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IN THE LABOUR COURT OF SOUTH AFRICA
HELD AT PORT ELIZABETH CASE NO P729/99.
In the matter between:
NATIONAL UNION OF METAL WORKERS
OF SOUTH AFRICA First Applicant
and
M LANGLEY AND SIX OTHERS Second and Further Applicants
and
DELTA MOTOR CORPORATION (PTY) LIMITED Respondent
_____________________________________________________________________________
JUDGMENT
_____________________________________________________________________________
JAMMY AJ
1. The Respondent in this matter is a manufacturer of motor vehicles and the Second and
further Applicants, until 2 August 1999, when they were dismissed, were employed by the
Respondent at its plant in Port Elizabeth in various capacities on what is known as the
“assembly line”.
2. The charge that they faced in disciplinary proceedings instituted against them individually
was that –
On Thursday, 1 July 1999, you embarked upon an unprocedural work stoppage despite
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communications issued by the company advising that any such action would be dealt with most
seriously. You persisted in your refusal to resume your normal duties despite repeated
instructions. You also refused to conform to a final ultimatum which was given to you. Your
actions directly resulted in a loss of 4 ½ hours production time which equates to 61 reduction units”.
3. Certain salient facts in this matter are not in dispute. The Respondent’s plant employees are
weekly-paid and in terms of their contracts of employment their wages are paid to them by
way of electronic transfer into each employee’s banking account by the Respondent’s bank
Absa, Limited. Although there is no contractual obligation requiring this, it has become the
practice over a long period of time for the Respondent to deposit the entire payroll for hourly
paid employees on the Wednesday following the week in respect of which that remuneration
is due and for the bank to effect the electronic transfers to the individuals’ bank accounts on
a basis which will render those wages available for withdrawal through automatic teller
machines at one minute past midnight the next (Thursday) morning.
4. It is common cause that notwithstanding the deposit by the company with the bank of the
relevant payroll on Wednesday 30 June 1999, the electronic transfer by the bank to the
individual employees’ accounts was, through no fault of the Respondent, delayed and that
wages were not available through automatic teller machines just after midnight on the
morning of Thursday 1 July 1999 as would otherwise normally have been the case.
5. Mr E D Hattingh the Respondent’s employee benefits and services manager, responsible inter
alia for payroll administration, testified that on 30 June 1999 at approximately 4.00 p.m. he
was informed by the payroll supervisor that, in computer terms, the payroll upload to Absa
was informed by the payroll supervisor that, in computer terms, the payroll upload to Absa
Bank had been rejected. He immediately contacted the bank manager who could not explain
the reason but who undertook to investigate the problem and revert as soon as possible.
Shortly after 5.00 p.m. that afternoon said Mr Hattingh, he was informed by the manager that
an internal problem had occurred, that it would be addressed as a matter of urgency and if
necessary by working through the night and that employee wages would be available
electronically by midday the next day, Thursday, - that is to say, some twelve hours later than
normal.
6. In the light of these developments. steps were immediately taken for notices to be posted the
next morning at the two automatic teller machines on the Respondent’s premises to that
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effect. He also met immediately inter alia with the Union shop steward, a certain Mr Mngini
and informed him what had occurred, that it was beyond the control of the company and that
the bank had undertaken to work through the night to ensure that all wages would be
electronically credited to the bank accounts of the individual employees by midday the next
day. Mr Mngini, Mr Hattingh said, “seemed to appreciate the problem”.
7. The next morning, Mr Hattingh continued, he attended at the Respondent’s Industrial
Relations offices where a number of shop stewards were present and conveyed the same
information to them. In the result, wages were available in terms of the bank’s undertaking,
at midday that day.
8. Questioned by Mr D Cartwright, representing the Applicants, regarding two previous
occasions in June 1999 upon which wages had not been available in terms of the prevailing
arrangement, Mr Hattingh responded that, in both those instances, the Wednesday of the
week in question was a public holiday and it had not been possible for the Respondent to
upload the payroll into the bank’s system. Save for those instances, the system had been
working efficiently since approximately 1996. It was not true that the notices on the
automatic teller machines had been placed there some time after 9.00 a.m. on the Thursday
morning. This, Mr Hattingh repeated, had been done shortly after 7.00 a.m. and in fact he
and the supervisor who attended to that aspect of the matter had specifically come to work
early for that purpose.
