IN THE LABOUR COURT OF SOUTH AFRICA
HELD AT JOHANNESBURG
CASE NO J1405/97
In the matter between:
STEEL MINING AND COMMERCIAL WORKERS UNION First
Applicant
HENDRIK MOELA AND OTHERS Second and further
Applicants
and
S P CLEANING SERVICES CC Respondent
JUDGMENT
JAMMY AJ
1. The Applicants in this matter were part of a larger group of
employees of the Respondent who were dismissed on 29
August 1997, allegedly for participating in an illegal and
unprotected strike and their refusal to comply with
successive ultimatums from the Respondent to return to
work. They contend that they were not on strike and that
their subsequent dismissal was unfair. They seek
reinstatement or compensation.
2.THE APPLICANTS' EVIDENCE
Mr Hendrik Moela, the principal witness for the Applicants, was
a shop steward. There was in existence at the time, an
agreement between the Union and the Respondent in terms
of which the Respondent had undertaken to effect payment
of the salaries of its employees by payment into their bank
accounts "one or two days before the last working day of
every month." The last working day of August 1997 was the
29th, a Friday. Pursuant to the agreement therefore, the
employees' salaries should have been available to them on
that basis by the 27th or 28th of that month. On the
morning of the 28th however, and on their way to work, a
number of the Applicants had endeavoured to withdraw
their money through Automatic Teller Machines, only to find
that it was not yet standing to their credit. During their
lunch break the same day (12.30 pm to 1 pm), they again
visited the bank, only to find that their wages had
apparently not yet been paid. Rather than returning to work
at 1 pm therefore, the workers held a meeting to determine
what course of action they should take in the face of this
apparent breach by their employer of the agreement in
question. It was resolved that Mr Moela should go to the
office and request his supervisors to telephone the owner of
the company, Mr S Pogorelsky, and request him to come to
the premises where they were working and explain to them
why their wages were not available.
3. The telephone call was made and he was then informed by
the supervisors, said Mr Moela, that Mr Pogorelsky had
stated that he had nothing to say to him. He reported this
to his fellow employees and was directed to return to the
supervisors and ask them to telephone Mr Pogorelsky again
and ascertain, once again, why they had not been paid and
why he was not prepared to discuss the matter with them.
The situation was exacerbated, said Mr Moela, by the fact
The situation was exacerbated, said Mr Moela, by the fact
that certain of the employees had applied for and been
granted short periods of leave and required their money
before they left.
4.The second call was duly made and Mr Pogorelsky's refusal
to meet with the employees repeated. In addition, on this
occasion, he apparently intimated that he would now charge
interest on monies loaned by him to various employees and
that the leave granted would be regarded as unpaid.
5. At his request, said Mr Moela, the supervisors wrote down
what Mr Pogorelsky had told them and he took this back to
the employees who, for a third time, instructed him to go
back and request the supervisors to telephone Mr
Pogorelsky again with the same request. On that occasion
however, and before a further call was made, the
supervisors informed him that Mr Pogorelsky had
telephoned his union, and that the union's instructions were
that "they should leave the premises." They did not do so
however and waited until "knock-off" time in case Mr
Pogorelsky arrived. He did not however do so.
6.The workers returned the following morning, donned their
uniforms and, said Mr Moela, went to the office where they
normally sign on, but found it locked. The union organiser
was however present and a meeting with the owner then
ensued. What then occurred, Mr Moela testified, was that
having been told by the organiser that the workers had
reported for duty, he indicated that they were not to work
that day. They were handed their pay slips and told to
return on the following Monday.
7. On that day, 1 September 1997, they again arrived at their
workplace, donned their uniforms and proceeded to the
office to sign on only to find, once again, that it was locked.
Mr Pogorelsky was present and informed them that they
were to return all their working material. Their electronic
access cards were taken back and they were informed that
their services had been terminated the previous Friday and
that they could now "do what you want."
8. He enquired of Mr Pogorelsky, Mr Moela testified, how the
dismissal had been effected since no written notice thereof
had been handed to the employees. They were informed
that no further notice was necessary and that if they refused
to leave the premises, the Police would be summoned. They
remained where they were however, and when the Police,
who were then called, eventually arrived, they commented
that they had been informed by the owner that the workers
had been dismissed. Their response, said Mr Moela, was
that whilst the dismissal the previous Friday was not
disputed, they required written notification thereof and the
return of their UIF cards. The response from the Police was
that if they wished to do so, they should "open a case" and
they then left the premises with that intention.
