Nestadt JA’s
statement that the preferable view is that of the dissenting assessor in the Labour
Appeal Court. (See 1379DE). A reading of the dissenting assessor’s dissenting
judgement in (1993) 14 ILJ 341 (LAC) at 360F362D reveals that the Learned
Assessor dealt with the matter on principle. He did not refer to the peacefulness
and duration of the collective action as factors that influenced him. In fact at
361GH the Learned Assessor said : “I therefore consider the dismissal of all
the individual appellants in this matter to have been unfair, not because
dismissal was not an appropriate sanction in the circumstances but because
no valid basis existed, for the reasons which I have stated, upon which the
mines were entitled to apply such discipline on the differential basis” . In the
light of the statement by Nestadt JA that the preferable view is that of the
assessor, one may be forgiven for thinking that he was referring to the principle
because the assessor’s judgement was based on the principle. At 1378B Nestadt
JA said : “And in the light of what has been stated in the previous
paragraph, I do not consider that the individual appellants’ previous
offences for absenteeism were a sufficient basis for them being disciplined
differently to the others” .
[42] I have considered the matter of the application of progressive discipline
and its role in our labour law carefully in this matter. I have also considered the
reality of collective action in our system of labour relations. There can be no
doubt that our law already acknowledges the distinction between individual
action and collective action. Rightly or wrongly our case law is pregnant with
cases in which workers who sought to challenge their dismissal for collective
action and sought to invoke the requirement for the holding of disciplinary
enquiries before their dismissals have been told by our courts that, as they were
involved in collective action, they were not entitled to such inquiries before they
could be dismissed. (See Plascon Ink & Packaging Coating (Pty) Ltd v
Ngcobo & Others (1997) 18 ILJ 327 (LAC) at 338F339G; Majola & Others v
D & A Timber (Pty) Ltd (1997) 18 ILJ 432 at 353F355D.
[43] In NUMSA & Others v MacSteel (Pty) Ltd 1992 (3) SA 809 (A) the
Court held that it would be an unfair labour practice if workers collectively
refused to work overtime in order to enforce their demands but that anyone of
them could, as an individual, still refuse to work overtime for a personal and
acceptable reason and this would not be an unfair labour practice nor would it
violate the order of the industrial court against which the appeals were pursued.
Argument by the workers that what an individual worker was entitled to do could
not become impermissible simply because others joined in the conduct was
rejected.
[44] It is not justified for an employer not to acknowledge the distinction
between individual action and collective action in administering discipline to
employees. An employee might not have much choice in participating in
collective action whereas in regard to individual misconduct, as a general rule,
the decision is his and his alone. In the case of collective action it may well be
that, if he abstained from participating in the collective action, he could lay
himself open to victimisation. He may well be bound by the decision of the
majority of his colleagues to go on collective action. It may well be that he is
bound by the constitution of his union to participate in the collective action if
such action has been called by his union. Failure by him to participate in the
collective action may result in his union membership being cancelled which may
well mean the loss of his job in certain situations e.g. in a closed shop
arrangement.
[45] For the above and many other reasons which have been stated in some of
the various judgements referred to above, I conclude that it is inappropriate for an
employer to take into account warnings given for individual action when he
considers an appropriate sanction in respect of collective action. Accordingly in
this case the respondent acted unfairly in taking into account warnings given for
individual misconduct as this ultimately resulted in workers who were guilty of
exactly the same conduct being disciplined on a differential basis. In my view,
the dismissals were, therefore, unfair.
[46] Unlike in the Freegold matter where, it appears to me, the Appellate
Division reached the decision that the dismissal was unfair after including in its
consideration factors other than simply the principle that like cases must be
treated alike, my decision that the dismissals were unfair is, at this stage, based
simply on the principle that the respondent failed to treat like cases alike.
[47] In case I am wrong that the dismissal of the individual applicants was
unfair in that it offended against the parity principle, I proceed to consider
whether the dismissals were unfair on any other grounds relied upon by the
applicants. In this regard the fact that the strike was of very short duration and
that it was peaceful must be taken into account in favour of the individual
applicants. There are three other matters that need to be considered in this regard.