9. When he met the shop steward, Mr Mngini, shortly thereafter, he was not aware, and was not
told, what was happening on the shop floor. He learned during the morning that there was a
work stoppage at the plant but he did not have details at that stage.
10. Mr A S Alexander, the next witness for the Respondent, testified that in July 1999 he was the
manager of the assembly line at the Respondent’s Kempston Road plant on which the “build
process” of Isuzu Bakkies was carried out. This assembly process involves what is known as a
trimline, where “smaller type parts” are installed, and an assembly line relating to the
installation of the chassis, underbody, seats, wheels, bumpers and so forth, all necessary
fluids and the engine. In short said Mr Alexander, he starts “with the shell” and everything
else is added on a conveyor system on which teams of workers are involved in different
aspects of the process.
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11. If one team does not perform, he said, “the vehicle goes offline as an uncomplete vehicle,
something will be missing”. This in turn will necessitate overtime work to complete the
vehicle, which cannot be put back on the line at the point at which the disruption occurred.
12. The point of assembly in question in this matter is known as the TF assembly line. The line
operates on a shift system and the relevant shift in this matter was that from 7.00 a.m. to
3.20 p.m., during which, in the ordinary course with all labour “online”, 95 complete units will
be produced. On 1 July 1998 however, only 28 units came off the line, - more than 60 less
than the scheduled number.
13. Shortly after 7.00 a.m. on the morning of 1 July 1999, Mr Alexander continued, he was
informed by the Production Superintendent, Mr Phillips, that there was a work stoppage in the
plant. He went there immediately and found that “the line had stopped in the pit area, where
underbody work is performed, - parts, brakes and repairs”. The pit, he explained, is a long
trench under the conveyor belt on which, at the time, vehicles were standing.
14. The seven Applicants in this matter comprised the team at that point, together with another
employee by the name of Boggenpoel. Mr Alexander was then joined by the Respondent’s IR
Manager, Mr Kosani, and they ascertained from the shop steward, Mr Mngini, the reason for
the stoppage – that the employees’ money had not been available through automatic teller
machines that morning. Mr Mngini spoke to the group and then reverted to them to confirm
that they were not prepared to work because they had not been paid. Their request that the
individuals return to their duties and that the problem be discussed responsibly off the plant,
was refused. They persisted in their attitude that they would not work unless they were paid.
15. He remained on the line, said Mr Alexander and shortly after 8.00 a.m. requested his
supervisor, Mr Phillips, “to check and see who was not doing what he should be”. It was
established that the line could not run past the pit area where the eight individuals were
refusing to work.
16. Between 9.00 and 10.00 o’clock Mr Kosani had further discussions with the shop stewards,
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requesting them to “get the guys back” and inform them that the situation would be assessed
at 10.30 a.m. The shop stewards were informed that what was occurring was an
unauthorised work stoppage and that disciplinary action would be taken against the
participants if the refusal to work continued.
17. The line was started again at 10.30 a.m. at which stage seven of the eight people involved
and comprising the Applicants in this matter, were still in their civilian clothes and not willing
to work. Mr Boggenpoel however had returned to his post. In the result “units were going off
the line incomplete”. The Applicants were standing away from the line in what is known as
the EPG area, where teams congregated when not working. There were other individual
employees, who had completed as much of their work as was possible in the face of the
obstruction at the pit area and who were “milling around in work clothes in the smoking
area”. No one other than the seven Applicants indicated or suggested a refusal to work
normally at that stage. Stoppages on the line however continued and in an attempt to get it
running smoothly, it was decided that another area of the plant would be closed and that
employees there would be utilised to carry out the Applicants’ functions on the assembly line.
The Applicants in the meantime, were repeatedly requested to return to work and
consistently refused to do so, notwithstanding a warning to them that they would be
disciplined if that refusal continued. They were subsequently suspended, disciplinary
enquiries followed and they were ultimately dismissed.
