I N T H E L A B O U R C O U R T O F S O U T H A F R I C A
H E L D A T C A P E T O W N
CASE NO: C156/03
In the matter between:
NUMSA AND 41 OTHERS Applicants
and
PRO ROOF CAPE (PTY) LTD Respondent
JUDGMENT
MURPHY, AJ
1. This case concerns the dismissal of the individual applicants for
participation in an unprotected strike on 20 December 2002 at the
respondent’s factory in Atlantis.
2. The dispute has its origins in the failure by the respondent to honour its
obligations to its workforce in respect of remuneration owing to them
for services rendered.
3. The respondent falls within the jurisdiction of the Metal and
Engineering Bargaining Council. In terms of the applicable collective
agreement the respondent is obliged to make payments to the council
in respect of pension benefits, sick pay fund, administration expenses
and a dispute resolution levy. Because the respondent found itself in
financial difficulty, it fell into arrears and did not pay the monies owing
to the council for a substantial period. It also consistently underpaid the
employees and failed to pay them their annual leave bonus (leave
enhancement) as required by the collective agreement. In short, over a
significant period of time the respondent acted in disregard of the
collective agreement and failed significantly to meet its statutory
obligations to its employees.
4. The council accordingly issued various compliance orders against the
respondent in an amount of approximately R850 000. The negative
implications of the enforcement of such an order prompted the
respondent to engage the first applicant (“NUMSA”) to find a solution.
On 16 October 2002 NUMSA addressed a letter to the respondent
effectively agreeing to support an application to the council for a
retrospective exemption with regard to some of the amounts owing.
NUMSA’s concurrence was conditional on the implementation of the
minimal wage as from January 2000, an adjustment in working hours
and an undertaking from the respondent that all employees would
“receive their full bonuses and full holiday pay, calculated in terms of
MEIBC on their actual rate”.
5. On this basis the respondent applied to the council on 4 November
2002 for an exemption for the period of 1 December 2000 to 31 August
2002 in respect of the outstanding payments and attached proof of the
employees consent to the arrangement. On 9 December 2002 the
council addressed a letter to the respondent advising it that the
delegates of the Cape Regional Council had decided that the arrear
pension and provident fund contributions would be waived for the
period for the employees who were still in employment on condition
period for the employees who were still in employment on condition
that each one signed an indemnity form, but that compliance was
required in respect of the employees no longer employed by the
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company. In effect, the waiver amounted to a retrospective exemption
and a license of exemption was issued to that effect on 9 December
2002. It is not clear from the evidence what happened with regard to
the other amounts owing to the council. Nevertheless, the employees
who were still in employment at December 2002 forfeited 21 months of
employer contributions to their pension fund. In addition they evidently
had been paid below the minimum rate and had not received their
leave enhancements for some unspecified time. It would seem
therefore that they agreed also to forgo these amounts in the interests
of the ongoing viability of the respondent. Subsequent events suggest
that their willingness to do so was not without some measure of
rankling legitimate grievance.
6. For reasons not entirely evident, neither party presented its case as
fully as might ordinarily have been expected. From the limited evidence
before me it is safe to say that industrial relations at the respondent
were not happy and appear to have been poorly managed. Around
about the same time that the issues of underpayment and the non
payment of pension benefits were under discussion, there were two
work stoppages. Other than to say that the stoppages related to
refusals to work overtime, no evidence was led regarding their nature,
duration, cause or effects. The fact that no ultimatums were issued and
that no immediate disciplinary action arose out of them suggests that
they were of limited duration and of inconsequential effect.
