About SAFLII
Databases
Search
Terms of Use
RSS Feeds
South Africa: Supreme Court of Appeal
SAFLII
>>
Databases
>>
South Africa: Supreme Court of Appeal
>>
1995
>>
[1995] ZASCA 142
|
|
Buthelezi & Others v Eclipse Foundries Ltd. (351/92) [1995] ZASCA 142; (1997) 18 ILJ 633 (A) (24 November 1995)
CG CASE NUMBER: 351/92
IN THE SUPREME COURT OF SOUTH AFRICA (APPELLATE DIVISION)
In the matter between:
ALFRED BUTHELEZI & OTHERS Appellant
and
ECLIPSE FOUNDRIES LIMITED Respondent
CORAM:
E M GROSSKOPF, SMALBERGER, EKSTEEN,
VAN DEN HEEVER et SCHUTZ JJA
HEARD ON:
6 NOVEMBER 1995
DELIVERED ON:
24 NOVEMBER 1995
JUDGMENT
VAN DEN HEEVER JA
2
The appellants were formerly in the respondent's employ. They were dismissed
on 15 February 1990. The National Industrial Council
for the Iron and Steel
Engineering and Metallurgical Industry failed to resolve the dispute between the
parties referred to it. The
appellants were unsuccessful in the ensuing
proceedings in the Industrial Court ("IC"), in which they claimed reinstatement.
Their
appeal to the Labour Appeal Court ("LAC") was dismissed on a point in
limine, that the appellants wished to advance a different case
to that relied on
in the IC. Leave to appeal to this Court was sought from and granted by the LAC
on 4 June 1992. Few of the rules
governing the prosecution of such an appeal
were adhered to after the notice of appeal was filed in this Division on 23 June
1992.
The consequent application for condonation is itself flawed in many
respects. The dismissal of the employees, competent under the
common law, had
been held to be also fair in terms of labour practice. The respondent had
difficulty in discovering who exactly were
the persons wanting a third bite at
the cherry. This Court,
3
faced with the same problem, had that settled only by agreement between
counsel after the matter had been called in court, in terms
of which they
undertook to supply a list of the names of the respondent's ex-employees
properly involved in the matter before us.
Both before and during the
unlawful strike which led to their dismissal, the appellants disregarded basic
rules of collective bargaining
and labour relations. A similar disregard
extended to both substantive and procedural rules of litigation throughout. I
ignore their
failure to abide by procedural rules in the LAC, as that court did.
Delays there are now relevant mainly because, on the day that
leave to appeal
was granted, the respondent formally requested the appellants "to ensure that
this appeal is processed timeously
in terms of the requirements of the Labour
Relations Act No 28 of 1956, as amended".
This letter was addressed to an attorney, Ms Khampepe, who was not initially
involved in the matter. The notice required by IC Rule
29(1) had been signed by
attorney Anand-Nepaul of Durban on 30 July 1990
4
as representing 215 named individuals. In that it was alleged that it had
been the applicants themselves who had referred their dispute
to the Industrial
Council. It was never explained why they, who were referred to throughout the
trial which followed as "the NUMSA
members", were represented at the hearing by
Mr Luthuli, who it subsequently transpired was the Secretary General of the
United Peoples
Union of South Africa ("UPUSA"). The respondent's denial that the
applicants themselves had approached the Industrial Council and
allegation that
it had been UPUSA which had referred the dispute thither, was not investigated.
The role of Mr Luthuli remained ambiguous
throughout, in the sense that where
NUMSA was not prepared to assist the appellants in their litigation, Mr Luthuli
was. UPUSA does
seem to have had a finger in the pie in some way, without ever
either it or Mr Luthuli coming into the open and accepting responsibility
towards the respondent for mundane matters such as a duty to comply with rules
or perhaps accept responsibility for adverse costs
orders, should any be made.
In an affidavit filed in the
5
LAC to obtain condonation for late noting of the appeal in that forum, Mr
Luthuli had said that the then prospective individual appellants,
whose numbers
had dwindled to 105 and whom he named, were not members of UPUSA which was
accordingly not prepared to litigate on
their behalf. He himself had called a
meeting of appellants after which he on their behalf instructed Ms Khampepe to
obtain counsel's
opinion, and in due course to apply for the relevant
condonation.