18. A meeting between himself, Mr Kosani and “IR people” with the shop stewards took place
between 9.00 and 10.00 o’clock and ended shortly before 10.00 o’clock with the shop
stewards being requested to convey to the workers concerned, that an attempt would be
stewards being requested to convey to the workers concerned, that an attempt would be
made to start the line at 10.30 a.m., with disciplinary consequences for anyone who refused
to return to work normally at that time. It was correct that whilst he was on the shop floor
between 8.00 a.m. and 9.00 a.m., employees in the pit area and others outside it were not
working. The attempt to start the line at 8.30 a.m. had been futile and it was at that stage
that he instructed Mr Phillips to direct team leaders to approach all workers on the line and
ascertain who was prepared to work normally and who was not. In due course Mr Phillips
returned with the names of eight persons refusing to work after the attempt to start the line
was made.
19. Once he ascertained the names he instructed Mr Phillips to assemble the persons concerned
in the EPG area. He did so and once again attempted to get them to return to work, to no
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avail. Another attempt was made at 10.30 a.m., following further discussions with the shop
stewards and an opportunity to them to see if they could persuade the employees concerned
to start work, to ascertain finally who was prepared to and who was not. The seven
Applicants at that stage were the only persons refusing to resume their duties. That group
was again assembled in the EPG area and was told to remain there, it being the company’s
intention now to suspend them.
20. When it was put to him that what had in fact happened was that the employees who had not
received their wages had indicated to management that they would be prepared to work if
the company would either give them money to purchase, or would itself provide, something
to eat and drink, Mr Alexander declined to comment as he was not involved in those
discussions, he said. It was not true however, that no attempt was made to start the line at
8.30 a.m. because no one was working. A full record of all stoppages and starts was
maintained at all times.
21. Mr Bruce Phillips, who was the co-ordinator of the assembly and trim lines in July 1999,
reporting to Mr Alexander, explained the impact of the Applicants’ refusal to work on the
assembly process and defined their functions. The Second and Third Applicants Mr Langley
and Mr Van Wyk, worked in the pit. The Third Applicant, Mr Cedras, was a repairman on the
assembly line, working in the vicinity of the pit. The Fifth Applicant, Mr Brainers, worked in
what was known as the body drop area, operating the hoist used to join the vehicle body to
the chassis. The function of the Sixth Applicant, Mr Padayachee, was to secure battery cables
and harness. His position on the line is 3 stations away from the drop zone, whilst the pit is 7
stages from that point. The Seventh Applicant, Mr Mantoor works inside the vehicle over the
stages from that point. The Seventh Applicant, Mr Mantoor works inside the vehicle over the
pit, fitting under-covers. The Eighth Applicant, Mr Tarentaal, works in the pit together with Mr
Langley and Mr Van Wyk.
22. On the morning of 1 July 1999, Mr Phillips testified, he saw Mr Brainers in the pit area and not
at his drop zone station. Shortly after 7.00 a.m. he was advised by a team leader that certain
individuals were not prepared to commence work because of a pay dispute. He approached
the eight individuals in question and requested them to start work while he investigated the
problem. Their response was that they would not do so unless they were paid. At that stage
they were in the EPG area near the pit and dressed in civilian clothes.
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23. He attempted to restart the line shortly after 8.00 a.m. said Mr Phillips, but it could not
operate because the eight individuals were not at their respective stations. Shortly thereafter
he approached them again and informed them that if they did not commence work as
requested, they would face disciplinary action.
24. By 10.30 a.m., one of the group, Mr Boggenpoel, had returned to his station but the
remaining seven still refused to do so. He did not see anyone else on the line who was at
that stage refusing to work and was not advised by the team leaders that anyone else was
involved in that refusal.
25. He then assembled the seven Applicants in the EPG area and informed them that he was
suspending them pending disciplinary action against them. He went to his office to prepare
the necessary documents and had completed four suspension forms when he was summoned
back to the line to attend to problems there. When he returned to his office approximately an
hour later, he found that three of the Applicants had returned to the line and were working.
He immediately instructed them to cease doing so and informed them that they were under
suspension for having ignored the earlier ultimatum to return to work by 10.30 a.m. or face
disciplinary action.
