1
REPORTABLE
IN THE LABOUR COURT OF SOUTH AFRICA
HELD AT JOHANNESBURG
Case No. JS220/02
In the matter between :
COMMUNICATION WORKERS’UNION 1st Applicant
NKGAPELE, KJ & 42 OTHERS 2nd – 44 th Applicants
And
SOUTH AFRICAN POST OFFICE LIMITED Respondent
JUDGMENT
PATTERSON AJ
1
2
Introduction
1. The dispute between the parties relates to the dismissal of the individual Applicants on 19 September
2001.
2. It is common cause between the parties that at the time that the individual Applicants were dismissed,
they were engaged in an unprotected strike and that the requirements of Section 64 of the Labour
Relations Act 66 of 1995 and the obligation contained in the Recognition Agreement were not followed.
3. The Applicants seek an order declaring that the dismissal of the individual Applicants by the
Respondent on 19 September 2001 is unfair and that the individual Respondents be reinstated with
effect from their date of dismissal without loss of earning or benefits, alternatively that they receive just
and equitable compensation. In addition the Applicants seek costs. The Respondent denies that the
Applicants are entitled to any relief arising out of the dismissal of the individual Respondents on 19
September 2001.
4. The Applicant’s Counsel, Mr van der Riet, SC, submitted that the dismissal of the individual Applicants
on 19 September 2004 was both substantively and procedurally unfair in that :
1 the Respondent contravened clause 9.3 of the Recognition Agreement by dismissing workers before the
expiry of 24 hours after the commencement of the strike;
2 the Respondent failed to contact a Trade Union official at the earliest opportunity to discuss the course
of action it intended to adopt and having contacted the Union, failed to allow the Union office bearer
sufficient time to intervene. Moreover, the Respondent is alleged to have failed to allow the dismissed
2
3
individual Applicants sufficient time to reflect on ultimata issued by the Respondent and to return to
work;
3 the conduct of the individual Applicants was not sufficiently serious to warrant dismissal;
4 the Respondent failed to conduct hearings prior to dismissing the individual Applicants.
5. The dispute has been the subject of lengthy and protracted proceedings between the parties. The trial
took some 12 (twelve) days between the period 17 February 2003 and 1 August 2003. The schedule of
information relating to the individual Applicants’ subsequent employment was only delivered to the
Court several months after argument.
6. Notwithstanding the fact that several witnesses were called both by the Applicant and the Respondent
and certain issues placed in dispute, a significant number of material issues relating to the matter are not
really in dispute.
Material Facts
7. On 14 June 1996, the Respondent and the 1 st Applicant entered into a Recognition and Procedural
Agreement (“the Recognition Agreement”). The parties agreed in the pretrial minute (Exhibit “A”)
that the individual Applicants were members of the 1 st Applicant and that the parties Recognition
Agreement regulated industrial action.
8. Clause 9 of the Recognition Agreement provides as follows :
“9.0 PEACE OBLIGATION
9.1 Management and the UnionAssociation reaffirm their belief in consultation and negotiation as
being the preferred method of conducting labour relations.
3
4
9.2 Accordingly, the company and the Association/Union undertakes not to organise, encourage,
initiate or in any way support any form of industrial action before all procedures under this
Agreement have been fully exhausted.
9.3 In the event of industrial action in contravention of this Agreement, the company undertakes not
to take disciplinary action against any Association/Union member who participates in such
industrial action, for a period of 24 hours from the commencement of such industrial action.
9.4 In the event of Industrial Action not in contravention of this Agreement, the company undertakes
not to take disciplinary action against any Association/Union member who participates in such
industrial action, for a period of 72 hours from commencement of such industrial action.
9.5 Management undertakes to make available an official telephone to the shop steward (only) for
the purposes of informing the Association/Union in the case of such industrial action as soon as
possible after occurrence. Equally management undertakes to inform the regional office of the
Association/Union within 24 hours (in clause 9.3) of any such industrial action if no official
shop steward has been appointed for that workplace, on condition that the name and reference
number of the person to be contacted is made available to management in terms of clause
6.2.2.”
