Transport and Allied Workers Union of South Africa obo Ngedle and Others v Unitrans Fuel and Chemical (Pty) Ltd Limited (CCT131/15) [2016] ZACC 28; 2016 (11) BCLR 1440 (CC); [2016] 11 BLLR 1059 (CC); (2016) 37 ILJ 2485 (CC) (1 September 2016)

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[2016] ZACC 28
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Transport and Allied Workers Union of South Africa obo Ngedle and Others v Unitrans Fuel and Chemical (Pty) Ltd Limited (CCT131/15) [2016] ZACC 28; 2016 (11) BCLR 1440 (CC); [2016] 11 BLLR 1059 (CC); (2016) 37 ILJ 2485 (CC) (1 September 2016)

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Heads of arguments

CONSTITUTIONAL
COURT OF SOUTH AFRICA
Case CCT 131/15
In the
matter between:
TRANSPORT
AND ALLIED WORKERS
UNION
OF
SOUTH AFRICA obo MW NGEDLE and 93
OTHERS
Applicant
and
UNITRANS
FUEL AND CHEMICAL (PTY)
LIMITED
Respondent
Neutral
citation:
Transport
and Allied Workers Union of South Africa obo MW Ngedle and 93 Others
v Unitrans Fuel and Chemical (Pty) Limited
[2016]
ZACC 28
Coram:
Mogoeng CJ, Moseneke DCJ, Bosielo AJ,
Cameron J, Froneman J, Jafta J, Khampepe J,
Madlanga J,
Mhlantla J, Nkabinde J and Zondo J
Judgments:
Mhlantla J: [1] to [74]
Zondo J:
[75] to [199]
Jafta J:
[200] to [258]
Heard
on:
23 February 2016
Decided
on:
1 September 2016
Summary:
Labour Relations Act, 1995
– dismissal –
strike action – fairness – principles in
Afrox
Ltd v SA Chemical Workers Union and Others (1)­
–
reinstatement – strike protected throughout – strike may
cease to be protected – automatically unfair
– meaning of
workers solidarity principle – no strike if no obligation to
work – appeal from Labour Appeal Court
– retrospective
reinstatement – plus costs
ORDER
On appeal
from the Labour Appeal Court (hearing an appeal from the Labour
Court):
1.
Leave to appeal is granted.
2.
The appeal is upheld.
3.
The orders of the Labour Appeal Court and
the Labour Court are set aside and that of the Labour Court is
replaced with the following:
“
(a)
The dismissal of the individual applicants by the respondent on
2 November 2010 was automatically
unfair.
(b)
The respondent is ordered to reinstate each one of the individual
applicants in its employ
on terms and conditions of employment not
less favourable to him or her than the terms and conditions that
governed his or her
employment when the individual applicants were
dismissed on 2 November 2010.
(c)
The order of reinstatement will operate with retrospective effect to
2 November 2010.
(d)
The respondent is to pay the applicants’ costs.”
4.
The respondent is to pay the applicants’ costs both in this
Court and in the Labour Appeal Court.
JUDGMENT
MHLANTLA
J (Moseneke DCJ, Cameron J, Froneman J and Nkabinde J concurring):
Introduction
[1]
This matter concerns a dispute that arose
on 2 November 2010 when 94 individuals employed by the
respondent, Unitrans
Fuel and Chemical (Pty) Ltd (Unitrans), were
dismissed, pursuant to a strike.  These workers are members of
the Transport
and Allied Workers Union of South Africa (TAWUSA).
The dismissals were confirmed by the Labour Court as well as the
Labour
Appeal Court (LAC).  This matter comes before us as an
application for leave to appeal the decision of the LAC.  It
implicates
whether the strike was protected and, in particular,
whether the inclusion of impermissible demands with a permissible
demand converts
a protected strike into an unprotected strike.
It also concerns the fairness of the dismissals.
Background
and litigation history
[2]
Because the facts of this case intermingle
with its litigation history, which features five judgments –
three from the Labour
Court and two from the LAC – the factual
background and litigation history before the dismissals will be dealt
with before
the factual background and litigation history following
the dismissals.
Before
the dismissals
[3]
Unitrans
conducts the business of haulage of petroleum and gas.  It is
common cause that Unitrans and TAWUSA are bound by the
Constitution
of the National Bargaining Council for the Road Freight and Logistics
Industry (Bargaining Council) and the Main Collective
Agreement
for the Road Freight and Logistics Industry (Collective Agreement) as
the business conducted by Unitrans falls within
the Road Freight and
Logistics Industry.
[1]
Unitrans concluded many contracts with various companies.
Unitrans had a five year contract with Shell Petroleum Company

of South Africa (Shell contract).  One hundred and ten workers
were contracted to service this contract.  The drivers
servicing
this contract earned more than the drivers that serviced less
valuable contracts.  This was because the Shell contract
was
lucrative, as it related to transporting hazardous substances.
The Shell contract was terminated in February 2009
and this
adversely affected the 110 workers.  Most (79) of the workers
managed to secure employment elsewhere.  The remaining
31
workers continued to work for Unitrans.  Of that number, 24
signed new employment contracts in terms of which their remuneration

was reduced.  The remaining seven refused to sign new employment
contracts.  These were referred to as the “Shell
seven
workers”.  Notwithstanding the Shell seven workers’
refusal to sign new employment contracts, Unitrans unilaterally

reduced their remuneration.
[4]
Unitrans’ unilateral conduct led to a
dispute with TAWUSA.  On 6 August 2010 TAWUSA sent a
letter to Unitrans
in which it raised four demands:
a.
a complaint that the workers were not paid
the same rate – this was referred to as the wage discrepancies
demand;
b.
a complaint that Unitrans had unilaterally
reduced the wages of the Shell seven workers – this
was referred to as
the wage cut demand;
c.
a demand for an additional allowance, which
they called a coupling allowance, in the sum of R500 per week; and
d.
the change to the administration of the
provident fund.
[5]
Unitrans did not accede to any of the four
demands.  TAWUSA declared a dispute and referred it to the
Bargaining Council.
On 29 July 2010, a certificate of
non resolution was issued.  The mediator added that the
dispute could be
referred to a strike or lock-out.
[6]
On 6 July 2010, TAWUSA issued a
strike notice (first strike notice) indicating the intention of its
members to withhold
their labour after the lapse of 48 hours.
It outlined the demands in the first strike notice as follows:
“
2.1
Wage discrepancies
2.2
Wage cut
2.3
Coupling – R500 per week
2.4
Unilateral change of the administration of the fund from the
Bargaining Council to
your in-house fund.”
[7]
On 11 August 2010, in response to
the first strike notice, Unitrans launched an urgent application in
the Labour Court.
It sought an order interdicting TAWUSA and
any of its members from supporting or participating in any strike in
support of the
first strike notice.  TAWUSA suspended the
strike pending the finalisation of the application in the Labour
Court.  Unitrans
contended that all four demands were unlawful
and therefore the strike, if undertaken, would be unprotected.
[8]
On
3 September 2010, the Labour Court dismissed Unitrans’
urgent application on the basis that the disputes in respect
of which
the strike was called were disputes that were capable of being the
subject of industrial action and they remained unresolved
at the time
the first strike notice was issued.
[2]
[9]
On 10 September 2010, TAWUSA
uplifted its suspension of the strike and issued a strike notice
indicating its intention
to strike (second strike notice).  The
demands in the second strike notice were:
“
(i)
Wage discrepancies – there must be no wage discrepancy between
employees who perform
work, but on a different contract;
(ii)
Wage cut – former Shell contract employees must earn what they
used to earn
under the Shell contract plus annual increases;
(iii)
Coupling – R500 per week;
(iv)
Unilateral change of the administration of the fund from the
Bargaining Council to
your in-house fund – the process be
reversed to accommodate TAWUSA Fund not Council Fund.”
[10]
Aggrieved by the first Labour Court
judgment, Unitrans appealed to the LAC.  It argued that the
parties were bound by the Collective
Agreement and TAWUSA could not
embark on a strike in respect of substantive issues on wages,
benefits and other conditions of employment
as negotiations relating
to these issues had to be conducted within the Bargaining Council.
This is set out in clause 50
of the Collective Agreement, which
provides in relevant part:
“
LEVELS
OF BARGAINING IN THE INDUSTRY
(1)
The forum for the negotiation and conclusion of substantive
agreements on wages, benefits
and other conditions of employment
between employers and employers’ organisations on the one hand
and trade unions on the
other, shall be the Council.
.
. .
(3)
No trade union or employers’ organisation shall attempt to
induce or compel,
or be induced or compelled by, any natural or
juristic person or organisation, by any form of strike or lock-out,
to negotiate
the issues referred to in subclause (1) above at any
level other than the Council.”
Unitrans
also relied on section 65
[3]
of the LRA.
[11]
On
23 September 2010, the LAC upheld the appeal in part.
[4]
Waglay DJP considered the provisions of the Collective
Agreement and concluded that the parties were bound by its terms.
He
concluded that the demand for a coupling allowance of R500 per week
was a demand for an increase in wages and that it
was a cost to the
company.  Therefore, it breached clause 50 of the
Collective Agreement.
[5]
He also held that the demand relating to the unilateral change
of the administration of the fund was factually unfounded.
In
the result, the LAC prohibited TAWUSA from striking in pursuit of the
demands relating to the unilateral change of the administration
of
the fund and for the demand for the extra R500 per week for
coupling.
[6]
[12]
Regarding
the wage cut demand, the LAC held that the demand was not a demand
for wages but a demand in respect of the Shell seven
workers for
Unitrans to restore the terms and conditions of employment that
applied to them before the termination of the Shell
contract.
Therefore it was a dispute about a unilateral change to terms
and conditions of employment.
[7]
Similarly, with regard to the wage discrepancies demand, Waglay DJP
accepted TAWUSA’s contention that it was not a
demand for an
amount of money but that the employer was required to adjust wages so
as to arrive at a uniform level of remuneration
for workers
performing the same work albeit in terms of different contracts.
[8]
Accordingly, the LAC concluded that TAWUSA was entitled to
strike in respect of the demands relating to the wage cut and
wage
discrepancies.  Unitrans’ appeal was thus dismissed in
respect of these two demands.
[13]
Immediately after the first LAC judgment,
TAWUSA issued a new strike notice (third strike notice) and indicated
that the strike
would commence on 13 October 2010.  It
listed two demands in the third strike notice as follows:
“
(i)
Wage discrepancies – there must be no wage discrepancy between
employees who perform
work, but on a different contract; and
(ii)
Wage cut – former Shell contract employees must earn what they
used to earn
under the Shell contract plus annual increases.”
[14]
Following
the issue of the third strike notice, Unitrans sought clarity from
TAWUSA regarding the demands.  The parties met
on numerous
occasions, and the strike was suspended pending the outcome of these
meetings.  It appears from the correspondence,
as well as from
the minutes of the meetings, that Unitrans was of the view that
TAWUSA impermissibly added further demands.
[9]
[15]
On 26
October 2010 TAWUSA issued another strike notice (fourth strike
notice) and emphasised that the collective refusal to work
would be
in pursuit of the demands permitted by the LAC, being the wage
discrepancies and the wage cut demands relating to the
Shell seven
workers whose wages had been cut.  Unitrans’ and TAWUSA’s
representatives held further meetings but
no resolution could be
reached.
[10]
This led to Unitrans launching a further urgent application
before the Labour Court to interdict the strike.  This
application was heard by Basson J, who granted an interdict
against TAWUSA.
[11]
Despite this, on 28 October 2010, the strike commenced.  It
endured for six days during which several meetings
were held between
Unitrans’ management and TAWUSA.  During this period,
Unitrans issued four ultimatums in which it
stated that the demands
made by the workers differed from those determined by the LAC and
that the demands were for increases in
wages and would be a cost to
the company.  This, it said, rendered the strike unlawful.  It
demanded that the workers
resume their duties.  In the final
ultimatum, which was issued on 1 November 2010 at 14h05,
Unitrans capitulated
to the Shell seven workers’ demand.  It
required the striking workers to resume their duties by 06h00 on
2 November 2010,
failing which they would be dismissed.
[12]
On 2 November 2010, the workers did not return to
work.  As a result, Unitrans summarily dismissed the workers.
Following
the dismissals
[16]
TAWUSA
and the dismissed workers challenged the dismissals in the
Labour Court.  The matter was heard by Bhoola J who
held
that the strike was unprotected and that the dismissals were
fair.
[13]
The individual applicants’ claims were thus dismissed
with costs.  Their appeal to the LAC was also dismissed.

Davis JA concluded that the strike was unprotected and
dismissed the appeal.
[14]
He did so without considering the second leg of the inquiry,
that is, notwithstanding the fact that the strike was unprotected,

whether the dismissals were unfair under the circumstances.  In
this Court, TAWUSA seeks leave to appeal against the second LAC

judgment.  The application is opposed by Unitrans.
Parties’
submissions
[17]
TAWUSA
contends that the second LAC judgment’s interpretation of the
Collective Agreement does not promote the spirit, purport
and objects
of the Bill of Rights
[15]
as it justifies a system in terms of which actual wages can never be
negotiated either at central or at plant levels.  TAWUSA
further
contends that workers who may not, through their union, participate
in collective bargaining over their actual remuneration
and who may
not strike in disputes over their actual remuneration are relegated
to the ranks of undignified coerced workers.
This falls foul of
what was said by this Court in
National
Union of Metalworkers of SA.
[16]
[18]
TAWUSA
further relied on
Early
Bird Farm
.
[17]
It submitted that the strike remained protected until Unitrans
capitulated on the wage cut demand.  This was so even
if it was
found that the wage discrepancies demand, as articulated in strike
settlement negotiations, rendered the strike on that
dispute
unprotected.  In
Early
Bird Farm
the LAC concluded that in a case where employees that were not
directly affected by a dispute participated in a protected strike
in
support of those workers that were directly affected by a dispute it
was, strictly speaking, not required of the court to examine
whether
or not other demands made by the employees not directly affected by
the dispute were permissible.  This principle
was first
enunciated in
Afrox
(
Afrox
principle)
where Zondo AJ, as he then was, held:
“
In
my judgment once a dispute exists between an employer and a union and
the statutory requirements laid down in the Act to make
a strike a
protected strike have been complied with, the union acquires the
right to call
all
its members
who are employed by that employer out on strike and its members so
employed acquire the right to strike.”
[18]
[19]
Unitrans, on the other hand, contends that
the dismissals of the workers complied with section 68(5) of the
LRA in that the
strike did not comply with the provisions of
Chapter IV and therefore the dismissals were fair.  It also
relied on the
provisions of item 6(1) of the Code of Good
Practice (Code).  Item 6(1) of the Code provides:
“
(1)
Participation in a strike that does not comply with the provisions of
Chapter IV is misconduct.
However, like any other act of
misconduct, it does not always deserve dismissal.  The
substantive fairness of dismissal
in these circumstances must be
determined in the light of the facts of the case, including—
(a)
the seriousness of the contravention of this Act;
(b)
attempts made to comply with this Act; and
(c)
whether or not the strike was in response to unjustified conduct by
the employer.”
[20]
Unitrans submitted that the three factors
listed in item 6(1) were established and that the striking workers
had been provided with
numerous ultimatums, resulting in the
dismissals being fair.  Further, TAWUSA’s demands, which
were the subject matter
of the strike, differed from the scope of the
demands allowed by the first LAC judgment.  It contended that if
TAWUSA’s
demands concerned a wage increase, it should have
negotiated through the Bargaining Council.  By failing to do so,
TAWUSA
breached clause 50(1) and 50(3) of the Collective Agreement.
Leave
to appeal
[21]
This
matter affects the livelihood of 94 individuals and their families.
It involves the interpretation of the constitutionally

entrenched right to strike
[19]
and the dismissal of workers whilst exercising their right to strike.
Thus, this Court has jurisdiction on the basis that
the matter
triggers a constitutional issue.
[20]
This Court’s jurisdiction is also established in terms of
section 167(3)(b)(ii) of the Constitution as this case raises
an
arguable point of law of general public importance which ought to be
considered by this Court.  That question is, whether
a protected
strike will be converted into an unprotected one as a result of the
addition of impermissible demands to a permissible
demand.
Clarification is needed, even though this issue was adverted to
by this Court in
Moloto
,
which concerned the participation of non-union members in a strike
for which only the union, and not the individual parties, had
given
notice to the employer.
[21]
Further, the lower courts have expressed divergent views on
this matter.  Leave to appeal should therefore be granted.
[22]
It
must be noted at the outset that the terms of the Collective
Agreement were not challenged nor pleaded by the parties.

Hence, as the Collective Agreement stands and in the absence of an
exemption to allow the negotiations to proceed at a plant level,
it
is binding on both parties.
[22]
Issues
[23]
The fairness or otherwise of the dismissals
will depend on the determination of a number of issues.  First,
was the strike
protected?  In determining whether the strike was
protected the effect of the addition of impermissible demands on the
protected
nature of the strike in relation to the legitimate demands
will be analysed.  If the strike was protected, then the
dismissals
were automatically unfair.  However, if the strike
was unprotected the next question is whether the dismissals were
fair?
In this regard, the issue is whether the dismissals were
substantively and procedurally fair.
Was
the strike protected?
[24]
Determining
whether the dismissals in this matter related to misconduct will
depend on the interpretation of the ambit within which
the workers
could withhold their labour.  The two demands – which
related to the wage discrepancies and the wage cuts
– were
authorised by the first LAC judgment.
[23]
This judgment is binding on the parties as there was no appeal
against it and its interpretation of these two demands, in
light of
the Collective Agreement,
will hence
be dealt with successively.
(a)
Wage discrepancies demand
[25]
In my
view the first LAC judgment characterised the circumstances in which
the wage discrepancies demand would fall foul of the
terms of the
Collective Agreement and thus be considered unlawful.  The
demand with respect to wage discrepancies was
allowed as TAWUSA could
strike for “a system of wage parity for the drivers
irrespective of which contract they service”.
The LAC
further explained that “the demand for wage parity is not a
demand for an amount of money but requires of [Unitrans]
to adjust
wages so as to arrive at a uniform level of remuneration for workers
performing the same work albeit on different contracts”.
[24]
Hence the wage discrepancies demand would be lawful, provided there
was no cost implication to the employer, as this is precluded
by the
Collective Agreement in terms of which strikes on “substantive
issues”, being “all issues involving costs
and affecting
the wage packets of workers”, must be dealt with in the
Bargaining Council.
[26]
In determining whether the wage
discrepancies demand amounted in reality to a demand for an increase
in remuneration, it is apposite
at this stage to consider the minutes
of the meetings between the parties.  In this regard the minutes
of the meeting dated
21 October 2010 stated in relevant
part:
“
All
employees, who are doing the same work or duties, should be paid the
same rate of pay irrespective of their category.  For
example if
a driver earns R20.00 and the other is on R60.00, those who are on a
lower rate should be lifted to the higher rate
so they can be equal.
. . .  The discrepancy should apply to all employees, not only
the number that was mentioned on the
court ruling.”
[25]
[27]
The correctness of these minutes was
confirmed before the Labour Court by the testimonies of Mr Ngedle,
for TAWUSA, and Mr Badenhorst,
for Unitrans.  Both testified
that the workers sought to achieve wage parity by increasing the
wages of all lower paid workers
to reach a median wage.  Mr
Badenhorst also pointed out the inevitable cost implication for
Unitrans of such an exercise,
should higher wages not be reciprocally
reduced.  Thus, it is clear from these minutes and testimonies
that the workers sought
a wage increase.  This was in breach of
the terms of the first LAC judgment as well as clause 50 of the
Collective Agreement
which was binding on the parties.
[28]
In
Air
Chefs
,
[26]
the workers gave notice of their intention to strike on the basis
that the employer conducted a job grading exercise without adjusting

the salaries with the new jobs grading.  The Labour Court found
that the planned strike was unprotected as any adjustments
or
realignment of salaries with new jobs grading is obviously a matter
affecting wages and conditions of service of those employees
and thus
results in an attempt to achieve general wage increases of the kind
that should be negotiated at Bargaining Council level.
[27]
The workers were therefore barred from pursuing their demand at
company level.
[29]
It follows that the wage discrepancies
demand was impermissible from the strike’s commencement as it
fell outside the defined
ambit of the first LAC judgment.  That
ensured that substantive wage issues are negotiated at
Bargaining Council level
and accordingly barred from a
negotiation at the plant level.  What remains is a consideration
of the other demand the first
LAC judgment authorised – the
wage cut of the Shell seven workers.
(b)
Wage cut demand
[30]
The
first LAC judgment concluded that the wage cut demand regarding the
former Shell seven workers was a legitimate demand, as it
related “to
the fact that [Unitrans] unilaterally decided to reduce the wages of
those of its workers who previously serviced
the Shell contract for
[Unitrans]”.
[28]
The LAC understood the demand in relation to the Shell seven
workers to be a demand that would undo the employer’s

unilateral change and reinstate a cost that had always been
there.
[29]
It was a demand to restore the terms and conditions of
employment that had applied to them prior to the termination of the

