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Betha and Others v BTR Sarmcol a division of BTR Dunlop Ltd (631/95) [1998] ZASCA 5; 1998 (3) SA 349 (SCA); [1998] 8 BLLR 793 (A) (6 March 1998)

85 Reportability
Labour Law
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Brief Summary

Labour Law — Unfair dismissal — Dismissal of employees during negotiations — Employees dismissed by BTR Sarmcol after a strike related to a recognition agreement — Court found no deadlock existed in negotiations prior to the strike — BTR's actions deemed to have provoked the strike and constituted an unfair labour practice — Dismissal ruled unfair due to lack of good faith in negotiations and selective re-employment policy.

Comprehensive Summary

Summary of Judgment


1. Introduction


The proceedings were an appeal to the Supreme Court of Appeal of South Africa concerning whether the appellants’ loss of employment resulted from an unfair labour practice as defined in the Labour Relations Act 28 of 1956. The litigation arose from the dismissal of a large group of employees following strike action at the respondent’s factory.


The appellants were Emmanuel Betha and others, former weekly paid employees of the respondent. The respondent was BTR Sarmcol, a division of BTR Dunlop Ltd, a manufacturer of rubber products operating a factory in Howick, KwaZulu-Natal. At the time of the events, many of the employees were members of the Metal and Allied Workers’ Union (MAWU); by the time of the later proceedings, MAWU’s role had been taken over by the National Union of Metalworkers of South Africa (NUMSA), although NUMSA ultimately did not prosecute the later appeal to the Labour Appeal Court.


The procedural history was unusually protracted. In July 1986, MAWU brought an application for reinstatement in terms of s 46(9) of the Labour Relations Act. After a 39‑day hearing, the Industrial Court dismissed the application in 1987. That decision was reviewed and set aside by the Natal Provincial Division due to bias concerns relating to the presiding officer, and an ensuing appeal to the Appellate Division failed, resulting in a hearing de novo before a reconstituted Industrial Court in 1994. In the rehearing, reinstatement was no longer pursued; the employees sought a declaration of unfair labour practice and compensation. The Industrial Court again dismissed the claim, and the Labour Appeal Court dismissed an appeal (with leave to appeal to the Supreme Court of Appeal).


The dispute’s subject-matter concerned the fairness (in the statutory sense) of the employer’s decision to dismiss approximately 970 striking workers on 3 May 1985, and the fairness of the employer’s later approach to re-employment, against the background of negotiations for a recognition agreement and ongoing labour unrest.


2. Material Facts


Negotiations between BTR and MAWU over a recognition agreement occurred over an extended period and were accompanied by labour tension and various forms of industrial pressure. By April 1985 the parties had made progress, and the record contained evidence of continuing communication and steps taken towards possible finalisation of the agreement.


On 29 April 1985, a dispute arose over the interpretation and implementation of an earlier arrangement concerning May Day working arrangements, particularly whether night shift employees would receive leave of absence to participate in May Day events. A telephone discussion between BTR’s representative, Mr Sampson, and MAWU’s representative, Mr Schreiner, ended without agreement and included a warning that “trouble” would follow if the issue was not resolved.


On the morning of 30 April 1985, weekly paid workers at the Howick factory downed tools, left machines running, and assembled in the canteen. The strike’s unlawfulness was conceded in the Supreme Court of Appeal (at least in the majority judgments). There was also judicial disagreement on the strike’s immediate cause: the Labour Appeal Court found the strike was initially caused by the May Day dispute, whereas the majority in the Supreme Court of Appeal placed emphasis on the broader recognition dispute and the employer’s role in precipitating or exacerbating conflict, while still acknowledging the May Day dispute as the trigger.


The strike quickly became associated—both in communications and in the parties’ stances—with BTR’s failure to sign a recognition agreement on MAWU’s terms. MAWU’s communications indicated that employees would return to work only once the agreement, as MAWU framed it, was signed. BTR responded by treating the work stoppage as breach of contract and unlawful industrial action.


On 2 May 1985, BTR issued an ultimatum requiring a return to work within a short period (one hour for day workers, and within an hour of the night shift start for night workers), indicating the company reserved the right to terminate employment. On 3 May 1985, BTR dismissed the striking employees.


After dismissal, BTR commenced steps to staff the plant. It invited dismissed workers to apply for re-employment, while also recruiting and employing others, including temporary employees whose engagement later became permanent. The employer did not reinstate or re-employ the dismissed workforce en bloc, and the re-employment process became a central factual component of the unfair labour practice claim.


The majority judgments relied on contemporaneous notes and subsequent conduct to infer that BTR had pursued a strategy aimed at excluding MAWU and its members from returning to the workplace, including by selective re-employment and by adopting positions that effectively foreclosed collective reinstatement. The minority judgments rejected that inference and accepted that BTR’s response was justified by the strike’s illegitimacy, the ultimatum, and the employer’s operational and financial pressures.


3. Legal Issues


The central legal question was whether the appellants’ loss of employment—considering the dismissal and the employer’s subsequent conduct regarding re-employment—was the result of an unfair labour practice as defined in s 1 of the Labour Relations Act 28 of 1956 (as it then read). This required determining whether the employer’s practices had or might have had unfair effects on employees’ employment opportunities, work security, and welfare, and whether the employment relationship was detrimentally affected in an unfair manner.


A further issue concerned the proper characterisation of the decision under the statutory definition: whether the determination was one of strict law or fact, or rather a value judgment applying fairness to established facts. The judgments treated unfair labour practice determinations as involving a normative evaluation, informed by the Act’s objectives, rather than a purely factual inquiry.


An additional legal question, raised particularly in the minority reasoning, concerned the appellate constraints flowing from s 17C(1)(a) of the Labour Relations Act, which limited the Supreme Court of Appeal’s ability to depart from findings of fact made by the Labour Appeal Court. This raised the meta-question of what constituted a “finding of fact” versus a value judgment, and how far the Supreme Court of Appeal could reassess the record.


4. Court’s Reasoning


The court’s reasoning was divided. The majority (Olivier JA, Streicher JA, and Zulman JA concurring with Olivier JA) concluded that the dismissal and the subsequent failure or refusal to re-employ the employees collectively amounted to an unfair labour practice. The minority (Smalberger JA and Scott JA) would have dismissed the appeal and upheld the Labour Appeal Court’s conclusion that no unfair labour practice had been established.


Majority reasoning (finding an unfair labour practice)


The majority approached the dispute through the lens emphasised in precedent that the “ultimate determinant” in unfair labour practice disputes is fairness, not merely the legality of the strike or of the employer’s dismissal. The majority accepted that the strike was unlawful, but treated unlawfulness as a factor rather than a complete answer to the fairness enquiry. It relied on authority recognising that unfair labour practice determinations involve a moral or value judgment applied to the established circumstances.


On the negotiation history, the majority rejected the proposition that a genuine deadlock existed at the end of April 1985. It emphasised evidence suggesting that negotiations were still viable and close to finalisation, including instructions within BTR to seek finality, advice to avoid obstinacy, and steps taken to arrange further engagement. The majority treated the remaining disputed clauses as negotiable rather than fundamental barriers, and characterised the employer’s stance that agreement was impossible as a significant overstatement.


The majority then located the strike within a broader pattern of conflict in which BTR’s conduct was found to have contributed materially. It treated the May Day disagreement as the spark in a volatile environment and concluded that the employer’s posture (including an uncompromising approach to an ambiguous arrangement in circumstances of heightened tension) played a causative role in precipitating the strike.


On dismissal, the majority stressed that BTR reacted with undue haste by issuing a very short ultimatum and then dismissing a large, long-serving workforce shortly thereafter. In evaluating procedural fairness, it relied on comparative authority (including the approach in cases dealing with “wildcat” strikes and the need for a fair ultimatum) to conclude that fairness required an ultimatum of sufficient duration to enable cooling-off, consultation with the union, and rational decision-making. The short ultimatum was treated as materially insufficient given the scale of dismissal, employees’ long service, and the socio-economic consequences.


The majority also placed substantial weight on BTR’s post-dismissal strategy, finding that it did not genuinely pursue collective reinstatement or neutral re-employment. It relied on the structure of temporary contracts, contemporaneous advice and internal notes, and the employer’s consistent refusal to negotiate or meaningfully re-open engagement with MAWU, to infer that BTR pursued selective re-employment in a manner aimed at preventing MAWU and its members from returning to the factory floor. The majority linked this to the unfairness enquiry by concluding that the dismissals and the re-employment stance unfairly affected employment opportunities and the employment relationship in the statutory sense.


On appellate constraints, the majority considered that it was not necessarily precluded by s 17C(1)(a) from reaching its conclusions where the Labour Appeal Court had not engaged with parts of the evidentiary record, and where the question before the court entailed evaluative determinations of fairness rather than unassailable findings of primary fact. It treated several pivotal conclusions (such as the reasonableness of the ultimatum and the fairness of the employer’s conduct) as evaluative judgments in which the appellate court could form its own view from the record.


Finally, on remedy, the majority declined to determine compensation itself because the necessary individualised evidentiary material for each appellant was not before the Supreme Court of Appeal. It considered that the equitable course was to remit the question of compensation to the Industrial Court for determination.


Minority reasoning (rejecting unfair labour practice)


The minority approached the matter by emphasising that, although fairness is the ultimate determinant, the context included an unlawful and illegitimate strike, an operationally vulnerable employer, and a history of industrial disruption and warnings. It accepted the Labour Appeal Court’s factual finding that the strike initially arose from the May Day dispute and treated management as entitled to take a firm stance without fear of illegitimate strike pressure on an unrelated issue.


The minority stressed the statutory limitation in s 17C(1)(a) and reasoned that the Supreme Court of Appeal was bound by the Labour Appeal Court’s findings of fact unless the stringent “no reasonable court” threshold was met. In this view, conclusions regarding the employer’s motive and MAWU’s willingness to negotiate were treated as factual findings insulated from reconsideration.


On the ultimatum and dismissal, the minority considered that the ultimatum’s short duration could not be assessed in isolation and had to be read with the prior warnings, the workers’ firm stance, and the threat of a prolonged strike. The minority viewed a pre-dismissal hearing as futile under the circumstances given the scale of concerted action, the reported intimidation, and the union-backed position that the strike would continue until BTR capitulated to MAWU’s document.


On re-employment, the minority accepted that BTR invited dismissed workers to apply and viewed the failure of most workers to do so as attributable to MAWU and the workers’ insistence on signature of their proposed agreement rather than a practice of unfair selective exclusion by the employer.


5. Outcome and Relief


The appeal succeeded by majority. The Supreme Court of Appeal substituted the order of the court a quo and declared that the dismissal of the appellants from BTR’s employ constituted an unfair labour practice. The matter was remitted to the Industrial Court to determine the compensation payable to each appellant, because the appellate court could not determine individualised compensation on the record before it.


The respondent was ordered to pay the costs of the appeal, including the costs of two counsel.


Cases Cited


Protea Assurance Co Ltd v Casey 1970 (2) SA 643 (A)


Media Workers Association of South Africa and Others v Press Corporation of South Africa Ltd (Perskor) 1992 (4) SA 791 (A)


Performing Arts Council of the Transvaal v Paper Printing Wood and Allied Workers Union and Others 1994 (2) SA 204 (A)


Plaschem (Pty) Ltd v Chemical Workers Industrial Union (1993) 14 ILJ 1000 (LAC)


Slagment (Pty) Ltd v Building, Construction and Allied Workers Union and Another 1995 (1) SA 742 (A)


Atlantis Diesel Engines (Pty) Ltd v National Union of Metalworkers of South Africa 1995 (3) SA 22 (A)


National Union of Metalworkers of SA v Vetsak Co-operative Ltd and Others 1996 (4) SA 577 (A)


National Union of Mineworkers and Others v Free State Consolidated Gold Mines (Operations) Ltd (President Steyn Mine; President Brand Mine; Freddies Mine) 1996 (1) SA 422 (A)


National Automobile Allied Workers Union (now known as National Union of Metalworkers of South Africa) v Borg-Warner (SA) (Pty) Ltd 1994 (3) SA 15 (A)


National Union of Mineworkers v East Rand Gold and Uranium Co Ltd 1992 (1) SA 700 (A)


Strathmore Holdings (Pty) Ltd v Commissioner for Inland Revenue 1959 (1) SA 460 (A)


Commissioner for Inland Revenue v Strathmore Consolidated Investments Ltd 1959 (1) SA 469 (A)


Cohen v Commissioner for Inland Revenue 1962 (2) SA 367 (A)


Goodrick v Commissioner for Inland Revenue 1959 (3) SA 523 (A)


Secretary for Inland Revenue v Trust Bank of Africa Ltd 1975 (2) SA 652 (A)


Magmoed v Janse van Rensburg and Others 1993 (1) SA 777 (A)


S v Hadebe and Others 1997 (2) SACR 641 (SCA)


National Union of Mineworkers v Black Mountain Mineral Development Co (Pty) Ltd 1997 (4) SA 51 (SCA)


Steel and Engineering Industries Federation and Others v National Union of Metalworkers of South Africa (1) 1993 (4) SA 190 (T)


Ex parte Chairperson of the Constitutional Assembly: In re Certification of the Constitution of the Republic of South Africa 1996 (4) SA 744 (CC)


BTR Industries South Africa (Pty) Ltd and Another v Metal and Allied Workers’ Union and Another 1992 (3) SA 673 (A)


Legislation Cited


Labour Relations Act 28 of 1956 (definition of “unfair labour practice” in s 1; s 46(9); s 17C(1)(a); s 65(2)(b); s 65(1)(d)(i); s 8(6)(b))


Rules of Court Cited


No rules of court were cited in the extracted text of the judgment.


Held


The majority held that BTR’s dismissal of the appellants on 3 May 1985, together with its subsequent approach to re-employment, amounted to an unfair labour practice within the meaning of the Labour Relations Act 28 of 1956. The appeal was upheld, the prior adverse orders were replaced with a declaration of unfair labour practice, and the matter was remitted to the Industrial Court to determine the compensation payable to each appellant. Costs of the appeal were awarded against BTR, including the costs of two counsel.


LEGAL PRINCIPLES


The case applied the principle that, in unfair labour practice adjudication under the Labour Relations Act 28 of 1956, the ultimate determinant is fairness, and not merely the legality or illegality of the strike or dismissal. The evaluation entails applying a moral or value judgment to the established circumstances, including factors such as rationality of conduct, flexibility, bona fides, the strike’s cause and purpose, the anticipated duration and impact of the strike, and the economic and relational consequences of dismissal.


The judgments treated an employer’s resort to dismissal during industrial conflict as requiring assessment of whether, in the particular circumstances, dismissal was a fair response, including whether the employer acted over-hastily and whether the employees were given a fair ultimatum affording a proper opportunity to seek advice, cool down, and make a rational decision. The majority applied this principle to conclude that the short ultimatum and rapid dismissal of a large, long-serving workforce was unfair in the circumstances.


The case also addressed appellate methodology in labour matters, including the distinction between findings of fact (potentially insulated by s 17C(1)(a) of the Act) and evaluative fairness determinations. The judgments reflected differing views on the extent to which the Supreme Court of Appeal could revisit the record where the underlying question involved fairness rather than primary fact-finding, and on how strictly the statutory constraint on factual appeals should operate when the Labour Appeal Court is itself an appellate tribunal deciding on the written record.

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[1998] ZASCA 5
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Betha and Others v BTR Sarmcol a division of BTR Dunlop Ltd (631/95) [1998] ZASCA 5; 1998 (3) SA 349 (SCA); [1998] 8 BLLR 793 (A); (1998) 19 ILJ 459 (SCA) (6 March 1998)

