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[1999] ZASCA 18
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National Union of Metalworkers of South Africa v GM Vincent Metal Sections (Pty) Ltd (Pty) [1999] ZASCA 18; [1999] 2 All SA 358 (A); 1999 (4) SA 304 (SCA); (1999) 20 ILJ 2003 (SCA) (26 March 1999)
REPORTABLE
THE
SUPREME COURT OF APPEAL
OF
SOUTH AFRICA
Case No. 116/96
In the
matter between:
NATIONAL
UNION OF METALWORKERS
OF
SOUTH AFRICA Appellant
and
G M
VINCENT METAL SECTIONS
(PTY)
LTD Respondent
Coram: SMALBERGER, HOWIE, OLIVIER, SCHUTZ JJA and
MELUNSKY AJA
Heard: 1 MARCH 1999
Delivered: 26 MARCH 1999
Unfair
labour practice - dismissal of striking employees after ultimatum -
two-stage enquiry - whether dismissals fair - whether
employer under
a duty to reinstate or re-employ dismissed workers.
________________________________________________________
JUDGMENT
_________________________________________________
MELUNSKY
AJA/
MELUNSKY AJA
:
[1] On
25 August 1992 the respondent, a manufacturer of steel components,
notified 225 hourly-paid employees of their dismissal,
effectual
from the previous day, following their participation in a national
strike and their failure to return to work in compliance
with the
respondent's ultimatum dated 24 August. The ultimatum called upon
the striking employees to return to work by the close
of business on
24 August failing which they would "be considered as
dismissed".
[2]
The dismissed employees were members of a registered trade union,
the National Union of Metalworkers of South Africa ("NUMSA"),
the appellant. NUMSA, in its own name and on behalf of the
dismissed employees, challenged the dismissals in the industrial
court by means of an application in terms of s 46(9) of the Labour
Relations Act, 28 of 1956 ("the LRA"). It sought
relief
consisting of a declaration that the dismissal of its members
constituted an unfair labour practice, their reinstatement
and
compensation for the employees concerned. On 11 April 1995, and
after a lengthy hearing, the industrial court determined
that the
dismissal of the individual employees did not constitute an unfair
labour practice. NUMSA appealed to the Labour Appeal
Court ("the
LAC") against the determination. The appeal was partially
successful. The majority of the LAC - Joffe
J and one assessor -
held that while the dismissals amounted to an unfair labour
practice, the employees were not entitled
to any consequential
relief, either in the form of reinstatement or compensation. The
other assessor agreed that the dismissals
were unfair but was of the
view that the employees were entitled to compensation in an amount
equal to twenty-four weeks' wages.
The question of reinstatement
did not arise as the respondent's business operations had been wound
down to the extent that there
was no activity in which it could
reinstate the workers.
[3] With the leave of the LAC,
NUMSA appeals to this Court against the LAC's refusal to grant
compensation to the dismissed
employees and the respondent
cross-appeals against the decision that the dismissals constituted
an unfair labour practice. Before
referring to the reasoning behind
the LAC's order and the arguments of counsel, it is appropriate to
record some of the background
facts. As this Court is generally
bound by the LAC's factual findings and the findings of the
industrial court which were expressly
or tacitly approved by the LAC
- see
National
Union of Metalworkers of SA v Vetsak Co-operative Ltd and Others
[1996] ZASCA 69
;
1996 (4) SA 577
(A) at 583I-584A - it is not necessary to analyse the mass of
evidence that was before the industrial court in the s 46(9)
proceedings. It will be sufficient, therefore, to give a summary of
the more significant facts.
[4] During
the first half of 1992 the respondent's employees who were members
of NUMSA (including all the employees who were
subsequently
dismissed) engaged in a series of activities that were, in the words
of Joffe J, illegal and unprocedural. In January
they imposed a ban
on overtime work. In February and May they took part in work
stoppages which resulted in the respondent issuing
them with written
warnings. On 22 June the employees concerned participated in a
stay-away from work which led to each employee
being furnished with
a final written warning, valid for twelve months and accompanied
with the admonition that the next disciplinary
step for similar
action would be dismissal. On 3 July a notification reminded the
NUMSA members that further work stoppages
could result in their
dismissal as all NUMSA members were on final warning.