9. In the course of comprehensive cross-examination by Mr S
Snyman, representing the Respondent, Mr Moela was
adamant that the workforce had not embarked upon a
strike. They were not refusing to work, he said, - all they
wanted was "for the owner to come and explain why we had
not been paid by 11h00 on 28 August in terms of an
agreement of undertaking by the owner to do so." When it
was put to him that that allegation had not been raised
either in the pleadings or in his evidence in chief, Mr Moela
responded that the undertaking had been given some days
previously.
10.It was correct, Mr Moela acknowledged, that the workers
had not commenced work at 1 pm on 28 August. They were
waiting for a report-back, he said, and continued thereafter
to wait for the owner to come to the premises and explain
why they had not been paid.
11.Mr Moela was then referred to three written ultimatums,
each of which was in substantially the same terms,
recording the employer's perception that the work stoppage
in which they were engaged constituted an unprocedural
and unprotected strike, calling upon them to resume their
normal duties forthwith and advising them that if the
ultimatum was not complied with within one hour, they
would "expose themselves to the sanction of dismissal."
Each of these ultimatums concluded with the words "By
order of Management," the time of issue of the first of them
being recorded as 13h30, the second as 14h30 and the
third, at 15h00, in this instance however, calling upon the
employees to return to work at 07h30 on 29 August 1997.
12.He had not seen these ultimatums before, said Mr Moela.
What occurred on the afternoon of the 28th August was that
he was informed that the company had telephoned the
trade union and that a meeting with the trade union
organiser had been arranged for the following morning.
They assumed that the issue would be resolved at the
meeting scheduled for that time.
13.At that meeting, Mr Pogorelsky, his Industrial Relations
Adviser, the Union Official and he himself were present.
Nothing was discussed. As soon as they arrived, said Mr
Moela, they were given their pay slips and told to go and
return the following Monday. They understood that the
reason for this was that they would then receive their
outstanding documents and money. He was present during
all discussions between the Union Official, Mr Mandla, and
Mr Pogorelsky but had not heard Mr Mandla report that the
workers refused to listen to him or to his recommendations
that they should return to work.
14.Ms Agnes Khwababa, the next witness for the Applicants,
corroborated Mr Moela's evidence in all its material
respects. They had not received notices of termination of
their employment, she said, but on 29 August had simply
been told that they should leave. She had never seen the
three ultimatums allegedly issued on 28 August, she stated.
15.THE RESPONDENT'S EVIDENCE
Mr Shelton Pogorelsky is the managing member of the
Respondent close corporation which, he testified, carries on
the business of a contract cleaning company, providing
cleaning services to commercial and industrial clients at
their own premises. The Applicants in this matter were, at
the time of their dismissal, employed at Spartan on the East
Rand, performing cleaning services for Auto Industrial, a
contracted client of the Respondent.
16.On 28 August 1997 at approximately 1 pm he received a
telephone call from one of his supervisors at the site to the
effect that the employees there were refusing to continue
with their normal duties and had held a meeting. Their shop
steward was demanding that all of them receive their
salaries for the month immediately and that he was to
attend the premises to explain why these had not been
paid. He was otherwise committed however, and was
unable to do so but indicated that he would take advice in
the interim from the Respondent's Labour Consultants, the
National Employers Forum, and revert.
17.He did so and was advised by his consultants that the
proper procedure was to issue ultimatums to the employees
in appropriate terms and that they, the consultants, would
attend to the drafting and submission thereof.
18.Shortly thereafter he received a second telephone call from
the supervisor who put the shop steward, Mr Moela, on the
line. Mr Moela stated that "the people wanted their salaries
immediately" and that he was to come to the premises to
discuss the matter. He explained that he was unable to do
so but that the employees should continue working and he
would "sort out the situation" as soon as possible. This was
rejected.
19.Since 1985, said Mr Pogorelsky, employees' salaries had
always been paid by direct deposit of the aggregate amount
thereof to the First National Bank which in turn appropriated
the amounts due to the individual employees to their
respective bank accounts. No payments were ever made on
site and the employees were fully aware of this procedure.