The one is whether the respondent provoked the strike or contributed to the
workers deciding to do what they did. In this regard the evidence of the
individual applicants was to the effect that they were aggrieved by the
respondent’s failure to meet with the union to discuss the annual bonus as agreed
at the conclusion of the wage negotiations. Some of the individual applicants
testified that there was some dissatisfaction about the annual shut down. Others
testified that the problem was the respondent’s failure to sign the wage
agreement that had been agreed. Indeed others said they were aggrieved by the
way the respondent had treated Visser on the 5 th November 1997 when she had
come to the respondent’s premisses to try and have a meeting with the
management. There was an overlap in these reasons from witness to witness as
the individual applicants testified.
[48] The respondent did not proffer any reason for the strike but was content to
simply attack the evidence of the applicants on what the reason for the strike was.
I am satisfied that the main reason why the workers went on strike was their
dissatisfaction and, possibly, frustration, arising out of the respondent not
honouring its agreement to meet with the union to explore the implementation of
the annual bonus. The respondent sought to justify its failure to meet with the
union to explore the implementation of an annual bonus by saying that it was not
in a position to pay an annual bonus as it had not made any profit yet and that, in
telephone conversations with Visser it told her this. The respondent said, in the
light of that, it saw no point in having a meeting with the union. This was not a
defence to the union’s complaint.
[49] Firstly the agreement was not that in September 1997 the respondent
would start paying the annual bonus. If that had been the agreement and the
respondent had not made any profit, I could understand if, when payment of the
annual bonus was demanded, it thought the fact that it had not made profit was a
defence. The agreement with the union was to meet in September and “explore”
the implementation of an annual bonus. Accordingly the respondent should have
met with the union and explained its situation in the meeting. That is what its
agreement with the union contemplated. It is not good enough for the respondent
to say it saw no purpose in going to a meeting only to say this. The respondent
stood to lose nothing by going to the meeting but, by not going to the meeting, it
created an environment which made the workers and Visser feel aggrieved and
frustrated and perceived the respondent as an employer who did not honour
agreements. All this might have been avoided if the respondent simply held a
meeting with the union and explained its situation.
[50] The respondent also says it never refused to meet. I do not know how the
respondent believes that anyone can accept this in the light of all the evidence in
this case in regard to the union’s various requests for meetings and the fact that
the respondent never responded by agreeing to meet. Quite clearly the respondent
was not prepared to meet or it wanted to delay such a meeting so unreasonably
that it amounted to refusing to meet. I find that this conduct on the respondent’s
part was a major, if not the sole, cause for the strike.
[51] The next issue is whether the respondent had not signed the wage
agreement at the time the workers went on strike and whether that contributed in
any way to the workers going on strike. The respondent’s version was that as at
the time of the strike it had not been provided with a typed agreement by Visser
as previously agreed. For that reason, so the respondent implies, there was
nothing for it to sign. Visser testified that she had previously furnished Mr
Pollard with a typed copy of the wage agreement but that the respondent had not
signed it. Under cross examination Pollard was referred to the fact that clause 11
of the document which contained a summary of the points agreed at the meeting
of the 11 th November said the parties had agreed to amend clauses 15 and 17.1
of the wage agreement and that the “wage agreement would now be signed” .
Pollard was asked how he could explain clause 11 if he had not been provided
with a typed wage agreement before. Pollard was unable to explain this. I find in
all the circumstances that the respondent had been provided with a typed
agreement before the strike but that it had not signed it, hence the terms of clause
11. In this regard Visser’s evidence is corroborated sufficiently by the
documentary evidence. I think this also must have played a role when the
workers decided to go on strike, albeit not as important a role as the respondent’s
failure to meet with the union to explore the implementation of an annual bonus.
[52] I accept that the union had itself not signed the wage agreement as at the
time of the strike. I accept, too, that the reason advanced by Visser for the union
not having signed the wage agreement reflects badly on the union. It seems on
her evidence that she had no authority to sign the agreement and that those who
had the requisite authority to sign were not keen to do so because the union’s
official stance was not to negotiate at plant level but at industry level and for it to
sign a plant agreement would have been embarrassing and would have
contradicted its official policy. It is unacceptable that the union engaged in wage
negotiations with the respondent in circumstances where it would be reluctant to
sign the resultant agreement.