Coming back to events after leave was granted by the LAC to appeal against
its adverse order: since the notice of appeal was filed
on 23 June 1992 with the
Registrar of this Court, powers of attorney should have been filed by 21 July
1992. They were not. When
they were, almost two years too late, famine had
turned to feast. After Mr Alexander, the member of the firm of attorneys
handling
the matter on behalf of the respondent, had already filed his affidavit
opposing the present application for condonation, Ms Khampepe
filed no less than
188 powers of attorney, although Mr Luthuli had listed only 105 litigants as
6
involved in the appeal before the LAC. In her application she had originally
sought i.a. an order "condoning the failure of approximately
150 Appellants to
furnish the Honourable Court with special Powers of Attorney and authorising
their appeal to proceed notwithstanding
such failure".
The sorry story of the powers of attorney is merely a symptom of the
confusion characteristic of this matter from its inception. We
were urged to be
tolerant with appellants because they are said to be unsophisticated and
impecunious. No such tolerance can justifiably
be sought for any attorney - by
definition a trained lawyer and an officer of the court - who accepted a mandate
to act on their
behalf. It should of course be unnecessary to say that a power
of attorney is not merely a bureaucratic formality. Had Ms Khampepe
insisted on
one in her favour when she originally accepted the mandate to act for - or in
the interests of - the dismissed employees,
she would not have found herself in
the quandry in which she landed. The prayer quoted above from her present
7
application for condonation really says it all. The only affidavit in support
of her notice launching the application, is hers. Her
recitation of the
customary preamble, "I am duly authorised to depose hereto and the facts
contained herein are, unless the context
otherwise indicates, within my personal
knowledge" must be labelled irresponsible. Apart from laying claim to represent
"Alfred Buthelezi
and approximately 210 other persons", she initially says that
Mr Luthuli offered to represent them
on behalf of UPUSA
. and that it was
UPUSA who instructed her to appeal against the ruling of the IC. According to
her "it later transpired that it was
not UPUSA but the workers themselves who
were funding the appeal", which may be relevant though hardly the sole criterion
as to the
identity of a litigant, as her own subsequent attempts to raise funds
underline. In setting out her difficulties in getting money
to continue with the
matter, it becomes clear that she was an attorney unsure of the identity of her
client(s), not one seeking help
for identified, simple, impecunious clients
barred from achieving rights in which they had faith
8
and which they were asking her to claim for them. She tells of speaking to
"the Appellants"; "some of the Appellants"; and of meetings
"with the Appellants
and some officials of UPUSA". Not one of these is identified, not one filed an
affidavit in support of her allegations,
not a single individual has come
forward to state under oath that now, more than five years after having been
dismissed, he wants
to resume his employee-employer relationship with the
respondent; which is after all what the matter is all about. And she was in
contact with Mr Luthuli, to whom she conveyed and with whom she discussed
communications from Mr Alexander and from the Registrar.
In return she seems to
have received little bar unfulfilled promises and unwarranted assurances.
Understandably, the respondent wanted the uncertainty created by a pending
appeal to come to an end, and was nagging Ms Khampepe to
get on with that. The
respondent wrote to her on 19 January 1993 asking (I paraphrase): are your
clients continuing with the appeal?
- if so when can we expect copies of the
record, and what about the security you were
9
going to ask Mr Luthuli to let us have by 15 October 1992? Her reply was an
ostensible surrender, but only on one front. On 29 January
she served a notice
on the respondent's attorneys of her withdrawal from the arena, notifying them
that the appellants' last known
address was care of UPUSA at that union's
offices. Her options however remained open, because no notice of withdrawal was
filed at
that stage with the Registrar of this Court. She glosses over this
omission and in doing so, for neither the first nor the last time,
alleges as a
fact something which proves to be incorrect: "It now transpires that although I
prepared a Notice of Withdrawal and
signed it, it was
not served
or
filed". (My emphasis). There was no attempt in her supplementary affidavit to
either retract or explain her error, which came
to light because Mr Alexander
attached a copy of her Notice of Withdrawal to his opposing affidavit. She does
make it clear that
although she succeeded in deflecting Mr Alexander's
correspondence from herself to Mr Luthuli, she herself had not lost interest
in
the matter entirely. She had earlier tried to help Mr Luthuli
10
in his quest for funding. She suggested he approach the Kagiso Trust. This
proved fruitless. So did an approach to the Legal Aid Board.