20.He had been informed by his consultants that the staff
should receive three ultimatums which, if all were ignored,
would entitle him to dismiss them. That was not his
intention however. He had always had a good relationship
with his employees and had no doubt that, with discussion,
the problem could be resolved. Dismissal would prejudice
the company as well as the employees. It would be unable
to discharge its cleaning contract with its customer and
would suffer a concomitant loss of income.
21.He decided therefore, whilst the ultimum procedure was
being followed, to telephone the union office. His
relationship with the trade union had similarly been a good
one and he had been invited to communicate with them if
he ever had a problem. He advised the union what was
occurring and it was arranged that a union representative
would meet him, his Labour Consultant, and the shop
steward and employees the following morning on site. The
workers had, in the meantime, refused to work at all that
afternoon.
22.The arrangement that salaries would be paid within a day
or two of the last working day of the month was a flexible
one, Mr Pogorelsky testified. This was usually the case but
on occasion, payment was made even earlier than that
stipulated time. In the present instance, he had drawn a
cheque and deposited it with the bank on the afternoon of
28 August. There may however been some administrative
delay within the bank, in designating and transferring
specific amounts to the individual accounts of the
employees.
23.The scheduled meeting was held at 7 am on 29 August.
The shop steward and the employees were informed by his
consultant that they were participating in an unjustified and
unlawful strike. The workers became aggravated and
irritated and the union representative, Mr Mandla, then
requested an additional half hour in order to discuss the
matter with them. He returned at 8 am to advise that he
had urged the workers to return to work, but that they
refused to listen to him and that there was nothing further
that he could do. On the advice of his consultant it was then
decided that they should be informed that they had been
dismissed.
24.As a result of these events, Mr Pogorelsky concluded, the
Respondent had been obliged to recruit replacement staff,
who were inexperienced and had to be trained in the
cleaning process, and as a consequence, lost two full days
income and was able to preserve the contract in question
only with difficulty. He did not believe that he had been left
with any alternative other than to dismiss the employees
concerned. He had never had any previous problem
regarding the payment of wages in the manner in which this
had now been done and had received no prior warning of
the industrial action upon which the employees had
embarked and which had come to him as an absolute shock.
25.The events on 28th and 29th August as described by Mr
Pogorelsky, were confirmed by Mr J H Schoeman, one of the
supervisors at the Spartan site at which the Applicants were
employed. The form of ultimatum drafted by the
Respondent's Labour Consultants was faxed through to the
supervisors shortly before 1.30 pm on 28 August, a deadline
of 2.30 pm was inserted, copies were made and the
supervisors then attempted to hand a copy to the shop
steward and to each of the employees involved. All of them
however refused to accept them or to read them. "They
would not even look at them, so we told them what they
were."
26.A second ultimatum, with an extended deadline of 3.30 pm
was issued at 2.30 pm in the same manner and with the
same result and eventually, at 3.30 pm they were instructed
to issue a third ultimatum, requiring the employees to
commence work at 7.30 the following morning. Once again,
the employees refused to accept or read it.
27.No work whatsoever was done on the afternoon of 28
August and he was present the following morning, said Mr
Schoeman, when, after further discussion, the union
representative, Mr Mandla, informed them that the
employees refused to listen to him and return to work. At
no time, since the work stoppage at 1 pm the previous day,
had any of these employees tendered their services or
offered to return to work. They were accordingly informed
that their services had been terminated and were instructed
to return their uniforms and access cards on the following
Monday morning.
28.CONCLUSION
It is not clear from the evidence presented in that regard, and
indeed there is some dispute, as to exactly when the wages
of the employees concerned became available to them. Mr
Pogorelsky's testimony that payment of the aggregate
amount thereof was made to the bank on the afternoon of
28 August is, on the face of it, contradicted by a letter from
the Respondent to the bank and enclosing the cheque in
question, which is dated 29 August 1997. That letter, Mr
Pogorelsky attempted to explain, was in fact post-dated, and
he remained adamant that the amount was physically paid
in the previous afternoon.
29.Whether or not that was the case however, Mr Pogorelsky's
testimony that the arrangement that salaries would be paid
within a day or two of the last working day of the month was
flexible and loosely applied, was not materially challenged.