Shell contract.  The LAC therefore concluded that this demand
did not amount to a wage increase as the employer would not
pay more
than what it legally had been paying had it not cut the Shell seven
workers’ wages.  Again, the first LAC judgment
limited the
ambit in which the wage cut demand could be exercised.
[31]
I agree with the reasoning of the LAC.  In
my view, this demand cannot be described as an increase in wages as
there was no
cost implication to the employer.  Of course the
restoration of the terms and conditions of employment would mean that
Unitrans
should also pay the Shell seven workers their back pay from
the time that Unitrans commenced paying them at reduced rates.  That,

however, cannot be regarded as a wage increase nor cost implication
to Unitrans, as it had unilaterally reduced those wages and,
over a
period, enjoyed a saving at the expense of the workers who had to
endure hardships.  Therefore, it would have to pay
what it
should have paid had it not changed the terms and conditions of
employment.  All that was required from the employer
was for it
to restore the
status quo ante
.
That demand was permissible only to the extent that the wage
cut demand related to the Shell seven workers.
[32]
However, it is evident from the record that
TAWUSA introduced another demand relating to the wage cut of the
former Shell and other
Unitrans workers.  Despite this, the
inclusion of impermissible demands could not extinguish the Shell
seven workers’
wage cut demand, which remained lawful and
permissible.  This was recognised by Waglay DJP:
“
Finally
I need to add that, although I find that only two demands are demands
upon which the first respondent is entitled to call
upon its members
to strike, because the four demands are severable and each can stand
alone, the appellant cannot succeed to have
the strike interdicted on
the grounds that some of the demands are demands on which the first
respondent is prohibited from striking
the intended strike is
prohibited.”
[30]
[33]
It is clear that Waglay DJP held that if
one or two of the demands being pursued during a strike is
permissible, that strike in
respect of this permissible demand is
lawful even if TAWUSA had added impermissible demands severable from
the permissible demands.
It follows that since the Shell seven
workers’ demand was lawful and severable from the other
demands, the addition
of an impermissible demand could not render the
Shell seven workers’ demand unlawful.
[34]
The
right to strike in pursuit of a permissible demand does not evaporate
upon the addition of impermissible demands.  The
fact that the
strike remains protected is also based on the principle established
by the Labour Court in
Afrox
,
[31]
which was
subsequently confirmed by the LAC and this Court.
[32]
This is:
“
Once
a union has complied with the requirements of section 64 of the LRA
by referring a dispute to conciliation, it is not necessary
to refer
the same dispute again to conciliation when other members of the same
union who are employed by the same employer want
to join the strike
in respect of the same dispute which is protected.”
[33]
[35]
Hence
it is permissible for workers, not directly affected by the demands
of a certain group of workers directly affected, to participate
in
the strike in support of these demands – as long as the strike
is protected in respect of the workers who are directly
affected by
the dispute.
[34]
It follows that when the permissible demand is extinguished following
the employer’s acceptance of such demand the
collective refusal
to work becomes unprotected.  Similarly, when workers
collectively strike in support of a permissible demand,
the strike
remains protected although the workers included impermissible
demands.
[36]
The
addition of impermissible demands does not dissolve the lawfulness of
the strike based on a permissible demand is subject to
one condition:
the strike notice, notifying the permissible demand to the employer,
must set out “the issue over which the
workers will go on
strike with reasonable clarity”.  This requirement stems
from
Moloto
where
this Court stated that what is required in a strike notice has been
interpreted in a generous manner, but notwithstanding
the issue
triggering the strike and its commencement must be set out
clearly.
[35]
This is so because the strike notice determines the ambit of the
strike that remains strictly limited to the permissible
demand.
By no means can impermissible demands widen the ambit of a strike.
[37]
The
objective of a clear demand is to give the employer proper warning of
the strike, and an opportunity to take necessary steps
to protect the
business.
[36]
It cannot be emphasised enough that the practice of concealing the
core nature of a permissible demand cannot, and should
not, be
condoned.  A strike is a high stake exercise that is
fraught with difficulty.  It is undesirable for both
employer
and workers that strike action is unnecessarily protracted.  A
strike is a measure of last resort born of the collective
desperation
of workers to give their demands force.  Negotiations between
employers and workers (through a trade union or
otherwise) should be
facilitated, as opposed to hindered, and should be approached in good
faith by both parties.
[38]
In this case, I am satisfied that the
introduction of the impermissible wage cut demand in respect of the
other workers did not
extinguish the permissible wage cut demand
relating to the Shell seven workers because the permissible issue was
set out with reasonable
clarity in the various strike notices.
Therefore, the strike remained protected by virtue of and within the
ambit of the
Shell seven workers’ wage cut demand.
[39]
In the result, the strike was protected
from 28 October 2010 until 1 November 2010 when
the employer capitulated
to the Shell seven workers’ wage cut
demand.  From that moment, the workers could not persist in
their conduct of withholding
their labour as the other demands were
impermissible demands and no longer enjoyed the protection provided
by the Shell seven workers’
wage cut demand.  Their
actions in participating in an unprotected strike from
1 November 2010 amounted to misconduct.
[40]
I have read the judgment of my colleague
Zondo J.  Regrettably, I do not agree with his conclusion that
the strike was protected
for the entire duration and that the
dismissal was therefore substantively unfair.  In my view, as I
have set out above, the
strike was protected until 1 November 2010
when the Shell seven workers’ wage cut demand was fulfilled.
Whether
Unitrans fulfilled the demand must be determined
objectively.  The subjective motive for fulfilment of the demand
cannot undo
the fact that the demand was fulfilled.  In the
light of my conclusion, the next inquiry relates to the determination
of whether
the dismissal was fair.
[41]
The LAC, in the second LAC judgment decided
the matter on the basis that the strike was unprotected from the
beginning and declared
that the dismissal was fair.  That
conclusion is wrong when regard is had to the facts.  It is
clear that the strike
became unprotected only on 1 November 2010
when the employer capitulated.  Accordingly, it is imperative
that an
inquiry relating to the fairness of the dismissal be
conducted to determine whether the dismissal was substantively and
procedurally
fair.  I will first consider whether the dismissal
was substantively unfair.
Were
the dismissals substantively unfair?
[42]
Counsel for TAWUSA submitted that the
dismissals were substantively unfair, and he accordingly sought the
reinstatement of the dismissed
workers.
[43]
Schedule
8 of the Code provides that a dismissal is unfair if it is not
effected for a fair reason and in accordance with a fair
procedure.
Whether a dismissal is for a fair reason is determined by the
facts of the case and the appropriateness of dismissal
as a
penalty.
[37]
That is the substantive fairness enquiry.
[44]
Item
6(1) of the Code provides that while participation in an unprotected
strike amounts to misconduct, this does not automatically
render
dismissals substantively fair.  The substantive fairness of the
dismissals must be measured against
inter
alia
:
(i) the seriousness of the contravention of the LRA; (ii) the
attempts made to comply with the LRA; and (iii) whether or not the

strike was in response to unjustified conduct by the employer.
[38]
[45]
The LAC held in
Mzeku
that:
“
Once
there is no acceptable explanation for the [workers’] conduct,
then it has to be accepted that the [workers] were guilty
of
unacceptable conduct which was a serious breach of their contracts of
employment . . . The only way in which the [workers’]
dismissal
can justifiably be said to be substantively unfair is if it can be
said that dismissal was not an appropriate sanction.”
[39]
[46]
Therefore, where striking workers engage in
unprotected strike action, the onus rests on the workers to tender an
explanation for
their unlawful conduct, failing which their dismissal
will be regarded as substantively fair, provided dismissal was an
appropriate
sanction.  In this matter, no reasons were provided
to the employer by the striking workers that explained their failure
to
return to work following the strike becoming unprotected.
[47]
More seriously, the workers’
unprotected strike following Unitrans’ capitulation in its
final ultimatum was impermissible
not only for failing to comply with
the provisions of the LRA, but for failure to comply with the orders
of both the Labour Court
and LAC.  TAWUSA did not appeal against
either the first LAC judgment per Waglay DJP, nor the interdict
granted by the
Labour Court per Basson J.  It and its
members therefore acted outside of these court orders when its
members proceeded
to withhold their labour following the employer’s
capitulation.  That caused the strike to go beyond the bounds of
Afrox
and,
consequently, the first LAC judgment – rendering the
strike unprotected.  Strike action in defiance of
a court order
is a serious contravention of both the court order and the provisions
of the LRA.  It cannot be condoned, barring
the existence of
exceptional circumstances in favour of the striking workers.
[48]
In this case, I see no exceptional
circumstances that could remedy the striking workers’ failure
to comply with the applicable
court orders to the extent that
dismissal would not warrant an appropriate sanction.  As I have
found, and the facts before
this Court show, it is apparent that the
striking workers’ demands (other than those relating to the
Shell seven workers)
exceeded the scope of the first LAC judgment.
They therefore fell outside of the ambit of the Collective
Agreement.
Despite the employer capitulating in respect of the
Shell seven workers, the striking workers continued to pursue demands
that
fell outside of the ambit authorised by the LAC and the
Labour Court.  This is a serious contravention of the LRA
that
cannot be condoned.  In response to it, the employer’s
decision to issue an unequivocal ultimatum was justified.
[49]
Furthermore, I do not accept that the
employer’s decision to unilaterally reduce the wages of the
Shell seven workers can
bear relevance to the substantive fairness,
or lack thereof, of the dismissals effected after this demand was
capitulated to by
the employer.  Strike action in relation to
the employer’s conduct was permissible only to the extent that
that action
was contemplated by the first LAC judgment.  In the
absence of the Shell seven workers’ demand, the remaining
demands,
which I have demonstrated fall outside of the scope of the
first LAC judgment, cannot be said to be in response to the
employer’s
unjustified conduct.  This is because they went
further than the framework contemplated in the first LAC judgment,
and therefore
the Collective Agreement.
[50]
In
determining the appropriateness of a dismissal as a sanction for the
striking workers’ conduct, consideration must be given
to
whether a less severe form of discipline would have been more
appropriate, as dismissal is the most severe sanction available.

This the LAC overlooked.  An illegal strike constitutes serious
and unacceptable misconduct by workers.
[40]
This was exacerbated in that the workers also acted outside the
bounds of both a court order and a collective agreement.
In
instances such as this, where an employer has issued an unequivocal
ultimatum informing workers engaged in an impermissible
strike that
their misconduct will result in dismissal, subsequent dismissal has
been found to be an appropriate sanction for non compliance.
[41]
I am satisfied that dismissal was the appropriate sanction.
[51]
I therefore conclude that the dismissals
effected in response to the unprotected strike action were
substantively fair.  This,
too, the LAC overlooked.  That,
however, is not the end of the matter.  One must still determine
whether the dismissals
were procedurally fair.  And that is the
aspect that I shall consider below.
Were
the dismissals procedurally fair?
[52]
The
Code provides that whether or not a dismissal is procedurally fair
will be determined by referring to the guidelines set out
in the
Code.
[42]
[53]
The
procedural fairness of a dismissal effected in terms of item 6 of the
Code of Good Practice, which concerns dismissals effected
in response
to unprotected strikes, is determined in light of item 6(2) of the
Code.  Item 6(2) provides that when effecting
a dismissal within
its ambit, the employer must first contact the strikers’ union
“at the earliest possible opportunity
to discuss the course of
action it intends to adopt”; if this step produces no result,
the employer may issue an ultimatum.
[43]
Item 6(2) can therefore be sub-divided into two requirements: first,
that the employer should contact the strikers’
union; and,
second, that the employer must issue an ultimatum prior to effecting
the dismissals.
[54]
Regarding
the first requirement, that is, contact with the union, the Labour
Court held in
Goldfields
that the purpose of engaging with the union is because workers in the
heat of a strike are often unable to appreciate precisely
the
consequences of their actions or what the right thing to do may be,
and a dose of reality may be required from an outside source
such as
a trade union.
[44]
It follows, and has been confirmed in
Goldfields
,
Fidelity
and
Performing
Arts Council
,
that merely notifying the union is not enough; its officials must be
given a reasonable opportunity to persuade the workers to
abandon the
strike.
[45]
In
Coin
Security Group
Basson
J held:
“
In
my view, item 6(2) of schedule 8 to the LRA . . . gives effect to and
codifies the
audi
alteram partem
principle in the context of a strike dismissal under the provisions
of the LRA in that the clear purpose of these provisions is
that a
union official should be granted an opportunity to make
representations on behalf of striking workers at the very earliest

opportunity.  Moreover, in the absence of the striking workers
being granted such opportunity individually (such as was the
position
in casu), it is of the utmost importance that their union official be
granted such opportunity on their behalf.  In
other words, a
union official should be granted the opportunity to deal with the
situation collectively at the very least.  It
follows that the
refusal to do so is a serious impediment to the fairness of a strike
dismissal.”
[46]
[55]
Therefore,
the first purpose of item 6(2) is that at the very earliest
opportunity a union official should be allowed to make
representations
on behalf of striking workers (who are not given an
opportunity to make representations individually).
[47]
In this regard, item 6(2) embraces the
audi
alteram partem
principle in the context of a strike dismissal under the provisions
of the LRA, compelling an employer to engage with the workers’

union.
[48]
Only once it becomes clear that the union’s attempts will prove
fruitless or merely seek to extend the strike, the
employer may issue
an ultimatum.
[49]
[56]
The
second stage entails consideration of whether the ultimatum was fair;
and, if so, whether the dismissals effected pursuant to
the ultimatum
were fair.
[50]
If the ultimatum was unfair, the second question does not arise,
namely whether an unfair ultimatum renders the dismissals

procedurally unfair.  When assessing the fairness of an
ultimatum, the factors to be considered are the background facts
giving rise to the ultimatum, the terms thereof and the time allowed
for compliance.
[51]
[57]
Unitrans’ final ultimatum was
tendered after three similar ultimatums had been provided to the
striking workers.  The
difference is, however, that Unitrans’
first three ultimatums were tendered during the protected strike
period.  While
I accept that these ultimatums were tendered in
fact, and therefore form part of a factual enquiry, they cannot be
given legally
binding force.  To do so would allow employers to
flout the protective measures afforded to workers should their strike
action
be protected by virtue of compliance with the legislative
requirements.  Item 6(2) is clear.  It demands
compliance
“prior to dismissal”, presuming that an
employer has already established that the workers’ misconduct
deserves
dismissal – this is the substantive fairness enquiry
in item 6(1).  An employer must therefore first establish, in
accordance
with item 6(1), that the workers’ conduct is
deserving of dismissal.  Only after an employer has done so, may
it turn
to item 6(2), which prescribes how the dismissal is to be
effected in a procedurally fair manner.  The contention that an
employer can presume eventual non-compliance with item 6(1) and seek
to bolster its compliance with item 6(2) by issuing an
ultimatum
during protected strike action is unsustainable.
[58]
Further,
an ultimatum tendered during protected strike action is not legally
binding on striking workers, as their dismissal at
that point would
amount to a serious contravention of the LRA.
[52]
How then can an employer seek to rely on such an ultimatum in
the uncertain event that the workers conduct is determined
to be
deserving of dismissal after the permissible strike action has
ceased, if the defect in the ultimatum lies in the employer’s

own judgment, namely that the ultimatums were tendered regardless of
the permissibility of the strike action.  In my view,
the first
three ultimatums cannot be considered in determining whether Unitrans
acted in a procedurally fair manner.
[59]
With regard to the terms of the ultimatum,
item 6(2) specifically requires that an employer should issue “an
ultimatum in
clear and unambiguous terms that should state what is
required of the workers and what sanction will be imposed if they do
not
comply with the ultimatum”.  The pertinent terms of
the final ultimatum provided by Unitrans are as follows:
“
You
are hereby issued with a final ultimatum that you must return to work
and resume your normal duties by no later than 06:00 on
Tuesday, 02
November 2010.  If you do not resume your normal duties, you
will be summarily dismissed, unless you or your representatives

provide us, in writing, with reasons before expiry of this ultimatum
showing that your current strike action is lawful and why
you should
not be dismissed.  Kindly note that this ultimatum will not be
repeated.”
[60]
The ultimatum clearly informs striking
workers that their failure to resume their normal duties at the
specified time would result
in summary dismissal, barring the making
of representations, of which there were none.  To prevent
uncertainty in the minds
of the workers regarding the finality of
this ultimatum, which may have been created as a result of Unitrans
having tendered three
ultimatums during the period in which the
strike action was permissible, Unitrans also emphasised the finality
of this ultimatum.
I am satisfied that the terms of the
ultimatum reflect those terms specified in item 6(2).
Accordingly, the procedural fairness
of the dismissals must turn on
the period of time afforded to the striking workers by Unitrans.
[61]
It
has been held to be unreasonable to expect strikers to resume work in
too short a time.  A reasonable time ultimately will
depend on
the circumstances, but an ultimatum should afford the strikers “a
proper opportunity for obtaining advice and taking
a rational
decision as to what course of action to follow”.
[53]
[62]
In
Allround
Tooling
[54]
the LAC found the dismissal of 117 workers pursuant to two
ultimatums, served on the same day, procedurally unfair as too short

a period of time was given.  The employer’s ultimatum
should have expired “after the striking employees had had
a
weekend to cool down and to calmly reflect on the consequences of
their conduct and having obtained the advice of the local union

leadership,
the
probabilities are that they would have returned to work
”.
[55]
[63]
In
Pro
Roof Cape
[56]
the Labour Court found the dismissal of 22 workers who had been
given just over two hours’ notice to adhere to an ultimatum
to
be procedurally unfair.  It held that “more time should
have been allowed to reflect on the ultimatums once an undertaking

had been given. . . . The [dismissals] could have been avoided by the
provision of more time and information by the employer”.
[57]
[64]
In
Plaschem
the LAC found the dismissal of 42 workers, pursuant to a series of
oral and written ultimatums, provided between 12h15 and 14h45
during
the course of a working day, to be procedurally unfair.  In this
regard, the Court held:
“
When
considering the question of dismissal it is important that an
employer does not act over hastily.  He must give fair warning

or ultimatum that he intends to dismiss so that the employees
involved in the dispute are afforded a proper opportunity of
obtaining
advice and taking a rational decision as to what course to
follow.  Both parties must have sufficient time to cool off so
that the effect of anger on their decisions is eliminated or
limited.”
[58]
[65]
In
light of these decisions, it is apparent that the period of time
conferred by the ultimatum must be viewed in light of the conditions

prevailing at the time it was issued.  The time period conferred
by an ultimatum must be viewed in the context of whether
the
ultimatum provided an adequate opportunity for the workers involved
to engage with its contents and respond accordingly.
This is in
line with item 6(2) of the Code encompassing the
audi
alteram
partem
principle, which extends into the terrain of unprotected strike
action.
[59]
Further, the importance of conferring an adequate period of
time for both parties to the dispute to “cool-off”
must
be emphasised.  An adequate cooling-off period ensures that an
employer does not act in anger or with undue haste
[60]
and that in turn the striking workers act rationally having been
given the opportunity to reflect.
[66]
In this case, the only legal ultimatum was
the one that was issued on 1 November 2010.  This was
because the other three
had been issued whilst the strike was
protected and at that stage the workers were entitled to ignore them.
The strike became
unprotected at 14h05 on 1 November 2010,
that is, upon Unitrans capitulating to the Shell seven workers’
demand.
The ultimatum continued to provide unequivocally that
the striking workers should return to work and resume their normal
duties
by 06h00 on Tuesday, 2 November 2010.  Failure to do so,
the ultimatum continued, would result in the workers being summarily