26. Questioned by Mr Cartwright, Mr Phillips stated that following the ultimatum at 10.00 a.m. all
the other employees including Mr Boggenpoel, worked normally but the seven Applicants
persisted in their refusal to do so. He assumed, he said, that three of them had second
thoughts thereafter in the face of pending disciplinary action and returned to the line in an
attempt to avoid it. He was adamant, in response to persistent questioning by Mr Cartwright
in that regard, that at 10.30 a.m., it was only the seven Applicants who refused to work. All
other persons were properly at their work stations. He was not aware of any offer by anyone
other persons were properly at their work stations. He was not aware of any offer by anyone
to start working if they were provided with food and drink. It was not true that the four
Applicants who did not return to their stations attempted to clock out because they thought
the plant was to be closed. They did not respond to the ultimatum and after they were
suspended, they left.
27. The salient aspects of the evidence of Mr Langley and Mr Brainers, the only two of the seven
Applicants to testify in these proceedings, may be summarised as set out hereunder.
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28. As with the other workers who attempted to do so, Mr Langley tried unsuccessfully to draw
his wages from an automatic teller machine before he began work on 1 July 1999. When he
arrived at work, employees were “walking around” but he “did not trust them” and decided to
start work himself. He donned his overalls, collected his tools and proceeded to his station.
Shortly before 7.00 a.m. he was approached by a colleague who asked him to “get out of the
pit, we are not going to work”. He observed that a group of employees, numbering
approximately twenty-seven, were standing around and he joined them.
29. Discussions then ensued with various members of management in the vicinity of the line.
They were informed of the problem regarding wages and were asked to go back to work
whilst the matter was investigated. “People refused, said they were hungry and asked for
something to eat” said Mr Langley. This request was ignored.
30. At approximately 8.30 a.m. members of management again attempted to persuade “people”
to return to work but there was a general refusal. After 10.00 a.m., a message was conveyed
to them by their team leaders to the effect that if people were not at their work places at
10.30 a.m., the factory would be closed. Everyone at that stage was in overalls but moved to
their lockers, put on civilian clothes and proceeded to the clock-out point.
31. Uncertain what to do, said Mr Langley, they went to the shop stewards’ office and were
advised to return to work. Together with Mr Van Wyk, Mr Tarentall and Mr Mantoor, he
returned to the lockers, and they donned their overalls again. When Mr Phillips saw them
doing so he stopped them – there were twelve or thirteen of them present. They were
instructed to attend at his office, went there and were informed that they were being
suspended. He accepted a suspension letter but did not sign for it, deciding that the best
suspended. He accepted a suspension letter but did not sign for it, deciding that the best
thing to do would be to consult their shop stewards. An approach to Mr Phillips was made by
the shop steward Mngini, to have the suspensions retracted, but he refused. He, Mr Mantoor,
Mr Van Wyk and Mr Tarentaal eventually left the factory at approximately 13.50. He was not
aware, said Mr Langley, why they had been “singled out”, unless it was because a safety
issue had been raised by them a few days before with Mr Phillips and he resented that fact.
32. That testimony was broadly corroborated by Mr Brainers. He was wearing his work clothes
when he arrived at work that morning he said, but at 7.00 a.m. “guys were calling us together
– our wages had not been paid in”. Most of them decided not to start work until they were
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informed by their shop stewards “what was wrong”.
33. Various members of management then approached them and explained the problem. They
laughed when it was suggested that the company should provide money for food or
something to eat and drink. At 10.00 a.m., their foreman called them – “ eight of us from a
group of ten” and asked if they were prepared to work. They replied that they would not do
so. The line was however then switched on and he returned to his station as a hoist operator
and continued working until he and Mr Padayachee were called off the line by Mr Phillips and
told to attend at his office. This was at approximately 3.10 p.m. Suspension documents had
already been written out and were handed to them. He could not however say why Mr
Phillips had singled them out.