Of significance in that context, is the fact that the work
stoppage, which I am left in no doubt commenced at 1 pm
on 28 August 1997 and continued unabated thereafter, was
an apparent reaction to the inability of the employees
concerned to obtain access to their monies the previous day
and that morning.
30.Both in the course of the submission of evidence and again
in his closing argument, Mr E Thenga, representing the
Applicants, submitted that the Applicants were at no time
demanding to be paid. What they consistently required, he
stated, was that the owner of the company attend at the
site where they were working in order to explain why the
money was not available. In that context, he contended,
they were not involved in strike action. They simply wished
to talk to their employer before proceeding with their work
and what in fact had happened, was that, by locking the
office where they would ordinarily have signed on, their
employer was in fact implementing an unprocedural lock-
out.
31.There is, in my view, no substance or validity in that
submission. Apart from the allegation that the employees
attempted to sign on on the mornings of 29 August and 1
September 1997, there is nothing in the evidence before me
to indicate that they made any other attempt to commence
work or in any other manner to tender their services. On
the contrary, the consistent stand taken by them and
conveyed by their shop steward, was that they would not do
so unless and until their employer attended at the premises
to provide the explanation which they required.
32.A "strike" is defined in Section 212 of the Labour Relations
Act 1995 as -
"............... the partial or complete concerted refusal to
work, or the retardation or obstruction of
work, ............ for the purpose of remedying a
grievance or resolving a dispute................"
33.I am left in no doubt that that is precisely what occurred on
28 and 29 August 1997 and there can equally be no possible
suggestion that the work stoppage in question was either
lawful or protected in the context of Section 64 of the Act.
The question that remains for consideration therefore, is
whether their dismissal as a consequence of that unlawful
conduct, was fair and justified in the circumstances in which
it occurred.
34.I have no hesitation in accepting, on a balance of
probabilities, that the three ultimatums tendered in
evidence by the Respondent were produced and tendered to
the Applicants in the manner and at the times described by
the Respondent's witnesses. I do not believe either Mr
Moela or Ms Khwababa that they had seen them for the first
time in this court, although it may well be that, in the
prevailing atmosphere, they refused to accept or read them
at the time. They were however, according to the
supervisor, told the nature and content of the documents
and I have no doubt that they were aware of and
understood their nature and import.
35.The insistence that Mr Pogorelsky attend at the site to
explain the unavailability of their salaries, was, in my view,
unreasonable. The Applicants must have been aware that
the work they were doing was being performed in terms of a
contract between the Respondent and its customer and that
that contract and the commercial relationship which it
evidenced, would of necessity be placed in jeopardy as a
consequence of their actions. Their precipitate aggression
appears to me to have been sourced in the unavailability of
funds to individuals who were about to go on leave. That
leave would however logically have commenced at the end
of the working month, namely Friday 29 August 1997 and
there is nothing in the evidence to suggest that the wages in
question, having been paid in at the latest that morning,
and on Mr Pogorelsky's version, the previous afternoon,
would not have been available during the course of that
day.
36.In those circumstances, the refusal to work was, in my view,
unjustified and the consequences thereof exacerbated by
the ostensibly contemptuous rejection of the three
ultimatums properly and, in the circumstances of the
matter, reasonably issued to the striking employees. I am
mindful moreover, in that regard, of the further opportunity
afforded to them the following morning, and through the
medium of their union representative, to reconsider their
position, and their absolute refusal to do so notwithstanding
his intervention.
37.I have concluded therefore, that in the prevailing
circumstances, the Respondent was, as Mr Pogorelsky
submitted, left with no alternative, in the face of its ongoing
contractual obligations to its customer, other than to
terminate the services of the employees involved and to
attempt to redress the situation in which it found itself by
the recruitment of replacement labour as a matter of
urgency.
38.In these circumstances, I am satisfied that the dismissal of
the Applicants was both justified and fair and their claims
are accordingly dismissed. No reason has been suggested
to me why an award of costs in this matter should not follow
the result and the Applicants are accordingly ordered to pay
the Respondent's costs, jointly and severally. This order will
not however apply to the Applicant, Agnes Khwababa, who,
for reasons best known to herself, initiated an independent
reference of her dispute to the CCMA, was unable to furnish
a satisfactory explanation for having done so, and has
accordingly been improperly joined in these proceedings.