7. On 13 December 2002 a dispute arose which related directly to the
issue of the respondent’s failure to pay leave enhancements. Again the
details furnished in evidence are somewhat sketchy and incomplete. Dr
Deon Jordaan, a human resources consultant employed by an
Deon Jordaan, a human resources consultant employed by an
employers organization, testified on behalf of the respondent that the
stoppage occurred as a result of an employee taking leave on that date
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being issued with a pay slip which did not reflect payment of the leave
enhancement bonus. The respondent originally had intended to close
down the factory for the year end on 13 December 2002, but an
agreement was reached to work until 20 December 2002. This appears
to have led to some confusion and disagreement about when the leave
bonus would in fact be paid. When the bonuses were not paid on 13
December, the workers refused to work on Saturday 14 December. Nor
did they work on Monday 16 December, a public holiday. When some
of the workers returned to work on Tuesday 17 December, the union
intervened constructively and brokered an agreement. In order to make
up for lost production, the workers agreed to work day and night shifts
through to the end of Friday 20 December 2002. As I have said, the
details of these stoppages are somewhat incomplete, making it difficult
to pronounce upon the exact nature of the stoppages, the duration of
them on the days in question and the precise effects on the
respondent’s business. Mr Simon Arries, an organizer employed by
NUMSA, testified that on 6 December 2002 the union had agreed with
Mr. Ismael Bham, a senior manager of the respondent, that the leave
enhancement would indeed be paid on 13 December 2002. Arries thus
confirmed Jordaan’s testimony that the respondent’s failure to pay
essentially led to the subsequent stoppages.
8. As I have said, on 17 December 2002 the union intervened and the
workers went back to work some time on that day. On the same day
Arries wrote a letter to Bham recording an agreement arising out of the
union’s intervention in the stoppage. Some doubt was cast upon this
letter in crossexamination, due to the fact that it had not been
discovered until the commencement of the trial and no corroboration
discovered until the commencement of the trial and no corroboration
exists of it ever having been sent. Arries nonetheless stood by his
testimony that the letter reflected the agreement reached between the
union and the respondent on 17 December 2002 regarding the stoppage
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on that date and the way forward regarding the payment of the leave
bonus. The body of the letter reads as follows:
RE: WORK STOPPAGE RESOLUTION.
The intervention of the Atlantis Local Office has resulted in the successful
resolution of the work stoppage of even date. Workers have returned to work,
by 12H30, based on the following commitments by management:
1) Bonuses (Leave Enhancement Pay) and all other monies due will be paid
on Friday, 20 December 2002.
2) A notice on a Pro Roof letterhead will be posted on the Notice Board with
the content as per Point 1 above.
3) Management will consider knocking off early on Friday, 20 December 2002
based on progress made in production.
4) Workers will receive dummy pay slips, by close of business Wednesday, 18
December 2002, indicating the amount each individual will receive with
regards to wages, leave pay and leave enhancement pay (bonus).
5) Management will consider dealing with the issue of Disciplinary Action in
January 2003.
6) Management undertakes to deal with the Foreman, through its disciplinary
procedure, who it is alleged has created the problem.
7) The union commits to educate its members with regards to the procedures
to follow in the event of a grievance to avoid future unprocedural action.
We deem the above as a basis for future sound industrial relations and urge
that management adhere to its commitments as we commit to do likewise.
9. Arries justified the agreement regarding dummy pay slips as
being the best means, in the light of the respondent’s poor
payment record, of assuring the workers that everything was
on track concerning the payment of the leave bonuses. Mr
Allie Chafeker, the respondent’s accountant, testified that he
would not have authorized the use of dummy pay slips as it
was not good accounting practice and impractical most of all
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because it would have involved 4 or 5 hours additional work.
Arries, however, stuck by his testimony that Bham had given
such a guarantee. Bham, unfortunately, because he has
become indisposed, did not give testimony on behalf of the
respondent. Chafeker, presumably because he was in no
position to do so, did not deny that Bham had given the
guarantee.
10. As it turns out, the dummy pay slips were not issued on 18
December 2002. Then, when they were not paid the bonus
towards the end of their shift, the employees working the
night shift of 19–20 December 2002 stopped work at 06H00
instead of 07H00 and demanded to be paid the bonus. When
the morning shift employees (due to take over at 07H00)
arrived they joined their colleagues in refusing to work until
the bonuses were paid. It was this stoppage that ultimately
led to the individual applicants’ dismissal.
11. The key actors in managing the events surrounding the
dispute that day were Mr. Mike Louw of NUMSA and Mr.
Ismael Bham of the respondent. Neither gave evidence.
Bham, as I have said, was indisposed. No reason was
advanced for Louw’s unavailability. Dr Deon Jordaan, the
respondent’s consultant, had some involvement, but being
on holiday in Gauteng on the day in question was restricted
at the time of the stoppage to advising the respondent and
discussing matters with Louw telephonically. Arries attended
the respondent’s premises for a short period with Louw, on
the day in question, but had no direct dealings with Jordaan.