[53] With regard to the fact that the respondent reneged on the agreement that
the workers could be represented by a union official, Rachel Visser, in the
disciplinary inquiries, the respondent admitted that Mr Pollard had agreed to this
at the meeting he had with the union on the 11 th November 1997. It also
admitted that it later on reneged on the agreement. The applicants contended that
this also made the dismissal of the individual applicants unfair. The respondent
sought to justify its decision not to honour its agreement in this regard on the
basis that Mr Pollard was not familiar with the internal policy of the respondent
nor was he familiar with the provisions of the Act in regard to the representation
of workers in disciplinary inquiries. In effect the respondent’s argument was that
in terms of the internal policy and the Act there was no provision for a union
official to represent employees other than shop stewards in internal disciplinary
inquiries and that, had Mr Pollard been aware of this, he would not have agreed
to Visser representing employees in the disciplinary inquiries.
[54] The defence raised by the respondent to justify its breach of the agreement
that it (represented by its manager Mr Pollard) entered into with the union is
untenable and bad in law. Firstly, if Mr Pollard was not aware of the internal
policies of the respondent on representation of employees in disciplinary
inquiries or if he was not familiar with such provisions of the Act as might have
been thought relevant, he should have first sought advice before committing the
respondent to any agreement with the union. Secondly, the issue is not whether
or not the internal policy of the respondent or the Act contains provisions for a
union official to represent union members in disciplinary inquiries. The issue is
whether there is anything in the Act and in such internal policies that precludes
the parties concluding such an agreement.
[55] Contrary to what Mr Cedras, the personnel officer of the respondent,
seems to have believed, there is nothing both in the respondent’s internal policy
on representation of employees in disciplinary inquiries as well as in the Act
which says an employer and a trade union may not enter into an agreement such
as the one that Mr Pollard concluded with the union on representation of workers
by Visser in disciplinary inquiries. Accordingly the respondent was not justified
in reneging on that agreement and it should have allowed Visser to represent the
workers at the disciplinary inquiries. Its failure to do so rendered the dismissals
procedurally unfair. Subject to what I will say below I have therefore come to the
conclusion that on this ground, too, the dismissal of the individual applicants by
the respondent in November 1997 was unfair. Mr Quinton Alexander’s dismissal
would not be rendered unfair by the respondent’s reneging on this agreement
because in his case the respondent agreed to Visser representing him as he was a
shop steward. However, his dismissal remains unfair by reason of the
respondent’s violation of the parity principle as already indicated above.
[56] In so far as it may be argued that the terms of the judgement of Nestadt
JA did not make it clear that the Appellate Division decided the Freegold matter
on principle, I have considered the possible argument that the Labour Appeal
Court judgements in Amcoal Colliery &Industrial Operations Ltd v NUM
(1992) 13 ILJ 359 (LAC), NUM & others v Amcoal Collieries & Industrial
Operations (Ltd)(1992) 13 IJL 1449 (LAC) and in Freegold (1993) 14 IJL
341 (LAC) are binding on me and that, for that reason, I should follow them.
[57] I am of the opinion that those judgements are not binding because they are
judgements of the old Labour Appeal Court in which a single judge sat with
assessors. Those judgements are like judgements of another division. The old
Labour Appeal Court, unlike the present one which is at the level of the Supreme
Court of Appeal in respect of labour matters, was at the same level as the present
Labour Court. Furthermore, I consider that the Appellate Division made a strong
enough indication, in the Freegold matter, at least, that the unfairness of the
dismissals in that case was due largely to the fact that they offended against the
parity principle. In those circumstances I conclude that the decision I take in this
matter is one which I am at liberty to take. At any rate this case is very similar to
the Freegold one. I am satisfied that, were a higher court to deal with a matter
such as this one, it would adopt the approach I have adopted.
[58] In so far as there may be some individual applicants who in their evidence
testified that they did not consider their dismissals to have been unfair, I exclude
them from the finding that the dismissals of the individual applicants were unfair.
It seems to me that the applicants who took the attitude that they did not regard
their dismissals as unfair cannot be said to have a dispute with the respondent
about the fairness or otherwise of their dismissals. In fact they agree with the
respondent that their dismissals were fair. In those circumstances such applicants
have no dispute with the respondent which this Court must adjudicate.