34. Questioned by Advocate Wade, representing the Respondent, Mr Brainers acknowledged that
they were “repeatedly” informed by their shop stewards that if they were not back at work by
10.30 a.m. they would be disciplined. He was at his work station, said Mr Brainers and
worked until 3.00 p.m. when he was called off the line by Mr Phillips and told that he could
not work because he had been suspended. As far as he was concerned he was not on strike,
he had met the ultimatum and should not have been dismissed. He did not attend the
subsequent disciplinary enquiry because, he said, he knew nothing about it.
35. Mr S Bongani, another employee of the Respondent on the assembly line, testified that
workers had not started work at 7.00 a.m. because their wages were not available, they were
hungry and “didn’t know what was happening”. There were talks, he said, between 7.00 a.m.
and 10.00 a.m. and during that period it was not only the seven Applicants who did not work.
They were standing in groups waiting until management or their leaders addressed them.
Eventually their shop stewards approached them and advised them that if they did not start
work, they would be disciplined.
work, they would be disciplined.
36. There was a threat, he said, that they would be “locked out” at 10.30 a.m. if they did not
heed the ultimatum and for that reason he returned to his station, as did all the other
workers, apart from the seven Applicants.
37. Mr S Dolley is a full-time shop steward in the employ of the Respondent. In brief testimony he
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described meetings between the shop stewards and management between 7.00 a.m. and
10.00 a.m., during which the wage problem that had arisen with the bank was explained to
the shop stewards. Eventually, at 10.00 a.m., they were informed that if employees were not
back at their stations and ready to work at 10.30 a.m., the plant would be closed. This
ultimatum was conveyed by them at approximately 10.15 a.m. when, he concluded, “we
advised them to go back”.
ANALYSIS AND CONCLUSION
38. The evidence submitted by the respective parties in this matter is, as will be apparent,
replete with disputes of fact. In essence however those disputes relate to events and
circumstances which occurred and prevailed prior to 10.00 a.m. on 1 July 1999, the day in
question. Two cardinal aspects of the matter are however, in that context, common cause.
The first is that the workers were not paid in accordance with what had become a practice –
although acknowledged on behalf of the Applicants not to have been a contractual obligation,
- to have their wages available through automatic teller machines at one minute past
midnight each Thursday morning. The second is that, whatever the magnitude thereof might
have been, there was a work stoppage that morning prior to 10.30 a.m., that intermittent but
unsuccessful attempts were made during that period to operate the assembly line and that
production, substantiated by the Respondent’s unchallenged records in that regard, was
radically negatively affected as a consequence.
39. In the context of the charges faced by the Applicants and as a consequence of which their
employment was terminated, those events, save to the extent of their relevance in setting
the scene for what subsequently occurred, have no direct bearing on the cardinal reason for
those dismissals.
40. The charge against them was, as I have indicated, unambiguously and clearly stated in the
40. The charge against them was, as I have indicated, unambiguously and clearly stated in the
notices to them of the disciplinary enquiry which each was required to attend. They had
embarked, in the face on the non-payment of their wages, on a work stoppage and they
persisted in their refusal to resume their normal duties in response to a final ultimatum
requiring them to do so. It is not disputed that that was the ultimatum to them at 10.00 a.m.
that morning and in terms of which they were required to resume work at 10.30 a.m. or face
disciplinary action.
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41. The evidence of the Respondents’ management witnesses that it was the seven Applicants,
and only they, who ignored that ultimatum, is compelling. Also established, in my view, from
the conspectus of the evidence, is the fact that all seven of them were confronted after 10.30
a.m. by Phillips and informed that they were being suspended pending disciplinary action.
The probabilities do not support Brainers' submission that, together with two of his
colleagues, he returned to work in response to the ultimatum and was consequently called off
the line. Much more likely is the contrary contention that, faced now with the reality of
disciplinary action the three of them, having been informed of their suspension, thought
better of their actions and sought to avoid it. I will revert to this aspect of the matter later in
this judgment.
WAS THE WORK STOPPAGE UNLAWFUL?
42. It is a well established principle of employment law, established in a line of cases in the
Labour Courts, that in the ordinary course, the tender of their services by employees involves
the reciprocal obligation on the part of their employer, to pay them for their labour.