The only other witness to testify was Chafeker who had
limited first hand knowledge of the events.
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12. Arries saw the cause of the strike as fairly straightforward:
the respondent had failed to pay the bonuses for the
previous years, had a poor record with regard to paying
benefits in general, had reneged on an agreement to pay
bonuses on 13 December 2002, had failed to honour the
agreement to issue dummy pay slips and ultimately
appeared to be reneging on the agreement to pay the bonus
on 20 December 2002.
13. Both Chafeker and Jordaan testified that the respondent had
every intention to pay the bonus at the end of the day shift on
20 December 2002. Chafeker’s evidence on the point, to my
mind, was not entirely satisfactory. Initially he stated
unequivocally that the bonuses were put into the pay
envelopes in cash and were in fact paid at the end of the day
shift on 20 December 2002. When asked whether he was
aware of the physical payment of the bonuses, he replied
that the envelopes were completed in his office and paid. He
later acknowledged that the striking workers who left early in
response to an ultimatum, advising them of the termination of
their employment, were in fact only paid their bonuses some
time in January. He also conceded that it would have been
possible to prepare the bonus pay packets on the previous
day, Thursday 19 December 2002, and tendered no
convincing explanation for why he had not done so. Nor did
he justify the necessity for the night shift employees to wait
for payment until after completion of the day shift.
14. Jordaan also offered no plausible explanation for why the
night shift employees were expected to wait. He claims to
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have told Louw telephonically that payment would be made
at 17H00. His evidence is at variance on this point with how
Arries understood the situation. While accepting that the
relationship between NUMSA and Jordaan was generally
good, Arries could not confirm whether a telephone
conversation between Louw and Jordaan had indeed taken
place on the morning in question. He confirmed that he and
Louw had attended a meeting with Bham on the
respondent’s premises, during which they advised Bham that
in terms of the applicable collective agreement the bonus
was required to be paid at the end of a shift. He and Louw
then left the respondent’s premises, after being there for
about an hour or two, when Bham indicated to them that he
was unable to guarantee that the bonuses would in fact be
paid. Arries admitted that he had no knowledge of whether
Jordaan had in fact given an assurance to Louw
telephonically that the bonuses would indeed be paid at the
end of the day shift.
15. Jordaan, on holiday at Hartebeespoort Dam, had the
unenviable task of managing the events taking place at
Atlantis. His version is that after speaking to the managing
director and to Bham, he conveyed to Louw that the bonuses
would in fact be paid. He claimed Louw told him that workers
were not prepared to listen. He then drafted and sent by e
mail two separate ultimatums to be issued to the workers,
which were distributed to them. The first ultimatum issued at
09H25 read as follows:
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NOTICE
FIRST NOTICE
ULTIMATUM TO STRIKING EMPLOYEES OF
PRO ROOF CAPE (PTY) LTD
DATE: 20 DECEMBER 2002 TIME: 9:25
YOU ARE HEREBY ADVISED THAT YOU ARE ENGAGED IN UNPROTECTED
INDUSTRIAL ACTION IN THAT YOU HAVE NOT FOLLOWED THE PROCEDURES
LAID DOWN BY THE LABOUR RELATIONS ACT.
YOU HAVE ALREADY BEEN GIVEN A VERBAL ULTIMATUM TO RETURN TO
WORK BY 8H00 TODAY, BUT YOU HAVE CHOSEN TO IGNORE THIS.
YOU ARE HEREBY ADVISED THAT YOU ARE TO RETURN TO WORK BY 10H30
ON 20 DECEMBER 2002.
THE COMPANY RESERVES ITS RIGHT TO TAKE DISCIPLINARY ACTION
AGAINST YOU. SHOULD YOU FAIL OR REFUSE TO RETURN TO WORK BY THE
ABOVE TIME, THEN SUCH DISCIPLINARY ACTION COULD RESULT IN YOUR
DISMISSAL.