[5] The national strike to which I
alluded earlier applied to employees in the steel and engineering
industry. It resulted in
considerable litigation, including an
appeal to this Court in the matter of
W
G Davey (Pty) Ltd v National Union of Metalworkers of South Africa
.
The chronology of the events leading up to the strike are set out
in the
Davey
judgment, which will be delivered simultaneously with this judgment
and do not require repetition. The respondent's employees
who were
later dismissed participated in the strike from the day of its
commencement, 3 August 1992, and their dismissals were
effectual
from 24 August, one day before Myburgh J's judgment in
Steel
and Engineering Industries Federation and Others v National Union of
Metalworkers of South Africa
(2)
1993 (4) SA 196
(T).
[6] As
a result of Myburgh J's judgment NUMSA called off the strike and
recommended to its members that they resume work on 31
August. The
vast majority of the strikers, numbering in all between 80 000
and 100 000, were accepted back by their
employers. About
2 000 workers who had been dismissed during the strike were not
accepted back. Included in the latter
group were the employees
dismissed by the respondent. These employees returned to the
respondent's premises and tendered to
resume their employment on 31
August and on each subsequent day until 4 September 1992. The
tenders were rejected.
[7] It
becomes necessary now to mention four other factors which are of
relevance in this appeal. The first concerns the respondent's
financial position and the economic conditions which prevailed at
the time. The respondent's main business consisted in the
manufacture of steel components for the building industry. Due to a
recession in the industry it sustained a significant reduction
in
profitability in 1990, a loss of more than R1 million in 1991 and
further substantial losses in 1992, including a loss of
approximately R1 million in August of that year alone. Even before
the strike, the management of the respondent had expressed
concern
about the continued viability of the company. This was made known
to shop stewards in the respondent's employ at a series
of meetings
between 1990 to 1992. In an effort to overcome its difficulties the
respondent adopted various measures, particularly
during 1992.
These included the introduction of short time in June and the
retrenchment of certain salaried staff in July.
On 30 July
retrenchment negotiations commenced concerning hourly-paid employees
and the respondent attempted, with very little
success, to continue
these discussions during the strike. There is, however, no evidence
that the respondent engineered the
dismissals in order to avoid
undertaking retrenchment procedures.
[8] A
second matter of some concern to the respondent was NUMSA's lack of
response to numerous written communications issued
by the respondent
during the strike. In all, nine such communications, copies of
which were faxed to NUMSA, were issued to the
striking workers.
These mainly dealt with the economic effect that the strike was
having on the viability of the respondent's
business, particularly
because of the respondent's inability to fulfil orders to its
customers. In addition a communication
dated 20 August requested
NUMSA to consider granting the respondent an exemption from the
strike and to encourage its workers
to return to work. Only one of
these communications, concerning the question of retrenchment,
elicited a response from NUMSA.
[9] The
third factor, and one that was stressed more than the others by the
respondent's counsel, related to the violence that
occurred on two
occasions - 17 and 21 August - towards casual workers who were
employed by the respondent as temporary replacements
for the
strikers. Joffe J described the incidents of violence in the
following terms:
"On 17 August 1992 employees engaged in strike
action attempted to prevent fifteen casual employees from entering
respondent's
premises. On 21 August 1992 a substantial body of
strikers acting in a concerted fashion invaded respondent's
premises. The
purpose of the action was to intimidate and assault
casual workers. The events of the day were testified to by Mr
Baker, respondent's
then director of human resources, and Mr Hall,
respondent's rolling plant manager. What emerges from their
evidence is that
the strikers prevented casual workers from entering
respondent's premises; the strikers threatened the casuals with
violence
and intimidated them; the strikers ran into the
respondent's premises chanting and shouting and carrying sticks and
other weapons;
groups of strikers ran to particular parts of
respondent's premises; the casual workers were flushed out of the
working areas
of the premises and escorted out of the premises by
the strikers. Approximately 100 to 125 of the striking workers
participated
in this violence."