dismissed, unless the workers or TAWUSA, as their representative,
“provide [Unitrans], in writing, with reasons before expiry
of
this ultimatum showing that their current strike action is lawful and
why they should not be dismissed”.
[67]
The workers effectively had three working
hours to consider the ultimatum, reflect on the situation and
respond.  In my view
the time provided by Unitrans was
insufficient to enable them to do that.  The ultimatum failed to
afford the workers an adequate
period of time to consider its
contents and respond accordingly, which the
audi
alteram partem
principle demands.
Given the complexity of this matter, the fact that the strike
action had been protected, and that the
employer only capitulated in
respect of the Shell seven workers’ demand in this same
ultimatum, a period of just under 16
hours (effectively three working
hours) cannot be regarded as sufficient to justify Unitrans’
actions in dismissing the workers.
[68]
It follows that the dismissal of the
workers was procedurally unfair.  What then is an appropriate
remedy?
Remedy
[69]
This Court must be mindful of its
obligation to grant remedies that would serve the parties
practically.  The provisions dealing
with remedy are sections
193(1), 193(2)(d) and 194(1) of the LRA, which respectively provide:
“
(1)
If the Labour Court or an arbitrator appointed in terms of this Act
finds that a dismissal is
unfair, the Court or the arbitrator may—
(a)
order the employer to reinstate the employee from any date not
earlier than the date
of dismissal;
(b)
order the employer to re-employ the employee, either in the work in
which the employee
was employed before the dismissal or in other
reasonably suitable work on any terms and from any date not earlier
than the date
of dismissal; or
(c)
order the employer to pay compensation to the employee.”
“
(2)
The Labour Court or the arbitrator must require the employer to
reinstate or re-employ the employee
unless—
.
. .
(d)
the dismissal is unfair only because the employer did not follow a
fair procedure.”
“
(1)
The compensation awarded to an employee whose dismissal is found to
be unfair either because .
. . the employer did not follow a fair
procedure . . . must be just and equitable in all the circumstances,
but may not be more
than the equivalent of 12 months’
remuneration calculated at the employee’s rate of remuneration
on the date of dismissal.”
[70]
It follows that in terms of section 193(2)
the Labour Court must order that unfairly dismissed workers be
reinstated or re-employed,
barring where the conditions in
subsections (a)-(d) are fulfilled.  Should any of these
conditions be fulfilled, then the
Labour Court is not obliged to
order that the workers be reinstated or re employed, but may
order any form of relief specified
in section 193(1), which, in
addition to reinstatement and re-employment, contemplates the payment
of compensation to the workers
by the employer.
[71]
I have found the dismissals to be unfair on
grounds of procedural fairness, which sections 193(2)(d) and 194(1)
specifically contemplate.
It follows that it is inappropriate
that an order of reinstatement or re-employment be given pursuant to
section 193(2).
Therefore, a remedy must be fashioned in terms
of section 193(1) read with section 194(1) should an award of
compensation be made.
[72]
In my view, the issue of remedy must be
determined by the Labour Court, which will have regard to all the
relevant issues.
These may include the question relating to the
interests of justice, delay in proceeding with the appeal in the LAC
and
re employment or otherwise of the workers.  This
Court is not adequately placed to consider these issues, even more so

with a remedy having to be fashioned in terms of sections 193(1)
and 194(1), the latter requiring that any award of compensation
made
be “just and equitable in all the circumstances”.  It
is more appropriate that the matter be considered by
a specialist
court which will be able to investigate and interrogate the
circumstances of each worker and determine an appropriate
remedy.  It
is therefore in the interests of justice that the matter be remitted
to the Labour Court to fashion an appropriate
remedy in terms of
sections 193(1) and 194(1).
Costs
[73]
There is no reason why costs should not
follow the result.
Order
[74]
In the result, if I had the support of the
majority, which I do not, I would have made the following order:
1.
Leave to appeal is granted.
2.
The appeal is upheld with costs.
3.
The orders of the Labour Appeal Court and
the Labour Court are set aside.
4.
The order of the Labour Appeal Court is
replaced with the following order:
“
The
dismissals of the 94 individual applicants by Unitrans Fuel and
Chemical (Pty) Ltd on 2 November 2010 was procedurally unfair.”
5.
The matter is remitted to the Labour Court
to determine an appropriate remedy.
ZONDO J
(Mogoeng CJ, Bosielo AJ, Khampepe J and Madlanga J
concurring; Jafta J only concurring in the order)
Introduction
[75]
The
dispute between the parties in this matter is whether the dismissal
of the second and further applicants (individual applicants)
by the
respondent (Unitrans) at about 08h00 on 2 November 2010 for
allegedly participating in an unprotected strike
[61]
from 14h30 on 28 October 2010 to the time of their
dismissal was automatically unfair
[62]
alternatively substantively
[63]
and procedurally unfair
[64]
and, if so, what remedy, if any, they should be granted.
[76]
The Labour Court, which was called upon to
determine the dismissal dispute, concluded through Bhoola J that the
individual applicants
had participated in an unprotected strike for
six days and their dismissal was justified and was both substantively
and procedurally
fair.  It then dismissed their claim with
costs.  In prosecuting their appeal to the Labour Appeal Court,
the applicants
failed to deliver the appeal record on time with the
result that their appeal lapsed in terms of the Rules of that Court.

The delay was for about a year.  The applicants had to make an
application for condonation and for the reinstatement of their

appeal.
[77]
In a
judgment by Davis JA (in which Ndlovu JA and Landman JA concurred
(the second LAC judgment))
[65]
,
the Labour Appeal Court concluded that they had failed to show good
cause for their failure to comply with the time-limit for
the
delivery of the record.  It dismissed the application but also
concluded that, on the merits of the appeal, the individual

applicants had participated in an unprotected strike and their appeal
lacked merits and fell to be dismissed.  It is against
this
judgment that the applicants seek leave to appeal.  They seek to
appeal against the decision dismissing their application
for
condonation and for the reinstatement of their appeal in the Labour
Appeal Court and the decision that, in any event, their
appeal had no
merits.
Jurisdiction
and leave to appeal
[78]
I have had the opportunity of reading the
judgment by my Colleague, Mhlantla J (first judgment).  For
the reasons given
in the first judgment, I agree that this Court has
jurisdiction and that leave to appeal should be granted.
However, with
regard to granting leave I would like to say more than
has the first judgment.
[79]
In the second LAC judgment the Labour
Appeal Court advanced two bases for its decisions against the
applicants.  It said:
“
To
summarise: this case stands to be dismissed on two bases, namely
that, given the non-existent explanation for the delay of a
year
before the appeal record could be prosecuted, the application for
condonation stands to be dismissed.  This is particularly
so
because, on the basis of the finding to which I have arrived, there
are no prospects of success on appeal.  However, given
that the
matter was exhaustively canvassed before this Court in oral argument,
and given the finding to which I have arrived, the
appeal stands to
be dismissed on its merits.”
[66]
[80]
From this passage it is clear that,
although the applicants had delayed by about a year in lodging the
appeal record for which they
failed to provide an adequate
explanation, the fact that the Court thought that the applicants’
appeal had no prospects of
success played an important role in the
Court’s decision.  Furthermore, the Court made an order
that dismissed the appeal
because it said that the appeal was without
any merits.  Earlier on in the second LAC judgment, the Labour
Appeal Court had
said:
“
Strictly,
this Court should dismiss the applications for condonation and the
reinstatement of the appeal.  However, it was
decided at the
hearing to determine whether there were any merits in the appeal
which might weigh in favour of the applicants.
In addition, Mr
Redding, who appeared on behalf of the respondent, submitted that, in
the circumstances, his client would prefer
if the case was disposed
of to finality.”
[67]
[81]
It is against the above background that the
application for leave to appeal must be assessed.  This
background is to the effect
that, although the applicants’
applications for condonation and the reinstatement of their appeal
were weak because of the
delay and absence of a proper explanation,
both the applicants and the respondent wanted the appeal to be
disposed of on the merits.
In my view this was a very important
factor that the Court should have taken into account.  Indeed,
it may have taken it into
account but did not grant condonation and
the reinstatement of the appeal because it took the view that the
appeal had no prospects
of success.
[82]
To my mind, this suggests that, had the
Labour Appeal Court taken the view that there were reasonable
prospects of success for the
appeal, it would probably have granted
condonation and reinstated the appeal.  This must be so because
it did consider part
of the merits of the appeal, namely, whether the
strike in which the individual applicants had taken part for which
they were dismissed
was a protected strike.  It concluded that
the strike was unprotected, held that their dismissal was, therefore,
fair and
dismissed their appeal.
[83]
I say that the Labour Appeal Court
considered part of the merits of the applicants’ appeal because
that is what happened.
Part of the applicants’ appeal was
that they had been dismissed for participation in a protected strike
and that, therefore,
their dismissal was automatically unfair.
Another part was that, even if it was held that their strike was
unprotected, their
dismissal was both substantively and procedurally
unfair.  The Labour Appeal Court failed to consider this part of
the applicants’
appeal and dismissed their appeal without
having considered it.  This was a serious misdirection on the
part of the Labour
Appeal Court that weighs heavily in favour of
granting the applicants leave to appeal.  This is because that
meant that there
was an important part of their appeal which had been
left undecided by the Labour Appeal Court.  That part of their
appeal
would remain undecided if we refused leave to appeal.
[84]
Furthermore, there are reasonable prospects
of success for the applicants’ appeal not only in relation to
showing that their
dismissal was unfair but also in showing that the
dismissal was automatically unfair.  This would be by reason of
the dismissal
having been a dismissal for participation in a
protected strike.  I am also of the view that the Labour Appeal
Court may have
overlooked its own previous decisions relevant to the
legal status of the strike in coming to the conclusion that the
strike was
unprotected and that, if effect is given to those
decisions, the conclusion may be reached that the strike was either
largely or
wholly protected.  I am, therefore, of the view that
the appeal has reasonable prospects of success.
[85]
Lastly on the application for leave to
appeal, this matter raises important legal and constitutional issues
on which this Court
has not pronounced before.  One of these
issues is how a protected strike may change into an unprotected
strike.  Another
one is whether, if the strike was protected for
all of the days except part of the last day before the workers were
dismissed,
the reason for dismissal is automatically unfair or
substantively unfair or is predominantly automatically unfair.
This,
too, is an issue that this Court has never pronounced upon.
Indeed, I am not aware of any case in which any of our courts
has
pronounced on such an issue.  I am, therefore, of the view that
it is in the interests of justice that this Court grant
leave to
appeal.
[86]
I am unable to agree with the first
judgment’s conclusions that—
(a)
although
the strike was initially protected, its legal status changed at 14h05
on 1 November 2010 and it became unprotected;
[68]
(b)
the
individual applicants participated in an unprotected strike from
14h05 on 1 November 2010 to 06h00 on 2 November 2010 and were,

therefore, guilty of misconduct;
[69]
(c)
Unitrans
acted substantively fairly in dismissing the individual
applicants;
[70]
and
(d)
the
matter should be remitted to the Labour Court for that Court to
fashion an appropriate remedy.
[71]
[87]
In my
view the strike was protected throughout and the individual
applicants and the other workers were dismissed for participation
in
a protected strike.  Even if the strike can be said to have
become unprotected at about 16h00
[72]
or so on 1 November 2010 and the individual applicants can
be said to have participated in an unprotected strike between
16h00
on 1 November 2010 and 06h00 on 2 November 2010,
the reason for the dismissal would still be predominantly
for
participation in a protected strike and would still be predominantly
automatically unfair.  This Court should grant the
remedy itself
and that remedy is reinstatement.  My approach to the issues and
my reasons for these and other conclusions
appear below.
However, I deal with the background first.
Background
[88]
The background to the dispute has been set
out in the first judgment.  It is, therefore, unnecessary to
repeat that exercise
in this judgment except in so far as it may be
necessary to set out a brief background for a proper understanding of
my approach
to the issues.  When necessary I shall refer to
certain parts of the background only as and when I discuss different
aspects
of the matter.
[89]
Unitrans enters into contracts with various
suppliers of dangerous goods such as petroleum products, oxygen and
LPG (liquefied petroleum
gas) and undertakes to transport and deliver
those products to their destinations.  To transport the goods
and products Unitrans
uses large trucks.  It employs many
Ultra-heavy Duty Vehicle drivers who drive the trucks that transport
these goods or products.
Some of the trucks transport goods
beyond the borders of South Africa.  The drivers are attached to
a particular contract
entered into between Unitrans and a client.
For convenience I shall call such a contract a supplier contract.
In terms
of their conditions of employment, the drivers may be
transferred from one supplier contract to another.
[90]
In or about February 2004 Unitrans entered
into a contract (Shell contract) with Shell Petroleum Company of
South Africa (Shell)
for a period of five years.  In terms of
that contract Unitrans would deliver Shell’s petroleum products
to various
service stations throughout Gauteng and Limpopo.
That contract expired by effluxion of time in February 2009.
There
were about 110 drivers employed by Unitrans who were attached
to this contract.  Unitrans offered to retain all those drivers

in its employ but the vast majority opted to take up employment with
the new contractor, Fuel Logic (Pty) Ltd.  Only 31 of
the
drivers chose to remain in Unitrans’ employment.  All the
31 drivers were transferred to various supplier contracts
that
Unitrans had at the time.
[91]
Unitrans says that the terms and conditions
of employment of its drivers are governed by the terms and conditions
of employment
agreed to at the National Bargaining Council for the
Road Freight Industry, their letters of appointment and their
contracts of
employment.  The relevant collective agreement was
not included in any of the papers.  Only certain sections of the
collective
agreement were referred to, and quoted, in written
argument as well as in the judgments of the Labour Court and Labour
Appeal Court.
In its founding affidavit filed in support of the
urgent application for an interdict that Unitrans made to the Labour
Court in
August 2010 the deponent, Mr Titus Sekano, who was
Unitrans’ Human Resources Manager at the time, put up what he
called
“an example” of a letter of appointment of drivers
employed by Unitrans.  This suggests that the letters of
appointment
of all the drivers essentially contained the same terms
and conditions as that letter of appointment except for personal
details
and rates of remuneration.  The particular letter of
appointment was that of a Mr Sipho Radebe.  It is dated 19
February
2009.
[92]
That Mr Radebe’s letter of
appointment is an example or sample of the letters of appointment of
drivers employed by Unitrans
is supported by the fact that there are
two other letters of appointment in the record which reflect the same
terms and conditions
of appointment as the terms and conditions
appearing in Mr Radebe’s letter of appointment.  Those two
letters relate
to a Mr Vincent Mayekiso.  One is dated
1 June 2007 and the other 13 March 2009.
[93]
In the first paragraph Mr Radebe’s
letter of appointment confirms his appointment as an Ultra-heavy Duty
Vehicle Driver “on
the LPG in the Greater Gauteng Regions”
with effect from 16 February 2009.  Mr Mayekiso’s 2007
letter of appointment
confirms in the first paragraph his appointment
also as an Ultra-heavy Duty Vehicle Driver but “on the Shell
Alrode Contract”
and with effect from 19 June 2007.
The 2009 one confirms in the first paragraph his appointment, also as
an Ultra-heavy
Duty Vehicle Driver, and, like Mr Radebe’s one,
“on the LPG Contract in the Greater Gauteng Regions” but
with
effect from 2 March 2009.
[94]
Unitrans said that the wage rates at which
its drivers are paid differ depending on the supplier contract to
which a driver is attached.
Therefore, some drivers will be
paid at a higher rate than others if the supplier contract to which
they are attached is more lucrative
than another or others to which
some of the drivers may be attached.  The Shell contract to
which reference has been made
was one of the lucrative contracts.
As a result, the drivers who were attached to it were paid at quite a
high wage rate.
[95]
The second sentence in Mr Radebe’s
letter of appointment is important because it reveals that the terms
and conditions of
appointment which follow in the rest of the letter
are the terms and conditions of service applicable at Unitrans or are
at least
some of the terms and conditions of service applicable to
drivers employed by Unitrans.  It says:
“
Your
remuneration and conditions of service will fall in line with those
instituted for Unitrans, in March 2001 and are as follows
. . .”
and,
thereafter, the remuneration and other terms and conditions are set
out.
[96]
Under the heading: “Hours of work and
overtime”, Mr Radebe’s letter of appointment reads:
“
The
Company operates in accordance with the National Bargaining Council
for the Road Freight Industry and currently operates a 45-hour
week.
You
will, however, be required to work overtime
and
weekends
as
required
by your contract
and payment will be as follows:
Weekdays
and Saturdays at a time and a half (1/2)
Sundays
and Public Holidays at double time (2) or as provided by the National
Bargaining Council Agreement.”
Under
“Shift Work” the letter reads:
“
Employees
will be required to work
shift work
in accordance with their contract.  Your
starting
times may vary from time to time as required by the needs of the
contract
and you undertake to make
yourself available to start at these times.”
Both of
Mr Mayekiso’s letters of appointment contain the same
provisions on hours of work, overtime and shift work.
[97]
I referred earlier to the fact that, when
the Shell contract expired, 31 of Unitrans’ 110 drivers chose
to continue in Unitrans’
employ rather than take up employment
with the new contractor at Shell and that Unitrans transferred all
the 31 drivers to
different supplier contracts.  This meant
that they were going to continue to work as drivers but on different
supplier contracts.
However, Unitrans intended that they would
be paid at lower wage rates than the rates at which they had been
paid when they were
attached to the Shell contract.  This was
because the wage rates at which drivers were paid, as already
indicated, differed
depending on how lucrative the supplier contract
was to which a driver was attached.
[98]
Unitrans asked the former Shell drivers
whom it retained to sign new contracts of employment in terms of
which their wage rates
were reduced.  Except for seven of the
drivers, to whom I shall refer as the “Shell 7”, those
drivers signed new
contracts of employment and agreed to be
remunerated at lower rates than their Shell rates.  The Shell 7
refused to sign new
contracts of employment but performed their
duties.  Their stance seems to have been that they had contracts
of employment
with Unitrans which prescribed the rates at which they
were to be paid and they were entitled to be remunerated at those
rates
and Unitrans should honour its obligation in terms of their
contracts of employment.  From the time the Shell 7 were
transferred
from the Shell contract, Unitrans did not pay them
at the rates at which they were entitled to be remunerated in terms
of
their contracts of employment.  It paid them at lower rates.
Unitrans did not terminate the contracts of employment it
had with
each one of the Shell 7.  Those contracts put the Shell 7 at
higher wage rates than the rates which Unitrans now
wanted to use.
[99]
The majority trade union among Unitrans’
employees when the Shell contract expired was the South African
Transport and Allied
Workers Union (SATAWU).  Unitrans had dealt
with SATAWU with regard to the transfer of the former Shell drivers
to other supplier
contracts.  However, early in 2010 TAWUSA came
into the picture.  At that stage the position was that the Shell
7 were
performing their duties in terms of their contracts of
employment but were paid at wage rates that were lower than the ones
at
which they were entitled to be paid.  This meant that
Unitrans was continuing to act in breach of the contracts of
employment
it had with each one of the Shell 7.  Each one of the
Shell 7 employees continued to hold Unitrans to the terms of his
contract.
[100]
The plight of the Shell 7 was one of the
issues that TAWUSA took up with Unitrans.  It made four demands
to Unitrans.
Two of them were referred to as the “wage
discrepancies” and “wage cut”.  The “wage
discrepancies”
demand – which was later also called the
“wage parity” demand – was the demand that Unitrans
should pay
the drivers at the same wage rate irrespective of the
different supplier contracts to which the drivers were attached.
TAWUSA
was objecting to the then prevailing state of affairs at
Unitrans in terms of which people doing the same job were paid at
different
wage rates just because they were attached to different
supplier contracts.  By way of the wage cut demand, TAWUSA
and
its members demanded that Unitrans restore the Shell 7 to the
wage rates to which they were entitled in terms of their contracts
of
employment and pay them their backpay and increases since
February 2009 when they were transferred from the Shell
contract.
[101]
TAWUSA
and Unitrans exchanged correspondence and held meetings to discuss
the four demands but could not reach agreement.
A dispute then
arose between the parties concerning Unitrans’ failure to
comply with the four demands.  The dispute
was referred to the
bargaining council for a conciliation process.  The conciliation
process failed.  The bargaining
council then issued a
certificate of outcome to the effect that the dispute was not
resolved.  Thereafter, TAWUSA gave Unitrans
the prescribed 48
hour written notice of the commencement of a strike.
[73]
This meant that at the expiration of the 48 hours the workers would
collectively refuse to work in support of their demands.
That,
in turn, entailed that, until Unitrans complied with the demands made
to it by TAWUSA and its members, the workers would
not be working.
In a letter dated 28 October 2010 Unitrans’
Attorneys, Glyn Marais Inc,
inter
alia
conceded that TAWUSA’s members were entitled to withhold their
labour in support of the wage cut demand of the Shell
7.
They put it thus:
“
It
therefore appears that the only issue that your members can
effectively strike upon is with regard to the alleged wage cut of
the
seven former Shell contract employees who did not sign employment
agreements, and certainly not in respect of all the employees
as
alleged.”
[102]
TAWUSA’s members employed by Unitrans
commenced a strike at 14h30 on 28 October 2010.  That
strike continued on
29, 30, 31 October 2010 and
1 November 2010.  The individual applicants were
dismissed at about 08h00 on 2 November 2010.
The
reason advanced by Unitrans for its decision to dismiss them and
other workers that morning is that they participated in an

unprotected strike over the period 14h30 on 28 October 2010
to 06h00 on 2 November 2010.  It said that
that was
six days of an unprotected strike.  That was actually not six
days.  It was four days and about 15 hours
or so.
[103]
The applicants contend that the strike was
protected throughout.  Unitrans contends that the strike was
unprotected from beginning
to end.  However, it argued that, to
the extent that the Shell 7 may have been entitled prior to 14h05 on
1 November
to withhold their labour in pursuit of the wage cut
demand, their right to do so ceased at that time when it issued its
final
ultimatum.  The significance of the final ultimatum is
that Unitrans said in the final ultimatum that it conceded the
wage cut
demand in so far as it related to the Shell 7.
Unitrans contended that, after that, there was no demand that TAWUSA
and the
workers were permitted to pursue by way of a collective
refusal to work.  It is, therefore, necessary to start with the
question
whether the strike was protected.
Was
the strike protected?
[104]
Section
23(2)(c) of our Constitution entrenches every worker’s right to
strike.
[74]
The
Labour Relations Act
[75
]
(LRA) gives effect to this and other rights.
Section 64
of the
LRA confers upon every employee the right to strike if certain
conditions or requirements set out in that provision have
been
satisfied.
Section 64(1)
of the LRA reads, in so far as it is
relevant:
“
(1)
Every employee has the right to strike . . . if—
(a)
the issue in dispute has been referred to a council or to the
Commission as required
by this Act, and—
(i)
a certificate stating that the dispute remains unresolved has been
issued; or
(ii)
a period of 30 days or any extension of that period agreed to between
the parties
to the dispute, has elapsed since the referral was
received by the council or the Commission; and after that—
(b)
in the case of a proposed strike, at least 48 hours’ notice of
the commencement
of the strike, in writing, has been given to the
employer . . .”
The term
“issue in dispute” referred to in
section 64(1)(a)
is
defined “in relation to a strike or lock-out” as meaning
“the demand, the grievance or the dispute that forms
the
subject matter of the strike or lock-out.”  The word
“dispute” is defined as including an alleged dispute.