9. On 18 September 2001 a shop steward of the 1 st Applicant, Ms Lerato Lemeke was issued with a letter
of suspension. In addition, Mr Sam Sishange, another shop steward at the Johannesburg International
Mailing Centre (“JIMC”), located at the Johannesburg International Airport at Kempton Park, was
suspended pending a disciplinary hearing. It is common cause that the strike was at least partly in
response to the suspension of Lemeke.
10. Mr Neshunzhi, the Respondent’s Senior Manager at the JIMC gave evidence that after Ms Lemeke was
4
5
given her suspension letter, she was escorted to her locker to remove her belongings and thereafter
escorted out of the premises. The remaining members of the shop steward’s committee at the JIMC
approached Mr Neshunzhi in his office and asked him to address the work force in the canteen.
11. A dispute exists between the parties as to the exact time that the individual Applicants and other striking
employees at that time stopped working and proceeded to the canteen. It was suggested by Mr
Neshunzhi in evidence that the individual Respondents and other striking employees commenced their
work stoppage “ between 11h30 and 12h00, something to 12 ”. On another occasion Mr Neshunzhi
indicated that he only arrived at the canteen after 12h00. A number of individuals were proceeding on
their meal break at 12h00. It would appear, on a balance of probabilities, that the industrial action
commenced after 12h00 and, insofar as certain individuals were engaged in a lawful meal break,
possibly as late as 13h00. Whilst Mr Green, a Process Provider of the Respondent at the JIMC,
suggested that it could have been much earlier than 12h00, he subsequently admitted that he was
“confused” relating to the times.
12. Mr Neshunzhi gave evidence that at approximately 15h00 on 18 September 2004, having discussed the
matter with head office, he issued an instruction to the striking employees in the canteen to resume their
duties. The Respondent did not approach the Union on 18 September 2001.
13. Mr Nkesi, the General Manager, Employee Relations at that time, gave evidence that he had been told
on 18 September 2001 that the strikers were seeking to have Mr Neshunzhi removed. Although Mr P
Baloyi and Mr Neshunzhi deny this, it is clear from the evidence that there was considerable animosity
and poor working relationships between Mr Neshunzhi and some of the striking employees. It
accordingly appears probable on the evidence that such unhappiness contributed to the unlawful
industrial action engaged in by the individual Applicants and that the individual Applicants sought the
removal of certain members of management, including Mr Neshunzhi.
5
6
14. On 19 September 2001 a number of the individual Applicants did not report to their work stations.
Initially it appeared that 4 or 5 employees persisted with the industrial action and that this later
increased to approximately 50 employees, which included the individual Applicants herein.
15. Mr Neshunzhi testified that he contacted Mr Mervyn, the full time shop steward of the 1 st Applicant,
and informed him about the situation at the JIMC. Mr Mervyn denies that Mr Neshunzhi informed him
of the nature of the strike action, but merely asked him what the fax number of the Regional Office was
and did not provide any details relating to what was happening at the JIMC.
16. Mr Neshunzhi further testified that after he spoke to Mr Mervyn he spoke to the Regional Secretary of
the Union, Mr Mphaphele. This was denied by Mr Mphaphele who testified that he only learnt about
the industrial action taking place at the JIMC later that morning when his own Office Administrator
contacted him.
17. Mr Neshunzhi testified at approximately 08h40 or 08h50 on 19 September 2001 that he sent a fax to the
Union Regional Office. At approximately 09h00 Mr Neshunzhi testified that a brief was forwarded to
striking employees requesting striking employees to return to work and advising the striking employees
that the industrial action engaged in by them was unprotected.
18. Mr Neshunzhi testified that the workers response to the Notice that they return to work (Exhibit “B” –
Page 65) was that they were no longer prepared to discuss this and that they were waiting for
“reinforcements from their leadership ”. Mr Pat Baloyi gave similar evidence.
19. Mr Neshunzhi testified that Mr Pat Baloyi arrived at approximately 09h30 and that the Union office
bearers not employed at the JIMC arrived after the first ultimatum was issued (Exhibit “B” – Page 66) at
approximately 10h25.
6
7
20. Thereafter a final ultimatum was issued (Exhibit “B”: Page 68) at approximately 10h55. The ultimata
requested that the individual Applicants’ representative meet with management to explain why the
company should not terminate their services.