[10] There
is little doubt that the violence of 21 August was both serious and
planned. The weapons used by some of the employees
included metal
pipes, bars, heavy wooden sticks and other implements. The attack
obviously filled the casual workers with terror.
At least one was
violently assaulted. Mr Baker, the respondent's human resources
director, too, was terrified and at one stage
felt obliged to lock
himself in a building.
[11] A
final matter that warrants mention at this stage relates to the
illegality of the strike. NUMSA's counsel conceded that
the strike
was illegal due to irregularities that had taken place in the
holding of the strike ballot. The respondent's counsel,
however,
did not place much reliance on the illegality. He was, in my view,
correct in this regard. The strike had been organised
by a trade
union, a ballot had been held and many workers in the industry had
responded to NUMSA's call. It seems reasonable
to assume that the
vast majority of the dismissed employees probably believed that the
strike was legal.
[12]
It is appropriate to consider the respondent's cross-appeal before
dealing with the appeal for, if the cross-appeal is
upheld, it will
dispose of the entire matter. In the cross-appeal there are two
main issues - whether the dismissals constituted
an unfair labour
practice and, if they did not, whether the respondent, in fairness,
was entitled to have rejected the tenders
of all employees to resume
working during the week commencing on 31 August 1992. The LAC,
having held that the dismissals were
unfair, did not consider the
second issue.
[13] I turn to consider the LAC's
reasoning which resulted in the decision that the respondent, in
dismissing the employees,
committed an unfair labour practice. In
response to the argument that the violence on 21 August was
dispositive of the whole
appeal, the court held that there were
three main reasons why this was not so: firstly, only half of the
striking workers took
part in the violence; secondly, despite the
violence, the respondent, in terms of the ultimatum, required the
striking employees
to return to work; and thirdly, the respondent
failed to hold disciplinary hearings in regard to the violence. The
third reason,
in the opinion of the LAC, justified a finding that
the dismissal of all of the strikers was procedurally unfair. In
regard
to those employees who did not participate in the violence,
the dismissals were, in addition, substantively unfair. The court
a
quo
was not
prepared to infer, on the facts before it, that
all
of the employees in some way or another associated themselves with
the violence.
[14] Two
further findings of the LAC require to be stated. The first was
that the strikers were dismissed some seventy-two hours
after the
events of 21 August; that the strikers had been effectively barred
from the respondent's premises; and that no incidents
of violence
occurred on or in the immediate vicinity of the premises on 24
August. The second finding related to the respondent's
deteriorating financial position and the losses that it had
sustained in 1992. In this regard the judgment reads:
"During the hearing in the
court
a quo
it
was never clearly demonstrated by respondent how much of the loss
which it sustained in August 1992 and thereafter was caused
by the
strike and how the respondent's viability was or could possibly be
secured through the dismissal of the strikers. No
evidence
whatsoever was led concerning these issues. Accordingly it would
appear that the decision to dismiss the strikers was
not
economically rational in the circumstances, and that it was
consequently also not fair."
[15] While
the question of the payment of compensation to the striking workers
is not immediately relevant, the reasoning of
the majority of the
LAC for its refusal to award such compensation should be noted.
According to the judgment compensation was
not awarded because of
the
"unhappy history in industrial relations .... and
the violence which occurred at the respondent's premises."
The
court went on to say:
"To award compensation in the
face hereof would be to reward this conduct. It is argued that not
to award compensation would
be unfair to those workers who had not
participated in the violence. It goes without saying that a hardship
will be done to those
workers. On the other hand all the workers are
tarnished by the industrial action which occurred prior to the
strike. Furthermore
none of the workers indicated in the industrial
court that they were not involved in the violence. In our view the
issue of
violence was clearly placed in the forefront of the hearing
in the court
a quo
and it was incumbent upon appellant to call as witnesses those
members of the striking workers who did not participate in the
violence to enable them to testify in regard thereto and to
establish that they were not involved therewith. For these reasons,
as indicated above, we decline to award any compensation at all."