There was only one requirement which the parties were not agreed had
been satisfied in order to render the strike protected.
The
applicants argued that it had been met whereas Unitrans contended
that it had not been met.
[105]
The requirement on which the parties were
not agreed was whether the demands were the type of demands which
TAWUSA and its members
were entitled to pursue by way of a collective
refusal to work.  TAWUSA’s position was that its members
collectively
refused to work in support of two demands, namely, the
wage discrepancy demand and the wage cut demand.
[106]
Section 213
of the LRA defines a strike as
follows in so far as it is relevant to the present matter—
““
strike”
is the partial or
complete concerted
refusal to work
, or the retardation or
obstruction of work,
by persons who are
or have been employed by the same employer
or by different employers,
for the
purpose of remedying a grievance or resolving a dispute in respect of
any matter of mutual interest between employer and
employee
and every reference to ‘work’ in this definition includes
overtime work, whether it is voluntary or compulsory.”
There are
four elements or components that make up a strike under the LRA.
In everyday parlance people call every collective
stay-away from work
or work-stoppage a strike.  Under the LRA a strike must have the
four elements.  These are: (a) a
partial or complete concerted
refusal to work or retardation or obstruction of work, (b) by persons
who are or have been employed
by the same employer or by different
employers, (c) for the purpose of remedying a grievance or resolving
a dispute, (d) in respect
of a matter of mutual interest between
employer and employee.  I also leave out for present purposes
the reference to an overtime
ban.  In the present case the
strike took the form of a concerted refusal to work.  One should
not talk about a strike
in support of a certain demand because, in
terms of the definition of the word “strike”, a strike
already includes
a demand.  One should speak of a collective
refusal to work in support of a certain demand or in pursuit of a
certain demand.
[107]
After
TAWUSA had given Unitrans the first strike notice in August 2010,
Unitrans brought an urgent application in the Labour
Court for an
order interdicting the strike.  TAWUSA then suspended the
commencement of the strike pending the outcome of the
urgent
application.  The Labour Court granted a rule
nisi
.
On the return day or extended return day Van Niekerk J discharged the
rule because he concluded that the strike was protected
(the first LC
judgment).
[76]
[108]
It is important to point out that in the
founding affidavit, which was deposed to by Mr Titus Sekano, in the
application referred
to in the preceding paragraph, Unitrans did not
rely on any collective agreement concluded at the bargaining council
nor did it
rely on the constitution of the bargaining council for its
case for an interdict.  There was not even an averment that
TAWUSA
or its members were party to or bound by any collective
agreement concluded at the bargaining council.  Unitrans relied
on
other matters including its contention that there had been no
unilateral change of the terms and conditions of employment of the

Shell 7 and on what the conciliator should or should not have done at
the conciliation meeting.
[109]
When
Unitrans applied to the Labour Court for leave to appeal, it relied
on the collective agreement concluded at the bargaining
council to
contend that the Labour Court’s decision was wrong and
there were good prospects of success on appeal.
It contended
that TAWUSA was precluded by that collective agreement from seeking
to negotiate the particular demands at plant-level
as those types of
demands should be negotiated at the bargaining council.  It
advanced this contention despite the fact that
in the founding
affidavit that had not been part of its case.  It would appear
that its new legal team – enlisted after
the Labour Court
discharged the rule
nisi
– argued that this was a point of law and they were entitled to
raise it even though it had not been raised in the founding

affidavit.  It is not clear what the attitude of TAWUSA’s
legal team was to this but Van Niekerk J seems to have been
persuaded
that this was purely a point of law and that Unitrans was entitled to
raise it.  He, therefore, granted leave to
appeal.
[77]
[110]
The
appeal was heard by Mlambo JP, Waglay DJP and Tlaletsi JA.  In
that appeal, too, Unitrans’ new legal team relied
upon the
collective agreement to argue that the strike would be unprotected.
In a unanimous judgment by Waglay DJP
[78]
(the first LAC judgment) the Labour Appeal Court held in effect that
Unitrans was entitled to argue that the collective agreement

precluded a concerted refusal to work in pursuit of the four demands
that had been part of the dispute referred to the conciliation

process.  It held that the workers were entitled to withhold
their labour in pursuit of the two demands referred to as the
wage
discrepancy and wage cut demands.  The Court came to this
conclusion on the basis that, where a collective refusal
to work is
resorted to in support of a number of demands, as long as any of the
demands could be pursued by way of a concerted
refusal to work, the
workers would be entitled to withhold their labour and their strike
would be a protected strike.  A reading
of the first LAC
judgment and the founding affidavit in the August 2010 urgent
application reveals that Unitrans’ case as
to why the strike
would be unprotected and the case Unitrans argued on appeal before
the Labour Appeal Court were two different
things.  The Labour
Appeal Court specifically made an order that the workers could
withhold their labour in support of the
demands of wage discrepancy
and wage cut.
[111]
In
Afrox
[79]
the Labour Court enunciated a principle that, if a group of workers
have a dispute with their employer that directly affects them
and
they have complied with the statutory requirements that must be
satisfied in order for them to be entitled to strike, not only
will
they be entitled to strike but also their colleagues who are not
directly affected by the dispute will be entitled to withhold
their
labour in support of the demands of the group that is directly
affected by the dispute.  I would call this principle
the
“worker solidarity principle”.  I would call it that
because the workers who are not directly affected by
the dispute but
are, nevertheless, entitled to withhold their labour do so in
solidarity with their colleagues who are directly
affected by the
dispute.  In my view the worker solidarity principle is crucial
to the determination of the question whether
the individual
applicants were entitled to take part in the strike in this case.
The Labour Appeal Court approved and applied
the worker solidarity
principle in a number of cases.
[80]
This Court, too, has endorsed the principle.
[81]
Application
of the worker solidarity principle to this case
[112]
As already indicated, one of the two
demands that the first LAC judgment ruled could be pursued by TAWUSA
and the workers by way
of a collective refusal to work was the
wage cut demand.  TAWUSA’s wage cut demand to
Unitrans was that Unitrans
should restore the Shell 7 to their agreed
wage rates including increases and pay them their backpay from the
time when they were
transferred from the Shell contract.  That
would be from February or March 2009.  It would appear that at
some stage
or another TAWUSA and the shopstewards put the wage cut
demand to Unitrans as entailing that Unitrans meet this demand not

only in respect of the Shell 7 but also in respect of other drivers
who had been transferred from the Shell contract to other supplier

contracts.  Unitrans resisted this expansion of the demand and
contended that it fell outside the wage cut demand permitted
by
the first LAC judgment.
[113]
Unitrans was correct that the wage cut
demand permitted by the first LAC judgment was limited to the Shell
7.  However,
the fact that TAWUSA and the workers expanded the
wage cut demand to include other workers in addition to the
Shell 7 did
not mean that the correct wage cut demand was no
longer on the table.  That is the demand that the Shell 7 be
placed
on the agreed wage rates and be paid backpay and increases.
It remained part of the expanded wage cut demand.  Unitrans

was entitled at any stage to take the position that it would comply
only with the wage cut demand relating to the Shell 7.
The
demand that the Shell 7 be restored to their agreed wage rates and
that their full backpay for the period starting from February
or
March 2009 be paid was never abandoned.  As long as the wage cut
demand in relation to the Shell 7 had not been abandoned
and had not
been complied with, the Shell 7 were entitled to withhold their
labour from Unitrans.  As long as the Shell 7
were entitled to
withhold their labour in support of the wage cut demand, in
terms of the worker solidarity principle the
rest of the workers,
including the individual applicants, were also entitled to withhold
their labour from Unitrans in solidarity
with the Shell 7.
[114]
As at
28 October the issue in dispute in the form of the wage cut
demand had been referred to the conciliation process,
that process
had failed to produce an agreement between the parties, a certificate
of outcome had been issued, a strike notice
had been given to
Unitrans and the prescribed 48 hours written notice had expired by
14h30.  The Shell 7 were entitled as
at that time to
collectively withhold their labour in pursuit of the wage cut
demand.  The fact that the Shell 7 were
entitled to withhold
their labour also meant that, on the basis of the worker solidarity
principle, the rest of the workers, including
the individual
applicants, were also entitled to withhold their labour in pursuit of
the wage cut demand in respect of the
Shell 7.  Therefore,
the strike that commenced at 14h30 on 28 October was a protected
strike.  The strike continued
on 29, 30, 31 October and on
1 November.  Therefore, Unitrans’ contention that the
strike was unprotected from
beginning to end falls to be rejected.
The concession made by Unitrans in its attorneys’ letter of
28 October
that the workers were entitled to withhold their
labour in support of the wage cut demand of the Shell 7 was
properly made.
Unfortunately, for some reason Unitrans did not,
at the trial before the Labour Court, the Labour Appeal Court and
before this
Court, present its case on the basis of this concession
despite the existence of clear authorities in our law
[82]
that that was the correct legal position.  In the Labour Court,
the Labour Appeal Court and this Court, Unitrans argued the
case on
the basis that the strike was unprotected from beginning to end.
The next question to consider is whether the strike
ceased to be
protected and became unprotected after Unitrans had issued its final
ultimatum on 1 November.
Did
the strike become unprotected on 1 November?
[115]
At about 13h30 on 1 November Unitrans sent
its final ultimatum to TAWUSA by telefax.  At about 14h05 it
issued the final ultimatum.
The ultimatum informed TAWUSA and
its members that the strike was unlawful and unprotected.  It
called upon the workers to
return to work and resume their duties at
06h00 on Tuesday, 2 November, failing which they would be
dismissed unless they
or their representatives furnished sound
reasons why the strike was protected.  In that final ultimatum
Unitrans first set
out its understanding of the wage cut demand
and then undertook to restore the Shell 7 to their agreed wage rates
with increases
and to pay them their backpay from when they were
transferred from the Shell contract.  Here is how the relevant
two paragraphs
read in the final ultimatum:
“
Your
demand regarding “wage cut” remains that all Drivers from
the former Shell contract that ended in February 2009
be paid wage
rates according to their wage rates valid at that time.  This
also involves that adjustments of the wage rates
as result of
increases be determined according to the former wage rates and back
pay of the wage rate variance be paid.  Kindly
note that this
demand is not lawful as, in terms of previous court rulings, only 7
employees can be affected by this demand.
As
a gesture of goodwill and in order to end the current unlawful
strike action
,
management has acceded to your demand
pertaining to the 7 employees in issue
.  The
7 employees’
wage rates will be re-instated from the time they transferred from
the former Shell contract
.  They will
also be paid the
variances in wage rates due as result of wage increases since their
transfers
.  The
aforesaid payments will be backdated for
the full period since their transfers
.  Your demand has
therefore been fully resolved with regard to these 7 employees.  Your
demand pertaining to the 7 employees
in issue can thus not form
the subject matter of any continued strike action.  Kindly note
that should you continue to strike
in support of your “wage
cut” demand pertaining to the other former Shell contract
employees, your strike action will
remain unlawful.”
[116]
The
first judgment holds that, although the strike was initially
protected, it ceased to be protected at about 14h05 on 1 November

when Unitrans issued the final ultimatum.
[83]
The first judgment takes the view that from that time up to
2 November, when the workers were dismissed, the strike
was
unprotected and the workers participated in an unprotected strike at
that stage.  It goes on to hold that Unitrans was
entitled to
issue its final ultimatum when it did because the strike had become
unprotected and the workers should have returned
to work at 06h00 on
2 November.
[84]
In my view, the first judgment goes wrong on this point.  The
strike was protected from beginning to end and its legal
status never
changed.  I explain this below.
[117]
It is not clear to me that Unitrans argued
that, even if the strike was initially protected, it ceased to be
protected after Unitrans
had issued its final ultimatum.  In its
written submissions it did not advance such a case and was content to
simply argue
that the wage cut demand could no longer be pursued
as it was no longer an issue.  However, whether or not Unitrans
did
argue this point is neither here nor there because the Court is
obliged to consider whether the issuing of the ultimatum –

containing as it did the paragraphs on the wage cut demand –
had any effect on the status of the strike.  This
is so because,
if that did affect the legal status of the strike and the strike
changed from being protected to being unprotected,
that would be a
factor to be taken into account in determining whether the individual
applicants participated in an unprotected
strike from about 16h00 on
1 November to 06h00 on 2 November.
[118]
The
question that arises is how a protected strike changes from being a
protected strike to an unprotected strike.  This is
a critical
question to consider before deciding whether, by making the promise
that it made or giving the undertaking that it gave,
Unitrans changed
a protected strike into an unprotected strike.  It is necessary
to go back to the basic principle of our
law on strikes.  I have
quoted the definition of the word “strike” above.
[85]
The definition reveals that a strike is a concerted refusal to work
or retardation or obstruction of work that is initiated
for a
specific purpose.  The definition makes it clear that the
concerted refusal to work or retardation or obstruction of
work must
be resorted to “for the purpose of
remedying
a
grievance or resolving a dispute” in respect of any matter of
mutual interest between employer and employee.
[119]
Where the concerted refusal to work is
resorted to in support of a demand made by a trade union or workers
to an employer, the employer
would need to comply fully and
unconditionally with the demand in order for a protected strike to
turn into an unprotected strike.
Once the employer has remedied
the grievance or complied with the demand or once the dispute has
been resolved, the workers may
not continue with their concerted
refusal to work because the purpose for which they would have been
entitled to withhold their
labour would have been achieved.  Any
continued refusal to work would lack an authorised purpose.
Therefore, the strike
would be unprotected.
[120]
Another way in which a protected strike
would cease to be protected would be if the union or employees
abandoned the authorised
purpose of the concerted refusal to work and
sought to achieve a different purpose that is not authorised.
Yet another way
would be if the employer and the union or workers
were to reach an agreement that settles the dispute even if the
employer has
not complied fully and unconditionally with the original
demand of the union and the workers.  Absent any of these
methods
of turning a protected strike into an unprotected strike, a
protected strike remains protected.  I shall apply these
principles
to the facts of this case shortly but, before I do so, I
need to deal with a prior question that arises from the relevant
paragraph
of the final ultimatum.
A
promise made as a gesture of goodwill
[121]
In the relevant paragraph of the final
ultimatum, Unitrans makes a promise or undertaking to restore the
Shell 7 to their agreed
wage rates, including increases and to pay
their backpay since their transfer from the Shell contract.
However, it made that
promise or undertaking as a gesture of goodwill
and in order to end the strike.  It put its position thus: “As
a gesture
of goodwill and in order to end the current unlawful strike
action, management has acceded to your demand pertaining to the 7
employees
in issue”.  This means that Unitrans made this
promise not because it accepted that it had unilaterally changed a
term
or condition of employment of the Shell 7 or that from February
or March 2009 when the Shell 7 were transferred from the Shell
contract, it had been in breach of their contracts of employment and
was obliged to restore the Shell 7 to their agreed wage rates
and to
pay them their backpay.  It was only promising to do what it
promised to do out of its own goodwill and only to bring
the strike
to an end.  It did not accept liability to restore the Shell 7
to their contractually agreed wage rates and to
pay them the back pay
that it was legally obliged to pay them.
[122]
The South African Concise Oxford Dictionary
gives two meanings for the word “goodwill”.  They
are: “1. friendly
or helpful feelings or attitude 2. the
established reputation of a business regarded as a quantifiable
asset”.  Obviously,
the first meaning is the one
applicable in the context of Unitrans’ promise or undertaking.
The Cambridge International
Dictionary of English gives the following
meanings for the word: “‘goodwill’ n. [u] friendly
and helpful feelings.
The school
has to rely on the goodwill of the parents to help it raise money.
There was a
consistent
feeling of goodwill throughout the games.  Releasing the
hostages has been seen as a gesture of goodwill / a goodwill

gesture
”.  This means that,
in the relevant paragraph of the ultimatum, Unitrans was saying it
was as a friendly gesture that
it was going to restore the Shell 7 to
their wage rates and pay them their backpay. TAWUSA and its members
had demanded that Unitrans
restore the Shell 7 to their wage rates
and pay them their backpay because they were contractually entitled
to those things and
Unitrans had been in breach of their contracts of
employment and was continuing to be in breach thereof.
[123]
In my
view the phrase as “a gesture of goodwill” has the same
legal status as the phrase “
ex
gratia
”
as in an
ex
gratia
payment.  A person who makes an
ex
gratia
payment to someone else does not accept liability to make that
payment but makes it as a favour.  The first-mentioned
dictionary
explains the term “
ex
gratia
”
as follows: “adv adj (with reference to payment)
done
from a sense of moral obligation rather than because of any legal
requirement
.”
In
Marine
and Trade Insurance
[86]
the Court said about a payment made
ex
gratia
:
“
An
ex
gratia
payment is a payment made by favour.  It is a payment which is
made on the basis of there being no liability on the part of
the
insurance company, but on the basis of it being paid in order to
avoid, as was stated in the discharge, the litigation.
The £600
was not paid as a compromise of the claim for damages.  It was
paid to avoid litigation in respect of the claims
which are set out
in the document.”
In the
present case it is reflected in the relevant paragraph of the final
ultimatum that Unitrans’ promise was made “as
a gesture
of good will and in order to end the current unlawful strike action .
. .”.
[124]
The workers were aggrieved by the fact that
in terms of the Shell 7’s contracts of employment, the Shell 7
were entitled to
be paid at a certain wage rate and from February or
March 2009 Unitrans was acting in breach of their contracts of
employment by
paying them at lower wage rates.  The workers
wanted Unitrans to restore the Shell 7 to their correct wage
rates and
pay them their backpay to which they were entitled as a
matter of law.  They never asked Unitrans to do these things as
a
friendly gesture or out of its goodwill.  In effect Unitrans
was making an offer of settlement to TAWUSA and its members which

TAWUSA and its members were not obliged to accept.  I say this
because Unitrans was not acceding to TAWUSA’s demand
as it
stood.  It sought to make an offer “as a gesture of
goodwill and in order to end the current unlawful strike action”.