21. Mr P Baloyi gave evidence that whilst he was busy handing out the ultimata to the workers, Mr
Mphaphele approached him and said that the workers should not talk to Mr Baloyi. Mr Mphaphele
added that he and the shop stewards were busy caucusing and were still busy finalising their position in
response to the Respondent’s demands.
22. Mr Baloyi reiterated that the workers should return to work. Mr Baloyi was asked what it would mean
if the workers now return to work? He explained that he had no authority to give any guarantees that
they would not be disciplined. He then phoned his superior at Head Office and was told that no
guarantees could be given to the Union representatives if the workers returned at that stage, they would
not be disciplined. Mr Baloyi advised the Union representative of this.
23. Mr Baloyi then left the Training Room and returned to the office of Mr Neshunzhi. When he reached
Mr Neshunzhi’s office, Mr Neshunzhi received a call on his cellphone from Mr Mervyn, the full time
shop steward. Mr Mervyn informed Mr Baloyi that he wanted to come to the JIMC but did not have
transport available. Mr Baloyi advised Mr Mervyn that the final ultimatum would expire in the next 5
minutes and that it would be a futile exercise to come as the employees would be dismissed if they did
not return to work prior to the expiry of the ultimatum.
24. Mr Baloyi gave evidence that he went back to the Training Room and advised the Union representatives
that once the ultimatum had expired he intended to hand out a dismissal letter. Mr Mphaphele advised
Mr Baloyi that they were still talking and requested more time.
Mr Baloyi that they were still talking and requested more time.
25. Mr Neshunzhi testified that when Mr Baloyi returned at approximately 11h35, the letters of dismissal
7
8
were handed out. Mr Neshunzhi said that the decision to dismiss was taken by his superior at Head
Office, Mr Bernard Magabe. At that time Mr Neshunzhi was reporting the situation to Head Office and
was instructed by Mr Magabe to issue the letters of dismissal.
26. Mr Nkese testified that Mr Magabe took the decision in consultation with the Chief Operating Officer of
the Respondent, Mr Peter Masemola. Mr Neshunzhi conceded, under crossexamination, that the
dismissal may have been avoided if “ more time was given to the Union Officials ”. Mr Green also
conceded this under crossexamination.
27. After the dismissal had been distributed, Mr Mphahele came to the Training Room and asked Mr Baloyi
if anything could be done about the situation. Mr Baloyi admitted, under crossexamination, that Mr
Mphahele asked him whether the letters of dismissal could be withdrawn.
28. It is common cause between the parties that an Appeal hearing was held thereafter by Mr Peter
Masamole, the Chief Operating Officer of the Respondent, who, in conjunction with Mr Bernard
Magape took the decision that the strikers should be dismissed at 11h35 on 19 September 2001. Mr
Peter Masamole confirmed his previous position.
Clause 9.3 of the Recognition Agreement
29. Clause 9.3 appears in an agreement entitled “Recognition and Procedural Agreement” concluded
between the Communication Workers Union and the Respondent in June 1996 at a time when the
Labour Relations Act 28 of 1956 applied and prior to the commencement of the new LRA.
30. Mr P Kennedy SC argued forcefully, on behalf of the Respondent, that a collective agreement such as a
Recognition Agreement is a contract which is subject to interpretation in accordance with the ordinary
principles of interpretation of agreements. He emphasised that a sensible approach must be followed,
8
9
and referred the Court to the decision of Kriegler J (as he then was) in the court a quo in Total South
Africa (Pty) Limited v Bekker N.O 1990 (3) SA 159 (T) at 170 G – I where the Court said:
“The interpretation of a written document is not an exercise in the arcane. It is a logical process in which the
interpreter seeks to ascertain the intention of the draftsman as embodied in the instrument. The mutual
intention of the parties to a bilateral contract is, of course, an abstraction. The primary method to find out
what that abstraction was is to ask what do the parties say? That does not mean picking away at words like a
guinea fowl down a row of maize seeds. One looks at the language used with common sense and perspective. ”
31. Mr Kennedy argued that in its proper context, the clause is part of a Recognition Agreement that has its
objective in establishing, maintaining and regulating the Collective Relationship between the parties.
