C2/0062
VIC & DUP/JOHANNESBURG/LKS
IN THE LABOUR COURT OF SOUTH AFRICA
HELD AT JOHANNESBURG
DATE: 10 MARCH 2000 CASE NO. J853/00
In the matter between:
NATIONAL UNION OF MINEWORKERS AND OTHERS Applicants
and
VIA DORO MANUFACTURING LTD Respondent
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JUDGMENT
_____________________________________________________________________
PILLAY, AJ :
[1] The facts of this matter were that the respondent was unable to pay workers at the end of January 2000 as
was the practice. The applicant's members withheld their services once they were paid. They were paid
on 4 February 2000.
[2] However, on 2 February 2000 the respondent instituted a lockout which remained in place until 28
February. Whilst the lockout was operative, the respondent gave notice on 18 February of its intention to
retrench workers for operational reasons. According to the respondent the workers had been laid off. The
applicant regarded the lay off as tantamount to a dismissal as its members were not working and were not
getting paid. Mr Cassim, who appeared for the respondent, was emphatic that the members had not been
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dismissed.
[3] This application was originally aimed at securing an interdict against the lockout and certain ancillary relief.
As the lockout had been lifted the applicant now seeks an order for restraining the respondent from
dismissing, alternatively laying off the applicants and certain other relief.
[4] The first question is whether the withholding of the labour by the second and further applicants amounted
to a strike. Clearly the answer must be a firm “no.” [Vide Coin Security (Pty) Ltd v The Guards and Allied
Workers Union (1980) 4 SA 234 at 239; also at Wallis, Labour and Employment Law at page 14.] The
members were entitled to withhold their services for as long as the respondent was unable to perform its
part of the contract. The withholding of the services was one of several remedies available to the second
and further applicants.
[5] The respondent relied on section 32(3) of the Basic Conditions of Employment Act which states that an
employer must pay remuneration not later than seven days after the completion of the period for which
remuneration is payable. This section must be read with the contract of employment. It does not preclude
employees from being paid on the last working day of each month in order to prevent them from
withholding their labour if they are not paid in accordance with their contract. It merely gives the
employees an additional remedy if they are not paid within seven days after the remuneration becomes
payable. Having established that there was no strike, it follows that there was no basis for the lockout.
[6] The lockout was also not defensive. The respondent implemented it with the demand that certain
preconditions must be met before the second and further applicants return to work. The preconditions
which were contained in a letter required the applicants to agree to new terms of their employment. In
particular the second and further applicants were expected to accept that they would be dismissed if they
did not meet production targets and acknowledge that they might be retrenched.
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[7] Furthermore, the lockout continued long after the members were remunerated. Consequently the issue of
the tender of services is immaterial, whether there is a dispute of fact about the tender of services is
equally irrelevant. As it happens the members did tender their services against payment of their
remuneration.
[8] Mr Cassim submitted that as there was a dispute of fact about the tender of services, then the court should
accept the respondent's version and refuse the application. The respondent's version is not that they did
not tender services but that they did not do so on its terms.
[9] I find, therefore, that the lockout was unlawful.
[10] The additional dimension to the matter is that the respondent instituted proceedings in terms of section 189
of the Act. Section 67(5) does not preclude an employer from dismissing for operational reasons
employees who participate in a protected strike. The subsection is silent about dismissals for operational
reasons during a protected lockout. If it were the intention of the legislature to give employers the weapon
of retrenchment additional to a lockout, it would have said so expressly. On a retrenchment during a
protected strike when the employees maintain a modicum of control in that they can call off the strike. They
will be disproportionately disadvantaged if the doublebarrelled weapon of a lockout retrenchment were
available to the employer. Nothing stops the respondent from proceeding with the retrenchment after the
lockout. [Vide SACWU and Others v Afrox Ltd (1998) 2 BLLR at 172EG.]
[11] The applicants are at a disadvantage. They cannot engage with the employer meaningfully. The
consultations cannot be in good faith if the applicants lack the wherewithal to even meet to discuss with the
first applicant and the respondent about their possible retrenchment. Being laid off may also result in their
retrenchments being a fait accompli .
[12] The respondent had pinned the consultation period to conclude by 9 March 2000. The applicants have not
engaged with the respondents meaningfully about the retrenchments to date. The possibility of their
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impending retrenchments makes the applicant urgent. The respondent also regards the retrenchments as
urgent as would appear from its letter dated 28 February 2000.
[13] In the circumstances I grant an order in terms of paragraph 1 to 6 of the amended order prayed.
__________
PILLAY AJ
LABOUR COURT OF SOUTH AFRICA
: MR P M MTSHAULANANA
: Attorney Maserumule
: MR P BAM
: Roodt and Wessels
: 10 MARCH 2000
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