16. Prior to the stipulated time period expiring, another ultimatum
was issued at 10H00 which read:
FINAL NOTICE
FINAL ULTIMATUM TO EMPLOYEES PARTICIPATING IN AN
UNPROTECTED STRIKE AT
PRO ROOF CAPE (PTY) LTD
DATE : 20 DECEMBER 2002 TIME : 10:00
DESPITE HAVING BEEN ISSUED WITH AN ULTIMATUM ON 17 AND 20
DECEMBER 2002 TO RETURN TO WORK AS PER NORMAL, YOU HAVE
IGNORED THE ULTIMATUM AND HAVE PERSISTED IN CARRYING ON WITH
YOUR UNPROTECTED ACTIONS. MANAGEMENT HAS EXPLAINED TO YOU
THAT SHOULD YOU CONTINUE WITH THESE ACTIONS, YOU ARE PLACING
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YOUR JOB IN JEOPARDY AND YOU COULD FACE DISMISSAL AS YOU HAVE
ALREADY BEEN ADVISED THAT DISCIPLINARY ACTION MAY BE TAKEN
AGAINST YOU.
YOU ARE HEREBY BEING GIVEN A FINAL ULTIMATUM TO RETURN TO WORK
BY 11H00 ON 20 DECEMBER 2002 AND IF YOU FAIL TO DO SO YOU WILL BE
DISMISSED.
DURING THIS PROCESS YOU WERE AT ALL TIMES ASSISTED BY THE UNION
OFFICIALS, AND THEY INFORMED YOU THAT THESE ACTIONS ARE
UNPROTECTED.
17. When the workers failed to comply by 11H20 they were
issued with a notice terminating their employment which
stated:
NOTICE
TO ALL EMPLOYEES
UNPROTECTED WORK STOPPAGE/STRIKE AT
PRO ROOF (PTY) LTD
DATE : 20 DECEMBER 2002 TIME : 11:20
ON 17 TH AND 20 TH DECEMBER 2002, THERE WAS AN UNPROTECTED WORK
STOPPAGE/STRIKE BY EMPLOYEES OF THIS COMPANY. YOU WERE ALL
ADVISED THAT SUCH ACTIONS ARE NOT ONLY A CONTRAVENTION OF THE
LAW, BUT ALSO OF THE COMPANY’S DISCIPLINARY CODE. SUCH ACTIONS
ALSO CAUSE CONSIDERABLE HARM TO THE RELATIONSHIP BETWEEN
MANAGEMENT AND THE EMPLOYEES CONCERNED.
EMPLOYEES ARE HEREBY ADVISED THAT SUCH ACTIONS WILL NO LONGER
BE TOLERATED. YOU ALSO CHOSE TO IGNORE THE FINAL ULTIMATUM TO
RETURN TO WORK BY 11H15 OR FACE DISMISSAL.
SHOULD EMPLOYEES DECIDE TO TAKE THE LAW INTO THEIR OWN HANDS
AND RESORT TO ILLEGAL ACTIONS, THEN MANAGEMENT WILL HAVE NO
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OTHER OPTION BUT TO TAKE STRICT ACTION AGAINST THOSE OFFENDERS.
TAKE NOTE THAT YOUR SERVICES ARE HEREBY TERMINATED IN TERMS OF
THE FINAL ULTIMATUM ISSUED TO YOU AT 10H30.
18. What is noticeable in all three notices is the absence of any
reference to the bonus issue. The tone in all of them is
adversarial and no assurance is given that the bonuses
would be paid at the end of the day, or at least that an
attempt would be made to that end. Accepting Chafeker’s
evidence that the bonuses could in fact have been paid by
late the previous day, the best means of diffusing the
situation surely would have been to confirm the undertaking
to pay in the written notices to the workers. Insofar as
Jordaan suggested that the approval of the managing
director was required in this regard, and that he was
immediately unavailable, this is curiously at odds with the
common cause fact that an undertaking had been given
earlier in the week to pay the bonus on 20 December 2002.
Unwittingly, therefore, it would seem, Jordaan in effect
corroborated Arries’ evidence that Bham could not give an
assurance or guarantee of payment during the meeting on
the morning of 20 December 2002, and possibly thereby
fueled a perception among the workers that the employer did
indeed intend to renege. Even allowing for the telephonic
undertaking Jordaan made to Louw, given the employer’s
history of nonpayment and underpayment, any conclusion
by the employees that they were about to be short changed
yet again was understandable, if not reasonable.