See : Coin Security (Cape) (Pty) Limited v Vukani Guards and Allied Workers Union and others
(1989) 10ILJ239 ; Num and others v Via Do Ro Manufacturing Limited (2000) 7BLLR827 (LC)
43. Inherent in that principle must of necessity be the refusal or inability, for whatever reason, of
the employer to effect such payment. Where payment is, as an established practice or a
condition of employment, effected through some medium other than directly by the employer
to the employee, the risk of contractual repercussion if that medium, for whatever reason,
fails, lies with the employer. A further immutable requirement however must clearly be that
the failure in question constitutes a breach of contract.
44. There was, in the circumstances prevailing in this matter, no such dereliction or breach on the
part of the Respondent which would, in that context, have entitled the Applicants lawfully to
withhold their labour. It is common cause that, in what had become the established and
accepted course, its wage bill was paid by the Respondent into its bank on Wednesday
30 June 1999 and would ordinarily have been available, as normal, immediately after
midnight the next morning. The reason for that unavailability and, more importantly, the
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steps taken to remedy the situation, were made known to the employees at the earliest
opportunity that day. The bank’s system had failed, they were told, the fault was being
remedied as a matter of urgency and wages would be available by midday. There was no
statutory or contractual obligation on the employer to have procured this. In terms of the
Basic Conditions of Employment Act, remuneration is payable not later than seven days after
the completion of the period for which it is due. The contracts of employment of the
individual Applicants were silent as to the date and time of payment, providing only that it
would be made “by way of electronic deposits into the employee’s banking account”. The
employee handbook, which is made available to employees as part of their induction process,
provides expressly that “wages are usually paid on a Friday in your work area and are one
week in arrears”. It is further common cause that although the electronic form of payment
affected the majority of the Respondent’s employees, not all of them were paid in the same
way.
45. I am not persuaded in these circumstances that the Respondent was in breach of its
obligations in that regard on any basis which would render the undisputed work stoppage on
the morning of 1 July 1999 a lawful one. It was conduct on the part of those participating in
it, which unquestionably constituted a “strike” within the definition of that term in Section
213 of the Labour Relations Act 1995 and was unprotected by any provision of that statute.
WAS THE DISMISSAL OF THE APPLICANTS FAIR?
46. I have already indicated that the conduct of the Applicants relevant to the determination of
this issue is that which occurred at and after the expiry of the ultimatum at 10.30 a.m. on the
morning of 1 July 1999. I have no doubt from the evidence, that that ultimatum was in terms
relating not to a threatened closure of the plant, as suggested, but to consequential and
relating not to a threatened closure of the plant, as suggested, but to consequential and
disciplinary action should it not be complied with and I am satisfied that there was initial non-
compliance in that context by all seven of the Applicants and that it was made clear to them
as a consequence thereof, that they were suspended with immediate effect pending
disciplinary enquiries to be instituted against them.
47. The fact that, following the ultimatum, production stutteringly commenced, negates the
contention that there was a congregated move to clock-out in anticipation of the plant being
closed. What is apparent is that, in the face of the ultimatum, the bulk of the workforce
resumed their functions when the assembly line was tested at 10.30 a.m.
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48. The consistency of the Respondent’s conduct is challenged by the Applicants in the context
that it was only they who were subjected to disciplinary action, notwithstanding the fact that
all seventy employees on the assembly line had been involved in the work stoppage at 7.00
a.m. I have already indicated that on the basis of the specific charges put to them in the
disciplinary enquiry notices issued against them, the kernel of the Respondent’s complaint
was based on their refusal “to conform to a final ultimatum which was given to you”. That
ultimatum was one threatening disciplinary action if it was not complied with. No such threat
was an element of the repeated requests to the idle employees before the ultimatum was
issued, to return to their posts. The refusal of the seven Applicants to do so once the
ultimatum expired was a studied and wilful one, not supported by the balance of the
assembly line workforce. The fact that they were then as a consequence treated differentially
does not, to my mind, indicate the inconsistency of which they now complain.