She was told by an
(unnamed) UPUSA official of its approach to NUMSA "with a request that NUMSA
proceeds to act on behalf of the
Appellants in the matter and furnish the
necessary funds". She herself contacted Dr Fanarov of NUMSA. He wished to review
the file.
At the request of UPUSA she accordingly gave Fanarov all her files and
thereafter, despite having withdrawn vis-à-vis the
respondent, contacted
NUMSA from time to time to enquire whether it had come to any decision. She
blames NUMSA's indecisiveness for
subsequent delays, but attaches no affidavit
from Dr Fanarov nor indeed a single one of the individuals she names save one.
His affidavit
is a formality. He is the candidate attorney who was at that stage
in her employ.
Mr Alexander's attempts through Mr Luthuli to urge the appellants to do
something about the appeal noted, one way or another, got
nowhere. Mr Luthuli
did not deny that it was appropriate for Mr
11
Alexander to channel such attempts through him. In fact, when Mr Alexander
saw him at the Industrial Court during March, Mr Luthuli
said that he was trying
"to find someone to proceed with the appeal".
Then, mirabile dicta, eight months after Ms Khamepe had served her notice of
withdrawal on the respondent's attorneys, on or about
20 September 1993 "about
five Appellants" - unnamed, of course - came to see her. One of them told her of
his windfall at the races.
He was prepared to make R40 000 of the R100 000 he
had won available to the appellants to use for purposes of the appeal. She
handed
over an appropriate printed form and asked that a power of attorney be
obtained. The document was returned to her on 1 October 1993
with the names of
"approximately 60 Appellants thereon". We are not told why this was not filed
forthwith, why the number of names
should be merely approximate, and whether it
had been signed by any individual at all as a litigant or was merely a list of
names
and for that reason could not serve the purpose for which it had been
intended.
12
Now armed with the sinews of war, Ms Khampepe still delayed the battle she
had allegedly been unable to engage in earlier for lack
of those. She did not
immediately instruct the preparation of the record or try to agree its content
with Mr Alexander. She first
"wanted to satisfy myself, after consulting with
Counsel, that the Appellant's application for condonation had a fair prospect of
success". Having so satisfied herself, she gave the necessary instruction on 12
December, which in her later affidavit she had to
correct to 29 December. I
myself am more than curious about whom she consulted, what she told him, and
what he in turn told her:
whether he gave her any assistance in or even merely
advice about the preparation of the petition, since it is beyond my
comprehension
how she could have been satisfied that the petition she has placed
before us could have a fair prospect of success. Its flaws are
manifest. It is
crowded with incognito characters. It lacks information and direct evidence
which should have been placed before
the Court. Instead it contains her own
argument and speculation about the
13
appellants' probable intentions should the appeal succeed. It perpetuates the
ambivalence about who is behind the appeal - the most
glaring omission being as
already pointed out, the total lack of any evidence that any identified
individual persists in seeking
reinstatement in his former employment so that
the appeal may serve some purpose. And omissions for which condonation was
sought
were not yet remedied when she launched the application.
The documentation before us indicates that Mr Luthuli fell out of, and Ms
Khampepe returned to the active fray when the Registrar
indicated that the
appeal would be regarded as lapsed or withdrawn if the appellants did not
indicate that they intended to prosecute
it and submit the necessary application
for condonation. That led to the assurance that the appellants indeed did intend
to carry
on, and to the preparation of the necessary condonation application. I
have touched on the flaws in that. The story still does not
end, though the
litany of broken undertakings becomes tiresome. Even when security was at long
last filed, it was
14
done without proof that the respondent was agreeable to its form; which form
Ms Khampepe in her supplementary affidavit inevitably
conceded had initially
been unsatisfactory since it made no commercial sense. It originally consisted
of a bank guarantee for an
amount agreed upon between the parties but revocable
on one month's notice by the bank.
The procedural rules governing the prosecution of appeals are there for the
convenience of the court but also to ensure that one litigant
does not prejudice
his opposition by dragging out litigation unconscionably. The axiom that justice
delayed is justice denied is
of particular importance in a matter such as this.
The respondent, who already had two verdicts and a costs order in its favour,
stood to suffer ever-increasing inconvenience and ever-increasing expense with
the passage of time should an appeal succeed, and
the success of such a belated
appeal would be manifestly unfair also to the employees engaged years ago in the
place of those dismissed.