[16] It
seems clear that the events of 21 August played a significant part
in the respondent's decision to issue the ultimatum.
This led to
some debate between counsel on whether there was a duty on the
respondent to identify each participant in the violence
or whether
the individual employees were obliged to show that they had taken no
part in the attack on the casual workers. On
NUMSA's behalf it was
argued that the respondent was not entitled to place the blame for
the violence at the door of all of the
strikers as, save in respect
of one employee, it had failed to identify any of them. The
respondent's counsel argued, in turn,
that it was unnecessary for
the employer to identify each and every individual involved, even if
it was able to do so, and that
there was a duty on the part of the
individual employees to provide credible evidence to show that they
had disassociated themselves
from the violence. This they had
failed to do. Both counsel referred to an apparent inconsistency in
the majority judgment
of the LAC. They submitted that according to
the finding on the unfair labour practice aspect the court had
implied that the
respondent had the obligation to identify the
perpetrators of the violence; while on the issue of consequential
relief the majority
took a contrary view, namely, that the employees
were not entitled to compensation as they had failed to establish
that they
had not involved themselves in the violence.
[17] Interesting as the arguments
may be, it is not necessary to resolve the matter. It is quite
clear that the workers were
dismissed for failing to heed the
ultimatum and not for misconduct. In the circumstances of the case,
therefore, the identity
of the individuals involved in the violence
was of little consequence. The LAC's finding that not all the
workers participated
in the violence is likewise of no particular
importance in this matter. The fact is that the workers were not
dismissed for
causing violence but for not resuming work when called
upon to do so. As Scott JA pointed out in
National
Union of Mineworkers v Black Mountain Mineral Development Co (Pty)
Ltd
1997 (4) SA 51
(SCA) at 61E-F:
"Striking as such does not amount to misconduct.
There is accordingly an important distinction between dismissal for
misconduct
and dismissal in consequence of strike action, and it
follows that considerations relevant to the former are not
necessarily
relevant to the latter."
[18] The issue in this case,
therefore, is whether the dismissal of the striking employees for
failing to comply with the ultimatum
was an unfair labour practice.
To decide this issue it is necessary to have regard to what was fair
in all the circumstances
and to apply the concept of fairness in
accordance with the rules and norms that have evolved in the field
of labour jurisprudence.
This is not to say that a decision on
fairness is a decision on a question of law in the strict sense: it
is the passing of
a moral judgment on a combination of findings of
facts and opinions (see
Media
Workers Association of South Africa and Others v Press Corporation
of South Africa Ltd ("Perskor")
[1992] ZASCA 149
;
1992 (4) SA 791
(A) at 798H-I).
[19]
Recent decisions of this Court
which are of particular relevance in the case of dismissals
following an ultimatum during a strike
are the
Vetsak
and
Black Mountain
cases. In the later decision Scott JA
(at 54F-I)
summed up the approach adopted in the
Vetsak
case in the following words:
"(i) Collective bargaining is the means preferred
by the Legislature for the resolution of labour disputes and the
right
or freedom to strike is fundamental to the system of
collective bargaining.
(ii) Although, therefore, an employer may be entitled
at common law to dismiss a striking worker for breach of contract,
such
a dismissal may nonetheless constitute an unfair labour
practice in terms of the Act.
(iii) However, unless the dispute is resolved and the
employees return to work, a point must be reached in every strike
when the
employer in fairness will be justified in dismissing his or
her striking employees.
(iv) Whether that point has been reached or not cannot
be determined by reference to a fixed set of subrules; the answer
will
depend on a consideration of all the circumstances and facts of
each particular case.
(v) The ultimate determinant is fairness, by which is
meant fairness to both the employer and the employee. In deciding
the question
of fairness the Court must necessarily apply a moral or
value judgment.