If TAWUSA and its members accepted that promise and the basis on
which it was made, namely, as a gesture of goodwill and not as
an
acceptance of legal liability, that would have been prejudicial to
their rights.  Once TAWUSA and its members had accepted
that
offer, Unitrans could then have called upon the workers to return to
work and they would have been obliged to return to work.
Before
they had accepted the offer made on the basis of a gesture of
goodwill Unitrans had no right to call upon the workers to
return to
work or to resume their duties and they were not obliged to return to
work.  Accordingly, I am of the view that
the promise made by
Unitrans as a gesture of goodwill and in order to end the strike did
not in law have the effect of changing
the status of the strike.
The strike remained protected.  It was not, as Unitrans
suggested, unprotected and unlawful.
There was no acceptance by
Unitrans that it was in breach of its contractual obligations.
[125]
The first judgment does not attach any
weight to the fact that the promise or undertaking made by Unitrans
in respect of the wage cut
demand was made on the basis that it
was Unitrans’ “gesture of goodwill and in order to end
the current unlawful strike
action”.  In my view this is
very important.  In the final ultimatum Unitrans said that, in
making the promise
that it made, it had acceded to the wage cut
demand of the Shell 7.  That was not true.  In fact what it
promised
was not what TAWUSA and the workers wanted.  TAWUSA and
the workers’ demand was in effect for Unitrans to honour,
recognise,
give effect to or comply with its contractual obligation
to keep the Shell 7 on their agreed wage rates and to pay them their
backpay.
The Shell 7 had a contractual right to be on those
wage rates.
[126]
Did Unitrans promise to put them on their
wage rates in terms of their contracts of employment?  No.
It promised them
something much less.  It promised them that
they would be put on those wage rates as a gesture of its goodwill
and in order
to end the strike.  This means that, whereas, prior
to that promise, the Shell 7 had a contractual right to be on those
wage
rates, if they accepted Unitrans’ promise, the basis for
their continued presence on those wage rates would no longer be their

contractual rights but it would be Unitrans’ goodwill.
This means that, whereas they embarked upon a collective refusal
to
work in order to put pressure on Unitrans to honour its contractual
obligations that were enforceable in a court of law, Unitrans

promised them a benefit that was not based on an enforceable right in
law but something based on its goodwill that could not be
enforced in
law.  If TAWUSA and the workers had accepted Unitrans’
promise, they would not have got what they had demanded
but would
have been short-changed.  Therefore, the basis upon which
Unitrans made its promise showed that it was not giving
the workers
what they were demanding.
[127]
Going back to the definition of the word
“strike”, it cannot be said that Unitrans’ promise,
based as it was on
its gesture of goodwill, could have remedied the
grievance of the workers nor could it be said to have complied with
the wage cut
demand or resolved the dispute.  Unitrans was
not prepared to accept or acknowledge that it was contractually
obliged to do
what was envisaged in the wage cut demand in
respect of the Shell 7.  Whatever Unitrans was prepared to do,
it was prepared
to do as a gesture of its goodwill.
[128]
If TAWUSA and the workers had accepted
Unitrans’ promise and the Shell 7 were then placed on the
agreed wage rates but no
longer because they were contractually
entitled to be on those wage rates but because of Unitrans’
goodwill, they would have
lost a justiciable contractual right to be
on those wage rates and accepted a regime to be there at the pleasure
of Unitrans.
Therefore, the basis upon which Unitrans made its
promise is enough to justify the conclusion that that promise could
not and did
not change the protected strike into an unprotected
strike.
Did
Unitrans restore the Shell 7 and pay their backpay?
[129]
It is now appropriate to deal with the
second part of Unitrans’ promise or undertaking.  Even if
the phrase “as
a gesture of good will and in order to end the
current unlawful strike action” had no adverse legal effect for
Unitrans,
the question would still arise whether what Unitrans said
in the relevant paragraph in the final ultimatum had the effect of
changing
the strike from being a protected strike into an unprotected
strike.  Once it is accepted that the strike was protected from

28 October onwards and it is argued that midway its status
changed, the onus would be on Unitrans to show that what it said
in
the ultimatum converted the protected strike into an unprotected
strike.  This requires an application to the facts of
this case
of the principles I discussed earlier on how a protected strike can
be converted into an unprotected strike.  In
my discussion of
those principles I said in effect that the demand in support of which
a concerted refusal to work has been resorted
to must either have
been abandoned or complied with fully, unconditionally and
unequivocally or the parties must have reached an
agreement in full
and final settlement of the dispute or the grievance that gave rise
to the concerted refusal to work must have
been remedied or the
dispute must have been resolved.  This flows from the
definitions of “strike” and “issue
in dispute”
in the LRA.
[130]
If the protected strike did change from
being protected to being unprotected, it could not have changed at
14h05 because that is
when the final ultimatum was signed.
Unitrans did not lead any evidence as to what time the workers were
given the final
ultimatum.  It ought to have done so.  The
workers operated from different places or parts of the country.
Indeed,
they operated from even different provinces.  Some of
the places from which the workers operated were Alrode, Nigel,
Pretoria,
Kroonstad, Secunda and Tulisa Park.  We do not know
when the workers based in, for example, Nigel or Secunda or Alrode or
Pretoria got the final ultimatum, or were informed of its contents.
We actually do not even know where the individual applicants
were
based.
[131]
Unitrans is the party that should have led
evidence about all this but it did not.  In the trial the
witnesses mentioned that
there were workers at the gate or outside
the gate of Tulisa Park in Gauteng where Unitrans’ Head office
is.  However,
they did not know which workers were there and
which workers were elsewhere.  As the workers who were on strike
were about
double the number of individual applicants before us, if
not more, we do not know whether the individual applicants are some
of
the workers who used to congregate next to the gate or not.
So, we do not know when the individual applicants received the
final
ultimatum or became aware of Unitrans’ promise concerning the
wage cut demand.  Nevertheless, I am prepared
to assume
that they got the ultimatum or heard about Unitrans’ promise
concerning the wage cut demand at about 16h00
or 17h00 or
thereabout on 1 November.
[132]
Bearing in mind the principles I have
discussed above on when a protected strike may change from being a
protected strike into an
unprotected strike, the question to be asked
is whether Unitrans complied with TAWUSA’s and its members’
wage cut
demand.  Another way of putting this would be to
say that the question is whether by its promise Unitrans remedied the
grievance
relating to the wage cut demand.  If the position
is that Unitrans complied with the wage cut demand or that it
remedied the grievance relating to the wage cut demand, then the
making of the promise or the giving of the undertaking that
Unitrans
made or gave would have changed the protected strike into an
unprotected strike.  In order to determine whether Unitrans

complied with the demand or remedied the grievance, it is necessary
to first go back to the wage cut demand to understand
what
exactly it was.  Fortunately, there is no dispute between the
parties on what the wage cut demand entailed.
[133]
I have said earlier that the wage cut
demand was that Unitrans should restore the Shell 7 to their agreed
wage rates and pay
them the backpay from the time when they were
transferred from the Shell contract to other contracts.  In the
form used to
refer the dispute concerning the unilateral change of
terms and conditions of employment (which is the wage cut
dispute) TAWUSA
had to answer the question: what outcome do you
require?  The answer given was: “maintenance of previous
status quo
and
backpayment
as from the date of ongoing concern in terms of
section 197
”.
This made it clear that part of what they wanted Unitrans to do in
terms of the wage cut demand was to pay the
Shell 7 backpay from
the date when they were transferred from the Shell contract.  It
also made it clear that they wanted
Unitrans to honour its
obligations in terms of the contracts of employment.  In his
evidence Mr Ngedle, a shopsteward,
also testified that what the
workers and TAWUSA wanted in terms of the wage cut demand was
that the Shell 7 be restored to
their wage rates and be paid
backpay.  When he was asked about the wage cut demand, he
said: “[We want] that the
money that was taken from us without
an agreement to be brought back”.  The minutes of the
meetings held between TAWUSA
and Unitrans on 21 and 25 October
also reflect that part of the wage cut demand was that Unitrans
pay the Shell 7 their
backpay arising from the underpayment from
February 2009.  In the minutes of the meeting of 25 October
TAWUSA reported thus:
“The union stated that their wages should
be adjusted
and back-pay be paid
”.
[134]
In its final ultimatum issued at 14h05 on 1
November Unitrans
inter alia
recorded that TAWUSA’s and the workers’ wage cut
demand was that—
“
all
drivers from the former Shell contract that ended in February 2009 be
paid wage rates according to their wage rates valid at
that time.
This also involves that adjustments of the wage rates as result of
increases be determined according to the former
wage rates
and
backpay of the wage rate variance be paid
.
Kindly note that this demand is not lawful as, in terms of previous
court rulings, only 7 employees can be affected by this
demand.”
[135]
I draw attention to the fact that Unitrans
itself makes it clear in this paragraph of its final ultimatum that
its understanding
of the wage cut demand was that part of what
TAWUSA and the workers were demanding by way of the wage cut
demand was
that Unitrans pay the backpay arising out of the
underpayment of the Shell 7 since February 2009.  It is true
that in the
above passage Unitrans said in effect that TAWUSA and the
workers added other former Shell contract drivers to this demand.

However, even if that were so, the fact remained that the Shell 7
were included in that demand and, in so far as there was the
demand
that the Shell 7 be restored to the correct wage rate and be paid
their backpay and increases, the wage cut demand
was being
pursued.
[136]
In the next paragraph Unitrans wrote:
“
As
a gesture of good will and in order to end the current unlawful
strike action, management has acceded to your demand pertaining
to
the 7 employees in issue.  The
7
employees’ wage rates will be re-instated from the time they
transferred from the former Shell contract.
They
will
also be paid the variances in wage
rates due as result of wage increases since their transfers.
The aforesaid payments will be
backdated for the full period since
their transfers.
Your demand has
therefore been fully resolved with regard to these 7 employees.
Your demand pertaining to the 7 employees
in issue can thus not
form the subject matter of any continued strike action.  Kindly
note that should you continue to strike
in support of your ‘wage
cut’ demand pertaining to the other former Shell contract
employees, your strike action will
remain unlawful.”
In the
next paragraph in the final ultimatum Unitrans called upon the
workers to resume their normal duties at 06h00 on 2 November
failing
which they would be dismissed unless they or their representatives
gave reasons why their strike was lawful and protected.
It also
said that employees who failed to comply with the final ultimatum and
who were dismissed would “be paid any monies
due to them by the
company by not later than 17 November”.  There was no
indication when the Shell 7 would be paid their
backpay.
[137]
It is clear from the final ultimatum that
Unitrans adopted the position that by promising that “[t]he 7
employees’ wage
rates [would] be reinstated . . .”, that
“[t]hey [would] be paid the variances in wage rates due to wage
increases
since their transfers” and that these payments would
be backdated for the full period since their transfers, it took the
view that it had complied with the wage cut demand.  It
then took the attitude that the individual applicants and the
other
workers, to the extent that it may previously have been argued that
they were entitled to withhold their labour in support
or pursuit of
the wage cut demand, were no longer entitled to withhold their
services in support thereof.  That is why
it then called upon
them to return to work at 06h00 the following morning to perform
their work in terms of their contracts of
employment and threatened
them with dismissal if they failed to do so.
[138]
The question that arises is: did Unitrans’
promise or undertaking constitute compliance with the wage cut
demand of the
workers and, thus, entitle it to call upon the workers
to perform in terms of their contracts of employment?  I am not
sure
whether Unitrans’ statement that it would reinstate the
wage rates of the Shell 7 had the effect of restoring the Shell 7
to
the wage rates they enjoyed prior to their transfer from the Shell
contract.  My uncertainty arises from the fact that
I do not
know whether at a practical level there were any specific measures or
steps that Unitrans was required to take in order
to effect their
restoration for purposes of future payments.  What I am sure
about is that Unitrans’ promise or undertaking
to pay the Shell
7 the backpay did not constitute compliance with that part of the
wage cut demand that required Unitrans
to pay the backpay.
That part of the wage cut demand required Unitrans to actually
pay the backpay and not to promise
to pay or to make a promise to pay
it at some stage in the future.  A promise to pay the backpay
does not equate to the payment
of the backpay.  There was no
full compliance with the wage cut demand.  An example to
illustrate this may help.
If a court orders an employer to
reinstate an employee to his position and pay him his backpay and the
employer reinstates him
but does not pay him his backpay but promises
that he or she will pay it in due course, there is no full compliance
with the order
of the court.  There will only be full compliance
when the employee has actually been paid his or her backpay as well.
[139]
That what was required of Unitrans was to
actually pay the backpay is understandable when regard is had to the
following facts:
(a) there were existing contracts of employment
in terms of which Unitrans had already made the undertaking to each
one of
the Shell 7 to pay him at the agreed wage rate; (b) when
the strike started, Unitrans had been defaulting on this obligation

for the previous 18 months; and (c) after waiting for about 18
months for Unitrans to comply with its obligation in terms
of their
existing contracts of employment, the Shell 7 must have wanted actual
compliance by Unitrans with its obligation and not
a promise to
comply.  Unitrans understood full well that the wage cut
demand had a component in terms of which it had
to actually pay the
Shell 7 their backpay.  In its final ultimatum this
understanding is reflected in the paragraph above
the one in which
Unitrans elected to make a promise to pay.
[140]
Unitrans appears to have been in too much
of a hurry to get the workers back at work with the result that it
failed to comply with
the wage cut demand in full.  Full
compliance meant the restoration of the Shell 7 to their wage rates
and the actual
payment of their backpay.  If Unitrans had done
this, it would have complied with the wage cut demand and,
assuming that
the workers could not continue withholding their labour
in pursuit of the wage discrepancy demand, the strike would have
ceased
to be protected and Unitrans would have been entitled to call
upon the individual applicants and other workers to return to work

and perform their normal duties.  However, until Unitrans had
restored the Shell 7 to their agreed wage rates and actually
paid
them their overdue backpay, it had no right to call upon them and the
other workers to return to work and they were not under
any
obligation to heed any such call.  This is because, where a
collective refusal to work is resorted to in support of a
certain
demand upon an employer, the workers are entitled to continue to
withhold their labour as long as the employer has not
complied with
that demand.  It is only when the employer has complied with the
demand or the demand has been abandoned or
a settlement agreement has
been concluded that the workers’ right to withhold their labour
ceases to exist.  Partial
compliance with the demand is not good
enough.  What is required is full and unconditional compliance
with the demand.
[141]
In the present case part of the demand was
that Unitrans pay the Shell 7 their backpay and Unitrans has failed
to show that it met
or complied with this part of the demand.
The onus was upon Unitrans to show that it met or complied with the
wage cut
demand in full.  The result of this is, therefore,
that what Unitrans did in making the promise to restore the wage rate
of
the Shell 7 and the promise to pay them their backpay some time in
the future did not interrupt or terminate the protected status
of the
strike.  Therefore, the strike continued to be protected.
That being the case, Unitrans had no right in law to
issue the final
ultimatum to TAWUSA and its members and to call upon the workers to
return to work.  Therefore, Unitrans did
not dismiss the
individual applicants and the other workers for participating in an
unprotected strike but dismissed them for participating
in a
protected strike.  That means that it dismissed them for
exercising their right to strike.  That rendered the dismissal

automatically unfair.
[142]
Another
way of approaching the matter is that Unitrans had been in breach of
the contracts of employment between itself and each
one of the Shell
7 employees and its performance of its obligation was long overdue as
the Shell 7 had performed their part of
the bargain all along.
An employee’s obligation to work and the employer’s
obligation to pay the employee the
agreed wage are reciprocal
obligations. Once an employee has performed the work, the employer is
obliged to pay the employee the
agreed wage.  As long as the
employer owes the employee his or her wages or part of his or her
wages, the employee is entitled
to refuse to work and the employer is
not entitled to the services of the employee and has no right in law
to call upon the employee
to perform.  In
Coin
Security (Cape)
[87]
the Court
inter
alia
said:
“
Just
as the employer is entitled to refuse to pay the employee if the
latter refuses to work, so the employee is entitled to refuse
to work
if the employer refuses to pay him the wages which are due to
him.”
[88]
That
being the case, Unitrans was not entitled to call upon the Shell 7 in
its final ultimatum to perform their obligations until
it had
performed its long overdue obligations.  As long as the Shell 7
were entitled to withhold their services, the rest
of the workers
were entitled to also collectively refuse to work in support of the
demand of the Shell 7.  On this basis,
too, the dismissal would
be automatically unfair.
The
wage discrepancy demand
[143]
My Colleague, Jafta J, has written a
judgment (third judgment) in which he expresses support for the order
that I propose but does
so for different reasons.  He expresses
the view that on 1 November Unitrans met or complied with the
wage cut demand.
The third judgment implies that, to the
extent that the workers may be said to have continued to withhold
their labour in support
of the wage cut demand after they had
become aware of Unitrans’ promise, support for that demand
could not have entitled
them to withhold their labour anymore.
I have dealt fully above with the issue of why Unitrans’
promise did not constitute
compliance with the wage cut demand
or why it did not remedy the grievance based on the wage cut
demand.  Nothing
more needs to be said about this aspect of the
matter.
[144]
The third judgment concludes that Unitrans
did not comply with the wage discrepancy demand which was one of the
two demands in support
of which the first LAC judgment permitted the
workers to withhold their labour.  Therefore, continues the
third judgment,
after Unitrans’ promise in regard to the
wage cut demand the workers were entitled to withhold their
labour only in
support of the wage discrepancy demand which had been
permitted by the first LAC judgment.  While I agree that the
workers
were entitled to withhold their labour in support of the wage
discrepancy demand permitted by the Labour Appeal Court, note must
be
taken of the fact that there are different versions of the wage
discrepancy demand.  Therefore, the question is not so
much
whether the workers were entitled to withhold their labour in support
of the wage discrepancy demand but whether the version
of the wage
discrepancy demand in support of which they may have withheld their
labour was the one permitted by the Labour Appeal
Court.  They
were not entitled to withhold their labour in support of a different
version of the wage discrepancy demand.
I say they may have
withheld their labour because there is no evidence that they were
obliged to work between 16h00 on 1 November
and 08h00 on
2 November when they were dismissed.  However, for purposes
of this part of the judgment I shall assume
that they were obliged to
work that night but they collectively refused to work in support of a
certain version of the wage discrepancy
demand.
[145]
For the proposition that the version of the
wage discrepancy demand in support of which the workers withheld
their labour was permitted
by the first LAC judgment, the third
judgment relies simply on the fact that in their strike notice of
26 October TAWUSA and
the workers included a demand called wage
discrepancy.  The third judgment does not inquire into what
TAWUSA and the workers
meant by that term and what they wanted under
the wage discrepancy demand.  The third judgment also refers to
the contents
of TAWUSA’s letter of 27 October to Unitrans.
However, the contents of that letter do not affect the question of
what
TAWUSA and the workers meant by the wage discrepancy demand.
[146]
In looking at the first LAC judgment, the
third judgment confines itself to the fact that one of the demands
the first LAC judgment
permitted the workers to pursue by way of a
collective refusal to work was a demand called wage discrepancy.
The third judgment
does not analyse the first LAC judgment to
establish precisely what it contemplated under the wage discrepancy
demand.  On
what TAWUSA and the workers wanted under the wage
discrepancy demand, the third judgment confines itself to TAWUSA’s
and
the workers’ say so in the strike notice.  In the
strike notice they said in effect that the collective refusal to work

would be in support of the demands permitted by the first LAC
judgment.  The third judgment fails to take into account
statements
made by TAWUSA and the shopstewards which throw light on
what they wanted under the wage discrepancy demand and what they
understood
that term to mean or entail.  In this regard I am
referring to statements that they made before the commencement of the
strike
and during the strike.  The third judgment also ignores
the evidence given by Mr Ngedle at the trial in the Labour Court on

what TAWUSA and the workers wanted under the wage discrepancy demand.
[147]
A proper analysis of the first LAC judgment
reveals that the demand that the first LAC judgment permitted the
workers to pursue
by way of a collective refusal to work under the
wage discrepancy or wage parity demand is something different from
what TAWUSA
and the workers pursued under the wage discrepancy demand
or wage parity demand.  Therefore, what TAWUSA and the workers
pursued
under this demand fell outside what was permitted by the
first LAC judgment.  This, therefore, means that the workers
were
not entitled to pursue their version of the wage discrepancy
demand by way of a collective refusal to work.  In what follows