REPUBLIC
OF
SOUTH AFRICA
REPORTABLE
evdw/
Case no: 631/95
IN THE SUPREME COURT OF APPEAL OF
SOUTH AFRICA
In the matter between:
EMMANUEL BETHA AND OTHERS
Appellants
and
BTR SARMCOL a division of BTR Dunlop Ltd Respondent
Court
:
Smalberger, Olivier, Scott, Zulman and
Streicher JJA
Date of Hearing
: 8 and 9 September 1997
Date of Jud
gment
: 6 March 1998
JUDGMENT
2
OLIVIER JA
I have had the benefit of reading the judgment of my learned Brother,
Smalberger JA. I have for the reasons set out herein reached a different
conclusion, viz. that the dismissal of the employees by BTR and the failure
to re-employ them amounted to an unfair labour practice.
Whilst conceding that the strike was unlawful, I am convinced that at
the end of April 1985, BTR and MAWU had not reached deadlock over a
recognition agreement and were still in the process of negotiating; that BTR
was to a large extent to blame for the strike of 30 April 1985; that its real
desire was to get rid of MAWU and its members; consequently, when the
strike occurred, it snatched at the opportunity to dismiss the employees; that
it did so in an unfair and over-hasty manner; and that it thereafter
consistently pursued a pre-conceived policy of selective re-employment so
as to ensure that MAWU and its members would not return to the factory
3
floor.
No deadlock existed at the end of April 1985
There is ample evidence to show that from June 1983 the parties
negotiated fruitfully, and that the lines of communication between them
remained open. On this evidence there was no deadlock at the end of April
1985, and BTR could (and should) have proceeded with good faith collective
bargaining towards the conclusion of a recognition agreement.
Two particular details confirm that in the closing days of April 1985
both parties considered the negotiations viable. The first is that at this time
Mr Giles, the attorney acting for BTR, advised Mr Sampson, BTR's
representative in the negotiations with MAWU, that he should not be
recalcitrant in negotiating a plenary recognition agreement. The second is
that Mr Bird, the group chairman of BTR, specifically instructed Sampson
to invite Mr Schreiner, MAWU's negotiator, to meet with him in an attempt
4
to negotiate the matter to finality. As a consequence of this instruction, Sampson telephoned Schreiner on 25 April 1985 to arrange
a private meeting
between them. For what may be described as technical reasons this meeting
did not take place: Schreiner, quite correctly in terms of labour negotiation practice, required the presence of shop stewards at
the meeting. He suggested
in return that BTR should telex its proposals to MAWU, to which Sampson
would not agree as he favoured a face-to-face meeting. But this obstacle was
not considered insuperable, for Sampson and Schreiner eventually agreed to
discuss the outstanding issues regarding the recognition agreement at a later,
unspecified, date.
Before that could occur, the strike of 30 April 1985 took place.
To complete the picture, it should be borne in mind that Schreiner sent
BTR a telex on 26 April arranging a meeting for 2 May for wage
negotiations; and also that on 26 April BTR sent a notice to all its employees
5
advising them that the recognition agreement was still under consideration.
The improbability of negotiations being deadlocked receives incidental
confirmation from the success with which they had been conducted. By this stage the areas of difference were very insignificant. On
1 May 1985, BTR
itself identified four fundamental differences between the parties, but on
analysis it appears that they were quite easily capable of solution, as was in
each case acknowledged by Sampson.
The first of these differences concerned a proviso in clause 11 of the
draft agreement relating to disciplinary procedures which MAWU wanted
omitted. Sampson conceded under cross-examination that the clause in this
form was a new one and had not been the subject of prior negotiation. In
addition he was not aware of any precedent for the clause, and he conceded
the possibility that the clause would have been altered had it been negotiated.
The second difference turned on clause 16.8 in which BTR wanted the
6
word "legal" and MAWU the word "lawful". This appeared to be a semantic
quibble, particularly as Sampson conceded that if the clause entitled either
party to any action that was legal in terms of the Labour Relations Act, BTR
would have been satisfied with either expression.
The third difference concerned MAWU's right to challenge
retrenchment, in the context of MAWU's proposal that BTR hold itself
available to meet the MAWU negotiating committee before deciding on
retrenchment. Sampson conceded that this was a matter which could usefully
have been explored with MAWU in negotiation.
The fourth difference concerned the LIFO-principle ie "last in first out", in case of retrenchment. MAWU's attitude was
that it was prepared to
allow the question of retrenchment to stand over. Sampson conceded with
hindsight that the question of retrenchment could have been dealt with
separately, and that the difficult matter of retrenchment was not an obstacle
7
at all.
In summary: as at 29 April 1985, not only was there no deadlock between BTR and MAWU as regards the recognition agreement but, on
the
contrary, circumstances were propitious for the conclusion of the agreement.
Why, then, was no agreement reached? And why did BTR
peremptorily dismiss its employees rather than finalise the recognition
agreement?
For an answer to these questions, the actions and motives of both
parties should be closely scrutinised.
BTR to be blamed for the strike taking place
On a conspectus of all the evidence, I am of the view that BTR was to
a large extent to blame for the strike of 30 April 1985, both by a history of
insensitive treatment of its employees and by immediate provocation.
The general insensitivity of BTR towards its employees will be clearly
8
evidenced in subsequent sections when I deal with BTR's conflict with
MAWU and where I quote from the evidence itself. The immediate
provocation arises out of Sampson's attitude towards an agreement relating
to May Day that had been reached in July 1984 and is reflected in a letter
dated 30 July 1984. The relevant part of the letter reads as follows:
Subject to the conditions in para 5 hereof and
subject further to suitable prior arrangements being
made in writing with your Union in respect of
essential and continuous services, the Company
undertakes not to prevent any of your members
concerned from clocking-out early on the first day
of May provided that it is not before the
commencement of the normal lunch-break on that
day and provided further that such person will only
be paid for the hours worked on that day.
(
Para
5 is not relevant to the issue.)
Sampson and Schreiner had a telephonic conversation on Monday 29
April 1985 about the May Day arrangements. Sampson, for the first time
9
ever, adamantly insisted that the nightshift would not be given leave of
absence at all on 1 May 1985, not even up till 22h00, as suggested by
Schreiner, obviously as a compromise offer. Not surprisingly, Schreiner
considered this to be unreasonable. When Sampson refused to negotiate
further on this aspect, Schreiner warned him that trouble would ensue. It is
to be noted that Schreiner did not blackmail Sampson by threatening strike
action, nor did he cancel the agreement that he and Sampson would meet to
discuss the outstanding issues. Under cross-examination Sampson conceded
that he understood this warning to mean that there was going to be trouble as
regards his attitude in relation to May Day.
Nevertheless, Sampson persisted in his attitude, well knowing of the
interpretation placed on the agreement by MAWU. The point is not whether
MAWU's interpretation was the correct one; the crux of the matter is
Sampson's attitude after he became aware of the
dissensus
. It was
10
Sampson's stance over the May Day arrangements that sparked the strike, and
his attempts to justify his stance as regards the May Day matter carry little or
no conviction. The assumption that May Day celebrations would only take
place during the day is not borne out by any evidence to that effect. That the matter of the night-shift was not mentioned in the
letter, is probably because
the agreement was intended to include that shift. If Sampson adopted the
uncompromising attitude because he was annoyed by the attitude of the
employees in respect of overtime, it can hardly be justified as a mature,
responsible or justifiable reaction. His refusal to allow the night-shift staff
to clock-in three hours late, but rather to run the risk of escalating the existing
tension and causing further trouble, of which he was warned by Schreiner,
seems to be short-sighted and unreasonable.
I must also re-iterate that Sampson in taking up the attitude described,
was not threatened by MAWU with a strike. BTR was not blackmailed over
11
the May Day issue. But Sampson was aware of the existing tension and was
warned by Schreiner that his attitude would cause trouble. Nobody would
deny Sampson the right to assume a firm attitude, as long as it was a fair and reasonable one. For the reasons stated above, I hold
that his attitude was not
fair and reasonable and that this attitude finally ignited the tinder-box.
In its judgment the court a quo found as a fact that the immediate cause
of the strike was the dispute about May Day, but also accepted that MAWU
"adopted" the strike (in the sense that it used the failure to reach agreement on the recognition agreement as justification
for the strike).
I do not consider the conclusions reached herein as at variance with the
finding of the court a quo. There is no indication in the record that the
employees would have embarked on a strike merely because of BTR's attitude over the May Day matter, nor that they would have continued
the strike for
an indefinite time for that reason alone. The real cause of complaint was the
12
failure to finalise the recognition agreement; the May Day dispute merely set fire to the timber. This is how I understand the judgment
of the Court a quo.
To that extent I agree with its conclusions.
Where I differ from the court a quo, however, is that BTR was correct
as regards its interpretation of the letter of 30 July 1984.
The interpretation to be given to a document such as a letter is not a
question of fact but one of law. This Court is, therefore, not bound by the
interpretation placed by the court a quo on the letter of 30 July 1984.
I consider, at best for BTR, that the letter was ambiguous, in that it did
not specifically deal with the position of the night shift workers. But even
accepting that to be the case, the point is that precisely because of such
ambiguity, Sampson should not have adopted the attitude displayed by him
on 29 April 1985, especially after Schreiner's offer that the night-shift would
in fact commence, but three hours after the usual time. Such a finding is not
13
contrary to any finding of fact by the court a quo: I say that Sampson's
interpretation may have been correct, but not so his attitude in the light of all
the circumstances prevailing at the time. The question of the reasonableness
or not of Sampson's attitude is not a question of fact by which this Court is
bound, but a juristic evaluation, ie a matter of law.
Why, then, did Sampson adopt this unreasonable attitude? Why did he
knowingly create a new source of contention and the risk of destroying all
that had been achieved by negotiations?
BTR's desire to get rid of MAWU and its members
It was in my view correctly argued on behalf of the appellants
that Sampson's stance in respect of the May Day agreement was simply a
perpetuation of the attitude he consistently adopted on behalf of BTR towards
MAWU. A dominant strain in this attitude was that employees could "take
it or leave it"; and underlying that attitude was the intention of ridding the
14
factory floor of MAWU by dismissing the employees, a majority of whom
were MAWU members. The point is amply illustrated by the evidence of
what had already occurred during the strike of March 1985 and also by
subsequent events.
On 12 March 1985 BTR was advised by its industrial consultant,
Andrew Levy Associates ("
ALA
"), as follows: (I quote verbatim from
Sampson's notes.)
If failed by tomorrow morning, find worst
offenders in worst depts, give him a final written
warning, give him a couple of hours then fire him.
If Giles unhappy, do it on a whole dept. basis and
warn summarily dismissed if within
2 hours,
back up with telex to dept.
Sampson said in his evidence in chief that a disciplinary enquiry would
have been held, but conceded it was to be one with a preconceived
determination to dismiss the workers.
15
Sampson recorded his discussion with
ALA
on 13 March 1985 in these
terms:
Great joy. Schreiner backing off. Don't now meet
shop stewards. Remember Schreiner gave us
deadlines and he is now moving. He's worried he
won't maintain strike.
He [Levy] says we're not panicking.
They go back and we can't belt them, disadvantage
.
If they come back,
Union
will find it difficult to get
them out again. (My emphasis)
The underlying attitude of BTR, as reflected in this note, speaks for
itself.
On 15 March 1985, the day the workers went back, the strategy for
selective re-employment after dismissal became manifest. This is reflected
as follows in notes Sampson made before the workers returned:
1. Call SS (Schreiner) in we've done our part,
3 days are up and we're now warning can
lead to termination you(r) that failure to
return will be loss of your jobs. Tell
16
workers. Steve to leave pamphlets in
canteen.
Likely to cause return to work.
2.
Another pamphlet (close of plan) unless return work and work normally you'll be
fired.
3.
Fire Monday.
4.
Start re-hiring
(X
old faces) (y new faces)
each.
Union lads will be last back = no jobs.
Schreiner will shout to talk to us!
If return to work Monday, will either work
normally = meet Schreiner on Wednesday
and either agree or break. If break = fire.
If don't work normally, show section results
or individual results, supervisors to watch
stewards work performance, inciting, etc. to
bounce them out.
Sampson conceded that this strategy meant dismissal of all the workers,
re-hiring certain old employees, hiring certain new applicants for employment
and, because MAWU members would be the last back, there would be no jobs
for them. Sampson also testified that he would have been prepared to use this
17
strategy.
A damning piece of evidence, illustrating BTR's true motives, is
contained in a note made by Sampson during the March strike:
Schreiner might get them back (bad luck) before
lunch.
Sampson conceded this meant that if Schreiner got the workers back
at too early a stage. BTR would not be able to take punitive action against the
workers and would not be able to fire the workforce and clean out the shop
stewards. This would be the "bad luck" part of the note
.
In my view, these contemporaneous notes made by Sampson speak
louder than any protestations of regret at having to dismiss the employees
later advanced by Sampson during his testimony.
As part of his underlying attitude, there is also ample evidence that
Sampson imposed unreasonable deadlines on MAWU on more than one
18
occasion. I refer to some examples.
After the mediation of 20 March 1985, MAWU put up a set of
proposals and asked BTR to respond the next day. BTR put up its package
proposal the next morning. It was described in the covering letter as "a full,
final and complete package offer'" and, subject to ratification, the proposal
was stated to be "only open for acceptance in writing to be received by us not
later than 14h30 today failing which it will automatically lapse without the
need for any further notice to that effect." MAWU was, in effect, given two hours in which to consider and accept or reject BTR's
proposals.
MAWU responded by pointing out that it did not have enough time to
consider BTR's proposals in any detail but, importantly, it also stated:
It would appear however that this offer may
provide a realistic basis for settlement and we
would suggest that a further meeting be held after
we have been able to consider same in more detail.
19
BTR acceded to the request for more time and extended the deadline
"for acceptance or rejection of our package until 12 noon, Monday 25
March 1985." (The Conciliation Board meeting had been postponed to 27
March).
BTR indicated on Monday 25 March 1985, in response to a MAWU
request for further time, that its position was a final one to be accepted or
rejected. MAWU considered this stance to be unreasonable and as
undermining the enormous amount of effort put into securing agreement on
certain fundamental issues. Significantly, Schreiner on behalf of MAWU
offered to leave the retrenchment procedure out of the agreement entirely but
Sampson, sadly, was unwilling to accept this rapprochement.
It appears that Sampson's initial attitude of accommodating MAWU's
request for time changed following his consultation, inter alios, with ALA
resulting in a refusal of the request for more time and an insistence that the
20
package offered was a final one, open for acceptance by noon on Monday
25 March 1985 after which it would be withdrawn. It emerged that this
strategy had come from
ALA
who had advised Sampson not to meet with
Schreiner.
It was put to Sampson in cross-examination that this was not a
suitable way of handling a dispute, a statement which Sampson could not
refute
. The suggestion that BTR/s refusal to afford MAWU more time on 25
March 1985 was no more than a tactic, is refuted both by the evidence
relating to the advice given by
ALA
and followed by Sampson (which is not
reconcilable with mere tactics) but also by Sampson's own concession,
mentioned in my previous, underlined sentence.
Furthermore, Giles, on behalf of BTR, sent a telex to MAWU on 26
March 1985, ostensibly keeping its final offer open but "strictly" subject to
certain conditions, inter alia, that "full details" of counter-suggestions be
telexed before 15h00 that same day (the telex reflects that it was sent at
21
09h56), that counter-suggestions "will not involve matters of principle or
substance," and that the retrenchment procedure, including severance pay "be
treated as an inseparable part of the complete package and not left over."
Subject to these pre-conditions, BTR was prepared to meet on 27 March at
10h00, with the additional proviso, however, that "such meeting will only
last for a maximum period of 4 hours .. . whereupon (BTR's) final offer
will lapse without further notice to that effect. . ."
While dealing with this matter, a matter of principle should be
addressed. It is true that deadlines for the acceptance of offers, threats of
industrial action and the like are typical "tactics" adopted in the bargaining
process contemplated by the Act. But surely a court can not turn a blind eye
if illegitimate, unreasonable or mala fide tactics are employed.
For a court to sit idly by when tactics of the latter kind are used, would
be to make a mockery of the law, of justice and of the administration of
22
justice. We must guard against the apellant's right of appeal becoming
illusory (Protea Assurance Co Ltd v Casey 1970(2) SA 643(A) at 648 E).
Fortunately, our law does not require such an approach by any court. On the
contrary, it was said in National Union of Metalworkers of Sa v Vetsak Co-
operative Ltd and Others 1996(4) SA 577(A) at 593 F-G.
The rationality of the conduct of the respective
parties will always be a factor : so too their
flexibility and bona fides, the cause, purpose and
continued 'functionality' of the strike, the financial
and economic repercussions for both sides of the strike and of the dismissals, the ability of the
employer and his employees to absorb the harm
done thereby and the duration of the strike, actual
and anticipated. There are, I am sure, other
considerations as well. The relevant factors cannot all be captured in a single formula or formulation.
(See also Media Workers Association of South Africa and Others v
Press Corporation of
South Africa
Ltd(Perskor) 1992(4) SA 791(A) at 802
B -1; Performing Arts Council of the
Transvaal
v Paper Printing Wood and
23 Allied Workers
Union
and Others
1994(2) SA 204(A) at 214 G-H).
But even if the court is only to become involved in evaluating the
reasonableness of the tactics used in extreme cases, the present one surely is
such a case. I can hardly think of a more prolonged, frustrating endeavour of
a worker's union to get an employer to agree to a standard recognition
agreement. Certainly no more serious and extreme case has ever been
reported in our law reports. The consequences of the dismissal under
discussion by themselves mark this case as an extreme one. In my view,
therefore, this Court is not only entitled but required closely to analyse the
"tactics" of the parties in order to ascertain whether one or both acted
unreasonably or in bad faith.
BTR's attitude can hardly be described as reasonable, or as one
conducive to solving the labour dispute, or as one of sensitivity to the
position of its employees, or as one consonant with the requirements of bona
24 fide
labour negotiations.
I have come to the conclusion that prior to the strike of 30 April 1985,
BTR's actions were influenced by a desire to get rid of MAWU and its
members. Far be it from me to say that these actions directly caused the strike
or that they justified the strike. The relevance of the conclusion is that it
explains why the unfair labour practice, as alleged by MAWU, viz the over-
hasty dismissal coupled with the refusal to re-employ the employees en bloc,
was committed. As such, the rationality of the conduct of both parties, their
flexibility and bona fides are always relevant factors (see Vetsak at 593
B-G).
Am I precluded by the provisions of s 17 C(l)(a) of the Act from
reaching this conclusion?
The fact that I have reached a conclusion in this respect differing from
that of my brother Smalberger JA is regrettable. However, the relevant
25
criterion against which the questions just posed should be answered is: what
did the LAC hold on this point and how did it justify its decision?
The relevant full passage from the judgment of the LAC reads as
follows at 93 D-J:
As noted earlier in the judgement the appellants
(MAWU) contended as their first main argument
that the dismissals were unfair in that by
negotiating over the recognition agreement in the
manner in which the respondent (BTR) did it
precipitated or contributed to the strike. In support
of this contention Mr Brassey embarked on an
exhaustive analysis of the negotiations between the
parties from 1979. He dealt with the various
aspects of the negotiation in phases over the years
1979 to 1985 and contended that the tardiness of
the respondent in recognising the union and
thereafter negotiating with it on a recognition
agreement led to frustration, anger and irritation on
the part of the workers which culminated in the
strike.
We do not intend dealing with the evidence
of the events from 1979 leading up to the strike in
April 1985
. That the respondent initially was
hostile towards the union and reluctant to recognise
26
and negotiate with it admits of no doubt. That it
ultimately recognised the union and ultimately
negotiated over a period of two years until an
agreement had just about been reached is however
also true. It is apparent that up until the strike
commenced the respondent was anxious to reach finality on the agreement and was prepared to
negotiate to that end. The fact that the respondent
may have been guilty of unnecessarily prolonging
the negotiations did not however justify the strike.
As we have already said, the parties were very
close to agreement and were still negotiating when
the strike broke out. In any event, we have already
found that the cause of the strike was not any delay
on the part of the company in signing the
recognition agreement. Once it is found that the
strike was not justified, then it cannot be said that
the respondent in any way contributed to the strike.
If the appellant's argument were to hold water, then it would be applicable in every case where
economic pressure has been exerted by way of a
strike in collective bargaining because in each such
case the other party by not acceding to the others
demands could be said to have contributed to the
strike. There is accordingly in our view no merit in
this argument. (My emphasis.)