Relief
[59] With regard to relief, some of the individual applicants seek reinstatement
with limited back pay while others do not seek reinstatement but only seek
compensation. I will deal with each group separately hereunder.
Reinstatement
[60] The individual applicants who continue to seek reinstatement are:
1. Q. Alexander, the second applicant;
2. J. Japhtha, the fourth applicant;
3. E. Jonkers, fifth applicant
4. C. Damon, sixth applicant.
[61] Sec 193(1)(a) of the Act makes reinstatement the primary remedy in the case of an
unfair dismissal unless certain grounds exist to justify that reinstatement should not be granted
in a particular case. It seems to me that the respondent has not advanced any valid reason why
reinstatement should not be granted to those individual applicants who wish to be reinstated.
Indeed, some of their colleagues who were guilty of the same conduct were never dismissed
and were allowed by the respondent to continue working for it. Accordingly I consider it
appropriate to order the reinstatement of these individual applicants.
[62] The next question that arises is from when the reinstatement order must run. Mr
Steenkamp, who appeared for the applicants, submitted that it would be appropriate that such
reinstatement order should run from the 1 st June 1998. This, he said, would in effect impose a
suspension without pay of six months on these individual applicants for engaging in an
unprocedural strike. I intend giving effect to this suggestion because it is proposed by the
applicants’ attorney but I am not sure that it is not itself a further selective penalty which is yet
again being visited upon workers who have already been subjected to an earlier act of selective
discipline. I say this because those workers who were guilty of the same conduct but who were
not dismissed were never made to forfeit any salary or were never subjected to any form of
suspension without pay. To now impose some form of suspension without pay on these
workers may well be a case of double punishment. I nevertheless will give effect to the
applicants’ wish in this regard.
Compensation
[63] Three of the applicants do not wish to be reinstated but seek compensation. They are :
5. C. Cornelissen, the third applicant;
6. N. Balie, the seventh applicant, and
7. G. Groepies, the eighth applicant.
[64] I have found the dismissals to be both substantively and procedurally unfair
substantively unfair because like cases were not treated alike procedurally unfair because the
employees were not allowed to be represented by a union official in circumstances where the
respondent had agreed that they could be represented by a union official, namely, Miss Rachel
Visser. I have been asked to award them compensation equal to 12 months’ remuneration. The
applicants say an award of compensation amounting to twelve months’ remuneration takes into
applicants say an award of compensation amounting to twelve months’ remuneration takes into
account that there was a delay of about four months in the processing of this dismissal dispute
for which they accept responsibility. These particular applicants were paid at a rate of R275,00
per week, R308,00 per week and R310,00 per week respectively. If their compensation is to be
equivalent to 12 months’ remuneration, they would get R14190,00, R15892,80 and R15996,00
respectively in compensation.
[65] In so far as the unfairness of the dismissal of the individual applicants in this case was
based on the fact that they were treated unfairly differentially in relation to their colleagues
who only got away with final written warnings for the same misconduct, this is a dismissal
which is unfair because the employer has failed to prove that the reason for dismissal was a
fair reason related to the employees’ conduct. That brings this case under sec 194(2) of the
Act. Sec 194(2) of the Act says compensation must in such a case be just and equitable but not
less than the compensation that such employee would have obtained under sec 194(1) of the
Act if his/her dismissal had been found to be unfair only because the employer did not follow a
fair procedure. Sec 194(2) also says compensation in such a case must not exceed the
equivalent of 12 months’ remuneration.
[66] Subject to such reduction on the amount of compensation as would have to be effected
under sec 194(1) of the Act owing to the delay in processing the dispute, if the unfairness was
due only to the employer’s failure to follow a fair procedure, the applicants would have got
compensation from the date of dismissal to the last date of the hearing. In Johnson & Johnson
(Pty) Ltd v CWIU [1998] 12 BLLR 1209 (LAC) at 1220EG the Labour Appeal Court held
that the last day of hearing as contemplated in sec 194(1) is the last day of the hearing when
the parties appeared in court and not the day when judgement is handed down. In deciding this
the LAC failed to deal with the reasons given in the judgement of the Labour Court on why the
last day of hearing should be accepted as the day when judgement is handed down. The reason
the LAC gave for its decision in this regard was that it would amount to penalising the
employer for the judge’s delay in handing down his judgement. In my view that would not
employer for the judge’s delay in handing down his judgement. In my view that would not
amount to penalising the employer.