19. After receiving the third notice, the striking employees left the
premises. It is common cause that the striker’s conduct was
not characterized by violent or unruly behaviour. They
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proceeded with the action calmly and with a measure of
restraint. The effect of the industrial action was the loss of
production for the entire day shift and an hour of the night
shift. As appears from the union’s letter of 17 December,
there was a possibility that the day shift, being the last shift
of the year, had it been worked might have been a shortened
one.
20. Some time later on 20 December 2002, Jordaan, presumably
having had time to reflect upon the possibly precipitous
nature of the dismissal, addressed a letter to Louw at
NUMSA’s offices. In it he said:
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Met verwysing na die onbeskermde optrede deur u lede by Pro Roof Cape word ‘n
vergadering voorgehou op die 7de Januarie 2003 on 09H00 te Pro Roof Cape ten
einde die aangeleentheid te bespreek. Ten opsigte hiervan word u versoek om te
bevestig dat u die vergadering sal bywoon.
Tydens die vergadering sal u ‘n geleentheid gegun word om aan te voer waarom die
ontslag van u lede nie gefinaliseer moet word nie.
21. The letter is somewhat ambiguous. Consistent with the final
notice it assumes that dismissals had in fact occurred, but
leaves open the opportunity for the finalization of those
dismissals. The union’s position is that the dismissals in fact
and law were effected abruptly on 20 December 2002. The
respondent, however, asserts that they were only finalized
after disciplinary hearings held on 13 and 14 January 2003.
The union’s interpretation seems to me to be the more
accurate version. The final notice issued at 11H20 on 20
December 2002 was unequivocal in the final sentence where
it stated clearly and in bold: “take note that your services are
hereby terminated in terms of the final ultimatum issued to
you at 10H30”. The letter of later that day, as I have said,
refers to the dismissals as a fait accompli that needed to be
finalized.
22. Despite this, hearings were indeed held in mid January,
which resulted in the selective reinstatement of some of the
workers on justifiable grounds. In as far as I am able to
ascertain from the limited evidence presented, none of the
striking workers returned to work prior to the hearings of 13
and 14 January 2003.
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23. The hearing was chaired by Jordaan. The charge sheets and
his decision reflect that the workers were charged with
participating in unprotected strike action, perceived as
intermittent from 14 December to 20 December 2002. As
already explained, the yearend had originally been
scheduled for Friday 13 December 2002 and when the
bonuses were not paid on that date the workers engaged in
a stoppage. As part of the agreement to recommence on
Tuesday 17 December, after the constructive intervention of
the union, and in order to make up for lost production, the
workers agreed to work day and night shifts through to
Friday 20 December 2002, which as seen ended prematurely
when the bonus was not paid to the night shift workers.
24. In his decision Jordaan states that the losses from the
industrial action amount to R350 000 for the period. Neither
he nor Chafeker was able to substantiate that loss
convincingly or in any meaningful way during their testimony.
Considering that total production time lost amounted to one
short shift, the figure of R350 000 appears to be
exaggerated. Without proper substantiation and accounting it
cannot be accepted as correct.
25. Despite a somewhat confusing line of reasoning, Jordaan for
all intents and purposes (taking into account the nature of the
dispute, the timing of the action of 20 December 2002, the
failure to heed the ultimatums and the degree of individual
participation) upheld the dismissals of some of the
employees and reinstated others. Some weeks later, 9 of the
dismissed employees who had not been reinstated at the
hearing, were selectively reemployed pursuant to no clear
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objective selection criteria. The number of employees who
lost their employment was reflected in an annexure to the
statement of case as being the 44 individual applicants,
admitted to be such by the respondent in its response. In
Annexure A to his supplementary heads of argument,
submitted after the close of the trial, the applicants’ legal
representative however reduced this number and has
identified 22 applicants, who I presume to be those in
respect of whom relief is still sought.
26. As far as I can ascertain from Jordaan’s reasoning, the
dismissals were in response to the unprotected action of 20
December 2002 though the other actions forming part of the
history of the dispute were an important consideration in
reaching his decision.
27. The respondent has attempted to make something of the
union’s failure to participate in the hearings (conducted in
groups of 5 with each employee being afforded an
opportunity to address the employer individually). The
employees were however represented by shop stewards. For
that reason, in my view, not much turns on the union’s non
participation, which I understand it justified, rightly or
wrongly, on the basis of its reluctance to legitimize a process
it considered illegitimate.