21
The court a quo expressly stated that it did not deal with the evidence
of the events from 1979 leading up to the strike in April 1985. Ex confesso
the LAC did not base its finding that"... the respondent (BTR) was anxious
to reach finality on the agreement and was prepared to negotiate to that end"
on an analysis and evaluation of the evidence. Consequently this Court is
not bound by such finding - see Strathmore Holdings(Pty) Ltd v
Commisioner for Inland Revenue 1959(1) SA 460(A) at 467 H - 468 C - and
is free to scrutinise the record and make its own findings (ibid at 468 C-D).
In this respect, this Court is, in any event, in as good a position as the LAC,
the latter also being only a court of appeal - see National Union of
Mineworkers v East Rand Gold Ufanuim Co Ltd 1992(1) SA 700(A) at
723 C-D.
For the reasons set out above, I am of the view that BTR's true desire
was to get rid of MAWU and its members, and that I am not precluded by s
28
17 C(l)(a) of the Act of reaching this conclusion.
One can now understand and properly evaluate, in line with the
judgment in Vetsak, quoted above, why BTR acted as it did when the strike
of 30 April 1985 occurred.
Snatching at the opportunity to dismiss the employees
Consistent with BTR's true desire, described above, its dismissal of
the employees took the form of a particularly rapid and unreasonable
snatching at the opportunity of getting rid of MAWU by dismissing the
employees.
At approximately 07h50 on 30 April 1985 Sampson saw workers
pouring out of the factory buildings. Sampson then, according to his
evidence, immediately recalled his conversation with Schreiner the previous day in connection with the May Day celebrations and the
latter's warning of
trouble. He also testified that within half an hour of the actual
29
commencement of the strike BTR's Industrial Relations Officer, Mr van Zyl,
went to the canteen where the workers were sitting, spoke to the shop
stewards, and was told quite emphatically that the strike had been caused by
BTR's failure to sign the recognition agreement. This was also confirmed in
a telex received from MAWU at approximately 13h30 that same day. The
telex once again requested signature by BTR of MAWU's draft of the
recognition agreement. In the event, there could have been no doubt that the
strike, although precipitated by Sampson's attitude as regards the May Day
arrangements, was now aimed at reaching agreement in respect of the
recognition agreement.
But BTR had no intention of signing the MAWU draft. On the
morning of 30 April, after the strike had commenced, Sampson had a
telephone conversation with Mr Brown of ALA. I quote portions of
Sampson's note reflecting
ALA
's advice:
30
Be careful of threats at this sensitive stage. Do this
post May Day situation. Sit out today, no threats.
Don't get aggressive today (very tense, staff
dragged out).... We could consider loct out, and
only allow people in on basis that there will be no
work stoppage on the question of recognition
agreement.
BTR apparently accepted this advice. On the next day, 1 May 1985,
BTR considered its options for dealing with the strike. These are recorded by
Sampson as follows:
Options on Strike/Agreement
1.
Sign the agreement as presented by the
Union (MAWU).
2.
Meet with the
Union
and try to settle the five
fundamental differences.
3.
Meet us in (2) above under a mediator.
4.
Stand fast on our ground, ie. the agreement
as presented by us to the
Union
last month.
The only option we see is 4 above
.
The fundamentals are
such that there is no prospect of reaching agreement on
them, nor can we accept the Union position on these
31
fundamentals
. (My emphasis)
The view that "... the fundamentals are such that there is no prospect
of reaching agreement on them" was a gross over-statement of the true
position, not only objectively speaking, but also in the light of Sampson's
concession under cross-examination that the four points of difference
mentioned above were capable of being solved. A fifth difference related to the credit to be given to retrenchees for past service
if re-employed. This
difference was capable of solution and did really not relate to a fundamental
matter. In fact MAWU had offered to withdraw the most difficult one, the
retrenchment package, from the table.
The very justification of BTR's decision to adopt option 4, ie to "stand
fast", was therefore clearly false especially when seen against the background
of BTR's true motives as described earlier. It was the direct cause of the
tragic consequences that followed.
32
Sampson's notes Continue:
Having duly considered the above, it is our view
that we should take the following steps :
1.
Fire the entire weekly workforce either on
Thursday or Friday - timing to be discussed.
2.
Urgently meet with our legal and LR
advisers and yourself to devise an
appropriate plan for remanning the works.
We suggest we try and set this up for
tomorrow (Thurs 2 May), either in JHB,
Durban
or Howick.
At the same time Sampson recorded the following advice as emanating
from
ALA
:
He (
ALA
) goes along with no lockout. ... He
agrees, dismiss - but it's the worst timing for us due
to international implications on BTR in
UK
(
United Kingdom
).
This is total war mode
.
Andrew (Levy) believes this is the route, but very
bad for us. Gear up and go ahead for tomorrow
... (My emphasis)
A remarkable feature of this note is that on the one hand it states, after
discussing the various options, that the only option was to "stand fast" on its
33
own proposals. This presupposes a continuation of the employee- employer
relationship. But on the other hand and without any indication to negotiate
further, it is then decided to fire the entire workforce.
The next day, 2 May 1985, BTR responded to MAWU's telex of 30
April mentioned previously. The response stated, inter alia, that BTR
regarded "the striking of your members and refusal to return to work as a
material breach of their employment contracts with the Company and they are
being informed accordingly. The Company reserves its rights to take
appropriate action." Sampson stated in evidence that he doubted very much
if BTR would have been prepared to negotiate towards a compromise
position. It had already taken a decision the previous day to "fire the entire
weekly workforce". If the door was slammed on further negotiations, it was
certainly done by BTR.
On 2 May 1985 BTR gave the strikers an ultimatum by a notice
34
delivered to shop stewards at 15h00 that if they did not return to work by
16h00 that day (or if the nightshift workers who received a copy of the notice
when they came on shift did not start within an hour of the shift commencing)
BTR reserved the right to terminate their services without further notice.
That evening, it decided to implement the previous decision to terminate the
services of the strikers the next morning.
On the morning of 3 May 1985 BTR dismissed the employees.
MAWU immediately telexed BTR in the following terms:
We note your unlawful termination of employees'
contracts of employment yesterday. We fail
entirely to see how such provocative action can
possibly help to solve the current dispute and point
out that same -
1.
Will greatly increase the possibility of intimidation
which we understood the Company was actually
trying to prevent;
2.
Will now encourage police involvement in
35
the matter and this will unquestionably only
exacerbate hostility and bitterness towards
management.
We emphasise that any attempt by the Company to employ scab labour will seriously undermine the
possibility of settlement of this dispute with
yourselves.
It is clear that MAWU still entertained hope of getting the employees
back on the job and concluding a reasonable recognition agreement. It was
never even hinted at that MAWU was not acting in good faith. On the other
hand, BTR had no intention of allowing the dismissed employees back en bl
oc. Nor can any weight be attached to BTR's attempts to justify the
dismissals.
Sampson did testify that the decision to dismiss was taken reluctantly
because BTR had 'always enjoyed an exceptionally good working
relationship with our workers'; and BTR was probably the only company
36 "who could claim to have a workforce whose average service was, we
thought, 25 years." BTR's claim that the decision to dismiss was taken
reluctantly, seems to me to be sanctimonious in the light of its real and
consistent object, viz. to get rid of MAWU by dismissing its members, the
employees, and also in the light of its unconvincing efforts to give reasons for
the dismissal.
BTR, before deciding to issue an ultimatum, considered its options in
responding to the strike. It chose the route of dismissal, giving as the reason,
that it knew that the strike would last a considerable time and that it could not
afford the financial loss of a prolonged loss of production.
But not much weight can be given to this excuse, as, firstly, the
decision to dismiss the workers had already been taken, in principle, on 1
May 1985.
And secondly, the excuse that BTR could not afford a long strike is not
37
an acceptable reason for the hasty dismissal of the workers. Moreover this
explanation fails to stand up to scrutiny in view of the fact that BTR and
MAWU had previously agreed that in the event of a lawful strike, no action
would be taken against the workers before the expiry of five days. It has not
been explained why BTR could not have waited for a few more days before
dismissing the strikers if the strike continued, even if it was an unlawful
strike. The fact that the strike was an unlawful one, is of course no excuse
for BTR acting unfairly towards its employees. (Performing Arts Council of
the
Transvaal
v Paper Printing Wood and Allied Workers Union and Others,
supra
, at 215 E et seq.)
I am likewise not impressed by the further argument that BTR would
have lost heavily or even been broken financially by a prolonged strike. Had
it reconsidered the matter maturely, it would have been clear to BTR that
there was no impasse as regards the recognition agreement, that the parties
38
were in fact very close to an agreement and that with a little give and take and
the elapse of a relatively short period, the strike could have been ended there
and then, with little or no further financial loss to BTR.
Moreover the argument of loss of profits is also one that needs to be
seen in context. It appears from the 1985 Annual Report of BTR (dealing with the period now under consideration) and more particularly
from the
Chairman's review that the industrial relations issue at Sarmcol was estimated to have reduced the group's profit before interest
and tax by some R5 million.
Nevertheless, the review also states that the group had made an operating
profit of R10 968 000 and an after tax profit of R6 096 000.
Even if one concedes the loss of some R5 million as significant, BTR
itself was, in my view, the author of its own loss. It dismissed 970 employees
with an average of 25 years' experience and, obviously, invaluable expertise,
in what I consider to be a totally unreasonable manner and for insubstantial
39
reasons. BTR should have realized that any disadvantage it may have
suffered in coming to a compromise with MAWU and its trained work force
was preferable to the huge expense of hiring and training new recruits.
Procedural unfairness
Even if one considers the dismissal of the employees in isolation,
divorced from any covert motive to get rid of the employees and consequently
also of MAWU, the procedure employed by BTR and the manner in which
the employees were dismissed appears to be harsh and unreasonable. BTR
knew that the dismissal of a work force of nearly 1 000 employees would
cause unemployment in the area on a large scale. It knew that such dismissal
would cause great misery and disappointment to the dismissed employees,
their dependants and families. Many, if not most of them would be forced to
vacate the homes which they were occupying. They would have to move to
unfamiliar surroundings and relocate under difficult circumstances. Many of
40
the workers, having given their best years to BTR, would be unable to find
any alternative employment; others would be forced to take less
advantageous positions. The knowledge and expertise which they had gained
at BTR would, in many cases, become useless.
No responsible employer, in such weighty circumstances would dismiss
a workforce of nearly 1 000 employees with an average term of 25 years, after giving it an ultimatum of only one hour, nor would it
dismiss the
workers some hours later without at least trying to keep negotiations open.
There is very little that the employees and MAWU could have achieved in
one hour's time - except to bow to BTR.
BTR should also have known that the May Day dispute being the
immediate cause of the strike, the emotions in respect of May Day would
blow over in a few days and that it would be possible to resume negotiations
in a more calm atmosphere.
41
BTR also knew that the obstacles in reaching a recognition agreement were not insurmountable and it knew that the ball was in its
court. It was
obliged to respond to the MAWU draft, which was the latest offer on the
table.
In my view, the shortness of the ultimatum and the final dismissal of
the employees within a few hours thereafter, constituted an unfair labour
practice.
In this respect, there is a conspicuous similarity between the facts of
the case now under consideration and those of Performing Arts Council of the Transvaal v Paper Printing Wood and Allied Workers Union
and Other
1994(2) SA 204(A) ('PACT'). In that case, PACT, through its attorney,
issued an ultimatum to 299 of its employees engaged in a "wildcat" strike.
The ultimatum was communicated to the employees at 14h20, requiring them
to return to work at 14h30. They were dismissed 40 minutes later. Some of
42
the backgrounds facts in that case (summarised in the report at 215 G et seq.)
are reminiscent of those in the present matter, ia that most of the dismissed
employees had given many years (between 4 and 20 years) of service to
PACT; the cause of the unhappiness related to a matter which was of
legitimate concern to the employees in relation to the employment; the trade
union was not associated with the strike; PACT should have realized that
something had gone wrong in the communication between the trade union
and the employees; the employees were in an emotional state; and they had
been on strike for a relatively short time.
In the PACT case, it was said by Goldstone JA, delivering the majority
judgment at 216 8-D:
In all of those circumstances fairness and good sense
dictated that the employees should have been given a
reasonable ultimatum. As it was put by Van Rensburg J
in Plaschem (Pty) Ltd v Chemical Workers Industrial Union
(1993) 14ILJ 1000 (LAC) at 1006 H-I:
43
'When considering the question of dismissal it is
important that an employer does not act over
hastily. He must give fair warning or ultimatum
that he intends to dismiss so that the employees
involved in the dispute are afforded a proper
opportunity of obtaining advice and taking a
rational decision as to what course to follow. Both
parties must have sufficient time to cool off so that
the effect of anger on their decisions is eliminated
or limited.'
and again at 217 B et seq:
In my judgment a fair ultimatum in the
circumstances of this case should have been of
sufficient duration to have enabled:
(a)
PACT to have ascertained what had gone
wrong and caused the employees to behave
as they did, either by direct enquiry from the
employees, the shop stewards, Motau or
some other representative of the trade union;
(b)
the employees time to cool down, reflect and
take a rational decision with regard to their
continued employment, and for that purpose
to seek advice from their trade union.
The ultimatum given by PACT to the employees
44
was clearly insufficient. It was of too short a
duration by far to have achieved either of the
aforegoing objectives. It is not necessary to decide
what a reasonable period would have been. I
would suggest, however, that it should not have
expired prior to the commencement of work on the
following day.
Having regard to the six factors referred to above, in my opinion there was a distinct probability that
had a fair ultimatum been given to the employees
the strike would have come to a speedy conclusion.
It appears from the evidence that the trade union
was certainly opposed to the continuation of the
strike and that attitude would, as a probability,
have weighed with the employees, at any rate after
they had cooled down.
Having regard to the background circumstances in the present case, ia
especially the number of workers involved, the socio-economic consequences
of a dismissal to them and their dependants, and the distinct probability that
had BTR changed its intransigent stance and had it given a fair ultimatum to
the employees, the strike would have come to a speedy conclusion, I am of
45
the view that BTR should have approached the strike in a calm and mature
manner, so as to apply its mind properly to the steps to be taken.
But the very short ultimatum (one hour) hardly gave themselves or the
workers a chance to cool off and to take rational decisions. It would
obviously not have enabled MAWU to take control of its members, nor to
negotiate properly with BTR.
In requiring that BTR should have given a fair ultimatum to the
employees and not have dismissed them the next morning, but kept the
channels of communication open, and in finding that BTR failed to do so -
thereby making itself guilty of an unfair labour practice, I am not judging it
unfairly. Any reasonable employer would and should have taken into
consideration the factors to which I have made copious reference and in
consequence have acted in a much more reasonable manner (see the remarks
of Goldstone JA in the PACT-case at 217 G-I); see also the judgment of this
46
Court in Slagment (Pty) Ltd v Building Construction and Allied Worker's
Union and Other 1995(1) SA 742(A) at 755 H and of Van Rensburg J in
Plaschem(Pty) Ltd v Chemical Workers Industrial Union,
supra
, at 1006
HI).
The court a quo also dealt with the inadequacy of the ultimatum. It
came to the conclusion that the ultimatum was not an unreasonable one,
mainly on three grounds: (a) the workers must have known of BTR's
warning during the strike of March 1985 that further illegal industrial action
would result in their dismissal; (b) the employees had until the decision to
terminate their employment was communicated to them the next morning the
opportunity to indicate their willingness to return the work; (c) it is
"abundantly clear" that BTR would have welcomed any decision by the
employees to return to work up to the time of the actual dismissal.
As far as (a) is concerned, I am of the view that the reasoning of the
47
court a quo, with respect, is marred by a misdirection. One cannot ignore the
terms of the ultimatum of 2 May 1985 and rely on a warning given in March
1985. BTR, by giving notice in the ultimatum of 2 May 1985 that it was
reserving its rights, far from unambiguously threatening with dismissal, gave
the impression that it had still to choose from among the range of options
available to it. In fact, the court a quo should rather have taken into account
that the decision to dismiss had already been taken when the ultimatum had
been drafted and issued. The court a quo should have considered that BTR
withheld this crucial fact from MAWU and the employees, and it should have
considered the interesting question why this was done. In my view, the
correct conclusion speaks for itself.
As far as (b) is concerned, I also consider this to be a factual
misdirection in the sense that, although, of course, it is true that the
employees had until their dismissal an opportunity to return to work, they
48
were neither informed that a decision to dismiss them had already been taken
nor were they informed when they would be dismissed. The ultimatum, at
best, was vague and ambiguous, particularly as to the intentions of BTR.
Moreover, when the ultimatum was issued, BTR knew why the employees
were striking; afterwards to expect them to return without more ado was
tantamount to expecting them to capitulate as regards the recognition
agreement.
The conclusion reached in (c) is, in my view, clearly based on a
misdirection as regards the evidence. In the light of the long and persistent
dispute, BTR had, as Sampson conceded, come to the end of its tether. It had
already decided to dismiss the workers. This is hardly reconcilable with a
desire to take them back. What is more, Sampson in his evidence in chief
stated that it would not have been possible to take the strikers back without
resolving the recognition agreement. No such offer was forthcoming from
49
BTR. If BTR was desirous of the employees returning to their jobs, why did
it not resume negotiations as regards the recognition agreement? What BTR
desired was not a return of the workers, but in Sampson's own words
"capitulation on most issues."
That the postulated desire did not exist at all, is also proved by the
subsequent persistent policy of BTR not to negotiate with the workers or with
MAWU and not to take the workers back
en bloc
. As early as Tuesday 7 May
1985, two working days after the dismissals, Brand, MAWU's new attorney,
indicated to Giles that the workers were prepared to return immediately to the
negotiating table without preconditions. Also, on 13 May 1985, MAWU
informed BTR that the dismissed workers had unanimously decided that they
wished to be reinstated once the recognition dispute has been solved.
BTR's strategy, far from being one of desiring the return of the
workers, was not to negotiate at all and to employ temporary workers as
50
quickly as possible. This is amply borne out by a note made by Sampson of
his conversation with Brown of ALA on 8 May 1985, which reads as follows:
Brown says don't talk unconditionally at this stage, it must be on the clear basis that they are prepared
to make major changes. If they want to initiate
talks, it is not just from the past position.
Brand will say 'Let's get together', Giles should say
as long as
you
come with major concessions
prepared to make significant concessions,
otherwise you are wasting your time. You must
bring offers and proposals with you.
He has trapped us before -
not this time
. Must get
a quick and final settlement.
We are not reinstating
so that talks can continue
. Hold him off.
BTR accepted
ALA
's advice, and refused to meet with MAWU or to
re-open negotiations. This is also reflected in a telex from Giles to MAWU
on 17 May 1985 viz. that BTR "was not seeking to initiate negotiations." On
30 May 1985 BTR even denied that a dispute existed; on 7 June it refused to
51
concede that MAWU represented the dismissed workers. Sampson's evidence
in this regard is also remarkable. I quote from his cross-examination:
MR BRASSEY: So can we accept that as at the
strike and certainly as at the
dismissal, the Company had
abandoned the notion of
negotiation over the
recognition agreement?
MR SAMPSON: Yes, I think that is correct to
say, yes.
MR BRASSEY: Yes. And had abandoned the
notion of negotiation over the reinstatement or re-engagement
of the dismissed employees?
MR SAMPSON: Negotiation
per se
, yes.
MR BRASSEY: It is right to say too that the
Company had abandoned the
notion of arbitration in respect
of those matters?
MR SAMPSON: Yes sir.
52
By 12 August 1985 when MAWU did capitulate, a new workforce was
in place of whom 600 were permanent employees.
In my view no reasonable court, having regard to the totality of the
evidence, could have come to the conclusion that BTR would have welcomed
any decision of the workers to return to work up to the time of the actual
dismissal.
Am I precluded by s 17 C(l)(a) of the Act from reaching the conclusions set out herein before? I think not.
First, the question of whether the ultimatum was unreasonable or not
goes to the very heart of the question whether an unfair labour practice had
been committed. Whether an unfair labour practice had been committed, is
not a question of fact. In Media Workers Association of SA and Others v
Press Corporation of SA Ltd (Perskor) 1992(4) SA 79(A) this Court held that
the position is that the definition of an unfair practice entails a determination
53
of the effects or possible effects of certain practices, and of the fairness of
such effects. And, when applying the definition, the
Labour Appeal Court