Although the courts may condone an attorney's failings
in the prosecution of an appeal up to a point, that
15
point depends in a measure on the merits of the proposed appeal. To allow a
latitude as wide as is sought here, would make a mockery
of the rules of
litigation which were not merely bent but fractured consistently in the present
instance, and be unfair to the respondent
even were there a strong possibility
of the appellants' success.
I am satisfied, however, that there are no prospects of the appeal succeeding
on the merits, so that refusing condonation will cause
no injustice to any of
those dismissed on 15 February 1990.
Rule 29(1) of the Industrial Court rules requires both parties to
deliver a notice setting forth a summary of the facts and grounds on
which the relief is sought or its case based, respectively, and a list of
books and documents in its possession or under its control, relevant to
the application. Rule 29(8) prescribes:
"Any hearing under this rule shall be in the nature of a civil trial and in
every case evidence shall be adduced on oath unless the
court dispenses with
oral evidence, save that in determining the dispute the court in order to
expedite proceedings or arrive at
a just decision may make
16
suggestions with regard to the calling of such witnesses as the court considers
necessary or it may itself call witnesses and put
to such witnesses such
questions as it deems essential."
Although the
procedure in the IC is informal, it requires as in any dispute to be settled by
means of evidence, that the ambit of
the dispute be first defined. The
conclusion which the appellants asked the IC to draw from the facts they set
out, is so vague as
to be almost meaningless; namely "that no consideration of
fairness, equity or compliance with generally accepted labour policies
were
adhered to by the Respondents in connection with the termination of services of
the [appellants]".
The facts from which this conclusion is sought to be drawn become all the
more important by reason of this vagueness, for purposes
of alerting the
opposition to what it should be prepared to counter, what are the sins it is
alleged to have perpetrated - in short,
what the employees' case is about. In
the Rule 29(1) notice the appellants,
17
assisted at that time by attorney Anand-Nepaul, listed the facts they
intended to establish as the foundation on which their conclusion
rested, as
follows (I paraphrase);
1. Before 8 February 1990, the [appellants] submitted certain
demands to
the management of the respondent. These included
(a)
long service
allowances
(b)
attendance bonuses;
and
(c)
job security. (The evidence indicated
that this related to allowances sought for working in areas where conditions
were allegedly
unfavourable.)
2.
In response, management
unilaterally instituted a ten cent per hour long service allowance for those
workers who had been in its employ
for more than five years; but implemented
this arbitrarily. Some who qualified did not receive the allowance whereas some
who did
not qualify, did.
3.
On 8 February
1990
18
(a) the [appellants] sent their shop stewards to request a meeting with Mr
Holton, the manager, "in order to clarify certain contentious
issues, which
included" those paraphrased above
(b) Mr Holton "refused to deliberate with the [appellants]." The [appellants]
instructed their shop stewards to "send a letter to
Mr Holton arranging another
date for a meeting".
Mr Holton agreed to attend such
a meeting at 08:30 on 13 February 1990.
4.
On 13 February and again on
the 14th and the 15th, the workers waited in vain for him. On the afternoon of
the 15th he told them to
clock out at 16:00 and return to work the following
morning at 07:00.
5.
When they did, they were
summarily dismissed and told to leave the
premises.
The facts set out in the respondent's
reply to this, give a very different version of the events that occurred during
that period:
19
1.
The respondent is a member
of the National Industrial Council for the Iron, Steel, Engineering and
Metallurgical Industry and negotiates
wages at that
level.
2.
In 1989 the four NUMSA shop stewards
presented the respondent with the abovementioned demands, which were dealt with
at the time.
The respondent instituted a service allowance, the details of which
were made known to the employees during early December. The respondent
undertook
to consider and if possible attend to all suggestions put forward by the
employees to meet complaints about working conditions.
3.
The shop stewards in February 1990 repeated the demands which had
already been dealt with.
4.
On 8 February four
named employees who said they now represented the NUMSA members, presented a
petition to the respondent and asked
for a meeting with management on 13
February at 09:00 to which the respondent
agreed.
5. On 13 February the appellants and other
employees started an
20
unlawful strike. Some started to intimidate, harass and assault non-strikers.
Meetings between the four-man deputation and members
of management did not
resolve the strike. The employees, through this four-man committee, were
insistent that their demands be acceded
to, were unpersuaded by what management
said, and insisted also that Mr Holton address them all.
6.
That evening night-shift
workers joined the illegal strike, most of the members of both groups spending
the night on the premises.