28. The union, on behalf of its members, contends that the
dismissal of the individual applicants was both procedurally
and substantively unfair.
29. Because the employees’ action constituted a concerted
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refusal to work for the purpose of remedying a grievance or
resolving a dispute in respect of their leave enhancements, I
am persuaded that their conduct indeed amounted to “a
strike” as contemplated in the definition of that term in
section 213 of the Labour Relations Act. Moreover, it is
obvious that the strike was not in accordance with section 64
of the LRA in that the issue in dispute was not referred to the
bargaining council, nor had a certificate been issued stating
that the dispute remained unresolved. In addition, the
employees did not give 48 hours notice of the
commencement of the strike to the employer. Accordingly,
the action was indeed an unprotected strike and to that
extent is deserving of censure.
30. Section 68(5) of the LRA provides that participation in a
strike that does not comply with the provisions of section 64,
or conduct in contemplation or in furtherance of it, may
constitute a fair reason for dismissal. In determining whether
or not such a dismissal is fair, this court is enjoined to have
regard to the Code of Good Conduct in Schedule 8. Item 6(1)
of the Code provides that the determination of the
substantive fairness of a dismissal in the circumstances
should be done in the light of the facts of the case, including
the seriousness of the contravention of the Act, attempts
made to comply with the Act and whether or not the strike
was in response to unjustified conduct by the employer. Item
6(2) deals with the procedural requirements of a fair
dismissal for striking workers and provides that prior to the
dismissal the employer should, at the earliest opportunity,
contact a trade union official to discuss the course of action it
intends to adopt. The employer should also issue ultimatums
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in clear and unambiguous terms that should state what is
required of the employees and what sanction will be imposed
if they do not comply with the ultimatum. The employees
should be allowed sufficient time to reflect on the ultimatum
and to respond to it, either by complying with it or rejecting it.
It is generally accepted that the Code is not exhaustive and
ought not to be applied mechanistically. Other relevant
considerations include the duration of the strike, the harm
caused by the strike, the legitimacy of the strikers’ demands,
the conduct of the strikers and the timing of the strike.
31. Although the issue of the leave enhancements strictly
speaking is a rights issue, one cannot get away from the fact
that in this instance the employer’s conduct regarding the
payment of remuneration to its employees fell below what
might reasonably be expected and this contributed
significantly to a loss of trust in its industrial relations with its
workforce. The failure to pay the employees significant
amounts due to them contractually and statutorily would
naturally have led to a loss of trust and hostile perceptions
towards the employer. Even accepting that the employees
were not entitled to assume that the leave enhancement
would be paid on 13 December 2002, once the issue had
reared its head in the way it did, it was incumbent on the
respondent to ensure that bonuses were paid appropriately
and timeously on 20 December 2002, in accordance with the
agreement previously reached with the union. It was
common cause that there was no intention to pay the night
shift of 1920 December 2002 at the end of the shift. The
employer’s inability to see the unreasonableness of
expecting the night shift employees to wait until the end of
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the day shift for their bonuses is an indication of the inexpert
manner in which it conducted its industrial relations. Given
what had gone before, its actions were nothing less than
provocative. Moreover, I accept Arries’ version that Bham
was unable to give the guarantee that the bonuses would be
paid at the end of the day shift. This, as I have indicated, was
unwittingly corroborated by Jordaan in his evidence and is
further supported by the fact the nothing in the three notices
distributed to the workers gave any such guarantee. In the
light of the respondent’s prior reprehensible conduct, the
entire situation could have been avoided had the respondent
simply given a written guarantee and distributed it to the
workforce immediately in response to the stoppage in the
early morning. Jordaan claimed that he gave a guarantee
telephonically to Louw, However, this is at odds with his
testimony that he needed the authorization of the managing
director, despite an earlier agreement having been reached.
Had he indeed given that guarantee, the question has to be
asked why that was also not communicated in the written
notices. In the premises, I am persuaded that the employer’s
provocative conduct contributed significantly to the strike
action and mitigates its unprocedural nature.
32. The employees’ conduct on the other hand, though not in
compliance with the LRA, was not violent or unruly. They
exercised restraint and limited their action to downing tools
and refusing to work the shift, which they had agreed to in
order to make up for lost production. It is evident that they
were aggrieved that their bona fides and cooperative
approach to the employer was not being reciprocated.