is
expressly enjoined to have regard not only to law but also to fairness. A
decision of the Court pursuant to these provisions is not a decision on a
question of law in the strict sense of the term. It is the passing of a moral
judgment on a combination of findings of fact and opinions (per EM
Grosskopf JA at 798 H-I).
As explained, the same principle applies to the question whether the
ultimatum
was procedurally reasonable or not.
On this basis, this Court would be entitled to form its own view of what
was fair and just on the basis of all the evidence. In doing so, it should take
into account the arguments put forward by the court a quo and its factual
findings, but is not confined to these arguments and findings. If there are
other relevant considerations not dealt with by the court a quo, or if its factual
54
findings are based on misdirections, this Court is not bound to them. As to
the equation between misdirections and the test that no reasonable court could
have made a particular factual finding, the approach taken by Smalberger JA
in Atlantis Diesel Engines (Pty) Ltd v National Union of Metalworkers of
South Africa 1995(3) SA 22(A) is instructive. At 31 I he stated:
The finding of the LAC that the company could
simply have blocked out the details in the CAG
report which it sought to keep secret is in my view
flawed as it overlooks the realities of the situation.
In that case, the decision of the LAC was set aside, ia on the basis that
the finding, quoted above, was flawed. If a mere flaw is justification for the
rejection of a finding of the LAC, a fortiori a conclusion that a finding of that
court was based on a misdirection.
The test to be applied on appeal to this Court, therefore, does not
appear, in its practical application, to be as stringent as it is sometimes made
55
out to be. And for good reason. It would be unacceptable if this Court were
bound by misdirections on questions of fact by the LAC. In this respect it
should be remembered that the LAC is also a court of appeal, basing its
judgment on the same record of the evidence that is before this Court. We are
in as good a position as the LAC to decide questions of fact. (See National
Union of Mineworkers v East Rand Gold and Uranium Co Ltd,
supra
, at 723
C-D; see further in respect of misdirections as reason for setting aside a
judgment on the basis that no reasonable court could have come to the same
conclusion as the one committing the misdirection, and for the practical
application of the test, Performing Arts Council of the Tranvaal v Paper
Printing Wood and Allied Workers Union and Others,
supra
. at 218 D et seq.;
Commissioner for Inland Revenue v Stratmore Consolidated Investments Ltd
1959(1) SA 469(A) at 476 E-F; 477 C; 479 D-G; 480 E-F. Cohen v
Commissioner for Inland Revenue 1962(2) SA 367(A) at 377 A. Goodrick
56
v Commissioner for Inland Revenue 1959(3) SA 523(A) at 528 E-G).
BTR's persistent policy of selective re-employment
The unfair labour practice committed by BTR in dismissing the
employees did not end there, however.
BTR persisted in pursuing a policy of selective re-employment and
shutting out MAWU after the strike had occurred. This is borne out by the
events subsequent to the strike.
On 6 May 1985, BTR began recruiting a new work force. In the notice
to its dismissed employees, it expressed the wish that they would be 'amongst
those applying to be employed', and similar messages were conveyed by other
means. On 8 May 1985, BTR inserted an application for re-employment in the pay packets of each dismissed employee. In a telex of 10
May 1985,
MAWU asked BTR to refrain from employing scab labour, to which the latter
replied that labour was being employed with preference given to (previous)
57
retrenchees, who were not scab labour. No equivalent preference was offered
to strikers. And on 28 May 1985 BTR told MAWU that its members were
welcome to apply for the remaining vacancies.
New recruits were hired on temporary contracts. For the first six weeks
their employment was terminable on short notice; thereafter the contract
became a fixed term one of six weeks to expire early in August 1985. At the hearing BTR was unable satisfactorily to explain why the
contracts had been
structured in this way when in the normal course temporary employees were
dismissible on notice. The explanation is relatively easy to infer. In
principle, BTR wanted to set up the security of tenure of the new recruits as
a means of resisting the return of the strikers; to give the new recruits this
security from the outset would be inadvisable since it would commit BTR to
people whose worth had yet to be tested.
From these facts it is clear that, in re-establishing its work force, BTR
58
expected to hire some non-strikers for the vacant positions created by the
dismissals and to refuse re-employment to some of the strikers. In this sense,
at the very least, the programme of re-employment was selective. This
conclusion is borne out by the strategies employed by BTR at the time.
Brown, one of BTR's advisers, was urging it to re-man quickly before
MAWU presented it with demands. The more quickly it re-manned the
weaker MAWU would become. In heeding these words, BTR could not have
forgotten the advice it had received from the same firm of advisers six weeks
before. It was that, by re-hiring 'Y new faces', it would deprive the 'Union
lads' of their jobs, since they would be the last to come back when the strike
collapsed.
From the outset, BTR also contemplated active selective re
employment - that is, a programme in which it would pick and choose from
among the applicants for the vacancies. In the early days of the strike it was
59
advised by Levy to 'make a list of those you are not taking back including
those who misbehaved' (emphasis supplied). According to Sampson, a list
was made, but only of those who misbehaved. Whether the list was in fact as
circumscribed as this could not be verified because the document was not
produced.
As the dispute progressed, active selective re-employment became a
more prominent feature of BTR's strategy and as July 1985 drew to a close
it had become a central feature of it. In response to an offer by MAWU to
abandon the strike and return to work unconditionally, BTR's managing
director formulated a strategy by which it would pick and choose from among
the strikers and replace a third of its new work force with them. By the
middle of August, the idea of laying off a third of the new work force had
been dropped, and BTR was now willing to offer the remaining vacancies
(numbering fewer than seventy) to such of the strikers as it was willing to
60
take back.
From the moment of dismissal BTR was set against taking back the dismissed workers en bloc. So much was conceded by Sampson in evidence
on behalf of BTR. One explanation for this attitude was that BTR feared that
the dispute would then simply continue from where it had left off and this fear
is borne out by Sampson's contemporaneous notes. But this is a mere
superficial gloss to an explanation that goes much deeper. What BTR truly
feared was that the
Union
would retain its previous presence in the factory.
It is true that Sampson testified that BTR might have agreed to a
collective return if MAWU had capitulated to BTR's proposals for the
agreement. But in fact BTR continually set up obstacles to such an outcome by refusing to recognize any relationship with either MAWU
or its members,
denying the existence of a dispute, taking the stance that it would do no more
than listen to proposals, and making a meeting dependent on major
61
concessions in writing by MAWU. In fact, as Sampson conceded, BTR had
forsworn any notion of further negotiation (and arbitration, for that matter)
over the recognition agreement or the dismissal of the strikers.
The truth of the aforegoing is apparent from the following note made
by Sampson on 14 May 1985 after advice from Brown of ALA:
The most important message is there is no
relationship any more.. . . Giles (BTR's attorney)
must get message to Brand (MAWU's attorney) and
Schreiner that we are happy to listen to them, but
one of the pre-conditions is no open-ended debate
or discussions.... Every day that goes by, you are
remanning the factory and his position is getting
weaker. He must come with surrender terms.
In reality, BTR saw no reason to meet with MAWU. Its goal, I believe,
was not to get a settlement: it was to eliminate MAWU from the factory. In
evidence in chiefs Sampson came close to admitting as much, saying that the
workers had become 'misled and fired up by the Union rhetoric [so that] they
62
failed to perceive that they were playing with jobs'; under cross-examination,
he conceded that the purpose of the dismissal - and its effect - was to 'smash
the
Union
as an influence in the factory'. Under re-examination, Sampson
made it clear that he knew what the expression denoted: BTR wanted to
'break the dreadful hold and the fired-up striking work force ethic that had
destroyed all operations in the factory.' In his testimony he made it clear that
BTR viewed MAWU as responsible for this and that, since MAWU was
intransigent and militant, destroying its influence in the factory was the only
solution open to BTR.
My view, that BTR's true motive was not to protect its commercial
interests but to get rid of MAWU, is also borne out by the fact that subsequent
to the dismissals, BTR allowed a new
Union
, UWUSA, to represent the
workers. This
Union
, more sympathetic to BTR, was allowed on BTR's
premises without having to overcome the obstacles placed by BTR in
63
MAWU'spath.
The court a quo, on the other hand, came to the conclusion that BTR
was justified in not re-employing the appellants. This conclusion is, in
essence, based on the finding that "the one thing that the appellants never did
... was to drop their demands and tender their services."
I have earlier in this judgment dealt with the facts. The finding of the
court a quo is, in my view, inconsistent with the facts, amounts to a
misdirection and, for the reasons advanced earlier, does not preclude this
Court from holding the opposite view.
In my view there is also another underlying basic misconception in the
reasoning of the court a quo, namely: The court a quo discussed the power
struggle between employers and employees in terms appropriate to battle and
warfare. It perceived a correlation between a strike, which it characterized as
the ultimate weapon of the union, and dismissal, which it saw as the
64
employer's ultimate weapon. The judgment suggests and seems to me to be
based on the premise that recourse to the one automatically legitimizes
recourse to the other.
It was argued by counsel for the appellants, correctly in my view, that
this is neither our law, nor could it be. It is settled law, thus ran the argument,
that to strike is a legitimate instrument in the process of collective bargaining
that the Act so emphatically endorses: the threat of it makes collective
bargaining realistic and its occurrence serves, by the attrition it entails, to
break deadlocks in the process for which there would otherwise be no
resolution. Dismissal, in contrast, destroys the relationships of employment
upon which collective bargaining is premised and so damages and often
wholly destroys the relationship. There is no equivalence between the two
and the one that the court a quo set up is illusory. Dismissal is not one of the
"weapons" that an employer might use unless the need to resort to this
65
sanction is compelling. It is, in other words, not a reciprocal right, but an
extraordinary one. The court a quo, in my view, reached its decision that the
workers were fairly dismissed because they did not capitulate completely and
were consequently not entitled to reinstatement, on a faulty perspective of the
true legal position.
If authority is needed for the view I take of the matter, reference may
be had to the decision of this Court in National Automobile Allied Worker's
Union
now known as National Union of Metal Workers of South Africa v
Borg-Warner (SA) Pty Ltd 1994(3) SA 15(A) at 25 H-J. The judge a quo
referred to this case, but remarked that it was decided some nine years after
the events giving rise to the present case had taken place. If the intention was
to say that the decision in that case was not binding on the court a quo when
it gave its judgment, I must disagree. The case quoted was based on the
provisions of the Act, which existed in 1985 and when the judge a quo gave
66
his judgment, and was binding on the latter court. In not applying the
principle mentioned in the quoted case, the judge a quo misdirected himself.
The attitude of the court a quo is also not consistent with the perspective
taken by the
Constitutional Court
in Ex parte Chairperson of the
Constitutional Assembly: In re Certification of the Constitution of the
Republic
of
South Africa
[1996] ZACC 26
; ,
1996 (1996(4) SA 744
(CC) at paras. 63 - 69, esp
para. 66).
Conclusion
In conclusion, and referring to the criteria laid down in the Act, I am
satisfied that the dismissal by BTR of the appellants on 3 May 1985 coupled
with its consistent refusal or failure to re-employ them thereafter, constituted
an unfair labour practice. It unfairly affected the appellants' employment
opportunities. There were in Howick and vicinity no other employment
opportunities of a similar nature. It obviously affected, and unfairly so, the
67
appellants' work security, in that they lost their jobs so to speak overnight
after having served BTR for very long periods, giving their best years to it.
It prejudiced and jeopardized the physical, economic and social welfare
of the appellants and their families drastically. They not only lost their jobs
but also their housing and other socio-economic benefits which they enjoyed
as employees of BTR. The precipitate actions of BTR caused wide-spread
labour and social unrest, resulting in riots and killings in Impophomeni, the
residential area where the appellants lived. It certainly had a permanent
detrimental effect on the relationship between the appellants and BTR.
In the result, the appeal should, in my view, be upheld.
Compensation
This brings me then to the matter of compensation.
The only evidence as regards the losses suffered by the dismissed
employees, and the only suggested method of compensation are those of
68
Professor Asher, an eminently qualified actuary. He was furnished with a list
of the names of the employees, their salaries and other employment benefits
and other relevant information, e.g. the date of death of those who have in the
meantime passed away, etc.
Neither the
Industrial Court
nor the
Labour Appeal Court
has given a
judgment pertaining to the calculation of the compensation payable to the appellants, because both courts refused the appellants'
claims. There is,
therefore, no judgment pertaining to such compensation before us on appeal.
Counsel for the parties involved in this appeal were ad idem that this
Court is not in a position to finalise an award in respect of any of the
appellants. The precise salary of each appellant at the date of dismissal, his
or her pension or other benefits, the details pertaining to their new
employment (of those who have secured such employment), and the dates of
death of those who have died, etc. are not available to us. There is also no
69
evidence as to the correct rate of capitalization of compensation, or evidence
relating to the calculation of contingencies applicable to each appellant. In
these circumstances this Court is simply not in a position to give judgment in
respect of any of the appellants as regards the compensation payable.
But counsel for the appellants requested this Court to establish the
general principles which would govern the calculation of the compensation
payable, and to remit the matter to the
Industrial Court
for applying such
principles to the facts in respect of each appellant. Counsel for BTR,
however, indicated disagreement with the principles advanced by counsel for
the appellants, such as they were.
I am not amenable to the request by the appellants to lay down a
number of principles in adstracto. The dangers of such a course are self-
evident. Any broad, abstract, formulation of principles of law by a court of
law is inherently open to criticism, because a legal principle is qualified and
70
given precise content only by the facts to which it is applied. It is not the task
of this Court to propound broad principles which may require, when applied
to a number of different factual cases, reformulation and qualification.
The only equitable manner to deal with the question of compensation
is to remit it to the
Industrial Court
for finalisation. I know full well that such
a decision may cause a further delay to the proceedings which already have
been inordinately protracted. One can only hope that better judgment than
hitherto will prevail between the parties and that in the near future they will
come to reasonable settlement, or decide on a procedure for such settlement.
As far as the costs of the appeal is concerned, I see no reason why the
ordinary rule should not apply.
The following order is made:
1.
The appeal succeeds with costs, including the costs of two counsel.
2.
Paragraph (a) of the order of the court a quo is replaced with the
1.
71
following order: The appeal is allowed. Paragraphs 1 and 2 of the
order granted by the
Industrial Court
is replaced with the following
order:
'The dismissal of the appellants from the employ of the respondent
constituted an unfair labour practice'.
3. The matter is remitted to the
Industrial Court
for the determination of
the compensation payable to each of the appellants.
I concur
:
RH Zulman JA
THE SUPREME COURT OF APPEAL
OF
SOUTH AFRICA
Case No 631/95
In the matter between:
EMMANUEL BETHA AND OTHERS
APPELLANTS
and
RTR SARMCOL a division of
BTR DUNLOP LTD
RESPONDENT
BEFORE
: SMALBERGER, OLIVIER, SCOTT, ZULMAN
and STREICHER JJA
HEARD
: 8,9 SEPTEMBER 1997
DELIVERED
: 6 March 1998
JUDGMENT
2
STRETCHER. JA
:
I have read the judgments by Smalberger JA and Olivier JA. I
agree with the conclusion reached by Olivier JA and shall briefly state my
reasons for doing so.
As is stated by Smalberger JA the question to be determined
is whether the loss by the appellants of their employment was the result of
an unfair labour practice on the part of the respondent ("BTR"). In my
view it was.
On 3 May 1985 BTR dismissed its entire weekly paid
workforce consisting of some 970 workers. The average period of
employment of these workers was approximately 25 years. It is common
cause that up to relatively shortly before the dismissal they had loyally
3
served BTR and that BTR had enjoyed an exceptionally good relationship with them.
During the period 1981-1985 BTR retrenched 1154
workers and thereby reduced its weekly paid workforce from
approximately 2000 to approximately 1000 workers. This reduction
must have given rise to feelings of insecurity on the part of the remaining
workers and was bound to put considerable strain on the relationship
between employer and employee.
In these circumstances it is not surprising that the majority of
the workers joined a trade union, Metal and Allied Workers'
Union
("MAWU") and that the conclusion of a recognition agreement between
BTR and MAWU became a matter of considerable importance to
4
them. In these circumstances it was also to be expected that the failure of
BTR and MAWU to conclude a recognition agreement over a period of
more than 20 months would exacerbate the workers' feelings of insecurity
and frustration. That is so whether it was BTR's or MAWU's fault that
an agreement had not been concluded.
It is against this background that the labour unrest during
1984 and 1985, amongst workers who had served BTR for so many years, should be seen.
In my view it is not necessary to attempt, what may well be
an impossible task, to apportion blame for the failure of BTR and
MAWU to reach agreement on the terms of the recognition agreement
before April 1985. It is clear that by April 1985 the parties were very
5
close to reaching agreement. Smalberger JA found that MAWU
closed the door to further negotiations, as a result of which a deadlock
ensued, justifying the dismissal of the workers. However, the latest
proposals came from MAWU and it was incumbent on BTR to
properly respond to those proposals by conveying its attitude in regard to
the proposals to MAWU. Had it done so a deadlock would in all
probability have been averted and agreement may well have been reached.
By dismissing the workers before having done so BTR acted precipitately,
unreasonably and unfairly.
On 12 March 1985 the Minister of Manpower approved the
establishment of a conciliation board to consider and determine a dispute
between MAWU and BTR "concerning the failure of the company to
6
accept the proposals of the union regarding a written recognition
agreement". The first meeting of the conciliation board took place on
20 March 1985. On 21 March 1985 BTR made certain further
proposals concerning the terms of the proposed agreement. It described
its proposals as a full, final and complete package offer and stated that it
would remain open for acceptance until 16h30. MAWU thought that
the proposals could provide a realistic basis for settlement and requested
more time to consider them. BTR initially adopted the attitude that
the proposals had to be accepted or rejected. Subsequently it indicated that it would be prepared to meet on 27 March 1985 for no
longer than 4
hours to discuss counter suggestions not involving matters of principle or
substance. On 27 March 1985 MAWU submitted its counter proposals
7
to BTR.
At the resumption of the conciliation board meeting on 10
April 1985 BTR presented MAWU with a new draft agreement
which BTR was prepared to sign, highlighting additions and deletions from the previous draft agreement. The changes to the previous
draft
agreement were explained to MAWU by BTR's attorney, Mr Giles.
MAWU made certain proposals which were quite reasonable. Some of
the proposals related to new provisions introduced by BTR and some
related to a rewording by BTR of wording that had previously been agreed.
Some of the proposals were of very little consequence. For example, in a
new clause introduced by BTR at this late stage MAWU wanted the
word "warranted" to be substituted with the word "agreed". Giles
8
conveyed MAWU's proposals to BTR. Some of the proposals were
acceptable to BTR but it wanted to see MAWU's proposals in respect
of certain procedural matters before responding to the proposals.
At the request of BTR MAWU formulated its proposals in respect of
the procedural matters and handed them to Giles. After BTR had had
what MAWU considered to be sufficient time to consider the proposals MAWU insisted on an answer within 15 minutes. BTR
thereupon rejected all MAWU's proposals and refused to give any
reasons for doing so notwithstanding a request by MAWU to indicate
why the proposals were not acceptable. BTR went even further and
withdrew the offer to conclude the recognition agreement with MAWU in accordance with the draft submitted to MAWU. BTR adopted this
9
attitude, not because it had not had sufficient time to consider the
proposals, but because it was annoyed at having been put on terms by
MAWU.
This attitude of BTR was bound to and did in fact result in
a termination of the negotiations between the parties. In the light of the
fact that some of the proposals were acceptable to BTR, the fact that it
later transpired that MAWU's proposals in respect of the procedures
were, with the exception of two clauses, acceptable to BTR and the
fact that an agreement was within the grasp of the parties, this attitude of
BTR was unreasonable. The response by BTR was not the response of
a bona fide negotiator and therefore did not constitute a proper response.
It is not suggested that BTR was under any obligation to accept any of
10
MAWU's proposals but merely that BTR should in the circumstances
have responded properly to MAWU 's proposals. Had BTR done so a tragedy may well have been averted.
Predictably MAWU thereupon incorporated their proposals
into BTR's draft agreement of 10 April 1997, submitted the amended
draft agreement to BTR and insisted that that document be signed.
MAWU also indicated in a telex to a newspaper that the draft agreement
reflected its final position. Being a reaction to BTR's failure to respond
to MAWU's latest proposals one cannot infer from MAWU's attitude