32. Clause 9 deals specifically with “peace obligation” and it is in that context that clause 9.3 must be
understood. It was further argued by Mr Kennedy that the obligations in clause 9 are reciprocal
between the Respondent and the 1 st Applicant and it was accordingly submitted that having regard to its
proper context, clause 9.3 is to be construed as no more than an undertaking not to commence with
disciplinary action before the expiry of the 24 hour period, with a view to allowing the reasonable
period of 24 hours for contact to be made with the Union, which can then send representatives to try to
defuse and resolve the situation. It did not, in Mr Kennedy’s submission, constitute an abandonment or
waiver of the rights of the employer in appropriate circumstances to take disciplinary action after the 24
hour period nor did it, Mr Kennedy argued, give “ carte blanche to the Union and its members to engage
in unprotected strike action with impunity.”
in unprotected strike action with impunity.”
33. In the alternative, Mr Kenney argued that exact and strict compliance with any particular clause is not
necessary and substantial compliance would suffice. It was accordingly argued by Mr Kennedy that
insofar as the strikers were dismissed at approximately 11h35, depending upon the factual
9
10
circumstances accepted by the Court a period of 30 minutes to 1 ½ hours at most were left to run in the
24 hour period and that there had been “sufficient compliance”.
34. There is no doubt that a Collective Agreement entered into in terms of the Labour Relations Act 28 of
1956 (as amended) remains enforceable in terms of the LRA. Moreover, unlike the provisions of the
previous LRA, the LRA provides for the primacy of Collective Agreements in a voluntarist collective
bargaining process. The very fabric and structure of the LRA is such that it is reliant upon the Courts
upholding the provisions of Collective Agreements. Indeed the provisions of Section 24 provides for a
speedy and effective interpretation and application of collective agreements through the Commission for
Conciliation, Mediation and Arbitration (“CCMA”).
35. It is correct that the peace obligation contained in clause 9 of the Recognition Agreement must be
interpreted in the context and cannot be viewed in isolation. A broad conspectus of the clause must
accordingly be taken.
36. Clause 9.3 of the peace obligation, properly interpreted, constitutes an undertaking by the company “not
to take disciplinary action” in the event of industrial action in contravention of the Recognition
Agreement against Union members “ for a period of 24 hours from commencement of such industrial
action”. Whilst it is not necessary for this Court to determine whether the words “ not to take
disciplinary action ” simply constitute a bar against the Respondent from initiating disciplinary action
for a period of 24 hours and accordingly not a waiver of rights to initiate disciplinary action thereafter, it
is clear that any disciplinary action taken that results in the penalty of dismissal being imposed within a
period of 24 hours is not only impermissible but contrary to the provisions of clause 9.3. If it is not
possible to issue a final warning within a period of 24 hours in respect of employees engaged in
industrial action, then, a fortiori, it would not be possible to take and conclude collective disciplinary
action which results in the dismissal of such employees who are members of the Union within a period
10
11
of 24 hours.
37. The purpose of clause 9.3 and 9.4 is to ensure that in the event of unprotected and protected strike action
there is a period of 24 hours and 72 hours respectively prior to any disciplinary action being taken in
respect of such matter which may further exacerbate and compound the ability of the parties to restore
industrial peace at the workplace. The effect is negated if the clause is not given meaningful effect to.
38. Insofar as the Respondent has agreed to such a provision in the Recognition Agreement (for whatever
reason), and the Union and its members are entitled to rely upon such provision and have the comfort
that they will not face disciplinary action, including but not limited to dismissal, within 24 hours of the
commencement of the industrial action, it is important that the Collective Agreement be adhered to
strictly if the terms of clause 9.3 are to achieve any purpose.
39. Whilst it may be possible to argue for substantial compliance were the issue to be that of a few seconds
or perhaps even minutes, a period of ½ hour to 1 ½ hours with a period of 24 hours cannot be accepted
as substantial compliance. Insofar as it was suggested by Mr Kennedy that the obligations contained in
clause 9 of the peace obligation are of a reciprocal nature, and, as I understand the argument, that the
Respondent is accordingly relieved from its obligations insofar as the Applicant has engaged in
unprotected strike action, this would of course defeat the very purpose of clause 9.3, which is
specifically intended to apply in the case of unprotected strike action. Such an argument cannot be
accepted.
40. I accordingly find that the Respondent is in breach of its obligations in terms of the provisions of clause
9.3 of the Recognition Agreement.