I provide the analysis of both the first LAC judgment and the
statements made by TAWUSA, the shopstewards and Mr Ngedle.
The
first LAC judgment: what it permitted and what it did not
[148]
The key to understanding what version of
the wage discrepancy demand the first LAC judgment permitted the
workers to pursue is understanding
what Unitrans’ contention
was before the Labour Appeal Court and the fact that the Labour
Appeal Court accepted Unitrans’
contention.  Unitrans’
contention was that clause 50(1) and (3) of the Main Collective
Agreement precluded TAWUSA
from pursuing, outside the bargaining
council, the four demands by way of withholding their labour.
Clause 50(1) and (3)
read as follows:
“
(1)
The forum for the negotiation and conclusions of substantive
agreements on wages, benefits and
other conditions of employment
between employers and employers’ organisations on the one hand
and trade unions on the other
hand, shall be the Council.
. . .
(3)
No trade union or employers’ organisation shall attempt to
induce, or compel,
or be induced or compelled by, any natural or
juristic person or organisation, by any form of strike or lock-out to
negotiate the
issues referred to in subclause (1) above at any level
other than the Council.”
The Main
Collective Agreement defined “substantive issues” as “all
issues involving costs and affecting the wage
packets of employees”.
[149]
The
first LAC judgment recorded
[89]
Unitrans’ contention as having been that the demand labelled as
“wage discrepancies”, the demand labelled as
“wage
reduction” (which was the wage cut demand) and the demand
labelled as “[c]oupling R500 pw” “[were]
all
related to and connected with wages and [were] substantive issues and
as such [TAWUSA] [was] prohibited in terms of clause
50(1) and (3)
read with
s 65(1)(a)
and (3)(a)(i) from calling upon its members
to strike in order to secure these demands”.  What Waglay
DJP then said
in the next two sentences after this is critical.
He said:
“
I
accept that where a demand is made for an increase in remuneration or
for remuneration to be paid in relation to a particular
aspect of
employment such demands relate to wages and are substantive
issue[s].  If the demands as we have them here are about
wages
and substantive issues then, as [Unitrans] has properly argued,
[TAWUSA] is prohibited from calling on its members to embark
upon a
strike in respect of those issues.”
[90]
What the
Labour Appeal Court said in the above passage is that TAWUSA was
prohibited from calling its members out to collectively
withhold
their labour in support of any demand that related to an increase in
wages or to payment of remuneration in relation to
a particular
aspect of employment.
[150]
In line with the principle captured in the
above passage, the first LAC judgment later concluded that the demand
referred to as
“[c]oupling R500 pw” related to an
increase in wages and was, therefore, a substantive issue.  It
held that the
workers could not withhold their labour in support of
that demand.  The Labour Appeal Court said:
“
This
demand in my view is clearly an issue which falls within the ambit of
clause 50(1) and (3) as it is an issue that is connected
and
related to substantive issues because it involves costs and affects
wage packets.  The demand is therefore hit by the
provision
contained in
s 65(1)
of the LRA.”
[91]
[151]
The basis upon which the Court held that
the workers could not pursue the “[c]oupling R500 pw”
demand by way of a collective
withdrawal of labour was that it
involved costs and affected employees’ wage packets.  From
this, it is clear that Waglay
DJP held that a demand that involved
costs and affected employees’ wage packets was not permitted to
be pursued by way of
a collective refusal to work.
[152]
What did TAWUSA and the workers want under
the wage discrepancy demand?  The answer is simple and straight
forward because
TAWUSA and the shopstewards made statements at
meetings held with the Unitrans management in which they explained
what they wanted
under this demand.  At the meetings held
between TAWUSA and Unitrans on 21 and 25 October – which was a
few days before
the commencement of the strike – TAWUSA said
that the demand in respect of the “wage discrepancies”
was a demand
for an across the board increase for all drivers,
general workers and administrative staff to the rate at which the
highest paid
staff were paid at the time.  Unitrans’
attorneys, Glyn Marais Inc, put this on record in a letter dated 26
October
addressed to TAWUSA.  TAWUSA has never disputed that it
said this in those meetings concerning what it and the workers wanted

under the wage discrepancy demand.
[153]
The minutes of the meeting of 27 October
between TAWUSA and the Unitrans management reveal that, after
Unitrans had asked TAWUSA
to clarify what exactly they wanted under
the wage discrepancy demand, TAWUSA’s explanation was the
following:
“
The
union explained that it wanted all employees to go from a lower rate
to a higher rate.  For example all code 14 licenced
drivers
should earn the same nationally.  There are employees in Cape
Town who are earning R47,00 per hour and those in Gauteng
earning
R27,00.  It is the union’s demand that all should be equal
in terms of rate.”
A little
later the minutes record:
“
The
question was posed to the union four times about the same demand of
the wage discrepancy and parity, and the standard answer
was that all
employees who are on a lower rate in any category including the
administrators should be paid at the highest rate
in the company.”
TAWUSA
repeated this stance at the meeting of 28 October which was the first
day of the strike.  The accuracy of the minutes
was accepted by
TAWUSA and the individual applicants at the trial.
[154]
There was another meeting between TAWUSA
and Unitrans on 1 November.  This was during the course of
the strike.
At the trial Mr Ngedle confirmed that at that
meeting TAWUSA and the shopstewards demanded under the wage
discrepancy demand that,
as a compromise, Unitrans should pay R38,00
per hour.  When it was put to Mr Ngedle under cross-examination
that this would
have meant an increase for a large number of
employees, he conceded this.  He said that some of the drivers
were paid R27,00
per hour, others R31,00 per hour and others R35,00
per hour.  Those drivers would have been some of the employees
who would
have got an increase.  Throughout the meetings TAWUSA
made it clear that it did not want any employees’ wages to be
reduced in order to achieve wage parity.  It follows that under
the wage discrepancy demand TAWUSA and the workers wanted a
wage
increase for at least some of the workers.  Therefore, their
version of the wage discrepancy demand was one that entailed
an
increase in wages.  It was a version of the wage discrepancy
demand that the Labour Appeal Court held the workers could
not pursue
by way of a collective refusal to work.  The demand was also hit
by clause 50(1) and (3) of the Main Collective
Agreement.
[155]
What
I have referred to above in respect of the first LAC judgment reveals
what that judgment did not permit.  It did not permit
the
workers to withhold their labour in support of a demand that related
to an increase in remuneration or wages or that affected
the wage
packets of the employees.  The Labour Appeal Court made this
clear in paragraph 18 which has been quoted above.
[92]
What did it permit in regard to the wage discrepancy demand?
What the Labour Appeal Court held the workers could pursue
by way of
a collective withdrawal of labour under the wage discrepancy demand
is to be gathered from a reading of paragraphs 18,
19, 20, 21 and 25
of the first LAC judgment.  In paragraph 19 of the first LAC
judgment, the Court said in the first sentence:
“I am however
not persuaded that the first two demands made by [TAWUSA] are demands
which relate to an increase in wages.”
The two demands to
which the Court was referring were the wage discrepancy demand (which
the Court also called wage parity) and
the wage cut demand.
From this statement it can be concluded that the wage discrepancy
demand that the first LAC judgment
permitted the workers to pursue by
way of a collective refusal to work was one that did not relate to an
increase.  This has
to be so because in paragraph 18 of its
judgment the Court had just laid down the principle that workers
would not be entitled
to withhold their labour in support of a demand
that related to an increase in wages or that affected the wage
packets of employees
and in the first sentence of the following
paragraph the Court said it was, however, not persuaded that these
two demands related
to an increase in wages.
[156]
Waglay DJP then went on to say:
“
As
counsel for [TAWUSA] argued
the
demand for wage parity is not a demand for an amount of money
but requires of [Unitrans] to adjust wages so as to arrive at a
uniform level of remuneration for employees performing the same
work
albeit
on different contracts.”
[93]
This
paragraph reveals that Waglay DJP was persuaded by Counsel for TAWUSA
that the wage discrepancy demand or the demand for wage
parity “[was]
not a demand for an amount of money but require[d] of [Unitrans] to
adjust wages so as to arrive at a uniform
level of remuneration for
employees performing the same work albeit on different contracts”.
In the next paragraph,
[94]
the first LAC judgment concluded that “[t]he demands of ‘wage
discrepancy’ and ‘wage cut’ [were]
not demands
that [fell] within the purview of clause 50(1) and/or (3) of the Main
Collective Agreement and [were] therefore not
issues in respect of
which [TAWUSA] [was] prohibited from calling upon its members to
strike”.
[157]
In the first LAC judgment the Labour Appeal
Court did not explain what the adjustment of wages to which it
referred meant or what
it understood it from TAWUSA’s counsel
to mean.  Counsel for TAWUSA – who was the same counsel
who appeared before
us – never said that Waglay DJP had not
accurately recorded that he had argued that the demand for wage
parity was not a
demand for an amount of money.
[158]
Given this, I am of the view that the first
LAC judgment did not permit a version of the wage discrepancy demand
that entailed an
increase in the wages of the workers.  It only
permitted a version that did not entail an increase in wages of any
of the
workers.  I conclude that TAWUSA’s and the workers’
demand articulated as the wage discrepancy demand was not permitted

by the first LAC judgment.  Accordingly, the workers, including
the individual applicants, were not entitled to pursue it
by way of a
collective refusal to work.  The third judgment concludes that
the workers were entitled to pursue the wage discrepancy
demand by
way of a collective refusal to work but that proposition is not
supported by anything said in the first LAC judgment.
In fact
the third judgment’s conclusion flies in the face of the first
LAC judgment, particularly paragraphs 19, 20, 21 and
25.
Assuming
that the strike ceased to be protected
[159]
I am unable to agree with the first
judgment that from 14h05 on 1 November onwards the individual
applicants and other workers
participated in an unprotected strike
and that at a substantive level Unitrans acted fairly in dismissing
them.  In dealing
with this part of the matter, it must be borne
in mind that, where the employer relies on misconduct on the part of
employees to
justify their dismissal, the employer bears the onus to
prove the misconduct and to show that dismissal was the appropriate
sanction.
Section 192(2)
of the LRA provides that “[i]f
the existence of the dismissal is established, the employer must
prove that the dismissal
is fair”.
[160]
In labour law parlance the term
“misconduct” refers to conduct on the part of an employee
that constitutes either a
breach of the contract of employment or a
breach of a workplace rule.  Participation in an unprotected
strike constitutes
a breach of the contract of employment of the
employees and is, therefore, misconduct.  However, before one
can talk about
whether employees took part in an unprotected strike,
it must first be shown that the conduct of the employees constitutes
a strike.
In my view, on this aspect, too, the first judgment
goes wrong.  I explain below.
[161]
The
definition of the word “strike” in the LRA includes the
phrase “concerted refusal to work . . .”.
That part
of the definition – as opposed to the reference to the
“retardation or obstruction of work” –
is the part
applicable to a case such as the present where the workers completely
refuse to work.  It is a basic principle
of our law that, for
employees to be said to be on strike, they must be collectively
refusing to work at a time when, in terms
of their contracts of
employment, they are obliged to be working.
[95]
If the time when the workers are not working is a time when they are
not obliged to be working, they cannot be said to be
on strike except
when their conduct constitutes an overtime ban.  This is why, if
workers who take their lunch break from
13h00 to 14h00 collectively
stop working at 13h00 on a particular day and spend their lunch break
singing, toyi-toying and carrying
placards outside of or by the gate
of the employer demanding a wage increase, they are not in law
engaged in a strike.  However,
once they do that at a time when
they are obliged to work, they will be on strike and, if the
prescribed statutory procedures have
not been followed, the strike
will be an unprotected strike.
[162]
That is also why, if a group of workers who
are on annual leave join their colleagues who are not on leave when
the latter collectively
refuse to work in support of a demand for a
wage increase and they join in the singing and dancing and in the
demand for a wage
increase, in law they are not striking but their
colleagues are.  The difference is that they are not obliged to
work whereas
their colleagues are obliged to work.  If their
colleagues’ strike was unprotected, their colleagues would be
guilty
of misconduct but they would not be. If their colleagues were
dismissed for taking part in an unprotected strike, they could not
be
dismissed.  Against this background, we have to establish
whether the individual applicants were obliged to work between
16h00
on 1 November and 06h00 on 2 November.
[163]
The individual applicants were employed as
shift workers.  That is what their letters of appointment say.
The letters
also say that the workers work a 45 hour week.  They
then say on shift work:
“
Employees
will be
required
to work shift work in accordance with their contract[s].
Your
starting
times may vary from time to time as required by the needs of the
contract
and you undertake to make yourself available to start at these
times.”
[164]
There were just under 200 or so workers who
were dismissed by Unitrans at about 08h00 on 2 November.  Only
94 of those are
individual applicants in this matter.  All the
others were re-employed by Unitrans after it had advertised the
vacancies which
arose out of the dismissals.  They were
re-employed (not reinstated) on lower wage rates.  On the
assumption that the
final ultimatum was received by the workers at
about 16h00 or so, the question that arises is whether, in terms of
their contracts
of employment, the individual applicants were obliged
to work between 16h00 on 1 November and 06h00 on 2 November.
If
they were obliged to work but collectively refused to work in
support of their demand, they were striking.
[165]
Whether the individual applicants were
obliged to work during that time will depend upon whether or not they
were supposed to work
a night shift on that day or during that week.
If they were not supposed to work a night shift that day or during
that week,
they were not obliged to work between 16h00 or 17h00 or so
on 1 November and 06h00 on 2 November.  If they were not
obliged
to work during those hours, they cannot be said to have been
striking.  Obviously, if they cannot be said to have been
striking,
they also cannot be said to have taken part in an
unprotected strike.  If they cannot be said to have taken part
in an unprotected
strike, they cannot be said to have acted in breach
of their contracts of employment and can therefore not be said to
have been
guilty of the misconduct for which they were dismissed.
This would mean that they were dismissed for no fair reason but,
because the strike on four of the five days on which Unitrans thought
they participated in an unprotected strike was a protected
strike,
the dominant reason for their dismissal would be participation in a
protected strike.  That still renders their dismissal

predominantly automatically unfair because the dominant reason for
dismissal was participation in a protected strike.
[166]
The next question is: were the individual
applicants obliged to work a shift from about 16h00 on 1 November to
06h00 on 2 November?
In other words, were they on the shift
that was obliged to work during those hours?  The answer is that
on the record before
us we do not know the answers to these
questions.  Unitrans was obliged to have led evidence on these
aspects of the case
about the individual applicants’ conditions
of employment or the shift or shifts on which they were obliged to be
on that
day or that night.  It did not do so.  It may well
be that all the workers who were on the shift that was obliged to
work during those hours are among those who were re-employed and are
not among the individual applicants.  It may also well
be that
some of the individual applicants were on the shift that was obliged
to work during those hours.  We simply do not
know.
Unitrans, therefore, failed to prove this.
[167]
It seems to me that the reason why Unitrans
did not lead this evidence is that its attitude was that the strike
was unprotected
from beginning to end.  That is why its case was
that the individual applicants took part in an unprotected strike for
six
days.  If, indeed, the strike had been unprotected from
beginning to end, it may not have mattered that we do not know
whether
the individual applicants were obliged to work the night
shift from about 16h00 or 17h00 on 1 November to 06h00 on 2 November

because their participation in an unprotected strike over four or
five other days may have been enough at a substantive level to

justify their dismissal.  However, if the strike is taken to
have ceased to be protected around 16h00 on 1 November,
the need
to know whether the individual applicants were obliged to work night
shift that day arises.
[168]
The fact that Unitrans failed to prove that
the individual applicants were obliged to work between 16h00 on 1
November and 06h00
on 2 November means that it cannot be said that
the individual applicants were on strike – not to speak of an
unprotected
strike.  If they did not participate in an
unprotected strike during those hours, it means that the only strike
they participated
in was a protected strike.  This means that
the dominant reason why they were dismissed is participation in a
protected strike.
Therefore, on this approach they were
dismissed for exercising their right to strike.  That renders
their dismissals automatically
unfair.
[169]
Even if Unitrans had proved that the
individual applicants had been obliged to work between 16h00 on 1
November and 06h00 on 2 November,
and, therefore, did
participate in an unprotected strike when they collectively refused
to work during those hours, their dismissals
would not have been
substantively fair.  In this regard we must recall that,
according to Unitrans, the conduct for which
Unitrans dismissed the
individual applicants is their collective refusal to work from 14h30
on 28 October to 06h00 on 2 November
which it believed constituted an
unprotected strike.  Firstly, Unitrans was wrong to say that
that was six days.  It
is less than five days because the
refusal to work started at 14h30 on 28 October and from that time on
that day to 06h00 on 2
November was four days 16 hours or so.
Secondly, the individual applicants’ refusal to work from 14h30
on 28 October
to about 16h00 on 1 November –
which was four days and two hours or so – was part of a
protected strike and,
therefore, Unitrans could not dismiss the
individual applicants for their refusal to work during that period.
[170]
Only the refusal to work from 16h00 on 1
November to 06h00 on 2 November would constitute misconduct but,
even that misconduct,
would not justify the dismissal.  One
would be talking about an unprotected strike lasting about 14 or 15
hours.  The
position is that Unitrans would have dismissed the
individual applicants without having held any discussions with TAWUSA
or the
workers after the commencement of the unprotected strike.
The individual applicants would have been dismissed without any

ultimatum having been issued after a discussion with the union about
the development that rendered the strike unprotected.
Indeed,
the workers would not have been allowed enough time to digest the
latest developments and discuss it and seek legal advice
before
deciding what to do.
[171]
This is a case that required the workers
and TAWUSA to be given a lot of time to reflect on the legal
implications of Unitrans’
promise.  This is so because
whether the strike was protected or not was a complex legal issue.
This can be seen from
the fact that out of eight Judges of the Labour
Court and Labour Appeal Court who dealt with the question whether or
not the strike
was protected, four who heard the matter after the
first LAC judgment got it wrong.  In the Court a quo three
Judges of the
Labour Appeal Court held that the strike was
unprotected and yet it was protected.  Prior to that, the trial
Judge in the
Labour Court had also held that the strike was
unprotected.  Even in this Court, the Court is divided on the
issue.
Therefore, TAWUSA and the workers deserved to have been
given no less than 48 hours to seek legal advice on the effect of
Unitrans’
promise on the legal status of the strike.  The
workers on their own – in fact even with the help of the union
–
could not reasonably be expected to have appreciated the
legal effect that Unitrans’ promise would have had on the legal
status of the strike.  Unitrans itself got the legal status of
the strike wrong.  Throughout, it said that the strike
was
unprotected and we have held that it was protected.
[172]
Other factors that support the view that
the dismissal would still have been predominantly automatically
unfair or substantively
unfair even if the individual applicants had
been obliged to work between 16h00 on 1 November and 06h00 on
2 November and
can, therefore, be said to have participated in
an unprotected strike between 16h00 or 17h00 on 1 November and
about 06h00
on 2 November are the following:
(a)
for the best part of its duration, the
strike was protected;
(b)
the strike was peaceful – the only
witness of Unitrans to testify did not give any evidence that there
was any violence by
the workers during the strike;
(c)
the unprotected strike would have been of
short duration;
(d)
the strike would have been caused by
Unitrans’ unlawful conduct in acting in breach of the contracts
of employment between
itself and each one of the Shell 7;
(e)
whatever financial loss Unitrans may have
suffered could not be taken into account because it largely flowed
from the protected
part of the strike;
(f)
the workers had complied fully with the
statutory procedures required to be followed to render strikes
protected and it was only
Unitrans’ promise that may have
changed the strike from a protected strike to an unprotected strike;
(g)
Unitrans had not yet paid the Shell 7 the
backpay which it owed them which was a major cause of the strike;
(h)
the workers have no bad disciplinary
record;
(i)
there is no indication that in the past the
individual applicants had ever been involved in any unprotected
strike;
(j)
in effect Unitrans subsequently condoned
participation in the strike by the workers whom it re-employed
without giving them even
a disciplinary warning;
(k)
TAWUSA and its members co-operated fully
with Unitrans and suspended the commencement of the strike on three
occasions: (i) when
Unitrans sought to obtain an interdict from
the Labour Court; (ii) when it sought to pursue an appeal to the
Labour Appeal
Court; and (iii) when Mr Badenhorst was not
available and was travelling; and
(l)
TAWUSA and the workers
bona
fide
believed that the strike was
protected and this fact was conceded by Mr Badenhorst under
cross examination.
[173]
A strong factor that shows that dismissal
was not a fair sanction in this case and would not have been a fair
sanction even if the
strike had been unprotected is that a few days
after the dismissal of the workers Unitrans re-employed every
dismissed employee
who applied for re-employment but employed them at
a lower wage rate than their previous rates.  There is no
suggestion that
upon re-employment the employees were given a
disciplinary warning of any kind.  Dismissal as a sanction for
misconduct is
a sanction of last resort.  It has sometimes been
referred to as the “death penalty”.  This is said in
the
light of the harsh consequences it may have on an employee who is
dismissed.  For that reason dismissal is only appropriate
as a
sanction for dismissal in those cases where the misconduct of which
the employee is guilty is one that at least the employer
considers to
render a continued employment relationship intolerable or
unacceptable.
[174]
It is clear from Unitrans’ statement
of defence in the Labour Court that Unitrans was prepared to
re-employ any of the dismissed
workers a few days after it had
dismissed them.  That means that it was also prepared to
re-employ the individual applicants
if they applied for
re-employment.  Unitrans’ preparedness to re-employ all
the workers it had dismissed if they applied
for re-employment is
irreconcilable with the notion that it dismissed them because it
found their conduct so serious or unacceptable
that a continued
employment relationship with them would be intolerable.
[175]
The
first judgment concludes that the individual applicants’
dismissal was justified and substantively fair.  We must
at this
stage remember what the individual applicants and many other
colleagues of theirs were dismissed for.  Unitrans said
it
dismissed them for participating in an unlawful and unprotected
strike for six days.  As I have said elsewhere in this