that, had BTR changed its position by properly responding to MAWU's
proposals, MAWU would have refused to further negotiate. Neither
the
Labour Appeal Court
("LAC") nor BTR drew such inference.
Schreiner testified that the workers were trying to get BTR to the
11
negotiating table. That BTR understood MAWU's attitude to be no
more than a tactic in order to elicit a response, is apparent from the fact
that it notified MAWU that it had received their draft, that it would
consider it and respond thereto. BTR was advised by Allen, an industrial relations consultant, that it should fairly promptly respond
and that it
should not be obstinate. It was also advised by Giles that there were ways
of overcoming the differences.
BTR on 23 April 1985 reconsidered MAWU 's proposals. Some of MAWU's proposals were acceptable and in respect of some
BTR was prepared to change the wording proposed by it. Of some 14
clauses or subclauses that had not been agreed, of a very comprehensive and lengthy document, BTR considered that its wording of only
5 clauses
12
should be retained. The other proposals were either acceptable or
negotiable. In one of the 5 clauses the difference was of no consequence, in another the difference was of very little consequence
and in the three
others the difference was of some importance. They were:
1.
In BTR's final draft it inserted a proviso into a clause previously
agreed in terms of which it was required to follow a disciplinary
procedure in such a way as to be as just and fair as possible. The proviso was that it would not be necessary to follow the procedure
in respect of any employee participating in industrial action.
MAWU proposed that this proviso be deleted.
2.
In regard to retrenchments MAWU wanted the principle of last in
first out to be applied across the factory whereas BTR wanted it to
1.
13
be applicable within the various departments.
3. BTR was only prepared to credit retrenchees with past service if re
employed within 6 months whereas MAWU wanted them to be so credited whenever they were re-employed.
It should have been obvious to BTR that deadlock had not
been reached and that after negotiations stretching over a period of some
20 months agreement was a distinct possibility. That it was obvious to BTR is apparent from the fact that Sampson was, on 22 April
instructed
by Bird, the group chairman, to finalise the agreement with MAWU.
On 25 April Sampson spoke to Schreiner. He told Schreiner that he had
received such an instruction and highlighted the fundamental differences.
He wanted to meet with Schreiner on his own but Schreiner explained that
14
that could not be done as it was against the policy of MAWU to
negotiate without the shop stewards being present. Schreiner requested
Sampson to put BTR's proposals in a telex but Sampson was not
prepared to do so. Schreiner eventually agreed to telephone Sampson on
29 April in respect of the recognition agreement.
In the meantime the workers were dissatisfied about the
failure to reach agreement on the terms of the recognition agreement. Van
Zyl, the industrial relations officer of BTR, reported that the factory was
rife with rumours that strike action was going to take place the following
week. BTR recognised the danger of the workers going on strike
because of their dissatisfaction about the recognition agreement as is
apparent from its circular to the workers dated 26 April 1985 which read:
15
"The factory is rife with rumours and propaganda concerning strikes
and unrest and action is being contemplated by management and
workers.
The recognition agreement between MAWU and BTR is still under consideration."
On 26 April 1985 MAWU, in a telex to BTR, confirmed that
the factory would be closed on 1 May 1985 from 1 lh45 to 22h00 so as to
enable the workers to attend the May Day celebrations. BTR
responded that there was no agreement in respect of the night shift
workers. Technically it may have been correct. The agreement concluded
by the parties on 30 July 1984 reads as follows:
"8
subject further to suitable prior arrangements being made in
writing with your
Union
in respect of essential and continuous
services, the company undertakes not to prevent any of your members
concerned from clocking-out early on the first day of May provided
16
that it is not before the commencement of the normal lunch-break on
that day and provided further that such person will only be paid for the
hours worked on that day."
On 29 April 1985 the workers were advised as follows in
respect of the arrangements for 1 May 1985:
"Night shift will commence at the normal time and employees are
expected to work the full shift."
Still on 29 April 1985 Schreiner had a telephone conversation
with Sampson during which he pleaded with Sampson to allow the night
shift workers to start their shift at 19h30 so as to allow them to attend the
May Day celebrations together with the other workers. Schreiner could not
persuade Sampson, got cross with him and stated that there would be trouble.
This statement has been interpreted as a threat. It could also have been a
prediction.
17
The next day the workers downed their tools, left the
machines running and proceeded to the canteen. In the light of the
existing dissatisfaction amongst the workers, the fact that a strike was
brewing and the fact that May Day was an emotive issue at the time, the
strike could hardly have come as a surprise to BTR.
I accept the correctness of the court a quo's finding that the
immediate cause of the strike was the dispute about May Day. However,
whatever the immediate cause of the strike may have been, it, within
minutes, became a strike about the failure of BTR to conclude a
recognition agreement with MAWU.
BTR adopted the attitude that the strike was unlawful, it
placed on record that Schreiner undertook to telephone Sampson and
18
demanded that the workers return to work. MAWU on the other hand
adopted the attitude that the strike was lawful and stated that the latest
draft submitted to BTR reflected its final position. It stated in a telex to
BTR:
"You are in possession of a recognition agreement which has been
approved by our national executive committee which constitutes
Mawu's final position and our members wish this negotiated
document to be signed by your company prior to their returning to
work.
Any minor semantic changes which the company may wish to
suggest would accordingly be appropriately handled immediately
prior to a meeting between our parties to sign the recognition
agreement.
The union is open to your suggestion of a suitable date for the
above and believes that conclusion of this long overdue document
will facilitate an end to the strike."
The LAC correctly found that the attitude adopted by
MAWU from the outbreak of the strike to the time of dismissal was that
19
there was only one option open to BTR and that was to sign MAWU's
draft agreement. As I have already indicated that attitude was provoked
by BTR's failure to properly respond to MAWU's latest proposals.
The attitude was therefore adopted on the basis of BTR having refused to
so respond. It does not follow, and the LAC did not find, that had BTR
even at that late stage responded properly and bona fide MAWU would
have persisted in its attitude.
Notwithstanding Schreiner having reneged on his
undertaking to telephone Sampson in respect of the recognition agreement the ball was still in BTR's court to respond to MAWU's
proposals. The meeting suggested by MAWU afforded BTR an
opportunity to do so. Again BTR did not interpret the position to
20
be that negotiations with MAWU could not be re-opened. On 1 May
Blackstock met with BTR's negotiating committee. They considered the
various options open to BTR. One of the options considered was to
negotiate with MAWU. They decided against doing so and in favour of
dismissing the weekly paid workforce on 2 or 3 May 1985 and conveyed
their decision to Bird. They did so because they were ostensibly of the
view that no agreement was possible and not because of a view that
MAWU would not be prepared to re-open the negotiations once BTR
had responded to its proposals. BTR could not bona fide have held the view that no agreement was possible as is apparent from the
fact that
immediately before the strike Sampson had received instructions to
negotiate the agreement to finality. In any event not having responded to
21
MAWU's proposals, BTR was in no position to form that view.
Schreiner testified that he believed that the dispute could have been
resolved if BTR had a real intention of doing so.
At 15h00 on 2 May BTR issued an ultimatum to the
workers to return to work by 16h00 or face dismissal. The night shift
workers had to return to work within an hour of the start of the night shift.
The workers failed to return to work and later that evening BTR
decided to dismiss all of them. The next morning they were advised of
their dismissal.
The workers were wrong to resort to strike action when they
did so. It is not known precisely what the question was in respect of which
the strike ballot was conducted some months before the strike took place.
22
It is unlikely that it encompassed the dispute between the parties as it was
on 30 April. It follows that the strike was probably unlawful. Furthermore,
MAWU had previously agreed to give BTR a reasonable time to respond
to their latest draft and should at least have issued an ultimatum to BTR
before embarking on a strike. In the light of the intimation by Sampson
to Schreiner, the possibility of a resolution of the dispute without resorting
to strike action should also have been explored first. However, it is at
least understandable how it came about that the workers nevertheless went
on strike and the mere fact that the strike was not justified did not entitle
BTR to dismiss the workers. The question to be decided is whether the
dismissal, after having given the workers an ultimatum to return to work
within an hour, was fair. In judging whether it was the court has to apply
23
a moral or value judgment to established facts and circumstances and in
so doing it must have due and proper regard to the objectives sought to be
achieved by the Act (see National Union of Metalworkers of SA v Vetsak Ltd
1996 (4) SA 877
(A) at 589C-D and 593B-G).
Notwithstanding the aforementioned considerations, the
previous unlawful industrial action by the workers and the warnings that
they would be dismissed should it recur I am for the following reasons of
the view that it was unfair of BTR to dismiss the workers.
1. Although the strike was probably unlawful BTR knew that
MAWU and the workers were under the impression that it was a
lawful strike. Notwithstanding an invitation to do so BTR did not
tell MAWU why it considered the strike to be unlawful.
24
2.
BTR knew that it was at least partly to blame for the strike in that
it failed to negotiate with MAWU in respect of MAWU's
proposals on 10 April and failed to properly respond to MAWU's
proposals for an inordinate long time thereafter thereby contributing
to the dissatisfaction amongst the workers and to creating an
atmosphere conducive to strike action.
3.
BTR knew or should have known that it was the dissatisfaction
about the May Day arrangements that was the last straw which
precipitated the strike and that May Day was by 2 May something
of the past.
4.
BTR knew that there was a possibility that agreement could be
reached on the terms of the recognition agreement if negotiations
2.
25
were re-opened.
5.
The latest proposals in respect of the recognition agreement were
MAWU's proposals and the way to re-open the negotiations was
for BTR to properly respond to those proposals.
6.
MAWU had invited BTR to suggest a date for a meeting to
finalise the recognition agreement and thereby afforded BTR an
opportunity to respond to MAWU's latest proposals.
7.
After the strike had commenced BTR was no longer prepared to
negotiate with MAWU .
8.
BTR in effect seized on a mistake on the part of MAWU to
dismiss the striking workers. BTR did not offer to employ all the
dismissed workers should they apply for their jobs as was submitted
5.
26
to have been the case. BTR offered to consider applications by
the dismissed workers for employment. That offer did not diminish
the harshness of the decision to dismiss. BTR must have realised
that the workers would not accept an offer to apply for their jobs
without an assurance that each application would be accepted.
In my view a reasonable employer would in the
circumstances not have dismissed workers who had served him loyally for
25 years, before having satisfied himself that it was in fact not possible to
reach agreement on the terms of the recognition agreement. This could
have been done expeditiously with substantial benefits to BTR and
without exposing it to greater financial loss than it actually suffered.
My moral or value judgment, having regard to all the
27
aforesaid facts and circumstances, is therefore that the dismissal of the
weekly paid workers was unfair.
It remains to deal with the question of compensation. The
question of compensation was not considered by the
Industrial Court
or
by the LAC. The parties are ad idem that the amount of compensation
payable to the appellants cannot be determined by this court and that the matter should be referred back to the
Industrial Court
for determination.
However, in order to assist in the determination the parties have requested
this court to determine when litis contestatio occurred and also the basis
upon which compensation should be calculated. I agree with Olivier JA
that this is a matter which should be dealt with by the
Industrial Court
as
the court of first instance.
28
I therefore agree with the order proposed by Olivier JA.
P E STREICHER
REPUBLIC
OF
SOUTH AFRICA
/mb
IN THE SUPREME COURT OF APPEAL OF
SOUTH AFRICA
In the matter of:
CORAM: SMALBERGER, OLIVIER, SCOTT, ZULMAN
HEARD: 8, 9 SEPTEMBER 1997 DELIVER
ED, 5 MARCH 1998
SCOTT JA/...
2
I agree with both the reasoning and conclusion of Smalberger JA. Having read the judgments of Olivier JA and Streicher JA, with which
I am in
respectful disagreement, I consider it necessary to express my views on certain
limited issues raised therein.
In his judgment my brother Olivier JA finds that the strike was
provoked by Mr Sampson's uncompromising attitude on the issue of May Day
notwithstanding differences in interpretation of the agreement, and that for this
reason he was partly to blame for the strike. The agreement relating to May Day,
as recorded in BTR's letter of 30 July 1984, is somewhat ambiguous as it
contains no reference to the night-shift. But, as explained by Sampson in
evidence, the object of allowing the workers leave of absence was to permit them
to attend May Day celebrations which would presumably take place during the
3
day and not at night. The night-shift was therefore probably never in issue and
for this reason was not mentioned in the letter recording the agreement. In this
regard it is not without significance that Mr Schreiner wrote to Sampson on 26
April 1085 seeking confirmation that the factory would be shut from 11.45 am
to 10 pm on 1 May 1985. It was never explained on what basis Schreiner
contended that although there would be a night-shift it would only commence
at 10 pm and not at the usual time. He did not suggest that this was a
compromise. Nor could it have been, as on 26 April 1985 there was as yet no
dispute between the parties with regard to the question of May Day. The
Labour Appeal Court
('the LAC) found that Sampson's version of the agreement
was the correct one. (See Ram and Others v BTR Sarmcol-A Division of BTR Dunlop
Ltd (1996) 17 ILJ 72 ('the LAC judgment') at 90 D - F.) I am inclined
to agree, but the criticism of Sampson is that regardless of whether he was right
4
or wrong he ought to have adopted a more conciliatory approach and by failing
to do so he was partly to blame for the strike.
I agree that the stance adopted by Sampson in relation to the
interpretation of the May Day agreement was uncompromising and that the issue
arose at a time when there was much tension between the parties. In fairness to
Sampson he considered that the attitude of MAWU to BTR in relation to hours
worked had been no less uncompromising. Notwithstanding the financial
difficulties of BTR the appellants steadfastly refused to work 'a minute of
overtime' no matter what the circumstances. Sampson was understandably
reluctant to give up several hours of production time; his attitude was one of
concern and not annoyance. In 1985 May Day was not yet a public holiday.
BTR was among the first of the larger employers to agree to its workers going
off on May Day. There is to my mind, however, an important question of
5
principle involved. The issue of May Day was wholly unrelated to the issue of
the recognition agreement. Any strike arising from the May Day issue at that
stage would therefore have been in the nature of a wild cat strike. Workers have
a right to strike and the threat of legitimate industrial action is a valid means of
coercing management to accede to the demands of labour. But by the same
token management has a right to take up an attitude on an issue between the
parties without the fear of an illegitimate strike. If management were obliged to
accede to demands lest there be an illegitimate strike the result would be akin to
blackmail. Sampson was therefore perfectly entitled to take up a firm attitude
on the May Day issue without the fear of a strike as that issue had nothing to do
with the negotiations on the recognition agreement. In my view there was
nothing unreasonable or unfair about his conduct. It follows that he cannot be
held to blame for provoking the strike in relation to the recognition agreement
6
by reason of his failure to accede to MAWU's demands on the May Day issue.
A further finding of my brother Olivier JA on which I feel it
necessary to comment is the finding that the unreasonable deadlines imposed on
MAWU by BTR as part of a hard-line attitude adopted by the latter were in
effect inconsonant with bona fide negotiations and evidenced an underlying
intention to rid the factory of MAWU by dismissing its members.
By March 1985 the parties had been negotiating for more than 18
months. (There were various reasons for this but it is unnecessary for the purpose
of this judgment to consider them.) During that time MAWU had itself adopted
various tactics to put pressure on BTR, including what counsel for MAWU
conceded was an aggressive approach and a constant readiness to declare a
dispute and seek the establishment of a conciliation board. On 20 March 1985
MAWU telexed BTR saying:
7
'We advise that unless otherwise agreed we shall regard the matter as
"unresolved" if no agreement has been reached today. In such an event
(without wishing to threaten the company) we must merely point out that
we reserve all our rights including that to take industrial action'.
Despite the disclaimer, the threat was clear. It was all part of the tactics adopted
by MAWU to place pressure on BTR to accept the former's proposals at a
meeting of the conciliation board that day. In response, BTR on 21 March 1985
submitted a proposal which was presented as a 'full, final and complete package
offer'. It involved BTR making what it perceived to be major concessions.
Indeed, the proposal was described by MAWU as a 'realistic basis for
settlement'. The offer was stated to be open until 2.30 pm of the same day. This
was clearly a negotiating tactic on the part of BTR in an attempt, in turn, to place
pressure on MAWU to accept its offer. BTR thought that the concessions it had
made were such that its offer ought to be accepted. It agreed to extend the
8
deadline for acceptance to noon on 25 March 1985 but then refused to afford a further extension. In doing so, it sought to maintain
the pressure on MAWU to
accept the offer. What is clear, however, is that notwithstanding the deadlines
set by BTR, the parties continued to negotiate in an attempt to reduce the gap
between them, right up until the strike. (As to the sequence of the events during
this period, see the judgment of Smalberger JA.)
In these circumstances I cannot agree that BTR's refusal to afford
MAWU more time on 25 March 1985 (which was clearly no more than a tactic)
or its so-called hard-line attitude was inconsonant with the requirements of bona fid
e labour negotiations. Indeed, if BTR did not seek to reach consensus and was
negotiating in bad faith, Sampson would hardly have attempted to meet with
Schreiner in an endeavour finally to resolve the matter. That he attempted to do
so, was common cause. In this respect too there is an important matter of
9
principle involved. Deadlines for the acceptance of offers (cf National Union of Mineworkers v Black Mountain Mineral Development
Co (Pty) Ltd
1997 (4)
SA 51
(SCA) at 63 I - 64 A), threats of industrial action and the like are typical
tactics adopted in the bargaining process contemplated by the Act. Save in
extreme cases (which, in my view, this was not) it is not for the court to become
involved in what has been described as 'the negotiating strategies of the parties'.
(See Grogan Collective Labour Law at 33 and cited with approval in the
Black
Mountain
case supra at 65 F.) No doubt the circumstances may be such as to
justify the conclusion that a particular tactic adopted by one party is indicative
of mala fides. But, by the very nature of things and for the reason just
mentioned, this is a conclusion to which a court will not lightly come,
particularly where both parties have resorted to similar hard-line tactics. In my view, such a conclusion is not justified in the
present case.
10
A further aspect with which I wish to deal shortly is the extent to
which this Court is entitled to depart from the findings of fact of the court a quo.
It is perhaps necessary at the outset to emphasize again that the
powers of even a court exercising ordinary appellate jurisdiction in relation to
findings of fact are limited. The approach to be adopted was recently restated
by Marais JA in S v Hadebe and Others
1997 (2) SACR 641
(SCA) at 645 e - f
as follows:
"Before considering these submissions it would be as well to recall yet
again that there are well-established principles governing the hearing of
appeals against findings of fact. In short, in the absence of demonstrable
and material misdirection by the trial Court, its findings of fact are
presumed to be correct and will only be disregarded if the recorded
evidence shows them to be clearly wrong. The reasons why this deference
is shown by appellate Courts to factual findings of the trial court are so
well known that restatement is unnecessary.'
In the present case, of course, this Court by reason of the provisions of
11
s 17C(l)(a) of the Labour Relations Act 28 of 1956 is bound by the findings of
fact of the LAC. Accordingly, the extent to which it may interfere with such
findings is far more limited than the test set out above. As has been frequently
stated in other contexts, it is only when the finding of fact made by the lower
court is one which no court could reasonably have made, that this Court would
be entitled to interfere with what would otherwise be an unassailable finding.
(See Commissioner for Inland Revenue v Strathmore Consolidated Investments Ltd
1959(1) SA 469 (A) at 475 et seq; Secretary for Inland Revenue v Trust Bank of Africa Ltd
1975(2) SA 652 (A) at 666 B - D.) The inquiry by its very nature
is a stringent one. Its rationale is presumably that the finding in question is so
vitiated by lack of reason as to be tantamount to no finding at all.
The limitation on this Court's ordinary appellate jurisdiction in
cases of this nature applies not only to the LAC's findings in relation to primary
12
facts, ie those which are directly established by evidence; but also to secondary
facts, ie those which are established by inference from the primary facts. The
reason is that the drawing of an inference for the purpose of establishing a
secondary fact is no less a finding of fact than a finding in relation to a primary
fact. (See Magmoed v Janse van Rensburg and Others 1993(1) SA 777 (A) at 810H-811G.)
It follows that it is not open to this Court to depart from a finding
of fact by the LAC merely on the grounds that this Court considers the finding
to be wrong or that the LAC has misdirected itself in a material way or that it
has based its finding on a misconception. It is only when there is no evidence which could reasonably support a finding of fact or