(vi) Once the facts are established
an
onus
is not appropriate in the evaluation of issues of fairness."
[20] The respective strikes in the
Vetsak
and
Black Mountain
cases were legal while the strike in this matter was not. I have
already indicated that the illegality of the strike was not
a matter
upon which great reliance was placed by the respondent's counsel and
that, until Myburgh J delivered his judgment on
the afternoon of 25
August, most strikers probably
bona
fide
believed the
strike to be lawful. The fact that the strike was illegal may
largely be discounted in this case, notwithstanding
the recognition
that an illegal strike generally constitutes serious and
unacceptable misconduct by employees (see
Performing
Arts Council of the Transvaal v Paper Printing Wood and Allied
Workers Union and Others
[1993] ZASCA 201
;
1994
(2) SA 204
(A) at 216E).
[21]
Whether an employer commits an
unfair labour practice by dismissing employees following upon an
ultimatum to return to work
involves a two-stage enquiry. The first
stage relates to the fairness of the ultimatum, having regard,
inter
alia
to the
background facts giving rise to the ultimatum, the terms thereof and
the time allowed for compliance. The second stage
is concerned with
the fairness of the actual dismissal. Factors relevant at this
stage might include the reaction of the employees
to the ultimatum,
their efforts to comply, the reasons for non-compliance and the
emergence of new facts between the issue of
the ultimatum and the
dismissal. It should be added that a dismissal in terms of an
unreasonable ultimatum would almost inevitably
be tarnished as
unfair. In order to determine whether the ultimatum and the
dismissals were fair, regard has to be had to the
particular
circumstances of each case. It is obviously not possible to provide
an exhaustive list of all factors that could
be relevant in
determining whether fairness prevailed.
[22] In
the application of the principles to the facts of this case it is
necessary to note that on NUMSA's behalf it was accepted
in this
Court that the striking employees had been given an adequate
opportunity to respond to the ultimatum. This concession
was
correctly made. The ultimatum was issued to the workers at about
1.15 p.m. on 24 August and they were directed to return
to work by
4.00 on the same afternoon. There was no suggestion that more time
was required for consultation with NUMSA officials
or for further
consideration of the ultimatum. In fact Mr Ngwenya, a shop steward
and one of the strikers, said in evidence that
the strikers had had
no intention of going back to work unless their objectives were met.
There is also nothing in the evidence
which suggests that the terms
of the ultimatum were unclear or that they were not understood by
any of the employees. It is therefore
not necessary to set out the
full terms of the ultimatum. A brief summary will suffice. It
referred to the respondent's financial
position and to the fact that
the strike had seriously affected the respondent's economic
viability; it drew specific attention
to the "acts of violence
and intimidation which, amongst other things, deny management their
right and environment to carry
on with its business"; it
referred to the date of commencement of the strike; and it reserved
the respondent's rights to
proceed with the retrenchment programme
and to hold disciplinary procedures as a result of the intimidation
and violence.
[23] Counsel
for NUMSA stressed that the issuing of the ultimatum had to be
viewed in the context of an industry-wide strike
over a legitimate
collective bargaining issue. The respondent, it was submitted,
should have stayed its hand as most other employers
had done,
pending the outcome of negotiations between NUMSA and SEIFSA and, in
particular, pending the decision on the court
application concerning
the validity of the strike. Furthermore the respondent's decision
to issue the ultimatum when it did
was not commercially rational: it
should have realised that in the prevailing circumstances there was
little likelihood that
the employees would return to work by the
afternoon of 24 August. The result would be the mass dismissal of
skilled and trained
workers and their replacement with an
inexperienced workforce, a consequence that would benefit neither
the strikers nor the
respondent. According to NUMSA's argument, not
only was the ultimatum unfair in the light of the aforegoing, but
the outright
dismissal of the workers, without offers to reinstate
or employ them when vacancies arose, was not the correct way to
solve the
problem.