7.
The strike
continued on the following day. Just before 13:00 the four were told that
disciplinary action would be taken against strikers
who did not return to work
by 14:30. None did. The representatives were given a second ultimatum to convey:
should the strikers not
return to work by 16:00, they would be dismissed.
Twenty-five minutes before the expiry of the deadline, the four told management
that all the strikers had accepted that disciplinary action would be taken
against them, and had undertaken to leave the premises
immediately and to return
and
21
resume work the following day for their respective day and night shifts.
8.
The first undertaking was
breached immediately: the strikers remained on the premises that
night.
9.
Nor was the second undertaking
honoured the next day. Instead of the employees resuming work, a written demand
was handed to the respondent's
managing director in which the employees altered
their former demand: they would return to work provided that he addressed the
entire
group about their demands. The day shift workers were dismissed at 08:15.
The night shift staff were notified that the deadline in
their case was 17:30
and since they did not resume working, they were dismissed at
22:00.
10.
Thereafter an eviction order was
sought and obtained against the strikers in the Supreme Court on 17 February
1990.
In a final paragraph, the appellants' version
of the events during the relevant period was denied, as well as the conclusion
they
asked the IC to draw. More, the respondent invited the appellants to give
"full
22
details concerning the manner in which the termination of the [appellants']
services was unfair or failed to comply with generally
accepted labour
policies". Since the appellants' version of their being kept waiting for days
for a promised appointment and then
sacked without cause and without warning
would clearly constitute not merely unfairness but rather stubborn intransigence
on the
part of management, this request for details was a clear invitation to
the appellants to amend or increase the ambit of their factual
allegations. It
was not accepted.
The dispute which the IC was therefore asked to resolve, was a purely factual
one: who was telling the truth? Had the respondent acted
as alleged, which would
have constituted a breach of contract by the employer at common law, let alone
an unfair practice according
to labour policy?
After hearing a good deal of evidence, the IC rejected the appellants'
version, commented adversely on the credibility of all the
appellants'
witnesses, accepted the respondent's testimony, and dismissed
23
the application.
The notice of appeal in the LAC by necessary implication
accepted that the appellants' witnesses, who had strenuously denied both
that
they had indulged in strike action at all and that there had been any
intimidation, had lied. The alleged unfair practice(s)
now sought to be winkled
out of the respondent's own testimony, may be tabulated as follows:
1.
Since the respondent's own
evidence was that a number of the employees had joined the strike as a result of
intimidation by others,
the respondent should have afforded each of the
appellants an individual hearing before dismissing
him.
2.
There were sins of both commission and
omission on the respondent's part, and circumstances mitigating the appellants'
conduct, which
cumulatively made dismissal
unfair.
Respondent's conduct
:
a(i) The respondent had earlier unilaterally decided on what long
24
service wage increases it would grant
(ii) The respondent did not convey
its decision to the workers through
the appellants' shop stewards
b The
respondent was intransigent in refusing to accede to the
workers' demands,
particularly
- to discuss their claims
-
to address the workers en masse c The deadlines given were too
short
d The respondent should have notified "the
relevant union, NUMSA,
of the strike or tried to get its assistance in resolving it"
Mitigating circumstances
:
a The issues in respect of which the appellants were striking were
"largely acceptable and/or legitimate"
b The appellants' failure to follow the conciliatory procedures
provided for by the Labour Relations Act was partially excusable "as a
result of the elected shop stewards having been relieved of their duties
25
(as a direct result of the Respondent bypassing them)"
c The appellants
could not wait to use such procedures because the
respondent was already
implementing its wage increases
d The unlawful strike was of relatively short duration.
As stated earlier, the LAC dismissed the appeal with costs. It accepted,
correctly, that neither the notice of appeal nor counsel's
heads of argument
attacked the findings of fact made by the IC. After referring to case law on the
question, when a court of appeal
will deal with an issue not raised on the
pleadings, it held that the appeal before it failed all the tests suggested in
the decisions.
Those were based on considerations of fairness allied to a
disinclination on the part of the courts to be hamstrung by formalities.
Mr Pauw, for the appellants, argued before us that the LAC had erred in this
regard; that on this issue as in other respects, the
norms of the courts
functioning in the labour dispensation differ from those applicable in the other
courts of the country, and are
more tolerant
26
towards employees because of their lack of sophistication and experience of
court procedures.