49. There does however appear to me to be a legitimate basis for differentiation between the
sanctions imposed on the four Applicants who did not resume their duties at all, namely
Messrs Langley, Van Wyk, Mantoor and Tarentaal, and the three who subsequently went back
to their posts, Messrs Cedras, Brainers and Padayachee. As I have remarked earlier in this
judgment, whether those three did so having considered the error of their ways and the
unreasonableness of their conduct, or to avoid the disciplinary action of which they had at
that stage been given informal notice, is immaterial. The fact is that they resumed their
duties and would presumably have continued to perform them, had they not been removed
from the line as a consequence of their earlier suspension.
50. The refusal to work, after the explanations had been furnished for the unavailability of wages
and the assurances from management that they would be paid by midday that day (when the
wages, as a fact, became available), apart from being unlawful, was in my view totally
unreasonable. I attach no weight or substance to the issue of the provision of food or money
for sustenance in the interim. I cannot, on any reasonable assessment, accept that the
provision of a “pie and coke”, as was contended, some 3 hours before the wages became
available, would have made any significant difference to the ability of the workers concerned
to have carried out their duties. That, to my mind, is a spurious suggestion.
51. The consequences to the Respondent of the work stoppage have been emphatically
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illustrated. The decision not to discipline employees who were engaged in it but complied
with the ultimatum, notwithstanding the prejudice to the Respondent which was caused
thereby, was in all the circumstances of the matter, the exercise by management of a
generous prerogative. Had the seven Applicants in this matter aligned themselves with their
colleagues, that would have been the end of the matter as far as they were concerned. Four
of them did not do so, whilst three at least attempted to salvage their positions.
52. In all the circumstances of the matter, as emerging from the conspectus of the evidence
presented on both sides, I have concluded that the dismissal of the Applicants Langley, Van
Wyk, Mantoor and Tarentaal was fair and justified in all respects. Whilst the remaining three
cannot, notwithstanding their apparent contrition, escape some form of sanction for their
post-ultimatum conduct, their summary withdrawal from the assembly- line when they were
found to be working, constitutes to my mind an unreasonable intransigence on the part of
management in the context of the suspensions which had been imposed upon them. I am of
the opinion, in their specific cases, that for those reasons they should not have been
dismissed.
53. In the result, the order that I make is the following -
53.1 The dismissal by the Respondent of Mr M Langley, Mr B Van Wyk, Mr H Mantoor and Mr S
Tarentaal, was fair and justified and their applications are dismissed;
53.2 The dismissal of Mr E Cedras, Mr M Brainers and Mr M Padayachee was not warranted and
each of them is reinstated in his employment with the Respondent. By reason of their
unlawful and unreasonable conduct to the point of the resumption of their duties however,
that reinstatement is not retrospective and is without compensation in any respect relating to
employment benefits lost by them since their dismissal.
employment benefits lost by them since their dismissal.
54. I have considerable difficulty with the issue of costs in this matter. Whilst inevitably the result
of loss of employment in any circumstances, the financial consequences to the seven
Applicants of their dismissal by the Respondent have, over the 20 months which have since
passed, been severe. It is also apparent from the history of the litigation in the matter that
the pleadings, the amendments thereto, the pre-trial formalities and the problems arising
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therefrom have, if not entirely then clearly substantially, been squarely in the domain of their
representative, the First Applicant. On the other hand, the Respondent, specifically in the
case of three of the Applicants, has not been wholly successful in its opposition. The First
Applicant is a prominent and respected Trade Union, adequately endowed, in my experience,
with competent legal acumen and experience. It cannot in those circumstances, when its
position in relation to this litigation is assessed independently of that of its members, be
absolved from liability for what has ultimately occurred.
55. In all of these circumstances, and allowing as I have said for the fact that the Respondent has
been unable to establish unqualified justification for aspects of its conduct, I have deemed it
equitable to order that the Respondent’s trial costs in this matter be paid by the First
Applicant. There is no order as to costs in relation to the two previous occasions with regard
to which the question of costs was reserved.
__________________________________
B M JAMMY
Acting Judge of the Labour Court
17 April 2001
Representation:
For the Applicants : Mr D Cartwright : NUMSA
For the Respondent : Adv R B Wade instructed by Chris Baker & Associates
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