Respondent’s Contact with the Trade Union
11
12
41. Item 6(2) of Schedule 8 of the LRA provides :
“Prior to dismissal the employer should, at the earliest opportunity, contact a Trade Union official to discuss
the course of action it intends to adopt. The employer should issue an ultimatum in clear and unambiguous
terms that should state what is required of the employees and what sanction will be imposed if they do not
comply with the ultimatum. The employees should be allowed sufficient time to reflect on the ultimatum and to
respond to it, either by complying with it or rejecting it. If the employee cannot reasonably be expected to
extend these steps to the employees in question, the employer may dispense with them. ”
42. In relation to the requirements of Item 6 of Schedule 8, clause 9.5 of the Recognition Agreement
provides that management must make available a telephone to the shop stewards (for the purpose of
informing the Union in case of such industrial action as soon as possible after occurrence).
Management of the Respondent in addition undertakes to inform the Regional Officer of the Union
within 24 hours (in clause 9.3) of any industrial action. It is common cause that the Respondent’s
management contacted the Union officials during the course of 19 September 2001. Whilst it would
obviously have been desirable that the Respondent contacted the Union official, Mr Mphaphele during
the course of 18 September 2001, the Respondent has complied with its obligations in terms of the
Collective Agreement. It is a pity that the shop stewards, having been provided with a telephone by the
Respondent for the purpose of contacting the Union, did not contact the Union and seek their
involvement on 18 September 2001. They clearly should have in such circumstances.
43. I accordingly find that the Respondent complied with its obligations in respect of the contacting of the
Union.
Union.
44. Insofar as the issuing of the ultimata are concerned, the conduct of the Respondent was mechanistic. It
12
13
is clear that the decision to dismiss was not taken by Mr Neshunzhi but by that of Mr Magabe together
with Mr Masemola. The dissemination of the ultimata between the period of 10h25 to 11h35 in such a
mechanistic manner prior to the Union having a proper opportunity to address the matter is insufficient
and must by necessity lead to a denial of the application of audi alteram partem and the ability of the
Union, had it chosen to do so (to which I will also refer later) to make a meaningful contribution.
45. Whilst every matter will have to be determined upon its own circumstances and it is impossible to be
prescriptive in respect of the required period between issuing ultimata a rigid and mechanistic approach
will not suffice. What is required is for the employees to be advised in writing that their conduct is
unprotected and the Union to be given a proper opportunity in all the circumstances to meaningfully
address their members for the purposes of persuading them to return to work and to address
management on the reasons, if any, why their members should not have their contracts of employment
terminated in accordance with Modise v Steve’s Spar Blackheath (2000) 21 ILJ 519 (LAC) and Karras
v SASTAWU (2001) 22 ILJ 2612 (LAC) and Ximwa v Volkswagen SA (2003) 24 ILJ 1077 .
46. Whilst a full hearing may not be required a proper opportunity for the Union to bring its influence to
bear and to make representations most certainly is. It was accepted by both Mr Neshunzhi and Mr
Green that the dismissals could have been avoided if the Union was given more time. It is clear that the
Respondent had taken the view, as it is entitled to do, that a firm approach in respect of unprotected
industrial action should be adopted. This does not, however, entitle the Respondent to breach the
provisions of clause 9.3 of the Recognition Agreement and adopted a mechanistic truncated approach
to ultimata which significantly contributed to the risk of dismissal rather than the resolution of the
matter. The fact that the shop stewards and the Union also did not act as expeditiously as they should in
achieving a solution to the matter does not derogate from the company’s responsibility to create a
climate which permitted a resolution to the unprotected strike action without the need for recourse to
13
14
dismissal in the event that the shop stewards and the Union wish to avail themselves of such
opportunity.
The Seriousness of the Applicant’s Conduct
47. It was submitted by Mr van der Riet SC that the conduct of the individual Applicants in engaging in
unprotected strike action was not sufficiently serious to warrant dismissal.
48. As I understand the argument, Mr van der Riet SC suggested that Mr Neshunzhi had adopted a
“militaristic” approach and together with the suspension of Lemke, this had significantly contributed to
the individual Applicants engaging in unprotected strike action. It is not necessary for reasons which
will appear later in this judgment for this Court to determine whether in the absence of a breach of
clause 9.3 of the Collective Agreement, the conduct of the 2 nd Respondents would be sufficient to
warrant dismissal. The individual Applicants were members of a registered Trade Union and were
employed by a company which has a well established grievance procure. There can accordingly be no
justification for the individual Applicants engaging in unprotected strike action in such circumstances.