As regards the issue in question, I do not agree, and imagine that the
industrial courts share my view rather than his. The fact that
the proceedings
in the industrial courts are informal; that the presiding officer may play a far
more active role in the proceedings
than a judge or magistrate would do in a
civil matter; that he would do so to assist the impecunious and inept to present
the case
they wish to make out; do not imply that equity flies out of the
window. The IC rules make it clear that in adjudicating between
opposing
parties, it is not trial by ambush that is envisaged for either of them.
Whatever the norm may be when circumstances oblige
one party to a relationship
to take a decision affecting the rights of the other without time for
consultation, whenever an objective
and disinterested
third
party is
called upon to assess the conduct and determine the rights of opposing parties
at leisure, the dictates of fairness require
that both parties be heard. When a
court is
27
willing to determine on appeal an issue not formally raised in the initial
proceedings, it does so because it is satisfied that neither
party was caught
unawares, that both had a proper opportunity, of which advantage was taken, to
deal with the issue in question.
In other words, that there had been substantial
compliance with the injunction which lies at the heart of fair adjudication;
audi
alteram partem. There is nothing in labour practice that I know of that
suggests that industrial tribunals when refereeing are not
obliged to apply the
Queensberry rules.
Since the case presented on behalf of the appellants in the IC was rooted in
falsehood, it is not surprising that, of the issues sought
to be raised in the
LAC, some had perhaps been mentioned in passing but not canvassed at the
hearing. That was so despite Mr Luthuli's
having been given every latitude to
range beyond the appellants' statement of case and indeed invited to
particularize what their
grievances were, other than the unilateral
implementation of the long service increment and the unmotivated summary
dismissal recorded
in their statement of claim.
28
(There was not an iota of evidence tendered to support the further allegation
of arbitrary implementation of that decision.) There
was the invitation
contained in the last paragraph of the respondent's statement of case, referred
to earlier. Mr Myburgh who appeared
on respondent's behalf in the IC repeated
the invitation verbally. For example, when Mr Luthuli put a bald statement to Mr
Holton
that shop stewards had been chased out of a meeting with management -
which he denied - Mr Luthuli turned down the invitation to
put a more detailed
version so that it could be properly dealt with.
Similarly, the procedural unfairness alleged in paragraph 1 of the notice of
appeal in the LAC, was not touched on in the IC. Since
the appellants' witnesses
denied that there had been a strike at all, let alone any intimidation, it would
be an unfair labour practice,
in my view, were an employer to be expected to
confer on employees a procedure or right which they insist was unnecessary. No
individual
has come forward to suggest that he did not participate voluntarily
in the collective action
29
during the relevant period. "(A)s a general rule a favourable inference as to
a party's motivation for particular behaviour will not
be made where that is not
his case and he himself has given" -1 interpolate, 'or tendered' - "false
evidence in that regard." (SLAGMENT
(PTY) LTD v BUILDING, CONSTRUCTION AND
ALLIED WORKERS' UNION,
1995 (1) SA 742
(A) at 753E.) Recognition of any such
obligation would render an employer unarmed in the face of an illegal strike.
See NATIONAL
UNION OF MINEWORKERS OF SA v HAGGIE RAND LTD (1991) 12 ILJ 1022,
(LAC) at 1028G-1029B. And to now order reinstatement on this ground
in these
circumstances would be to benefit intimidators and intimidatees
indiscriminately.
Before us Mr Pauw took a new tack. He relied on a fresh set of alleged
failings on the part of the respondent. I summarize from his
heads of
argument:
1. NUMSA was recognised for the purposes of discussing local issues and
workers' grievances, for which purposes monthly meetings were
held
30
with shop stewards, although no formal recognition agreement had been
concluded with the union. On 3 October 1989 the demands of the
NUMSA members for
wage increases in the form of a variety of allowances, were discussed. In a
series of meetings thereafter, all
except one of the monetary demands were
rejected. The shop stewards were told in early November that management was
considering a
service allowance. On 30 November a notice was placed on the
notice board, that management agreed that loyal service deserved recognition,
and that management had therefore decided to adjust the wage rates by adding
respectively 10, 20 and 30 cents per hour to the pay
packet of workers with more
than 5, 10 and 15 years' service. The shop stewards reported dissatisfaction
with the amount of the increase;
and with the facts that it had been
unilaterally determined, and that the decision had been conveyed by means of a
notice on the
board instead of through the shop stewards. Management should, it
was argued, have tried to negotiate on these issues.