[24] The arguments advanced on
NUMSA's behalf have to be weighed against the position of the
respondent. At the time when the
ultimatum was issued the strike
had already endured for three weeks and it showed no signs of coming
to an end. Although the
application concerning the validity of the
strike was due to be heard on 25 August, there was no certainty that
judgment would
be delivered on that day. The financial position of
the respondent, already on the decline when the strike commenced,
had deteriorated
significantly during August. It was unable to
fulfil orders or to compete with other concerns whose workers were
not on strike.
What is more, the violence perpetrated against
casual employees made it virtually impossible for the respondent to
carry on
its business. It is of some significance that before the
commencement of the strike a discussion took place between Baker and
the shop stewards relating to procedures to be followed during the
strike. These were embodied in a document which provided,
inter
alia
, that no
intimidation would be tolerated "against non-striking G Vincent
employees or any other temporary employees".
Baker made it
clear to the shop stewards that the respondent would be obliged to
engage temporary employees. To this the shop
stewards raised no
substantial objection. In the course of his evidence, however,
Ngwenya denied that the shop stewards had
ever accepted that the
respondent would engage casual employees during the strike but his
denial does not accord with the facts
found by the industrial court.
The strikers' resentment towards the casual workers did not abate
and the respondent had no reason
to assume that the violence and
intimidation would cease. On the contrary, the shop stewards
informed Baker on 17 August that
the employment of casual workers
would result in trouble.
[25] The LAC was not correct in
regarding the lapse of 72 hours between the events of 21 August and
the dismissals as significant.
The court
a
quo
apparently
overlooked that 21 August was a Friday, that the respondent's plant
did not operate over the weekend and that the
ultimatum was
delivered on the following Monday, after the respondent's directors
had considered its options. The LAC was also
influenced by the fact
that the strikers were barred from the respondent's premises after
21 August. This measure, however,
was not effective. The striking
workers were still able to intimidate the casual employees, which is
precisely what they did
on 25 August.
[26] In reaching the conclusion
that the respondent's ultimatum and the dismissal of the employees
was not economically rational,
the LAC, moreover, had regard to the
respondent's apparent inability to demonstrate how much of its loss
in August and thereafter
was due to the strike. It was not disputed
by the respondent's counsel that if an employer bases its defence to
unfair dismissal
on the grounds of its operational requirements, it
should normally be clear that the dismissal was rational on
commercial grounds.
This means nothing more than that there should
be a rational connection between the employer's economic or
financial position
and the impugned dismissal. In the absence of
such a connection an inference of unfairness may arise; but this is
far removed
from placing a burden on the employer to establish the
amount of its loss and a direct connection between such loss and the
strike.
On the facts of this case it is obvious that the
respondent's ability to carry on its business in a reasonable manner
had been
seriously compromised by the ongoing strike and the
intimidation of the replacement workers. The decision to call upon
the strikers
to return to work or face dismissal was, in the
circumstances, a realistic attempt to end the
impasse
that had arisen. On a proper consideration of the facts it is
reasonable to conclude that a point had arisen at which the
respondent, in fairness, was entitled to issue the ultimatum .
[27] Two
other matters may be disposed of briefly. The first is that the
pre-strike disciplinary record of the NUMSA employees
was correctly
not relied upon by the respondent in relation to the dismissals.
The second concerns the LAC's reliance on the
fact that, despite the
violence, the ultimatum called upon the workers to return to work.
This, however, has no bearing on the
question of the fairness of the
ultimatum or the dismissals. The respondent, having given the
ultimatum, was prepared to comply
with its terms and to accept the
workers back. It did not, however, condone the violence for it
intended to pursue possible
charges of misconduct by means of
disciplinary enquiries had the employees complied with the
ultimatum.