judgment,
[96]
at worst for the workers the strike can only be said to have been for
four days and 14 or so hours, if one takes the view that
between
16h00 on 1 November and 06h00 on 2 November the workers participated
in a strike.  Unitrans believed that the strike
was unlawful and
unprotected from beginning to end.  It was within this context
that Unitrans believed that the dismissal
was justified and
substantively fair.
[176]
The first judgment’s conclusion that
the dismissal was justified and substantively fair is not based on
the view that the
strike was unprotected from beginning to end.
It is based on the view that for the period 28 October to 14h05 on
1 November
the strike was protected and that for the period from
14h05 on 1 November to 06h00 on 2 November the strike was
unprotected.
That means that, for over 80% of the strike
period, the strike was protected and it was unprotected for only less
than 20% of the
period.  We know this because
four
days
out of
four
days and just over half of the fifth day
is over 80%.
[177]
The first judgment’s conclusion is
based on the proposition that for 20% of the strike period the
individual applicants participated
in an unprotected strike.
The first judgment reaches its conclusion notwithstanding the fact
that for 80% of the strike period
the strike was protected.  In
my view, such a conclusion evokes the same feeling as I think would
be evoked if one was told
that a teacher failed a student who got 80%
in an examination paper just because he or she failed to get 100%
that the teacher
wanted the student to get.  The conclusion that
the dismissal was justified and substantively fair is irreconcilable
with
the fact that for four days the strike in which the individual
applicants participated was protected and the period in which it
was
not protected was only about half a day.
[178]
I would have thought that, if 80% of the
conduct for which the workers were dismissed was lawful or protected
and only 20% was unlawful
or unprotected, the conclusion would be
that the dismissal was not justified and was substantively unfair.
In my view the
conclusion that in such circumstances the dismissal
was justified and substantively fair is difficult to understand.
In reaching
its conclusion, the first judgment fails to take into
account the context in which the allegedly unprotected part of the
strike
took place.  It ignores the fact that, if between 14h05
on 1 November and 06h00 on 2 November, it can be said that

the individual applicants took part in an unprotected strike, for the
four days before that, the strike had been protected and
it was only
for part of the fifth day (14 or 15 hours) that it was unprotected.
The first judgment overlooks the fact that
this was one strike and,
if for the first four days the strike was protected and the
unprotected portion of the strike was a little
over half a day, then
for more than 80% of the strike period, the strike was protected.
[179]
The first judgment treats the individual
applicants as if they participated in a wildcat strike and never
followed the dispute resolution
procedures of the LRA when in fact
they did.  TAWUSA and the individual applicants may legitimately
ask: what is the point
of taking the trouble to follow the statutory
procedures if in the end those who follow the statutory dispute
procedures are treated
as if they went on a wildcat strike?
Under the LRA the approach of the courts when assessing the
substantive fairness of
a dismissal for participation in a strike
should be to encourage trade unions and employees to utilise the
dispute resolution mechanisms
of the LRA to resolve their disputes
with their employers because that is good for not only our labour
relations but also for our
economy.  Therefore, the courts must
deal with cases of dismissal for participation in strikes in a manner
that encourages
unions and workers to utilise the statutory
mechanisms and procedures and discourages them from engaging in
wildcat strikes.
[180]
The first judgment fails to take into
account the short duration of the unprotected portion of the alleged
strike.  The result
of this is that the first judgment implies
that the duration of the strike is irrelevant when assessing the
substantive fairness
of a dismissal for participation in an
unprotected strike.  In terms of our labour law jurisprudence
the duration of an unprotected
strike has always been an important
factor to take into account in assessing the substantive fairness of
a dismissal.  The
first judgment’s failure to take the
duration of the unprotected strike into account means that, according
to it, whether
the unprotected strike took one hour or five hours or
a whole week is not a factor to be taken into account.
[181]
The
first judgment’s conclusion that the individual applicants
participated in an unprotected strike from 14h05 on 1 November
to
06h00 on 2 November is reached despite the absence of evidence
showing that the individual applicants were obliged to be on
a shift
during those hours.  That conclusion is legally untenable.
In terms of the definition of a strike in the LRA,
a strike is a
refusal by employees to work
[97]
but, as I have said, that is only if the employees are obliged to
work.  Their refusal to work when they are not obliged to
work
cannot be a strike.  Since the first judgment does not inquire
into this issue in regard to this period, it is difficult
to
understand how it can be said that the individual applicants were
striking during those hours.
[182]
A court cannot conclude that workers are
participating in a strike unless it first inquires into whether or
not they are obliged
to work.  The first judgment ought to have
inquired into this issue.  If it had, it would have concluded,
as I have done,
that Unitrans did not produce any evidence that
indicated that the individual applicants were on the shift that was
required to
work between 14h05 on 1 November and 06h00 on 2
November.  Without that evidence, the conclusion that the
individual
applicants were participating in an unprotected strike
during those hours is legally unsustainable.  In fact we do not
even
know whether the individual applicants were on a shift that was
required to work between 06h00 and 14h05 on 1 November when the
final
ultimatum was issued.  It may be that the workers who were
supposed to be working on those shifts are not among the
individual
applicants but are some of those who were re employed after the
dismissal.  How can one then say that the
individual applicants
participated in an unprotected strike during those hours when one
does not know whether they were on a shift
that was to work that
night?
[183]
The first judgment also says that, after
14h05 on 1 November, the individual applicants’ participation
in a strike was in
breach of Basson J’s order.  In fact
the first judgment says that the individual applicants defied Basson
J’s
order.  This is incorrect.  Basson J’s
order could only have interdicted the workers from withholding their
labour
when they were otherwise obliged to work.  It did not and
could not have applied to a situation where the workers were not

obliged to work.  In law it simply cannot be said that the
workers defied Basson J’s order if it is not known whether

during those hours they were under any obligation to work.  The
statement that the individual applicants defied Basson J’s

order creates the impression that TAWUSA and the workers knew that,
to the extent that the workers could be said to have been on
strike
between 14h05 on 1 November and 06h00 on 2 November, their
conduct was in breach of Basson J’s order but they,

nevertheless, continued with their conduct.  This is simply not
so.
[184]
The statement that the workers defied
Basson J’s order is unjustified.  In its strike notice of
26 October TAWUSA said
in effect that the withdrawal of labour would
be in support of the two demands permitted by the Labour Appeal
Court.  What
the first LAC judgment permitted and what it did
not permit under the wage discrepancy demand can be confusing.
TAWUSA and
the workers genuinely believed that they were within their
rights under the first LAC judgment in withholding their labour in
support
of their version of the wage discrepancy demand.  As I
have said, that they genuinely believed that they could continue to

withhold their labour beyond 1 November was conceded by Unitrans’
only witness, Mr Badenhorst.  If they acted in the
genuine
belief that they were entitled to continue to withhold their labour,
they cannot be said to have defied Basson J’s
order.
Defiance of an order of court implies acting maliciously.  The
first judgment fails to take this into account
in their favour in
assessing whether their dismissal was substantively fair.
Dismissal
for operational requirements?
[185]
Mr Badenhorst testified that Unitrans
dismissed the workers because it wanted to end the strike.  He
said that dismissing the
workers was the only way to end the strike.
This evidence proves that Unitrans’ decision to dismiss the
workers was
not really because it took the view that a continued
employment relationship with the workers was intolerable in the light
of their
conduct.  Unitrans was quite happy to continue the
employment relationship with each and every one of the workers as
long
as they stopped participating in the strike.
[186]
The conclusion I have reached above that
the strike was protected from beginning to end means that Unitrans
used a dismissal to
end a protected strike.  That is destructive
of our system of collective bargaining which remains the preferred
method of
the resolution of labour disputes under the LRA.  It
must be viewed in a serious light.  Mr Badenhorst was asked in
his
evidence in chief whether there was any reasonable alternative to
the dismissal of the workers “in the circumstances of the
fifth
or sixth day of the strike”?  His answer was telling.
He said:
“
In
our opinion not, unfortunately.  The only way to end the strike,
that was clear to us was that, first of all . . . in terms
of what we
saw and experienced leading up to the strike and during the strike,
that it would have been a protracted strike.
It would not have
been one where the union or the applicants or the employees rather
would have very quickly come back to work.
After six days there
was no, no intention or signs that these employees would come back.”
[187]
Mr Badenhorst also said that Unitrans could
not continue with “the unprotected strike”.  He said
that Unitrans
would have “literally closed down the business
inland and obviously if we affect inland we would have affected the
coastal
regions and others”.  He said:
“
So,
the only way to protect the business and try to normalise and
continue would have been to end the strike, and the only way to
end
the strike at that stage was dismissal.  I want to again
reiterate, there was no indication whatsoever that these employees

intended to stop soon, or at the time on the 1st and 2nd.”
This
evidence by Mr Badenhorst amounted to him saying that the dismissal
of the workers was for operational reasons to protect Unitrans’

business as opposed to a dismissal for the misconduct of
participating in an unprotected strike.  Participation in an
unlawful
or unprotected strike is the reason for the dismissal that
Unitrans advanced at the time of the dismissal.
[188]
The
dismissal of employees taking part in a protected strike for the
operational reasons of a business faced with an ongoing protected

strike may be permissible but in such a case the employer is required
to meet a very stringent test.  This is so because the
law must
protect the workers’ right to take part in a protected strike
without fear of dismissal for participation in a protected
strike
disguised as a dismissal for operational reasons.  As long ago
as April 1993 – a year before the advent of democracy
in our
country ­ the Labour Appeal Court created by the 1988 Amendments
to the Labour Relations Act 1956, said in
Blue
Waters Hotel
:
[98]
“
If
an employer facing a strike could merely dismiss the strikers from
employment by terminating their employment contracts then
the strike
would have little or no purpose.  It would merely jeopardize the
rights of employment of the strikers.  The
strike would cease to
be functional to collective bargaining and instead it would be an
opportunity for the employer to take punitive
action against the
employees concerned.
The
Act contemplates that the right to strike should trump concerns for
the economic losses which the exercise of that right causes.

That is because collective bargaining is necessarily a sham and a
chimera if it is not bolstered and supported by the ultimate
threat
of the exercise of economic force by one or other of the parties, or
indeed by both.”
[99]
The Act
to which the Court was referring was the precursor to the current
LRA.  However, what the Court said in this passage
would hold
true under the current LRA.
[189]
In regard to a dismissal of strikers for
operational requirements when faced with a lawful or protected
strike, the old Labour Appeal
Court went on to say in the same case:
“
If
the respondent wished to justify dismissing the employees engaged in
their lawful strike it might have done so on the basis of
the
operational requirements of the enterprise, if its financial
circumstances truly warranted that step.  It would then have

been required to negotiate bona fide with the appellant union on the
financial impact of the strike, alternatives to the termination
of
the services of the strikers and related matters.  Only if that
process proved fruitless would the respondent have been
justified to
terminate the services of the employees.  It would then have
done so, not on grounds of misconduct, but for reason
of genuine
economic necessity after following a fair procedure . . . no such
case was made out by the respondent.”
[100]
[190]
Part of Unitrans’ difficulty in
trying to justify the dismissal on operational grounds is that it did
not present evidence
before the Labour Court that showed that the
strike had already caused it so much damage that it would be
justified in dismissing
workers taking part in a protected strike.
Mr Badenhorst only made some unsubstantiated statements.  The
financial position
of Unitrans was not proved.  It was simply
said that Unitrans had lost about R3 million and yet there was
no evidence
to show what R3 million represented to a company
such as Unitrans.  In fact Mr Badenhorst was not employed
by Unitrans
as part of management or in any capacity that would have
enabled him to tell the Court about Unitrans’ financial
situation
as a result of the strike.
[191]
Mr Badenhorst was an outsider to Unitrans
and was a representative of an employer’s organisation.
In any event, Unitrans
would have had to follow the statutory
consultation process applicable to dismissal for operational
requirements if it relied upon
operational requirements and in this
case it made no attempt to initiate such a process.  So, even if
Unitrans sought to justify
dismissing the workers on operational
requirements, it would have failed.  The dismissal would still
be substantively unfair.
[192]
The conclusion I have reached that the
dismissal was automatically unfair makes it unnecessary to inquire
into whether the dismissal
was also procedurally unfair.  The
position would be the same even if I had reached the conclusion that
the dismissal was
substantively unfair.  This is because, if a
dismissal is automatically unfair or substantively unfair, a finding
that it
was also procedurally unfair does not at a practical level
grant the employee any additional remedy in addition to the remedy
arising
out of the finding that the dismissal was automatically or
substantively unfair.
[193]
The first judgment is to the effect that
Unitrans was entitled to issue the final ultimatum when it issued it
but takes the view
that the ultimatum did not afford the workers an
adequate opportunity to reflect on and digest the matter.  From
my conclusion
that the strike was protected from beginning to end it
follows that I think that Unitrans had no right to issue any of the
ultimata
it issued including the final one.  Therefore, the
question of whether it was adequate does not even arise on my
approach.
However, even if I had concluded that the strike
ceased to be protected around 16h00 on 1 November and became
unprotected, I would
have held that Unitrans was not entitled to
issue the final ultimatum at the time it did.  This is because
it was issued before
the strike could become an unprotected strike.
An ultimatum should be preceded by discussions once an unprotected
strike
has commenced so that the parties may try to avoid dismissal.
In this case no discussions took place after the time when the
strike
would have become unprotected.  Unitrans simply issued the final
ultimatum at the same time as when it made its promise
or undertaking
in regard to the Shell 7.
Remedy
[194]
With regard to the remedy, the first
judgment proposes that the matter be remitted to the Labour Court to
fashion a remedy.
This is after that judgment has concluded
that the dismissal was substantively fair but procedurally unfair.
The decision
that the matter be remitted to the Labour Court to
fashion a remedy arises from the fact that there was a delay of about
a year
on the applicants’ part in delivering the record of
appeal to the Registrar of the Labour Appeal Court.  The
judgment
suggests that it would be unfair to expect Unitrans to pay
wages or compensation for that period since it was the applicants who

were responsible for that delay.
[195]
In my
view there is no justification for the decision that the matter
should be remitted to the Labour Court.  First, as an
appellate
court we have to decide the matter in the same way in which, in our
view, the Labour Court should have decided it at
the time when it
made its decision.  Both the Appellate Division in
Performing
Arts Council
[101]
and this Court in
Billiton
Aluminium SA
[102]
made it clear that as a general rule an appellate court will not take
into account facts that arose after the judgment of the court
of
first instance.  The delay in the lodging of the appeal record
with the Registrar of the Labour Appeal Court happened after
the
judgment of the Labour Court.  There are no exceptional
circumstances to justify a departure from this general rule.

Non compliance with the Rules in prosecuting appeals is
something that, unfortunately, happens with regularity in almost all

our appellate courts.
[196]
Furthermore,
a remittal will be unfair to the workers.  It postpones the
finality in this matter.  As we all know, labour
matters need to
be dealt with expeditiously.  It will not even be competent for
the Labour Court to reinstate the workers
because reinstatement is
not competent if a dismissal, as the first judgment finds in this
case, is only procedurally unfair.
[103]
The parties will be forced to incur further legal costs as evidence
may have to be led in the Labour Court in regard to compensation.

After the Labour Court has made a decision on compensation, there
could be another appeal to the Labour Appeal Court and, maybe,
even
to this Court.  If a remittal occurred, the parties would be
going to the Labour Court about this case for the fourth
time.
If there is an appeal to the Labour Appeal Court, the parties would
be going to the Labour Appeal Court about
this case for the
third time.  This cannot be right.
[197]
The conclusion that the individual
applicants’ dismissal was automatically unfair because they
were dismissed for exercising
their right to strike means that they
should be reinstated unless there are exceptional circumstances that
would preclude that
remedy.  It was not argued that there were
any such circumstances in this case.  Even if their dismissal
was not automatically
unfair but was substantively unfair,
reinstatement is the remedy that a court is required by section 193
to order unless one of
the situations listed in section 193(b) to (d)
is present.  It was not argued that any of those situations is
present in this
case.  It is, therefore, appropriate that we
grant the order that, in our view, would have been granted by the
Labour Court
if it had reached the conclusion that it should have
reached.  That is the conclusion that the individual applicants’

dismissal was automatically unfair or alternatively substantively
unfair.
[198]
In my view, the Labour Court would have
granted reinstatement with retrospective effect to the date of
dismissal.  Accordingly,
both orders of the Labour Appeal Court
and Labour Court should be set aside and the order of the Labour
Court should be replaced
with a reinstatement order with
retrospective effect to the date of dismissal.
Order
[199]
In the result I would make the following
order:
1.
Leave to appeal is granted.
2.
The appeal is upheld.
3.
The orders of the Labour Appeal Court and
the Labour Court are set aside and that of the Labour Court is
replaced with the following:
“
(a)
The dismissal of the individual applicants by the respondent on
2 November 2010 was automatically
unfair.
(b)
The respondent is ordered to reinstate each
one of the individual applicants in its employ on terms and
conditions of employment
not less favourable to him or her than the
terms and conditions that governed his or her employment when the
individual applicants
were dismissed on 2 November 2010.
(c)
The order of reinstatement will operate
with retrospective effect to 2 November 2010.
(d)
The respondent is to pay the applicants’
costs.”
4.
The respondent is to pay the applicants’
costs both in this Court and in the Labour Appeal Court.
JAFTA J
Introduction
[200]
I have had the benefit of reading the
judgment of Mhlantla J (first judgment) and the judgment of Zondo J
(second judgment).
I agree that leave to appeal should be
granted; the appeal be upheld and that orders of the Labour Court and
the Labour Appeal
Court be set aside; and that the individual
applicants be reinstated.
[201]
I agree with Zondo J that the individual
applicants were dismissed for participating in a protected strike.
But my reasons
for reaching this conclusion are different from his.
In contrast, I am unable to agree with Mhlantla J that the strike was

protected up to the stage of Unitrans’s capitulation on the
wage cut demand in respect of Shell-7 employees.  I also

disagree that, at the meetings on 27 and 28 October 2010 between
TAWUSA and Unitrans, the union altered one of the demands
to one
other than that which was authorised by Waglay DJP in the first
Labour Appeal Court judgment.
[202]
It has become necessary for me to write
separately because my reasons for supporting the order proposed in
the second judgment differ
from it.  Moreover, I have
reservations on some of the conclusions reached by the second
judgment in relation to whether Unitrans
by acceding to the wage-cut
demand as a gesture of goodwill, met that demand.  The second
judgment holds that by promising
to restore the Shell-7 employees to
the wage-rate that was paid under the Shell contract retrospectively,
Unitrans did not meet
the demand but made a unilateral promise as a
gesture of goodwill.  The second judgment concludes that what
was promised was
not what the workers demanded.  It described
their demand thus:
“
TAWUSA
and the workers’ demand was in effect for Unitrans to honour,
recognise, give effect to or comply with its contractual
obligation
to keep the Shell 7 on their agreed wage rates and to pay them their
back pay.  The Shell 7 had a contractual right
to be on those
wage rates.”
[104]
[203]
This suggests that after the termination of
the Shell contract, Unitrans continued to be under a contractual
obligation to pay all
110 drivers, for the duration of their
employment, at the wage-rate that applied to the Shell contract.
My doubts about the
correctness of this conclusion stems from the
fact that the wage-rate payable to drivers, as the second judgment
itself states,
was linked to the contract between Unitrans and its
client.  For example, the 110 drivers who were engaged to
service the
Shell contract were paid at a rate higher than the other
drivers because the Shell contract was more lucrative.  It seems
to me that when that contract was terminated the effect of the term
that linked the wage-rate to that contract was that those drivers