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33. There is no cogent evidence as to the loss caused by the
stoppage and it accordingly may be assumed to be fairly
minimal in the circumstances. The strike was of limited
duration and there was no damage to the respondent’s
premises or equipment.
34. In sum, the employees showed some forbearance and
accommodation in relation to the employer’s illegal conduct.
What they assumed to be the employer’s reneging on 20
December was probably the final straw. Unquestionably, the
demand of the strike was legitimate, albeit that it related to a
rights dispute. Nor was the timing of the strike calculated to
maximize harm. It was a responsive strike embarked upon in
reaction to the employer’s unsatisfactory conduct. It endured
for a mere few hours before the employees left the premises
peacefully in response to the ultimatums and the notice of
termination issued to them.
35. Considering that the employees did not engage in any
unacceptable behaviour, there does not seem to have been
any justifiable reason for the employer to have proceeded to
the dismissals at the pace it did. More time should have been
allowed to reflect on the ultimatums once an undertaking had
been given that the bonuses would be paid. The whole sorry
affair could have been avoided by the provision of more time
and information by the employer.
36. Although the respondent can be commended for holding
hearings sometime after the dismissals, such hearings
essentially amounted to an exercise in selective re
instatement (or possibly an appeal – in which event it was
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inadvisable for Jordaan to have chaired them). However, the
later selective reemployment of 9 of the dismissed
employees who were not selectively reinstated, on the
limited evidence available, seems to have been done without
any ascertainable objective or fair criteria. This leads to the
inference that the employer did not view the employees’
conduct around the strike as sufficiently serious to justify the
permanent non reemployment of all the strikers.
37. In the premises, I am persuaded that the dismissal of the
strikers was indeed both procedurally and substantively
unfair. In terms of section 193 of the LRA the primary remedy
in such instances is reinstatement. The respondent
presented no evidence or argument to the effect that the
remedy in the event of a finding of unfair dismissal should be
reemployment or compensation. There is no evidence to
suggest that the circumstances surrounding the dismissal
were such that a continued employment relationship would
be intolerable. Nor is there any evidence that it is not
reasonably practicable for the employer to reinstate the
employees. Accordingly, the remedy of reinstatement
normally should apply. However, in his supplementary heads
of argument, filed in writing some days after the conclusion
of the trial, the applicants’ legal representative cryptically
identified that certain individual applicants would prefer
compensation rather than reinstatement. In terms of section
193(2)(a) of the LRA it is not obligatory to order re
instatement in respect of these employees. On account of
the manner in which this has been done, there is no
evidence and no submissions have been made regarding the
amount of compensation such applicants should receive.
amount of compensation such applicants should receive.
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The order that follows takes account of this difficulty.
38. Considering the continuation of an industrial relationship
between the parties, I am disinclined to make a costs order.
39. In the light of the foregoing, I make the following orders:
i.The dismissal of the individual applicants is declared
to have been procedurally and substantively unfair.
ii.The respondent is directed to reinstate the following
individual applicants on the same terms and
conditions of employment that prevailed at the time
of their dismissal on 20 December 2002: W Nete, D
Ngadlela, P Mofekeng, S Dyantyi, P Ngqubeka, I
Dyanti, J Magijima, J Mofokeng, L Rigala, S Pheko,
E Jankie, E Magawulana, and M Mxaba.
iii.The individual applicants in paragraph (ii) above are
directed to report for duty on 10 August 2005.
iv.The respondent is directed to pay the applicants
named in paragraph (ii) all back pay due to them for
the period 21 December 2002 until 10 August 2005
on or before 31 August 2005 together with interest at
the prescribed rate.
v.The matter is postponed to a date to be determined
by the Registrar for the purpose of determining the
amount of compensation payable to the individual
applicants seeking compensation as identified in
21
Annexure A of the Applicants’ Supplementary Heads
of Argument filed on 6 May 2005.
vi.There is no order as to costs.
MURPHY, AJ
Date of hearing: May 2005
Date of Judgement: 2 August 2005
Applicants’ legal representative: Mr. J Vuso of Nalane Manaka Inc
Respondent’s legal representative: Mr. W Jacobs of Jacobs and
Associates
22