[28] It is now necessary to
consider whether the dismissals which followed the ultimatum were
unfair. In this regard NUMSA's
counsel relied upon the respondent's
failure to afford the workers a hearing before implementing the
ultimatum. This, in the
view of the LAC, was also a factor that
operated decisively against the respondent. That court, however,
was under the misconception
that the employees had been dismissed on
the grounds of their misconduct during the course of a strike. The
question that has
to be considered, however, is whether it was
unfair to dismiss the workers for their failure to comply with the
ultimatum. Assuming,
without deciding, that there may be situations
where fairness demands that an employee should be given a hearing
before dismissal
pursuant to an ultimatum, this was not such a case.
The employees
in
casu
made no
effort to comply with the ultimatum and, in fact, collectively
decided to ignore it. Under these circumstances the holding
of
separate hearings, or even a collective hearing, would have been a
pointless and unnecessary exercise (cf. the
Vetsak
case at 600J-601C). Moreover, and apart from the practical
difficulties involved in holding such hearings, disciplinary
enquiries
would have resulted in a substantial further delay in
bringing matters to a head, thus rendering the ultimatum largely
ineffective.
NUMSA's contentions on this issue cannot, therefore,
succeed.
[29] The question that remains is
whether the respondent should nevertheless have agreed to reinstate
or re-employ the workers
concerned in terms of their tenders during
the week commencing 31 August. On behalf of NUMSA it was argued
that the respondent
acted unfairly in terminating the relationship
with the strikers by refusing to accept their tenders to return or,
in the alternative,
by failing to restore the relationship when the
tender was made. In support of the contention that the
employer-employee relationship
still existed, NUMSA relied upon the
following remarks of Van den Heever JA in
National
Automobile and Allied Workers' Union (now known as National Union of
Metalworkers of South Africa) v Borg-Warner SA (Pty)
Ltd
1994 (3) SA 15
(A) at 25I- 26B:
"It is therefore sufficient that the Legislature
clearly had in mind that, once a particular employment relationship
is established,
the parties to it remain 'employee' and 'employer'
as defined beyond the point of time at which the relationship would
have terminated
under the common law. Where it includes also former
employees seeking re-employment or re-instatement, it has placed no
limitation
suggesting when - or why - a former employee no longer
falls within the definition. What is clear is that when both parties
so
agree, or when equity permits, the relationship does come to an
end."
[30] It
will be assumed for present purposes that the relationship between
the respondent and the striking employees did not
come to an end in
terms of the LRA despite the lawful termination of the contracts of
employment at common law. What has to
be decided, however, is
whether, in the circumstances of this case, the respondent was
obliged to reinstate or re-employ the
dismissed workers. This issue
seems to have been treated in a somewhat cursory fashion in the
industrial court proceedings.
Although in NUMSA's statement of case
it was alleged that the refusal to re-employ or reinstate the
employees was unfair and
constituted an unfair labour practice, the
only ground advanced in support of the alleged unfairness was that
the respondent
"adopted an intractable attitude after knowing
that the strike had been called off, (within three days of the
dismissal of
the striking employees) in refusing to negotiate their
return to work under any conditions."
The
industrial court hardly touched upon this aspect in its judgment
and, although the respondent's failure to reinstate or re-employ
was
raised in the notice of appeal to the LAC, that court did not refer
to the matter at all.
[31] In
this Court NUMSA's main argument was directed towards the
respondent's alleged adherence to a fixed decision not to re-engage
the dismissed employees, notwithstanding the end of the strike and
despite the fact that the respondent was still in need of
an
experienced workforce. It seems to be clear that the respondent had
indeed decided to abide by its previous decision to dismiss
the
employees but it does not follow that the respondent acted unfairly
in not re-employing or reinstating them. The question
of unfairness
would arise only if the facts established that the adherence to its
decision was irrational or was not based on
reasonable grounds.
[32] It
emerges quite clearly from Baker's evidence that the time had come
for the respondent to make a firm decision about the
re-employment
of the NUMSA employees who had been on strike. They were all on a
final warning as a result of unprocedural industrial
action that had
occurred even before the commencement of the strike. They had taken
part in the lengthy strike knowing that the
respondent was in a poor
financial position and that retrenchments appeared to be inevitable.