In addition, the Union was under an obligation to act expeditiously and comply with its obligations in
terms of the peace obligation and to take reasonable and necessary steps to persuade their members to
desist from such unlawful and unprotected strike action. This Court cannot condone unlawful and
unprotected strike action and accordingly it is not accepted that in the absence of a breach by the
Respondent of the provisions of clause 9.3 of the Recognition Agreement that this Court could not
conclude that the conduct of the individual Applicants was sufficiently serious to warrant dismissal.
Insofar, however, as it is held that there has been a breach of clause 9.3 of the Recognition Agreement,
it is not necessary for the purposes of judgment to decide such matter.
it is not necessary for the purposes of judgment to decide such matter.
The Failure to Hold Hearings prior to Dismissal
14
15
49. Mr van der Riet argued that there is a right for an employee to have a hearing prior to dismissal. Whilst
it may not be necessary in each and every circumstances to hold a hearing, it is clear that an employee
will ordinarily be entitled to be heard and to submit representations either on his own behalf or through
his or her Union prior to the employer deciding to dismiss. The right to be heard in this case was
largely negated by the Respondent due to the mechanistic truncated process adopted by the Respondent.
The Fairness of the Dismissals
50. It was submitted by Mr Kennedy that the dismissal of the individual Respondents was both
substantively and procedurally fair. He argued that the strike was unprotected and was accordingly in
breach of the provisions of the LRA as well as the Recognition Agreement. He argued that the strike
was characterised by a lack of cooperation by the shop stewards and Union representatives and that the
demand made by the strikers for the removal of Mr Neshunzhi and other senior members of
management was entirely unacceptable. There is, on the evidence presented at this trial, substance in
such allegations.
51. In addition, it was argued that the strike had a disruptive effect on the operations of the JIMC and
international mail. It was argued that this was particularly so shortly after the events in the United
States on September 11 2001. Accordingly, it was so argued that the dismissals were substantively fair.
52. Mr van der Riet conceded, in my view correctly, that the failure to comply with clause 9.3 of the
Recognition Agreement does not per se render the dismissals substantively unfair, but is a very
important factor in assessing the substantive fairness or otherwise of the dismissal.
53. Section 188(1) of the LRA requires the employer to prove that the reason for the dismissal is a fair
reason and affected in accordance with fair procedure. Whilst the Respondent’s failure to comply with
clause 9.3 of the Recognition Agreement may not be determinative of the matter, it is nevertheless the
15
16
case that the Respondent initiated ultimata and effected a dismissal at a time that disciplinary action
should not have been initiated let alone given effect to. It is hard to conceive of a more fundamental
breach of the Respondent’s obligations during industrial action than breach of clause 9.3 of the
Recognition Agreement. The Respondent’s failure to comply with clause 9.3 of the Recognition
Agreement coupled with its denial of audi alteram partem having regard to the other factors mentioned
earlier in respect of such matter, renders the dismissal both substantively and procedurally unfair. The
individual Applicants were entitled not to be dismissed or have any other disciplinary action taken
against them prior to the expiry of the 24 hours period, and the failure by this Court to give effect to the
collective agreement cannot be countenance in these circumstances.
54. I accordingly find the dismissal of the individual Applicants to be substantively and procedurally unfair
in all the circumstances.
Relief
55. Section 193(2) of the LRA provides as follows :
“(2) The Labour Court or the arbitrator must require the employer to reinstate or reemploy the employee unless
(a) the employee does not wish to be reinstated or reemployed;
(b) the circumstances surrounding the dismissal are such that a continued employment relationship would be
intolerable;
(c) it is not reasonably practicable for the employer to reinstate or reemploy the employee; or
(d) the dismissal is unfair only because the employer did not follow a fair procedure.
16
17
56. The Respondent did not establish any of the grounds specified in Section 193(2). Insofar as the
dismissal is not only procedurally unfair but substantively unfair in all the circumstances, reinstatement
is the appropriate remedy.