[67] A delay (in the finalisation of a matter) which is caused by the fact that the judge has
reserved judgement is not, in my view, any different from a delay caused by the unavailability
of, for example, a court room or a Judge. If there is no court room available, a matter which is
otherwise ready to be tried cannot be tried. This may cause postponements. Also a matter
which is ripe for trial may have to wait for a long time to reach trial if there are many other
cases before it which have to be tried whereas, if there are only a few cases in that court, such a
case may reach trial much sooner. In the case of a Judge who has reserved a judgement for a
long time, such delay may have nothing to do with fault on his part for example where such
delay is due to long illness.
[68] All delays such as those mentioned above are part of the ordinary litigation process and
they form part of the risks which are inherent in any litigation system. All those who get
involved in litigation take the risk that such delays may occur in their cases. In the light of this
I do not see how it can be said that to interpret the words “the last day of hearing” so as to
mean the day when judgement is handed down amounts to penalising the employer. The LAC
may well have to reconsider the correctness of its decision in this regard. However, as for now
I must follow that decision. In this case the last day of the hearing was, therefore, the 29 th
April 1999. Under sec 194(1) that would mean compensation equal to 17 months’
remuneration.
[69] If, from 17 months, a period of four months was deducted for the delay which was
caused by the applicants, that leaves 13 months. Compensation under sec 194(2) is required
not to exceed 12 months compensation. The respondent has not argued that, if compensation is
to be granted, there is any particular reason why it should be less that 12 months remuneration.
In those circumstances it seems appropriate, just and equitable to award compensation in an
amount equal to 12 months remuneration.
[70] In the premises the order I make is the following :
8. Subject to 2 below, the dismissal of the individual applicants by the respondent in
November 1997 was unfair both substantively and procedurally.
9. The order in 1 above does not apply to any individual applicant whose evidence may
9. The order in 1 above does not apply to any individual applicant whose evidence may
have been to the effect that he/she did not regard his/her dismissal as unfair or words to
that effect.
10. The respondent is ordered to reinstate those of the individual applicants who still seek
reinstatement (and who are not excluded from the operation of par 1 above by virtue of
par 2 above) in its employment on terms and conditions no less favourable to them than
those which governed their employment immediately before their dismissal.
11. Subject to the order in par 7 below, the order in 3 above is to operate with retrospective
effect from 1 June 1998.
12. The individual applicants referred to in 3 above shall be paid compensation which is
equivalent to the remuneration they would have earned for a period of 13 months
calculated at their respective rates of pay applicable immediately before their
dismissals.
13. The respondent is ordered to pay to each one of those individual applicants who no
longer seek reinstatement but only seek compensation an amount which is the
equivalent of each such applicant’s 12 months’ remuneration calculated at the rate of
pay which was applicable to such individual applicant at the time of his/her dismissal.
14. The amount of compensation due to each applicant who is not excluded from the order
in 1 above by virtue of the order in 2 above (including those individual applicants who
seek compensation only) is limited to the amount appearing against such individual
applicant’s name in annexure “A” to this judgement.
15. There is to be no order as to costs.
R. M. M. ZONDO
Judge of the Labour Court of SA
Date of Trial : 08 12 March and 2629 April 1999
Date of Judgement : 20 July 1999
For the Applicants : Mr A. Steenkamp
Instructed by : Cheadle Thompson & Haysom
For the Respondent : Mr Krige
Instructed by : K. G. Druker & Associates
Annexure “A”
Second Applicant = R16 800 [R350 per week times 48 weeks]
Fourth Applicant = R14 850 [R310 per week times 48 weeks]
Fifth Applicant = R14 850 [R310 per week times 48 weeks]
Sixth Applicant = R14 784 [R308 per week times 48 weeks]
The amounts for the three applicants seeking only compensation amounts to:
Third Applicant = R14 190 [R275 per week times 12 months]
Seventh Applicant = R15 892.80 [R308 per week times 12 months]
Eighth Applicant = R15 996 [R310 per week times 12 months]