They had been repeatedly warned
of the consequences of the strike,
they paid no attention to the ultimatum and did not request an
extension of the time limit
which was fixed for their return to
work. (Baker, it may be observed, testified that reasonable
requests for an extension would
have been seriously considered by
the respondent.) According to the respondent the attitude adopted
by the striking employees
demonstrated that they were not interested
in the company's viability or even their own jobs, despite the fact
that they were
receiving wages well in excess of the minimum
demanded by NUMSA..
[33] The
respondent might perhaps have adopted a more flexible stance. When
the dismissed employees tendered their services
on 31 August and
thereafter the respondent's workforce was still considerably
depleted. It had engaged only a handful of workers
to replace those
who had been dismissed. However the test in these circumstances is
not whether the respondent chose the better
option but whether the
choice it made was irrational or unreasonable. Given the facts
mentioned earlier, the respondent's approach
to the matter was both
rational and reasonable.
[34] NUMSA
put forward the further argument that the respondent should not have
taken into account the pre-strike disciplinary
record of the
striking workers. It was argued that their previous misconduct
could be relevant only within a context in which
disciplinary action
for misconduct was contemplated. As indicated earlier, past
misconduct is indeed irrelevant in deciding
upon the fairness of the
dismissals of the respondent's employees for failing to comply with
the ultimatum. Different considerations
apply when the
re-employment of a dismissed employee is in issue: in this
situation, there is no reason why an employer should
be obliged to
disregard an employee's disciplinary record.
[35] The
result is that the respondent's refusal to reinstate or re-employ
the dismissed workers was not unfair. Nor was the
respondent's
failure to offer the workers re-employment when vacancies arose an
unfair labour practice. The question of consequential
relief to the
employees, therefore, does not arise and does not have to be
considered.
[36] It only remains to consider
the question of costs. The record on appeal was excessively
voluminous. It contained,
inter
alia
, the entire
record of the proceedings in terms of s 43 of the LRA, extensive
portions of the records of evidence in related
cases and many other
documents which were either wholly or partially irrelevant to the
issues on appeal. It has all too frequently
been necessary to
emphasize that an appeal record should not contain irrelevant and
unnecessary documents (see
Government
of the Republic of South Africa v Maskam Boukontrakteurs (Edms)
Bpk
1984 (1) SA
680
(A) at 692F-693A;
Port
Edward Town Board v Kay
1996 (3) SA 664
(A) at 685C-E). We were informed from the bar by
both counsel that the attorneys for the parties in this matter,
commendably
enough, attempted to reach agreement on those parts of
the record that were not necessary for the purposes of the appeal
but
they were unable to arrive at a consensus. It is only because
of this and the fact that both counsel submitted that no special
order as to costs was warranted, that the usual costs order will
follow the result. Future parties may not be as fortunate.
[37] It is appropriate that the
respondent should be entitled to the costs of two counsel in respect
of this appeal. The industrial
court, in accordance with its usual
practice, made no order in relation to the costs of the hearing
before that tribunal. In
the LAC each party was directed to pay its
own costs on the grounds that the appeal was only partially
successful. The notice
of cross-appeal limited the cross-appeal to
the "that part of the judgment ... which finds that the
dismissal of the employees
constituted an unfair labour practice".
There was no cross-appeal against the costs order in the court
a
quo
and no
argument was addressed to us on this question. Accordingly there is
no need to consider whether the costs order in the
court
a
quo
should be
altered (see rule 5(3)(a) of the rules of this Court).
[38] In
the result it is ordered:
(a) The appeal is dismissed with costs and the
cross-appeal is allowed with costs;
(b) The costs in both the appeal and cross-appeal will
include the costs consequent upon the employment of two counsel;
(c) The order of the LAC is substituted with the
following:
"The appeal is dismissed."
___________________
L
S MELUNSKY
ACTING JUDGE OF APPEAL
Concur:
Smalberger
JA
Howie JA
Olivier
JA
Schutz JA