57. In terms of the provisions of Section 193(1), the Court is entitled to reinstate the employee from any
date not earlier than the date of dismissal or to pay compensation to the employees. The Court is
entitled to take into account the full circumstances relating to the matter insofar as determining the
retrospectivity of such reinstatement order and/or compensation in relation to the matter. I have taken
into account inter alia the following factors in respect of this matter :
1 the strike engaged in by the individual Applicants was unprotected, in breach of the LRA as well as the
Recognition Agreement and illegitimate;
2 the demand made by the individual Applicants for the removal of Mr Neshunzhi and other members of
management was entirely unacceptable and cannot be condoned;
3 the failure of the individual Applicants, the shop stewards and their Union to return to normal work
when called upon by management to do so was unacceptable and cannot be condoned.
58. Insofar as I have a discretion to exercise in terms of the provisions of Section 193(1) read with Section
194, I determine that the individual Applicants reinstatement should, having regard to all the
circumstances, be limited for a period of 3 months retrospective to the date of such individual Applicant
reporting for duty or, in the event that such individual Applicant fails to report for duty, limited to
compensation for a period of 3 months calculated at the individual Applicants’ remuneration at the date
of dismissal.
Costs
17
18
59. Both the Applicant and the Respondent have requested costs in this matter. Section 162(1) of the LRA
provides :
“(1) The Labour Court may make an order for the payment of costs, according to the requirements of the law and
fairness.”
60. Obviously the requirements of the law dictated that costs follows results and the Applicant in such
circumstances would therefore be entitled to costs. I also have to consider the requirements of fairness.
In National Union of Mine Workers v East Rand Gold and Uranium Company Limited (1991) 12 ILJ
1221 9A), Goldstone, J held that “ Where the relationship between the litigants was ongoing and the
issues raised in litigation were of fundamental importance not only to the parties but to the wider
industrial relations community, no costs should be awarded in the Labour Court of appeal or either of
the Courts below ”
61. Clearly there remains a working relationship between the 1 st Applicant and the Respondent.
62. In addition, neither the conduct of the 1 st Respondent nor that of the Applicant has been in accord with
the requirements of the LRA. Accordingly, I am of the view that fairness requires that no order for
costs be granted to either party in respect of this matter and I exercise my discretion not to grant such an
order for costs in favour of either party in such circumstances.
63. In the premises I make the following order :
1 declaring that the dismissal of the individual Applicants on 19 September 2001 by the Respondent is
both substantively and procedurally unfair;
2 ordering that the Respondent reinstate the individual Applicants upon the same terms and conditions of
18
19
employment that prevailed at the time of such individual Applicant’s dismissal together with any
increases in remuneration and improvement of benefits associated with such position subsequent thereto
and subject to any of the individual Applicants who wish to avail themselves of such reinstatement,
reporting personally at the Respondent’s JIMC premises (or any other location nominated by the
Respondent in the Gauteng Province and in respect of which the 1 st Applicant has been advised by the
Respondent in writing) within 30 days of the handing down of judgment in this matter;
3 ordering that subject to compliance with 2 above, that the reinstatement of any of the Applicants operate
retrospectively for a period of 3 months from the date that such Applicant tenders his or her services in
terms of 2 above to the Respondent, alternatively,
4 in the event that any of the individual Applicants do not tender his or her services to the Respondent in
terms of 2 and 3, that such individual Applicant receives compensation equivalent to 3 months
remuneration calculated in accordance with the remuneration received by the Applicant at the date of
his or her dismissal;
5 that there be no order as to costs.
SIGNED AND DATED AT BRAAMFONTEIN ON THIS 18 TH DAY OF AUGUST 2004.
BG PATTERSON
ACTING JUDGE OF THE LABOUR COURT
19
20
17 February 2003
18 February 2003
19 February 2003
20 February 2003
21 February 2003
14 April 2003
15 April 2003
16 April 2003
28 July 2003
29 July 2003
30 July 2003 ;and
1 August 2003.
Date of Judgment 18 August 2004
For the Applicant Advocate : Mr van der Riet SC
Instructed by Attorneys : Cheadle Thompson & Haysom Inc.
Advocate : Mr P Kennedy SC
Instructed by Attorneys : Pienaar Swart Nkaiseng Inc.
20