where the evidence is such
that a proper evaluation of that evidence leads inexorably to the conclusion that no reasonable court could have made the finding,
that this Court will be entitled
13
to interfere.
I do not understand the decision in Atlantis Diesel Engines (Pty) Ltd v National Union of Metalworkers of South Africa
[1995] ZASCA 30
;
1995 (3) SA 22
(A) to be
inconsistent with the above proposition. The 'finding' of the LAC referred to at 31 I with which this Court disagreed was not a finding
of fact in the true sense
but a finding involving a value judgment. (Cf Media Workers Association of
South Africa and Others v Press Corporation of South Africa Ltd 1992 (4) SA
791 (A)at795 C-797 J.)
The provision in s 17 C (l)(a) limiting the Court's jurisdiction in
relation to findings of fact is somewhat anomalous inasmuch as the LAC does
not hear evidence and has before it the same material which is before this Court.
It does not therefore have the advantages of a court of first instance and is in no
better position than this Court to make findings of fact. However, Parliament in
14
its wisdom decided to make the LAC the final arbiter on issues of fact. It may
well be that its reason for doing so is related to the composition of the LAC or
simply to limit the number of appeals coming to this Court. But whatever the
reason, this Court is not entitled, because it disapproves of the wisdom of the
provision, simply to ignore it or apply some test different from the well
established test which is to be applied when there is no appeal on questions of
fact.
Applying the above test I am of the view that this Court is not
entitled to interfere with any of the factual findings of the LAC. Those findings
include the important findings made in the face of submissions by counsel to the
contrary that BTR was not actuated by an improper motive to avoid a settlement
or to rid itself of MAWU by dismissing the employees, whether before or after
the strike. (See the LAC judgment in particular at 95 H - 96 H. See also 93 C -
15
J.) Merely because the LAC elected not to deal in its judgment with the
evidence of events in relation to the negotiations between the parties from 1979
leading up to the strike in April 1985 but to confine itself to general observations
in regard thereto, does not mean that it did not have regard to those events when
making the findings referred to above; nor does it mean that those findings are not findings of fact. Smalberger JA similarly found
that the attempt by counsel
for the appellants to ascribe such an improper motive to BTR was not justified
on the evidence. It follows from the aforegoing that a conclusion that this Court
is free to substitute its own findings of fact for these findings necessarily
involves, in my view, the conclusion that the findings of not only the LAC but
also of Smalberger JA are findings which no court could reasonably have made.
As I am in full agreement with the conclusion of Smalberger JA I can perhaps
be forgiven for baulking at such a result.
16
Turning to the judgment of my brother Streicher JA, it appears that
the ultimate conclusion to which he came was largely founded upon a finding
that even after the commencement of the strike and before the dismissals
MAWU was, despite its attitude that there was only one option open to BTR and that was to sign MAWU's draft agreement, still prepared
to negotiate with BTR
and that accordingly a state of deadlock had not been reached. In my view, that
finding, for the purpose of s 17 C(l)(a) of the Act, is a finding of fact. It is apparent from the judgment of the LAC that the Court
was fully aware of the fact
that BTR had considered one of its options to be the continuation of negotiations
but had decided against that course in the face of the attitude adopted by MAWU
immediately following the strike. That attitude, as found by the court a quo, was
that there was only one course open to BTR, viz to sign MAWU's draft
agreement and that the strike would continue until it did. (See the LAC
17
judgment in particular at 96H - 97A; 97H -I; 100C - D and 100H - 101H.)
Such a stance by its very nature amounted to a refusal to negotiate further. In the
absence of some qualification in the judgment suggesting the contrary (and there
was no such qualification) it is implicit in the finding of the court a quo,
therefore, that MAWU was at that stage not prepared to negotiate with BTR.
There can be no basis for suggesting that this finding of the LAC falls to be set
aside on the ground that no reasonable court could have made it; nor was such
a contention raised in argument before us. It follows that in my view the finding
made by Streicher JA is one which this Court was precluded from making in
terms of s 17 C(l)(a) of the Act.
D G SCOTT
THE SUPREME COURT OF APPEAL
OF SOUTH AFRICA
CASE NO 631/95
In the matter between:
EMMANUEL BETHA AND OTHERS
APPELLANTS
and
BTR SARMCOL A Division of BTR
DUNLOP LTD
RESPONDENT
CORAM
: SMALBERGER, OLIVIER, SCOTT, ZULMAN et
STREICHER JJA
HEARD
: 8, 9 SEPTEMBER 1997
DELIVERED
: 6 March 1998
JUDGMENT
SMALBERGER JA ...
2
SMALBERGER JA:
Introduction
This appeal is a further chapter in what has been the most protracted
industrial litigation this country has yet known. The appellants are all former
employees of the respondent ("BTR"). BTR (which, before it underwent a
change of ownership and name, was known as BTR Industries SA (Pty) Ltd)
is a company which manufactures rubber products at its factory in Howick,
KwaZulu-Natal. On 30 April 1985 some 970 weekly paid employees of
BTR, including the appellants, went on strike. On 3 May 1985 BTR
dismissed all the striking workers with immediate effect. At the time of their
dismissal most of the appellants were members of the Metal and Allied
Workers' Union ("MAWU").
In July 1986 MAWU, on behalf of the dismissed workers, brought an
3
application for their reinstatement in terms of sec 46(9) of the Labour
Relations Act 28 of 1956 ("the Act"). The matter came before the industrial
court ("the IC") in 1987. After a protracted hearing which lasted 39 days the
IC, in September 1987, dismissed MAWU's application. The judgment of
the IC has been reported: Metal and Allied Workers' Union and Others v BTR
Sarmcol (1987) 8 ILJ 815 (IC).
MAWU took the IC's decision on review to the Natal Provincial
Division of the then Supreme Court. During the IC hearing an unsuccessful
application was made for the recusal of the presiding officer because of his
attendance, while the matter was in progress, at a conference organised and
hosted by BTR's industrial relations adviser. The basis for the review
application was that the presiding officer had by his conduct exhibited a
degree of bias sufficient to vitiate the IC's decision. The Natal Provincial
4
Division (Didcott J) granted the application and set aside the IC's decision.
Its judgment is also reported: Metal and Allied Workers' Union and Another v BTR Industries SA (Pty) Ltd and Others (1989) 10 ILJ
615 (N).
The ensuing appeal to this Court was dismissed - see BTR Industries South Africa (Pty) Ltd and Other v Metal and Allied Workers' Union
and
Another
1992(3) SA 673 (A) - and the matter was consequently remitted for
hearing de novo before a newly constituted industrial court. (The judgment
of this Court sets out in detail the relevant factual events up to that point.)
The parties filed amended papers, and the matter was heard afresh by
the reconstituted IC in May 1994. By that time MAWU had ceased to exist
and its role had been taken over by the National Union of Metal Workers of
South Africa ("NUMSA") which became the first applicant with the
appellants as further applicants. Because of altered circumstances the
5
appellants' claims for reinstatement were abandoned and they sought a
determination declaring their dismissals an unfair labour practice, and an
appropriate order of compensation. It was agreed by the parties that the
record of the proceedings in the original IC hearing would stand as evidence in the new hearing. The only additional evidence led
was that of an actuary,
Prof Asher, who testified with regard to the computation of the appellants'
claims for compensation.
On 17 October 1994 the IC held against NUMSA and the appellants.
It found that the appellants' loss of employment "did not represent an unfair
labour practice on the part of the respondent [BTR]". It accordingly
dismissed the application and made no order as to costs. Its judgment is also
reported: Metal and Allied Workers' Union and Others v Btr Sramcol - A
Division of BTR Dunlop Ltd (1995) 16 ILJ 83 (IC). The appellants appealed
6
against the IC's decision to the Labour Appeal Court ("the LAC"). NUMSA
did not prosecute the appeal and ceased to be a party to the further
proceedings. The LAC (Combrinck J and assessors S Ngcobo - now Mr
Justice Ngcobo - and M Cowling) dismissed the appeal, made no order as to costs and granted the appellants leave to appeal to this
Court. The
judgment of the LAC is reported as Ram and Others v BTR Sarmcol - A Division of BTR Dunlop Ltd
(1996) 17 ILJ 72 (LAC) ("the LAC judgment").
(The appellant Mr B Ram did not prosecute the present appeal, and the first
appellant is now Mr E Betha.)
The background facts
The relevant background facts appear from the evidence of the
witnesses who testified at the original IC hearing as well as the many
contemporaneous documents which form part of the record. The principal
7
witnesses were Mr W G Schreiner, a MAWU official, and Mr R J Sampson,
a BTR employee. They were the main negotiators on behalf of the
respective parties. The relevant facts were succinctly but adequately
summarized by the IC in its 1994 judgment ((1995) 16ILJ at 86G - 90F),
which summary was quoted in the LAC judgment at (1996) 17 ILJ at 76G -
80A. For the convenience of the reader I repeat the summary (with certain
minor alterations):
"The Howick factory has been in operation since 1919. In 1974 some 2160 workers were employed. In the years thereafter, due both
to a
downturn in the national economy and a necessary process of
rationalization of its production plants at the factory, the respondent
was obliged to retrench many of its workers. 300 workers lost their
jobs in 1981; 752 in 1984 and 102 in 1985. This massive
retrenchment gave rise to dissatisfaction and uneasiness on the part
of the workers.
Labour relations between the respondent's [BTR's] management and
MAWU were characterized by a prolonged and bitter struggle. The
8
Industrial Court (refer (1987) HJ at 822H) described it 'as a
protracted power play' and we agree with that comment.
During the 1970's and the early 1980's MAWU recruited members at
BTR and consistently claimed that it had recruited a majority amongst
that workforce. In May 1983 a verification exercise reflected that
MAWU members constituted 36,8% of the weekly paid workforce.
BTR also refused to negotiate unless the union was registered and
was put off by the fact that MAWU was not an 'industry related
union'.
During early 1983 BTR proceeded with a retrenchment exercise and
because MAWU claimed that there had been no consultation it
declared a dispute with regard to the retrenchment and to the failure
of die company to recognise it. That dispute was settled. BTR paid
a lump sum of R7500 for the benefit of the persons retrenched and on
27 June a preliminary recognition agreement was entered into. That
agreement afforded MAWU stop order facilities and access to the plant. It provided a basic retrenchment procedure and gave paid
leave to two members of the union for union business. BTR also
undertook to negotiate a procedural and substantive agreement once
the union represented 51% of the weekly paid employees [within a
period of three months of that occurring].
On 11 August 1983 MAWU, having become representative of a
9
majority of the company's weekly paid employees at Howick,
submitted a draft recognition agreement to the company and between
August 1983 and April 1985 protracted negotiations took place
between the parties.
The negotiations involved many meetings at which draft recognition
agreements and other proposals were considered and debated.
After a meeting on 22 May 1984 it was agreed that no agreement
could be concluded and that everything that had been decided up to
then would accordingly fall away. MAWU stated that it would
operate on the basis of the preliminary agreement and in terms of
current fair labour practices. MAWU declared a dispute and applied for a conciliation board on 24 May 1984 on wage negotiations, long
service and leave bonus, the recognition agreement and the recognition of May Day. Those disputes were settled by the
acceptance by the workers of the company's offer embodied in a letter
dated 30 July 1984 which offer embodied a provision for employees
to clock out early on May Day and required the union to'.... suggest
a date as soon as possible but before the end of August 1984 to
resume negotiations to conclude a procedural agreement'.
This settlement was hailed by the union as a significant breakthrough
and negotiations on the recognition agreement accordingly resumed.
Negotiations on the recognition agreement had been stalled after the
10
May meeting and the company following on the acceptance that there
was then no agreement at all had taken the step of declining to
recognise the shop stewards as shop stewards at all. This had
adversely affected relations.
Thereafter negotiations took place at a meeting on 22 August 1984 between the negotiating teams followed by a further meeting on 28
November 1984 to deal with the agreement in the light of certain
documents put up for discussion in the interim.
In the course of this second meeting the union representative,
Schreiner, again expressed the view that if no agreement could be
reached at the meeting the union would simply operate without one.
On 7 December 1984 MAWU advised the respondent that it could
see no point in further discussions concerning the draft agreement.
On 21 December 1984 MAWU applied for the establishment of a
conciliation board:
to endeavour to resolve the dispute which has prevented the
conclusion of a written procedural recognition agreement'.
On the same day it applied for the establishment of a conciliation
board:
'to endeavour to resolve the dispute concerning severance pay on
retrenchment'.
11
A reference to press statements issued by the parties at the time
makes it clear that the dispute related to the company's unwillingness
to sign a recognition agreement on the terms being demanded by
MAWU. The company:-
(a)
invited die union to resume negotiations on 5 December 1984;
(b)
did not oppose the establishment of a conciliation board;
(c)
again invited the union to resume negotiations on 30 January
1985;
(d)
issued a circular to all employees on 8 February 1985 advising
that it was willing to continue discussion and negotiation and
was preparing new proposals to be forwarded to MAWU;
Thereafter:
(a)
the company sent a proposed agreement to the union on 15
February 1985;
(b)
the union rejected this draft on 16 February 1985;
(c)
the union submitted proposals for mediation on 27 February
1985;
(d)
the company considered those proposals.
Further negotiations took place using Professor le Roux as mediator
as follows:
(a)
a meeting with the mediator took place on 7 March 1985;
(b)
the mediation continued on 8 March 1985;
(a)
12
(c) a conciliation board met on 20 March 1985.
On 21 March 1985 the company wrote to the union with certain
further proposals concerning the terms of the agreement. The union
replied mat this provided a realistic basis for settlement.
The last meeting between the parties took place on 10 April 1985 at
a resumption of the conciliation board meeting. In respect of this
meeting there are two documents: one containing the company's proposals with the union's telexed comments thereon interpolated into
the document and the other being the agreement the company was
prepared to sign highlighting additions and deletions from the
previous agreement.
During the period encompassed by these negotiations a variety of
steps were taken by the workers to put pressure on the company to
accede to union demands. Particulars of these activities and the
company's responses thereto are the following.
There was a canteen boycott early in July 1984 and during the same
month a go-slow and an overtime ban were introduced, causing
considerable disruption. Thereafter go-slows and sporadic work
stoppages occurred and there was a sit-in in the canteen. An overtime
ban was introduced from 1 November 1984. The output of the
factory had declined and the workforce was warned on an individual
13
basis that that type of behaviour put their jobs on the line and that a
failure to work would be regarded as a breach of contract.
On 11 December 1984 there was a complete stoppage which the
union accepted constituted an illegal strike. The workers were
warned that this constituted a breach of their contracts and that a
similar occurrence in the future would expose them to the risk of the
loss of their employment.
Shortly thereafter 111 MAWU members refused to attend to
refurbishing in the engineering division during the year end shut
down, an established practice in that factory, common in the industry
and essential to the normal operation of Sarmcol. The factory re
opened in mid-January 1985 but was immediately subjected to a total
ban on overtime.
A go-slow occurred from 7 March 1985 and culminated in a strike
from 12 to 15 March 1985 which seriously affected production.
Notices were issued to employees and telexes sent to MAWU making
it clear that management reserved the right to take action including dismissal arising out of the conduct of the employees.
The disruption of working operations after the factory re-opened in
January 1985 had serious consequences. Production had been badly affected and a cumulative loss of the order of Rim was recorded.
14
The business was furthermore operating in a poor economic
environment, business was slack, orders were down and there is
evidence that bankruptcy was a threat.
It is against that background of:
(a)
protracted negotiations which had failed to arrive at an
agreement acceptable to both the union and the company;
(b)
various forms of disruptive action being taken by the workers
in order to put pressure on the company to submit to the
union's demands;
(c)
the company being in a parlous financial situation;
that the critical events occurred.
On 30 April 1985 all the weekly paid workers at the factory downed
tools leaving the machinery in the factory running. The respondent
immediately sent a telex to MAWU placing on record the work
stoppage and stating that it regarded this as constituting both illegal
industrial action and a breach of contract. MAWU responded by:
(1)
confirming that its members were on strike;
(2)
denying that the strike was illegal;
(3)
linking the strike to the respondent's failure to conclude a
recognition agreement with it; and
(1)
15
(4) stating that its members required its final draft for a recognition
agreement to be signed before they would return to work.
On 2 May 1985 the respondent issued an ultimatum to the striking
workers to return to work or to face the possibility of the termination
of their contracts of employment.
The ultunatum was ignored and on 3 May the striking workers were dismissed. On 4 May 1985 the respondent offered re-employment to
all workers. This offer was rejected.
Thereafter the respondent maintained its offer of re-employment to all
dismissed workers, but at the same time it invited applications for
employment at the factory from other job-seekers. Few of the
dismissed workers accepted re-employment, and the remaining
vacancies were filled on a temporary basis until 2 August 1985.
On 22 My MAWU informed the respondent's managing director that
the workers were willing to return to work unconditionally. Written
confirmation therefore was sought by the respondent. This was done
by way of a telex received by the respondent only on 12 August 1985, by which time the temporary workforce at the factory had already
(on
2 August) been engaged on a permanent basis.
The remaining of the factory was only complete at the end of 1985.
16
No more than some 66 of the dismissed workers accepted re-employment.
In August 1985 the respondent broke off negotiations with MAWU
and intimated to the latter that it would be prepared to consider only
such specific proposals for the settlement of the dispute between the
parties as MAWU might wish to make.
On 24 October 1985 MAWU applied for the appointment of a
conciliation board in connection with two issues: a recognition
agreement between the parties and the respondent's dismissal of the
striking workers. Despite opposition by die respondent a conciliation
board was established and it convened on 26 February 1986. On 7
May 1986 the Minister referred the disputes between the parties to
the Industrial Court for a determination in terms of s46(9) of the Act."
The Issue
The issue in this matter, as formulated by counsel, is: was the loss by
the appellants of their employment the result of an unfair labour practice on
behalf of BTR? This formulation, which encompasses the relevant events
leading up to, contemporaneous with and subsequent to the appellants'
17
dismissals, would appear to be the correct one.
The definition of "unfair labour practice" in sec 1 of the Act which
was applicable at the time was:
"(a) Any labour practice or any change in any labour practice, other
than a strike or a lock-out which has or may have the effect
that-
(i) any employee or class of employees is or may be
unfairly affected or that his or their employment
opportunities, work security or physical, economic,
moral or social welfare is or may be prejudiced or
jeopardised thereby;
(ii) the business of any employer or class of employers is or
may be unfairly affected or disrupted thereby;
(iii) labour unrest is or may be created or promoted thereby;
(iv) the relationship between employer and employee is or
may be detrimentally affected thereby; or
(b) any other labour practice or any other change in any labour
18
practice which has or may have an affect which is similar or
related to any effect mentioned in paragraph (a)."
This is the same definition which governed the cases of National Union of Metalworkers of SA v Vetsak Co-operative Ltd and Others
1996(4) SA 577 (A) ("Vetsak") and National Union of Mineworkers v Black Mountain Mineral Development
Co (Pty) Ltd
1997 (4) SA 51
(SCA) ("Black Mountain").
The overriding consideration in a matter such as the present is one of
fairness. In judging fairness, a court applies a moral or value judgment to
the established facts and circumstances that bear on the issue under
consideration (National Union of Mineworkers and Others v Free State
Consolidated Gold Mines (Operations) Ltd - President Steyn Mine President Brand Mine
; Freddies Mine 1996(1) SA 422 (A) at 4461). The
19
established facts and circumstances include the factual findings of the LAC by which this Court is bound in terms of sec 17C(l)(a)
of the Act (National Union of Mineworkers
v East Rand Gold and Uranium Co Ltd 1992(1) SA
700 (A) at 731 B). Those findings comprise: (1) actual findings of fact
made by the LAC and (2) any factual findings of the IC which have either
expressly or tacitly been approved by the LAC and consequently been
incorporated in its judgment (Vetsak(minority judgment) at 583 I - 584 A).
As to what other facts regard may be had to see the same judgment at 584
A - C. (The approach in the minority judgment in this regard was approved
in the majority judgment in Vetsak at 593 H-I.) Once the facts have been
established an onus is not appropriate in the evaluation of issues of fairness
(Versak(majority judgment) at 597 D - E).
The proper approach is set out in the majority judgment in Vetsak at
20
593 B - G as follows: (I quote to the extent relevant):
"The ultimate determinant is therefore fairness and not the lawfulness
of either the dismissal or the strike. That does not mean that the
lawfulness or otherwise of the conduct of either party or of the strike
is irrelevant. These can be very real factors in the determination of
what is fair in the circumstances .... More tolerance than otherwise
may be required of an employer in the case of a lawful strike. Some
employers can afford to be more tolerant than others; it depends upon
their vulnerability. Paradoxically, the more effective the strike, the