31
The stumbling block in Mr Pauw's path is that he is again advancing factors
which were not dealt with in the IC, through no fault
of the respondent. Mr
Holton explained in the IC that it was the respondent's policy, as a member of
SEIFSA, to negotiate wages at
Industrial Council level. He was not challenged as
to the reason for this policy. It would seem a sensible one when an enterprise
as large as that of the respondent, has, as the respondent does have, many
unions represented on its premises. Whether there is any
duty on an employer to
negotiate at plant level must depend on many factors, none of which were even
mentioned, let alone investigated.
So too the evidence was that management had
recognised that it had perhaps been insensitive in announcing the increments
decided
on without first informing the shop stewards; had apologized for this
"discourtesy"; but had also pointed out that the NUMSA shop
stewards did not
constitute the only channel of communication between the respondent and its
workers. In the IC that is as far as
these issues received any attention from Mr
Luthuli.
32
2. When the committee of four representatives who were not shop
stewards
called on Holton on 8 January, a document was handed to him
which contained
the following:
"We are requesting to see the management concerning our demands which were
submitted by our shop stewards. We also need an explanation
from the management.
Furthermore management must clarify to us whether the company recognized our
shop stewards or not."
A meeting was arranged between him and them for 13 February. On 12 February
the respondent sent a telex to NUMSA in which it expressed
concern that an
alternative group seemed to be representing NUMSA members. NUMSA replied that
the respondent was not taking the shop
stewards seriously, i.a. because it had
bypassed them in making its decision regarding the service allowance known.
Management, according
to Mr Pauw, should have perceived that the employees saw
the relationship between management and their elected shop stewards as
"problematic".
33
However, according to the respondent's testimony the troubled relationship
appeared to be that between NUMSA and its members - a dispute
not the
respondent's concern - since the four-man committee told management that the
workers had got rid of the shop stewards because
the employees could not
understand what the shop stewards told them.
3. Management was at fault in not conceding to the demand
repeatedly
conveyed by the committee, to address the workers en masse.
It may have
served some purpose.
The respondent thought otherwise. Its view was not shown to be wrong, and the
election of representatives to negotiate on behalf of
their colleagues lies at
the heart of collective bargaining which in turn is of the essence of labour
relations.
4. The erratic, vaccilating behaviour of the workers once the
strike
started - who undertook to return to work as soon as their demands
were
met; then undertook to return and accept disciplinary action;
undertook
34
to leave the premises; then breached those undertakings; objected to being
called
strikers
: added new demands; and so on - should have made it clear
to management that the workers were confused, harboured unresolved grievances
or
demands. The respondent was at fault in not taking any constructive steps to
deal with those grievances or find out what the motivation
for the strike
was.
On this contention, the more progressively capricious and unpredictable the
conduct of its employees becomes, the greater the obligation
on an employer to
take steps to avoid having to sever a relationship which must become ever less
attractive in its eyes. The illogicality
and inequity of any such proposition is
manifest. 5. The respondent should have called in NUMSA to help end the
strike.
This is untenable in view of the soured relationship between the
35
workers and their union referred to in par 2 above, according to what the
committee told management. Management had contacted NUMSA
by fax on 12 February,
expressing concern that NUMSA members were making demands through
representatives who were not elected shop
stewards. NUMSA's response was
accusatory and unco-operative. It threatened to declare a dispute against the
respondent should the
elected shop stewards be suspended to enable the workers
to choose other representatives in a fresh election.
To sum up. Appellants challenged the respondent with repeated demands over a
period of some months. Instead of using the negotiating
procedures provided for
by the statute, they misguidedly undertook an illegal strike. In the course of
this some workers intimidated
others, and there was an apparent attempt at
sabotage: gas valves were opened which could have caused a terrible explosion.
Ultimatums
were disregarded. When the appellants challenged their consequent
dismissals in the IC they misguidedly put forward a false version
of events. In
the
36
process they deprived themselves of the opportunity of making out any valid
case they might have had. And to pile Pelion on Ossa,
there has been inexcusable
delay in the prosecution of this matter.
The application for condonation is
dismissed with costs including the costs of the appeal and the costs of two
counsel.
L VAN DEN HEEVER JA CONCUR: E M GROSSKOPF JA) SMALBERGER JA) EKSTEEN JA)
SCHUTZ AJA)