sooner the employer may have to consider replacing the striking
employees if it feels unable to meet the demands or compromise
seems unlikely
The rationality of the conduct of the respective
parties will always be a factor; so too their flexibility and bona fides,
the cause, purpose and continued 'functionality' of the strike, the
financial and economic repercussions for both sides of the strike and
of the dismissals, the ability of the employer and his employees to absorb the harm done thereby and the duration of the strike, actual
and anticipated. There are, I am sure, other considerations as well.
The relevant factors cannot all be captured in a single formula or
formulation."
See also Black Mountain at 54 E-J and 60 I - 61 A. In the latter passage
Scott JA stated:
21
"Nonetheless, even where the parties negotiate in good faith and their
conduct cannot be faulted, there comes a time when the process of
negotiation and powerplay which is the essence of strike action must
be acknowledged as having failed to resolve the negotiating impasse
between the two sides. The delivery of an ultimatum and, in the
absence of compliance, termination of the employer-employee
relationship will then be justified. Whether that stage has been
reached or not, as pointed out by Nienaber JA in the Vetsak case at
593 A-H, depends upon a consideration of the facts of the particular
case with the ultimate determinant being fairness to both the employer
and employee."
The events leading up to the strike on 30 April 1995
It is not, in my view, necessary to traverse the pre-1985 negotiations
in detail. They were characterised by aggressive and (initially) extensive
and excessive demands by MAWU which evoked a cautious and hesitant
response from BTR which at times bordered on the obdurate or the
intransigent. BTR had not had dealings with a union before the advent of
MAWU. It was concerned about the unionization of its workers and the
22
effect this might have on the good relations that had hitherto existed between
management and its loyal and long-serving work-force. It was anxious to
secure a binding, lasting agreement. The blame for the unduly protracted
negotiations cannot be attributed to BTR alone; MAWU must shoulder an
equal share of the blame. Whatever legitimate criticism there may be of
BTR's conduct, it cannot be said that it bargained in bad faith, or was not
prepared to recognise MAWU, or to afford the workers basic union rights.
Whatever obstacles it sought initially to place in MAWU's way, the fact remains that it was prepared to grant recognition to MAWU
before it was
representative of the majority of the workers at BTR, an attitude in advance of the norms prevailing at the time. It was also prepared
to extend numerous
basic union rights to the workers, as Schreiner conceded under cross-
examination. What was essentially in dispute all along was the precise
23
extent and content of such rights, matters in regard to which the parties
moved closer to each other as time progressed. The fact that they were not
able to close the final gap in negotiations was not attributable to a lack of
good faith on the part of either.
A major breakthrough occurred on 21 March 1985 when, in response
to certain further proposals put forward by BTR concerning the terms of a final recognition agreement, MAWU indicated in a telex that
the proposals
"may provide a realistic basis for settlement". However, as found by the
LAC (at 84 B - C), "[u]nfbrtunately the respondent [BTR] at this stage
adopted a hard line and advised the union that the proposed changes to the
draft recognition agreement had to be accepted or rejected as it was not open
to further negotiations". The LAC went on (at 84 F): "Despite the hard line
taken by the respondent, negotiations did continue with the union telexing
24
its counter-proposals to the draft recognition agreement and the matter being
pursued in telephone calls and a meeting." Adopting a "hard line" does not
per se amount to unreasonable or improper conduct within the context of
management-union negotiations. In this regard it is apposite, at this point,
to draw attention to, and to emphasize, what was stated in Black Mountain
at 61 J - 62 A, viz:
"Save in extreme cases it is not for the court to adjudicate upon the
reasonableness or otherwise of the offer and the demands of the
respective parties; nor would it be qualified to do so."
In the bargaining process the autonomy of the parties to bargain should be
recognised and not interfered with. Where parties bargain in good faith they
must be taken to have had reason to make the proposals they have. It is not
for a court to substitute its views for theirs.
On 10 April 1985 what turned out to be the last meeting between the
25
parties took place at the resumption of the conciliation board proceedings.
Two documents were tabled by BTR, one containing its proposals with
MAWU's telexed comments interpolated into the document, and the other
being the draft recognition agreement BTR was prepared to sign highlighting
additions to and deletions from its earlier proposed agreement. This
followed upon proposals put forward by MAWU on 27 March which had
been discussed by BTR and its advisers. On the morning of 10 April Mr
Giles, BTR's attorney, held discussions lasting approximately 1
hours with
Schreiner and some of the shop stewards with regard to BTR's proposed
agreement, which included certain annexures. Giles made notes of
Schreiner's response (on behalf of MAWU) to the body of the agreement
and returned to discuss them with Sampson. MAWU was still to furnish its
response with regard to the annexures. Schreiner had indicated that some
26
of the responses were final, others were still negotiable. BTR proceded to
consider those responses. At a certain stage Giles was sent to enquire of
Schreiner what MAWU's response was to the procedures that had been put
forward, as BTR wanted to know what MAWU's attitude was before
deciding whether or not to modify its final offer. Giles returned with certain
written proposals relating to the procedures. Sampson was of the view that
there had in effect been no movement on MAWU's part. Sampson sought
advice from BTR's labour relations adviser in Johannesburg. At 15:00 BTR,
according to Sampson, was still contemplating putting up further
amendments for MAWU's consideration. It would seem that the parties at
that stage were very close to reaching agreement. The conciliation board
was due to reconvene at that time. Giles requested Schreiner to allow BTR
a further half an hour to consider its position. Schreiner, who was of the
27
view that BTR had had more than sufficient time to consider MAWU's
counter proposals, was only prepared to agree to a further fifteen minutes.
This led to a breakdown in negotiations, and the parties reported to the
conciliation board their inability to reach agreement. An extract from the
minutes of the resumed hearing of the conciliation board appear at 84 G - 85
A of the LAC's judgment. There is no need to repeat it. What is significant
is that there was no suggestion by either party that serious attempts were not
being made to negotiate a final agreement, and no allegations of wasting
time or bad-faith bargaining were made against BTR. There would be no
justification for blaming one party more than the other for the break-down
in negotiations at that stage.
Counsel for the appellant was critical of BTR's failure to propose
arbitration at the reconciliation board meeting. I do not think the criticism
28
is justified. Apart from the fact that it is doubtful whether arbitration is
appropriate to resolve disputes relating to terms of an agreement such as the
one in question, it was equally open to MAWU to propose arbitration if it
so wished. The failure or refusal of either party to propose arbitration, for
what it might have been worth, is therefore a neutral consideration.
On 12 April BTR issued a notice to all weekly paid employees in the
following terms:
"1. Every effort has been made by the company to reach agreement with MAWU and many more concessions have
been made by the company at recent meetings in order to reach
a settlement.
2. An agreement which the company regarded as being fair to the
company, the union and all our employees was presented to the
union on Wednesday 10 April. The company was prepared to
sign this agreement but it was rejected by the union and the
Shop Stewards."
The workers could have been left in no doubt that BTR was serious about
29
signing a recognition agreement.
The failure to reach agreement on 10 April did not bring about an end
to negotiations. On 17 April MAWU submitted what it termed its final draft
agreement to BTR calling upon it to sign and return the agreement. At that
stage there were two agreements up for signature, the other being the
agreement which BTR had submitted on 10 April. BTR intimated that it
would respond in due course. At a meeting of workers held on the night of
17 April it was decided to give BTR a "reasonable period" to go through
MAWU's agreement and thereafter sign it. Earlier that day MAWU had
issued a notice to its members at BTR advising them, inter alia:
"The changes that MAWU proposed are not difficult for the Company
to accept - they do not involve any big matters of principle.
These are some examples:
i) MAWU said the senior Shop Steward should have 5 hours a
week to do Union business (the Company had already agreed
30
to 1 hour a day).
ii) MAWU said the Company must agree to deduct subscriptions
for our members who are on staff,
iii) MAWU said the shop stewards should be able to report back
to members in the canteen for 30 minutes after meetings with
management (the Company had already agreed to this before).
iv) MAWU said there must be a proper means for members to
appeal against unfair warnings and unfair dismissals.
v) MAWU said the Company must agree to meet with the Union
Negotiating Committee before retrenching any employees."
Whatever legitimate accusations of foot-dragging might have been
made against BTR in the past, there can in my view be no doubt that at that
stage it was serious about reaching finality with regard to an agreement. It
was advised by its labour relations consultants not to be obstinate. As it was
rather colourfully and colloquially put, "we have bust a gut over this
agreement, it would be a pity to blow it now". Giles advised that the parties
should get together and have a further meeting to iron out the remaining
31
differences. Mr Bird, BTR's group chairman, instructed Sampson to invite
Schreiner to meet with him in an attempt to negotiate the matter to finality.
Pursuant thereto Sampson contacted Schreiner telephonically on 25 April to
arrange a personal meeting between them with a view to resolving the
outstanding differences. Schreiner was not amenable to a meeting in the
absence of the shop stewards. Schreiner suggested that BTR send any
further proposals it had to make by telex. Sampson was not agreeable to this
as he favoured a face-to-face meeting. Eventually it was decided that they
would discuss the unresolved matters telephonically at a later date. In the
event, because of subsequent developments, no such discussion ever took
place.
Arising from this conversation MAWU was fully aware that BTR was
still prepared to negotiate over unresolved issues and that the stage of final
32
deadlock in the negotiation proceedings had not yet been reached. There
was no suggestion by Schreiner that the reasonable time which BTR had
been offered within which to sign MAWU's agreement had expired, nor,
understandably in view of what had transpired, was BTR put to terms with
regard to signature. Despite the workers legitimate concerns, and the
looming threat of strike action if a recognition agreement was not finalised,
there was no imminent danger of a strike given the situation that existed at
that stage. That relationships, although perhaps strained, were not at
breaking point, is further indicated by the fact that Schreiner sent BTR a
telex on 26 April suggesting that the parties meet on 2 May for wage
negotiations. In confirmation of the fact that negotiations were still in
prospect BTR sent a notice to all its employees on 26 April advising them, int
er alia, that "(t)he recognition agreement between the union and the
33
company is still under consideration".
On the afternoon of 29 April there was a telephone conversation
between Schreiner and Sampson concerning the May Day (1 May)
arrangements. The relevant facts are dealt with in the LAC judgment at 89
A-I. In brief, an agreement had been entered into in July 1984 concerning
future May Day arrangements. A dispute arose with regard to whether those
arrangements applied to night shift employees, MAWU contending that it
did, and BTR contending to the contrary. When, despite Schreiner's requests to do so, Sampson declined to agree to short time working
arrangements also being extended to the night shift, Schreiner, as recorded
in Sampson's contemporaneous note (which was not disputed) "got very
angry and said there would be trouble and rang off." The strike commenced
the following day.
34
The events of 30 April
On the morning of 30 April workers reported for duty as usual. At
7:50 all the weekly paid workers downed tools and abandoned their work
stations leaving the machinery in the factory running. As Sampson put it, "I
looked out of the window and there all these people were pouring out of
their departments". They thereafter congregated in the canteen. The manner
in which these events occurred refutes any suggestion that their conduct
might have been individual and spontaneous. Their behaviour was clearly
indicative of concerted, pre-determined strike action. Later the workers marched through the factory premises, some of them carrying
sticks. They
behaved in a generally aggressive manner, and intimidated other members
of staff, resulting in a tense situation at the factory.
With regard to the strike the LAC held (at 87 F -I):
35
"It is significant to note the following:
(a)
the strike was not called by the union and according to the
evidence led on behalf of the appellants, the union officials
were unaware of the fact that the strike was going to take
place;
(b)
Schreiner, who had all along been conducting the collective
bargaining on behalf of the union and the workers, was
unaware that the strike was going to take place and was only
advised telephonically during the course of the morning that the
workers were on strike;
(c)
the Shop Stewards certain of whom gave evidence, (Zondi,
Makhathini and Dladla), were unaware that the strike was
going to take place;
(d)
no demand was made and no notice was given to Sampson or
any other officer in the employ of the respondent that the
workers were about to go on strike."
Shortly after the strike broke out Sampson was told by one of his
officers that he had received information that the strike was over the
recognition agreement. In a telex sent by MAWU to BTR at 13:21 it was
stated that: "We confirm our members are on strike. The strike is not illegal
36
and concerns the company's refusal/failure to conclude a recognition
agreement with MAWU." This notwithstanding, after a review of the
relevant facts and circumstances the LAC concluded (at 89 J - 90 A):
"In our view the inference is inescapable that it was the disagreement
about May Day which caused the workers to go out on strike and not
the fact that the respondent had not yet signed the recognition
agreement. It was too much of a coincidence that right after
Schreiner promised that there would be trouble, the strike broke out."
This amounted to a factual finding as to the initial cause of the strike.
It was contended on appeal that this Court was not bound by such
finding, notwithstanding the provisions of sec 17C (1) (a) of the Act, as (1)
the LAC was precluded from making such a finding as it was not an issue
before the IC, on either what may loosely be referred to as the pleadings, or
the evidence, mat the cause of the strike was anything other than the dispute
over the recognition agreement, and (2) that in any event the finding was one
37
to which no reasonable court could have come.
As to (1). In broad terms the appellants' case, as set out in their
Statement of Claim in the IC proceedings, was that the strike arose from the
failure to conclude a recognition agreement. In its carefully worded reply
BTR stated that the strike action was
"characterised by both the employees and MAWU as arising from a
refusal by the respondent to recognise MAWU."
BTR did not, either expressly or by necessary implication, concede that the
strike had commenced over the recognition agreement. Its attitude was that
it did not know what had precipitated the strike. This was the position taken
up by its senior counsel during his opening address before the IC. The
question of whether the disagreement over May Day played a role in the
strike was raised, although not strenuously pursued, in evidence. The cause
38
of the strike was therefore a live issue during the hearing. The LAC was
accordingly not obliged to accept or to hold that the strike commenced over the recognition agreement. It was free to come to a decision
over the cause
of the strike, and was consequently not precluded from making the finding
winch it did.
As to (2). The issue is not whether the LAC was right or wrong in
coming to its conclusion. Its finding is unassailable unless there was a lack
of evidence on which it could reasonably have been made, or its conclusion
was one which could not reasonably have been reached (Secretary for Inland Revenue v Trust
Bank of Africa Ltd 1975(2) SA 652 (A) at 666 C-
D). This is a very stringent test. Having regard to,inter alia, the fact that
impasse had not yet been reached in the recognition agreement negotiations;
MAWU's prior lack of knowledge about the strike; the (somewhat
39
suspicious) inability on the part of Schreiner and the shop stewards to provide an explanation for the strike; the disagreement between
Sampson
and Schreiner about the May Day arrangements and the resultant threat of
trouble by Schreiner, it is impossible to say that the LAC could not
reasonably have come to the conclusion that the initial cause of the strike
was the disagreement over May Day. If that is so, it is common cause that
the strike at its inception was unlawful.
The events prior to the dismissals
In the context of its judgment, the LAC's finding as to the cause of the strike must be limited to the initial cause thereof It goes
without saying that
once the strike went beyond May Day it could no longer have been over the
May Day arrangements. The continuation of the strike must needs be
attributable to some other cause. The logical conclusion is that what started
40
as a strike over the May Day arrangements was transformed into a strike over the recognition agreement. This metamorphosis would appear
to have
occurred at the latest at the May Day rally attended by the workers. From
what was reported as having been said at the rally the strike at that stage
was concerned only with the recognition agreement. This change was
presumably brought about by MAWU in order to give a cloak of legitimacy
to an unlawful strike.
For the purposes of the present appeal I shall accept, without deciding, that there may be circumstances where what commenced as an
unlawful strike can be converted into a lawful one; and what was originally
an illegitimate or unjustified strike (which the strike on 30 April at its
commencement clearly was) can become a legitimate or justified one. This,
however, did not occur in the present instance. For, in my view, the strike,
41
insofar as it related to the recognition agreement was neither lawful nor
legitimate or justified.
The relevant portion of sec 65 (2) (b) of the Act provides:
"No registered trade union .... shall call or take part in any strike .
... by members of the union . . . unless the majority of the members
of the union . . . have voted by ballot in favour of such action."
The ballot held in February 1985 was overwhelmingly in favour of
strike action. In order to satisfy the provisions of sec 65 (2) (b) (as read
with sec 65 (1) (d) (i) ) the ballot must be held "over the matter giving
occasion for the strike". As, contrary to the provisions of sec 8(6)(b) of the
Act, the ballot papers were not retained by Schreiner (as secretary of
MAWU) in safe custody for the required period of three years, it is not
known on what precise issue or issues the ballot was held. At the IC hearing
certain ballot papers were produced which (falsely, as it transpired)
42
purported to be those used at the ballot. The question posed in them was:
"Are you in favour of strike action in terms of the Labour Relations
Act of 1956 because of the refusal/failure of BTR Sarmcol
management to conclude a recognition agreement with MAWU."
According to Mr Makhatini, who was in charge of organizing the strike
ballot, he explained to the workers that BTR refused to sign a recognition
agreement. This would have been in keeping with what appears to have
been MAWU's propaganda at the time, that BTR was refusing to sign a
recognition agreement and to afford the workers basic union rights. This
was of course misleading, for at no time had BTR refused to do so. There
was never a dispute as to the signing of a recognition agreement; the dispute
related to its precise terms. No effort appears to have been made at that
stage to advise the workers (even in the most general terms, which may have
sufficed) as to the extent or ambit of such dispute. Bearing in mind the
43
serious consequences strike action may have for workers and employers
alike, it seems to me that the concept of a ballot requires, before workers
commit themselves to a decision which could lead to strike action, that they
be reasonably apprised of the key issue or issues on which they are being
asked to vote. Were it otherwise, a ballot would serve no real purpose. The
ballot in February 1985 therefore, in my view, fell short of the requirements for a valid ballot in terms of sec 65(2)(b) of the Act,
and could accordingly
not have given rise to lawful strike action. This is irrespective of the
numerous technical deficiencies in relation to the ballot which appear from
the evidence such as the absence of:
(a)
a voters roll;
(b)
control to ensure that only those who were entitled to vote did
so;
(a)
44
(c)
control to ensure that no one voted more than once;
(d)
clarity or certainty with regard to whether the ballot boxes
were sealed;
(e)
control over unused ballot papers; and
(f)
retention of the ballot papers either at all or for the prescribed
period of three years.
(cf Sfeel and Engineering Industries Federation and Others v National Union of Metalworkers of South Africa (1)
1993(4) SA 190 (T) at 200 H -
201 A.)
There is a further important consideration. The ballot was held almost
three months before strike action was taken. In that period there had been
significant developments. The parties had moved much closer to each other in the resolution of their disputes and towards the conclusion
of a final
45
recognition agreement. In the six weeks immediately preceding the strike
the parties had made greater progress in this regard than in the previous
eighteen months. The issues were no longer what they had been in
February. The altered circumstances were sufficiently material to have
required a fresh ballot in terms of sec 65(2)(b) of the Act. At the very least
fairness, both to the workers (who were being asked to put their wages and,
as it later turned out, their jobs, on the line) and BTR, required a fresh ballot.
This is so notwithstanding the notice referred to earlier sent by MAWU on
17 April 1985 to its members at BTR in which it highlighted certain of the
outstanding differences between MAWU and BTR.
In the result the strike was never lawful, neither in respect of its commencement nor its continuation. But of even greater significance
is the
fact that it was not legitimate. It was not legitimate because the
46
circumstances at the time, objectively viewed, did not justify it. I say so for
the following reasons:
1)
The parties had come close to settlement during April 1985; there
were prospects of further negotiation and room for further consensus;
negotiations had not yet reached such a state of impasse that resort to
industrial action was fair or reasonable.
2)
The workers had agreed to BTR being given a reasonable time to sign
MAWU's recognition agreement; BTR was given no indication that such
time had elapsed; no demand had been made upon it to sign nor had it been
put to terms in that regard; no notice was given of the strike.
3)
The strike commenced without MAWU's knowledge or concurrence.
As MAWU did not call or organize the strike it is reasonable to infer that it did not consider that strike action was appropriate
at that stage.
1)
47
4) The fact that the workers did not initially strike over the recognition
agreement is indicative of the fact that they too did not consider that the time
was ripe to strike on that ground. They were obliged to shift their stance
because they must have appreciated that they were on wholly unsafe ground
in striking over the May Day arrangements.
From what I have said above it is apparent that the strike was not
precipitated by a stage of final deadlock having been reached. It was the
strike itself that converted the delicate negotiations into impasse and brought
about an end to the prospect of further negotiations and ultimate consensus
between the parties, neither thereafter being prepared to move from their
respective positions. In his telex to BTR on 30 April Schreiner had stated:
"You are in possession of a recognition agreement which has been
approved by our National Executive Committee which constitutes
MAWU's final position and our members wish this negotiated
48
document to be signed by your company prior to their returning to
work.
Any minor semantic changes which the company may wish to suggest
would accordingly be appropriately handled immediately prior to a
meeting between our parties to sign the recognition agreement."
Faced with this situation BTR considered the options open to it and
ultimately decided upon the dismissal of its entire weekly work-force. The
fact that there may conceivably have been other options available to BTR
does not per se mean that the route that it took was unfair. The fairness of
its conduct must be judged in the light of all the relevant circumstances then
prevailing. It is unhelpful to speculate on what might have happened had
BTR followed a different course.
The dismissals
At 15:00 on 2 May BTR issued an ultimatum to the striking workers
in the following terms:
49
"
IMPORTANT AND URGENT NOTICE TO ALL WEEKLY PAID
EMPLOYEES
MAWU states that you will continue striking until the Company signs
the document handed to the Company by MAWU and your Shop
Stewards have confirmed this. The Company will only sign a
document agreed by both parties.
Your striking and refusal to work is a material breach of your contract
of employment with the Company. If you do not return to work by
4.00 p.m. today 2 May 1985 (or if you are on night shift within one
hour of the commencement of your shift) the Company reserves the
right to terminate your employment without further notice to you."
Notices containing the ultimatum were handed to the shop stewards
50
for distribution to the workers. It is common cause that the ultimatum was
communicated to the workers who were gathered in the canteen at the time.
The ultimatum was treated with apparent contempt by the workers who took
a decision to bum the notices because they were unsigned. None of the
workers complied with the ultimatum. At 20:43 BTR sent a telex to MAWU
advising that it "has now taken the decision to terminate the contracts of
employment as indicated in the notice and this fact will be communicated
shortly to those concerned". The telex was repeated at 22:58. On the
morning of 3 May the workers were advised in writing that in view of their
failure to return to work, their employment with BTR was terminated with
immediate effect.
Was it reasonable and fair for BTR to have dismissed the workers
when it did? One can accept that the workers were genuinely concerned
51
about the substantial retrenchments that had taken place over the years, and
were anxious to secure a recognition agreement which would best protect
their interests. According to Sampson, the decision to dismiss was taken
reluctantly. Asked why that was so he responded as follows:
"Sir this was a decision with enormous implications for the Company.
But quite apart from that we had always enjoyed an exceptionally
good relationship with our workers of all races Sir. And to
contemplate severing a work relationship with people that had loyally
served you for many, many years, where in fact Sir we were probably
the only company in South Africa who could claim to have a work
force whose average service we thought was 25 years - it was
certainly approaching that Sir - a step like this could not be taken lightly. And indeed it was not Sir. We considered our position
very,
very carefully. And in fact you will see from the date of the ... the
time of the telex that this was well on into the night before the
decision was finally taken - about 9 o'clock at night Sir."
The question arises, should BTR not have attempted to re-open
negotiations before resorting to dismissal? And did not its good relationship
52
with its employees and their long periods of service with the company call
for a less vigorous and more understanding response?
It will be recalled that Sampson's approach to Schreiner on 25 April
that they meet personally to discuss outstanding differences had been rejected. However, it had been agreed that they would discuss
matters
telephonically. Further negotiation was therefore in the offing immediately
prior to 30 April. BTR had been given a reasonable time in which to sign
MAWUs draft agreement. When the strike broke out BTR was told that it
was over the recognition agreement. Coming as it did without warning and
without regard to the fact that deadlock had not yet been reached, the strike
effectively slammed the door to further negotiations in BTR's face. And
MAWU, through Schreiner, despite what had been agreed upon, somewhat
opportunistically seized upon the occasion to also turn its back on further
53
negotiations. From BTR's perspective Schreiner had reneged on his
undertaking to speak to Sampson telephonically. BTR must inevitably have
been left with the impression that MAWU did not wish to negotiate further.
This in fact is what was conveyed in MAWU's telex of 30 April to which
I have referred. Schreiner must have appreciated that. Yet he did nothing
to dispel that impression. At no stage over the critical period of 30 April to
3 May did Schreiner disclose that MAWU had not called for the strike, or
what the initial cause of the strike was. Nor did he offer to revert to the
position between the parties before the strike commenced. He simply left
BTR under the impression that MAWU considered negotiations to be at an
end. And this impression would have been fortified when at 14:42 on 2
May, before the ultimatum was given, Schreiner sent BTR a telex in which
it was stated:
54
"As far as the recognition agreement is concerned we regard this
matter as being entirely in your hands now. We have made certain
proposals in regard to same which you may choose to ignore or
accept".
Having effectively discontinued negotiations, far from seeking to revive
discussion MAWU simply adopted a "take it or leave it" attitude. It is
apparent that MAWU was not interested in further negotiations at that stage.
The purpose of the continued strike was not to drive the parties back to the
negotiating table. There was no need for that - negotiations were, after all,
still in prospect when the strike commenced. The obvious purpose was to
put economic pressure on BTR to sign MAWU's recognition agreement.
The content and tone of the telex did not provide scope for further
negotiations. It signalled a clear intention on MAWU's part to force BTR
to capitulate. The battle lines had been finally drawn, and power play had
55
reached its zenith.
In die circumstances then prevailing (and here one must consciously
guard against adopting a detached, arm-chair approach divorced from the
reality of what was taking place) I do not believe that it could reasonably
and fairly have been expected of BTR to seek out MAWU for further
negotiations. Indeed, it would have been futile for it to do so given the attitude of MAWU. At the very least BTRs decision not to
do so cannot be
criticised for being unrealistic and unreasonable. Nor do I think it could
realistically have been expected of BTR to engage the workers directly in
further negotiation or discussion over the recognition agreement. In the first
place it would probably have been improper for it to have done so (cf National Union of Mineworkers v
East Rand Gold and Uranium Co Ltd
1992(1) SA 700 (A) at 736 A - B). Second, it would have been impractical
56
to negotiate with a large body of workers over the technicalities of certain
provisions of a recognition agreement. And third, the mood displayed by the
workers on 30 April and 2 May was clearly not conducive to any such
approach.
At the May Day rally the attitude of the workers, that they would not
go back to work until BTR signed the recognition agreement put forward by
MAWU, was made perfectly clear. According to a newspaper report, the
correctness of which was never challenged, it was said that the workers
would not go back to work "even if it takes six months to convince
management that they must sign the agreement". These sentiments would have been known to BTR's management at the latest on the
morning of 2
May. It must have been apparent to them, as indeed it was, that BTR was
faced with a potentially protracted and crippling strike with concomitant
57
severe monetary loss. According to Sampson's unchallenged evidence in
this regard, BTR was in a parlous financial position, a situation that was
being exacerbated by the strike (see the extract from his evidence quoted in
the LAC judgment at 96 D - H). Competition was fierce and delays in
production could have resulted in the erosion or loss of BTRs customer
base. BTR was simply in no position financially to sit out what had the
makings of an extended strike.
Sampson's evidence that the decision to dismiss the workers was
finally taken during the evening of 2 May was never challenged. During
argument we were referred to a hand-written note by Sampson dated 1 May. It was contended that it showed that the decision to dismiss
had already
been taken on the morning of 1 May, before it became known that the workers contemplated a prolonged strike, if necessary, an obviously
58
important consideration in any decision to dismiss. While the note clearly
foreshadows the possibility of the dismissal of the entire workforce, it
cannot in my view be construed as indicative of a final decision to dismiss
having been taken at that early stage. I therefore find no reason to doubt
Sampson's evidence in this regard.
Despite Sampson's evidence of the good relationship that existed
between BTR. and its long-serving employees, there can be little doubt that
the relationship had become bedevilled over the past two years, and
particularly over the six months or so preceding 30 April. Those events are
very relevant to BTR's decision to dismiss. An overtime ban was introduced
from 1 November 1984, following on sporadic go-slows and work
stoppages. The workers were warned that such behaviour could jeopardize
their jobs because of declining output. On 11 December the workers
59
embarked upon an admittedly illegal strike, but returned to work after intervention by MAWU. They were specifically warned that their
conduct
constituted a breach of their contracts and that a similar occurrence in future
would expose them to the risk of losing their employment. Shortly thereafter
111 MAWU members refused to attend to the normal refurbishing in the
Engineering Division, which had been an established practice for many
years. When the factory re-opened in mid-January 1985 it was immediately
subjected to a total ban on overtime. On 7 March 1985 there was a go-slow which culminated in a strike from 12-15 March, because of
what turned out
to be a misunderstanding on the part of the workers. On 14 March BTR
informed the striking workers that "should this illegal stoppage continue, we
will hold the same to be a material breach of contract and therefore reserve
our rights to take whatever legal action we deem appropriate". This was
60
followed by a notice on 15 March to the effect that "your continuing to
refuse to work and to maintain normal working practices, may well result in
dismissal of all employees who refuse to return to work". The workers were
thus fully aware, and had received ample warning, of the possible
consequences of future unlawful strike action on their part. Added to that,
the workers on 30 April embarked upon a course of action which amounted
to, or at the very least bordered on, industrial sabotage, while at the same
time evincing a total disregard of the rights of certain other employees and
of management. The workers' long service, important as it may be in
relation to the issue of fairness, must be balanced against BTR's pressing
need to continue its commercial activities in its interests and those of its
employees generally. For without industrial success there would have been
no, or fewer, job opportunities.
61
It is of interest to note that in the recognition agreements put forward
by both MAWU and BTR there was provision that BTR would not terminate
the employment of any member of MAWU for participating in unlawful
industrial action for a period of 24 hours from the time of MAWU being
notified of that fact. A considerably longer period than that had elapsed
when the ultimatum was given to the workers on 2 May.
The ultimatum gave them an hour within which to return to work or
face dismissal. Viewed in isolation the period of one hour might, and
probably would, be considered inadequate. But it cannot be so viewed. It
must be seen in the broader context of the previous warnings given to the
workers, the events leading up to the ultimatum and the inevitable realization on the part of the workers that they were putting their
jobs at risk by acting
as they did. In general, the purpose of a fair ultimatum is to allow
62
employees sufficient time "to cool down, reflect and take a rational decision
with regard to their continued employment, and for that purpose to seek
advice from their trade union" (Performing Arts Council of the Transvaal v Paper Printing Wood and Allied Workers Union and Other
1994(2) SA
204 (A) at 217 C- D). What is needed for a fair ultimatum will obviously
vary according to the circumstances. The workers had had adequate time
within which to reflect and take a rational decision concerning their future.
They had firmly decided upon a deliberate, concerted course of action. They
had unequivocally expressed their determination to continue with the strike
until BTR signed MAWLTs recognition agreement. Their proposed conduct had the unqualified backing of MAWU. The ultimatum could not
have came
as a surprise to them. In my view they were given sufficient time in which finally to assess their situation. Their response was a
revealing one - an
63
open act of defiance by burning the notices given to them. The truth of the
matter is that on an objective assessment it would have made absolutely no
difference from the workers' point of view had the ultimatum been given
later than it was, or had they been allowed a longer period within which to
return to work. The result would have been the same. Seen from BTR's
prospective there was a definite need to bring matters to a head as soon as
possible to enable production to proceed. Significantly, at no time
contemporaneously with these events, did MAWU or the workers complain
that they had been given insufficient time to respond to the ultimatum.
Moreover, the ultimatum could have left the workers in no doubt as to BTR's
intention; it contained a clear intimation that their employment would be
terminated if they refused to return to work. And so it happened that when
there was no appropriate response from either MAWU or the workers,
64
neither of whom made any attempt to forestall the imminent dismissals, they
were dismissed.
It cannot be said that BTR unfairly sought to capitalize on the strike
by seizing upon it as an opportunity and an excuse to rid itself of its
workforce. This would be seeking to ascribe an improper motive to BTR,
something not justified by the evidence. If that was its motive why would
it have offered the workers re-employment, something it was not obliged to
do? Any such suggestion is tantamount to saying that the dismissals were
activated by a wish to destroy MAWU's presence in the factory and thus
smacked of victimization. This notion was rejected by the LAC.
It was argued that there were other, less drastic, alternatives open to
BTR; that dismissal was only justified as a last resort. I am unpersuaded
that there were any satisfactory alternatives which would have met the
65
situation with which BTR was confronted, bearing in mind, inter alia, the
need for it to resume production as soon as possible if it was to remain
competitive in the prevailing poor economic climate. In any event, the fact
that it is possible to point to one or other course which the employer (or both
parties) might have taken, but failed to take, does not mean that a dismissal cannot be justified. The ultimate enquiry, as previously
noted, is whether in
all the circumstances the dismissals can be said to be unfair (Black Mountain
at 449 F-G). In my view they were not.
Subsequent events
There is a further factor which enters the equation when determining
fairness. The dismissals were not initially intended to irrevocably terminate
the employer-employee relationship. Each dismissed worker was invited to
re-apply for his employment. As it subsequently turned out, those who re-
66
applied were re-appointed. Sadly there were relatively few who did so.
It was argued that the offer to re-employ was not genuine; that BTR
was bent on selective rather than collective re-employment, itself an unfair
labour practice; that BTR's real motive was to smash MAWU and expel it
from the factory (a matter already alluded to). In my view these arguments
are without substance. BTR's advisers had warned against selective re
employment. Sampson testified that BTR would have been prepared to take
back all the workers had they re-applied. There is no evidence to gainsay
that. It would seem mat Sampson had a list of "those who had misbehaved with violence or intimidation" who BTR were no doubt
not anxious to re
employ. Non constat that BTR would not have been prepared to re-employ
them (or have been prevailed upon by its advisers to re-employ them), and to then have taken such disciplinary action against them
as may have been
67
called for. The proof of the pudding is in the eating, and the genuineness of
BTR's intentions was never put to the test by the dismissed workers all applying for re-employment. Instead they obstinately persisted
in their refusal to return to work (or re-apply for employment) until BTR signed
MAWU's recognition agreement. Similar arguments advanced to the LAC
were rejected by it. To the extent that this resulted in factual findings
adverse to the appellants, we are bound by them.
Immediately after the dismissal of the workers BTR commenced
remanning its factory. It engaged workers temporarily for a period
extending over three months. Their employment was so structured as to
enable BTR to accommodate the return of its dismissed workers, should that
have occurred. In the event they did not return, apart from the handful who
applied for re-employment, and in early August 1985 the hitherto temporary
68
work force was engaged permanently. Until then the workers were not
precluded from returning en bloc. It was open to them to do so. They did
not avail themselves of the opportunity because there was no intention on
their part to do so until BTR signed MAWU's recognition agreement.
Over this period MAWU endeavoured to meet with BTR to resume
negotiations over a recognition agreement, but without any tender to return
to work by its dismissed members. Had MAWU been prepared to sign the
draft agreement put forward by BTR (which fell within the norms for the
industry at the time), and had the workers offered to return to work, the
matter could have been resolved. But this never happened. As a pre
condition to further negotiations BTR required specific proposals from
MAWU. None were forthcoming. As found by the LAC (at 102 A - B)
"[t]he exchange of telexes demonstrated an increasing desperation on the
69
part of the union to meet and negotiate on the disputed items in the
recognition agreement and a progressive disinterest on the part of the
respondent to resume negotiations". BTR was in my view entitled to persist
in its stance. In the absence of further proposals by MAWU, or the
dropping of its demand that BTR sign its recognition agreement, it was a
case of either it or BTR capitulating. In the end it was MAWU that
capitulated, but by then it was too late for the appellants to save their jobs.
Conclusion
I have hitherto only concerned myself with matters relevant to whether the dismissal of the appellants and their resultant loss of
employment was substantively fair. On a conspectus of all the evidence I
am of the view that it was. At a delicate stage of prolonged negotiations,
when the parties were very close to agreement, and the stage of final
70
deadlock had not yet been reached, the workers embarked upon an unlawful
and illegitimate strike which was not justified in the circumstances. This
resulted in deadlock over the recognition agreement. The prevailing
circumstances were not conducive to a resolution of that deadlock. The
parties became locked in an economic power struggle. BTR's response was
to dismiss the striking workers. In the light of inter alia, previous industrial
action (some of it unlawful) on the part of the workers, warnings of
dismissal, the circumstances surrounding the strike and the manner in which
the workers conducted themselves, the likely duration of the strike,
economic considerations adversely affecting BTR and the lack of any
response to the ultimatum, the dismissal of the workers (including the
appellants) was in my view both justified and fair, notwithstanding the
workers' long period of service. In regard to fairness, it was all the more
71
so because all the workers were invited to re-apply for their jobs. That they
failed to do so was no fault of BTR. The power struggle intensified, with
each party intent an compelling capitulation by the other. This was a
legitimate exercise of their respective rights. Ultimately MAWU lost the
battle and the appellants their employment.
In this regard the LAC said of MAWU (at 104 E - F):
"It refused to do what was obviously in its members' interest and is
therefore solely to blame that they were not re-employed. In our view
it must shoulder the responsibility for the tragic consequences of its
stubborn refusal to succumb to the inevitable."
While I have considerable sympathy for the appellants, for the
predicament in which they found themselves and the suffering they and their
families have probably had to endure, their loss of employment was in my
view essentially of MAWUs and their own making and not due to an unfair
72
labour practice on the part of BTR.
There remains the question of whether the appellants' dismissal was
procedurally unfair as it was not preceded by any form of enquiry. In my
view it was not. In this regard I would associate myself with what was said
by the LAC (at 100 F-H):
"[I]t would have been pointless to hold a hearing or attempt to hold
a hearing in this case. This was a concerted action on the part of over
900 employees backed by the union. They had made their demand
and stated that even if it took them six months they would continue to
strike until their demand was met. There was evidence of bands of
armed workers roaming through the factory intimidating other
workers and threatening violence. To have attempted to comply with
pre-dismissal procedure by having hearings would have been futile."
(Cf Vetsak at 600 J - 601 C.)
In view of the conclusion to which I have come the issue of
compensation does not arise.
In the result I would dismiss the appeal and make no order as to costs,
73
none having been sought by the respondent.
Since preparing my judgment I have had the benefit of reading and considering the judgments of my learned brethren Olivier, Streicher
and
Scott (in that order). I wish to record my full agreement with the views
expressed by my brother Scott.
J W SMALBERGER

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