were no longer entitled to the higher rate.
[204]
To hold otherwise would suggest that the
contractual term that linked the payable wage-rate to the Shell
contract had no force and
effect.  I am not so confident that
this is what the record establishes.  Nor do I read the strike
notice that rendered
the strike protected to be supporting this
conclusion.  Moreover, it appears to me that the conclusion that
the Shell-7 employees
had a contractual right to be paid at the
wage-rate that applied to the Shell contract would make theirs not a
dispute in respect
of a matter of mutual interest which is the kind
of dispute over which the LRA permits workers to strike.
[205]
Happily the view I take of the matter makes
it unnecessary for me to determine these issues.  Therefore, I
leave them at a
level no higher than that of having misgivings.
[206]
In order to determine the demands in
respect of which members of TAWUSA went on strike, recourse must be
had to the strike notice
issued by TAWUSA on 27 October 2010 and
not the minutes of the meeting of 29 October 2010 because that
meeting was convened
after the strike action had commenced.  In
terms of the notice, and this fact is common cause, the strike action
started at
14h30 on 28 October 2010.
[207]
The minutes of the meeting of 25 October
2010, on which the first judgment relies, are also immaterial to the
enquiry because that
meeting preceded the notice which activated the
strike.  And more importantly these minutes were not part of the
notice that
preceded the strike.  But before considering the
relevant notice I propose to briefly outline the facts as they appear
to
me.
Facts
[208]
Unitrans conducts the business of haulage
of petroleum and gas products some of which are hazardous.  To
facilitate the operation
of the business, Unitrans concludes fixed
term contracts with clients in terms of which it undertakes to convey
their goods to
various destinations by road.  Unitrans uses
trucks to carry out its business, for a fee payable in respect of
each contract.
It employs truck drivers in the operation of the
business.
[209]
The employment contracts between Unitrans
and its drivers are linked to the contract under which each driver is
employed and the
rate of wages paid is determined in a manner
relative to the contract price paid by the client.  A more
lucrative contract
meant a higher wage rate would be offered to
drivers.
[210]
In similar vein Unitrans concluded a fixed
term contract for a period of five years with Shell Petroleum Company
of South Africa
(Shell).  It employed 110 drivers under this
contract whose wage-rate was linked to the contract with Shell.
This contract
terminated in February 2009 and the employment of some
of the 110 drivers also ended.  The majority of them found
employment
with another company.  Thirty one drivers were
offered new employment contracts by Unitrans.  Seven of them
declined
to sign new contracts but apparently took up the offer to
remain in Unitrans’ employ, without signing new contracts.
[211]
The seven objected to the reduced wage rate
they were offered under new contracts between Unitrans and other
clients and which were
not as lucrative as the Shell contract.
This resulted in a dispute between these employees and Unitrans.
They described
the dispute as the unilateral reduction of wages.
TAWUSA took up the dispute on behalf of the employees and
incorporated
it into other demands it made to Unitrans on behalf of
its members.  Four demands in all were made in respect of which
TAWUSA
threatened that its members would go on strike.
[212]
The matter was taken to court until it
reached the Labour Appeal Court.  In a judgment written by
Waglay DJP, the Labour Appeal
Court determined that members of TAWUSA
were entitled to go on strike in respect of only two of the four
demands.  These were
the wage-discrepancy and the wage-cut
demands.
[213]
Following the judgment of the Labour Appeal
Court, members of TAWUSA wanted to embark on a strike in respect of
the two demands
on which they were allowed to strike.  To this
end, a notice to go on strike was issued to Unitrans but the strike
did not
materialise because the parties were engaged in
negotiations.  These parties held meetings from 21 to 25 October
2010.
[214]
When resolution of the disputes eluded
them, TAWUSA issued a notice on 26 October 2010, notifying
Unitrans that its members
would commence the strike on 28 October
2010 at 14h30.  In the notice TAWUSA relied on the same demands
in respect of which
the Labour Appeal Court had permitted it to
pursue a strike action.  In response Unitrans instituted an
urgent application
for an interdict in the Labour Court.
That Court granted an order which interdicted TAWUSA from embarking
on a strike
in respect of the demands contained in the strike notice
dated 26 October 2010.  TAWUSA issued another notice
following
the Labour Court’s order and unsuccessfully sought to
appeal against that order.  The notice of 27 October 2010

reflected the wage-discrepancy demand and the wage-cut demand which
had been endorsed by Waglay DJP.  It also stated that
the strike
will commence on 28 October 2010 at 14h30.
[215]
Indeed the strike commenced on 28 October
2010 and on 29 October 2010, the parties met again in an attempt to
find a solution and
end the strike.  The minutes of this meeting
which ended at 17h30 on 29 October 2010 reveal the following.
The parties
discussed both demands but in so far as the
wage-discrepancy demand was concerned, Unitrans took the view that
“the demand
should be channelled at national Bargaining
Council” and that it should not be dealt with at that meeting.
In relevant
part the minutes reflect these sentiments by TAWUSA:
“
It
is illegal that the company reduce employees rates without any
reasons.  It entails that some people’s wages will
be
reduced and increased.  It is not the mandate to reduce and
increase the rates of employees as and when the company sees
it fit
to do so.”
[216]
It appears that Unitrans responded as
follows:
“
Let
us all understand what the court says:
Some
employees who are on higher rate will come down and those on a lower
rate will go up.”
[217]
With regard to the wage-discrepancies
demand, the minutes reflect these views by TAWUSA:
“
In
wage discrepancies, eg 20-40 (everyone should be paid equally).
We did not anticipate the strike, we have identified the
strike, we
are prepared to adjust to A to B.  Employer not paying the same
different rate of pay-qualification is same and
time in different.
We are prepared to deal with parity in the long term on the wages
from a certain level to another.
We are requesting to review
the parity and come with the idea.  This will help.”
Legal
principles
[218]
Before
the issue arising for determination is addressed it is necessary to
outline the relevant principles.  First and foremost,
we must
recall that the 94 employees were punished with dismissal for
exercising their right to strike which is guaranteed by section
23 of
the Constitution.
[105]
We must also remember that section 23 safeguards this right without
any limitation.  Limitations on it are imposed by
the LRA and
the validity of those limitations is not at issue here.  So, we
must proceed from the assumption that those limitations
are justified
within a clear understanding that by so doing we do not suggest that
these limitations are constitutionally compliant.
[219]
We will also do well to recall that those
limitations make the right to strike, the only right the exercise of
which may lead to
punishment despite the fact that it is guaranteed
with no limitations by the Bill of Rights.  There is no other
right conferred
by the Bill of Rights which one may be punished for
exercising.  The dichotomy here is stark and dramatic.
Employees
lose their jobs for nothing but exercising a constitutional
right.
[220]
This
sobering reality which befell the 94 employees in this case is what
informs our jurisprudential approach to interpreting the
LRA.
In this regard, I can do no better than citing what was stated by
this Court in Zuma.
[106]
There, borrowing from other jurisdictions whose constitutions
entrenched fundamental rights, this Court declared that
“constitutional
rights conferred without express limitation
should not be cut down by reading implicit restrictions into them”.
This
ought not to be done so as to bring those rights in line with
either unwritten customary law and the common law or written law like

statutes.  This is so because our Constitution is the supreme
law from which all laws derive their validity.
[221]
However,
it is the Constitution itself that ordains the limitation of rights
enshrined in the Bill of Rights by other laws, including
statutes if
certain conditions prescribed by it are met.
[107]
It is in this context that, without a challenge to the limitations
imposed by LRA, we assume that its limitations are justified,
despite
the punitive outcomes they introduce for exercising a guaranteed
right.
[222]
Recently
in
Moloto
[108]
this Court
expanded on the principle laid down in
Zuma
.
It pronounced:
“
The
right to strike is protected as a fundamental right in the
Constitution without any express limitation.  Constitutional

rights conferred without express limitation should not be cut down by
reading implicit limitations into them and when legislative

provisions limit or intrude upon those rights they should be
interpreted in a manner least restrictive of the right if the text
is
reasonably capable of bearing that meaning.  The procedural
pre-conditions and substantive limitations of the right to
strike in
the Act contain no express requirement that every employee who
intends to participate in a protected strike must personally
or
through a representative give notice of the commencement of the
intended strike, nor that the notice must indicate who will
take part
in the strike.”
[109]
[223]
Later the Court repeated this statement as
an interpretative approach.  It said:
“
As
mentioned earlier, the right to strike is protected in the
Constitution as a fundamental right without express limitation.

Also, constitutional rights conferred without express limitation
should not be cut down by reading implicit limitations into them,
and
when legislative provisions limit or intrude upon those rights they
should be interpreted in a manner least intrusive of the
right, if
the text is reasonably capable of bearing that meaning.  These
are general interpretative principles that are also
applicable to the
interpretation of provisions of the Act, as explicitly affirmed in
section 1(a) of the Act.”
[110]
[224]
What emerges from
Moloto
is that the right to strike is conferred without any limitation and
that legislation like the LRA that limits it must be construed
in a
manner least intrusive of the right if the text is reasonably capable
of bearing that meaning.  What this means is that
in determining
whether the strike that started as protected in the contemplation of
the LRA became unprotected at some point, we
must interpret the
relevant provisions of the LRA “in a manner least intrusive of
the right” to strike.
[225]
A good point at which to start the
interpretation process is section 64(1) of the LRA which prescribes
conditions for exercising
the right to strike.  It provides:
“
Every
employee has the right to strike and every employer has recourse to
lock out if—
(a)
the issue in dispute has been referred to a council or to the
Commission as required
by this Act, and—
(i)
a certificate stating that the dispute remains unresolved has been
issued; or
(ii)
a period of 30 days, or any extension of that period agreed to
between the parties
to the dispute, has elapsed since the referral
was received by the council or the Commission; and after that—
(b)
in the case of a proposed strike, at least 48 hours’ notice of
the commencement
of the strike, in writing, has been given to the
employer, unless—
(i)
the issue in dispute relates to a collective agreement to be
concluded in a
council, in which case, notice must have been given to
that council; or
(ii)
the employer is a member of an employers’ organisation that is
a party to the
dispute, in which case, notice must have been given to
that employers’ organisation.”
[226]
Apart from recognising that every employee
has a constitutional right to strike, this section stipulates
conditions which must be
met before the right may be exercised.
First, it obliges the employees to refer the issue in dispute to
conciliation under
the auspices of the Commission for Conciliation,
Mediation and Arbitration (the Commission), established in terms of
the LRA.
The section precludes such employees from going on
strike until the Commission has issued a certificate to the effect
that the
dispute remains unresolved or a period of 30 days has
elapsed if the parties did not agree on an extension.  Once
these conditions
are met and the employees have elected to strike,
they are required to give the employer a written notice, at least 48
hours before
the strike commences.  In this case all these
conditions were satisfied hence it is common cause that the strike
was protected
when it commenced.
[227]
The crucial issue for determination is
whether at some point it became unprotected and as a result the
affected employees lost the
protections in section 67 of the LRA and
became vulnerable to dismissal for exercising their constitutional
right.  Allied
to this is the difficult question whether the
mere loss of those protections means that employees should lose their
jobs for exercising
a constitutionally guaranteed right.  I am
not aware of any provision in the LRA which authorises this
abnormality apart from
section 68(5).  A dismissal like the one
imposed here constitutes punishment.  The employees were
punished for being
on strike.  It is not so clear to me whether
this punishment was authorised by the LRA and if so whether it
amounts to a limitation
envisaged in section 36 of the Constitution.
For this section permits limitations of guaranteed rights but not
punishment
for exercising those rights.
[228]
But, happily, here we do not have to
resolve the vexed issue whether punishment may be imposed for
exercising a right entrenched
in the Bill of Rights.  This issue
must be left open for determination on another day and where it is
fully addressed.
Suffice here to mention that the concept of a
protected strike was introduced by section 67 of the LRA.  That
section affords
striking employees protection if their strike
complies with Chapter IV of the LRA and as a result it is a protected
strike.
Participation in such a strike does not amount to a
delict or breach of contract and civil proceedings may not be
instituted against
a person for participating in a protected strike.
An employer may not dismiss employees for participating in a
protected
strike, even though the employer is not obliged to
remunerate them.  Dismissing an employee for taking part in a
protected
strike constitutes an automatically unfair dismissal, for
which reinstatement is the appropriate remedy.
[229]
Section 68(5) in permissive language allows
dismissal for participating in an unprotected strike.  It
provides:
“
Participation
in a strike that does not comply with the provisions of this Chapter,
or conduct in contemplation or in furtherance
of that strike, may
constitute a fair reason for dismissal.  In determining whether
or not the dismissal is fair, the Code
of Good Practice: Dismissal in
Schedule 8 must be taken into account.”
[230]
What emerges from the text of this section
is that the LRA does not directly authorise dismissal of employees
who were involved
in an unprotected strike but does so impliedly.
The implication arises from the provision’s recognition that
participation
in an unprotected strike may, in appropriate
circumstances, constitute a fair reason for dismissal.  This
suggests that such
a dismissal may be taken to have been
substantively fair because it was based on a valid reason.
[231]
Since it cannot be gainsaid that section
68(5) intrudes into the right to strike, we are duty-bound to
interpret it in a manner
least restrictive of that right if its
language is reasonably capable of bearing that construction.  In
doing so we have to
pay close attention to the language.  But we
must proceed from the premise that the protections in section 67 are
not available
to cases where section 68(5) applies.  Therefore
employees to whom the provision applies are not insulated against
dismissal
for participating in a strike.  This is because those
protections are afforded only to the employees who took part in a
protected
strike.
[232]
There can be no doubt that where it
applies, section 68(5) has an extensive impact on the constitutional
right to strike.
Whether that impact may appropriately be
described as a limitation in the contemplation of section 36 of the
Constitution is something
we need not determine here because no
attack was mounted against its validity.  We must approach the
matter on the assumption
that the provision is valid and that it does
constitute a justifiable limitation of the right to strike, for
present purposes only.
[233]
It does not appear to me that the language
of this section is reasonably capable of a meaning that least
intrudes into the right
to strike.  Where it applies, it
justifies a dismissal for exercising a constitutionally guaranteed
right.  The punishment
of dismissal it permits has as its
consequence, the outcome of disabling a worker from exercising the
right to strike because this
right may be enjoyed by only those who
are fortunate enough to be in employment.  If one is unemployed,
she cannot withhold
her labour for the purpose of putting pressure on
an employer to resolve a grievance or a matter of mutual interest.
Consequently
for as long as the dismissed 94 workers here are
unemployed, they cannot exercise the right.
[234]
But the antecedent question is whether the
strike was not protected with the result that these workers did not
enjoy the protections
in section 67 and further that section 68(5)
applied to their case.  As mentioned, TAWUSA complied with all
preconditions
prescribed by the LRA for the exercise of the right to
strike.  We know that, when the strike started, it is common
between
all three of this Court’s judgments, that it was
protected.  But Unitrans contends that the strike was
unprotected.
Unitrans argues that as soon as the workers were
notified of its tender to meet the wage-cut demand the strike became
unprotected.
[235]
This argument would have merit if TAWUSA on
27 October 2010 issued notice in respect of a single demand, the
wage-cut demand.
But we know from the perusal of the notice
itself that there were two demands relied on and that those were the
demands which were
endorsed by Waglay DJP.
Notice
to Strike
[236]
As mentioned, the notice issued by TAWUSA
on 27 October 2010 is crucial to this enquiry.  It reads:
“
RE
UNITRANS FUEL AND CHEMICAL (PTY) LTD /TAWUSA
1.
We refer to the Labour Appeal Judgment under case number JA55/10, the
outcome of Urgent Application today and more
particularly the remarks of Her-Ladyship
Judge Basson where
she indicated that the Respondent
(Employees) may
proceed
with their strike on
the 28th October 2010 provided they do not
introduce new issues, and that they stick to their issues as
contemplated in
the
Judgment of the Labour Appeal Court, since her Judgment will not
change or interfere with the Labour Appeal Court ruling.
2.
We confirm that our members will proceed with the strike on the basis
of
the very same demands, as were during
Labour Appeal Court Judgment,
and as
contained in annexure “C” to the founding affidavit of
your urgent
application (today)
being as
follows:
(I)
Wage discrepancies— there must been wage discrepancy
between
employees
who perform work but on different contract.
(II)
Wage cut— Former Shell contract employees must earn what they
used to earn under
Shell contract plus annual increases.
3.
We further confirm that as initially notified the said strike will
commence on
the 28 of October 2010 at 14h30
in the afternoon.
4.
We trust that you find the above in order.”
[237]
Like any written document this notice must
be construed with reference to its language.  The extraneous
evidence on what was
said by the parties at meetings before the
strike resumed or afterwards is irrelevant to this exercise.
For evidence plays
no part in the objective process of interpretation
except evidence on context which is admitted in special circumstances
which
do not arise here.
[238]
In
Kubyana
this Court stated:
[111]
“
The
process of interpretation, I emphasise, does not involve a
consideration of facts.  Matters of evidence do not come into

the equation.  This is so because statutory construction is an
objective process, with no link to any set of facts but in
terms of
which words used in a statute are given a general meaning that
applies to all cases, falling within the ambit of the statute.”
[239]
Although
this principle was affirmed in the context of interpreting a statute,
it applies equally to the interpretation of other
written documents
including contracts and statutory notices.  The proper approach
to interpretation of written documents was
restated by the Supreme
Court of Appeal in
Endumeni
Municipality
:
[112]
“
Over
the last century there have been significant developments in the law
relating to the interpretation of documents, both in this
country and
in others that follow similar rules to our own.  It is
unnecessary to add unduly to the burden of annotations
by trawling
through the case law on the construction of documents in order to
trace those developments.  The relevant authorities
are
collected and summarised in
Bastian
Financial Services (Pty) Ltd v General Hendrik Schoeman Primary
School.
The
present state of the law can be expressed as follows.
Interpretation is the process of attributing meaning to the words

used in a document, be it legislation, some other statutory
instrument, or contract, having regard to the context provided by
reading the particular provision or provisions in the light of the
document as a whole and the circumstances attendant upon its
coming
into existence.  Whatever the nature of the document,
consideration must be given to the language used in the light
of the
ordinary rules of grammar and syntax; the context in which the
provision appears; the apparent purpose to which it is directed
and
the material known to those responsible for its production.
Where more than one meaning is possible each possibility
must be
weighed in the light of all these factors.  The process is
objective not subjective.  A sensible meaning is to
be preferred
to one that leads to insensible or unbusinesslike results or
undermines the apparent purpose of the document.
Judges must be
alert to, and guard against, the temptation to substitute what they
regard as reasonable, sensible or businesslike
for the words actually
used.  To do so in regard to a statute or statutory instrument
is to cross the divide between interpretation
and legislation.
In a contractual context it is to make a contract for the parties
other than the one they in fact made.
The ‘inevitable
point of departure is the language of the provision itself’,
read in context and having regard to the
purpose of the provision and
the background to the preparation and production of the
document.”
[113]
[240]
In its own terms the notice of 27 October
commences by summarising the judgment of Basson J in the urgent
application brought by
Unitrans to prevent the employees from going
on strike.  It notes that the learned Judge had allowed them to
strike provided
that they confine themselves to the two demands
endorsed by Waglay DJP.  It proceeds to state in paragraph
2 that TAWUSA’s
members would go on strike “on the bases
of the very same demands, as were during Labour Appeal Court
Judgment, and as contained
in annexure ‘C’ to the
founding affidavit of your urgent application today being as
follows”.
[241]
The notice continues to expressly set out
those demands in these terms:
“
(i)
Wage discrepancies – there must [have] been [no] wage
discrepancy between employees
who perform [same] work but on
different contracts.
(ii)
Wage cut   Former Shell contract employees must earn what they
used to earn
under Shell contract plus annual increases.”
[242]
The notice concludes by informing Unitrans
that the strike will commence on 28 October 2010 at 14h30.
[243]
It is significant in paying attention to
the demands to start with the wage-cut demand.  We know that
Waglay DJP had limited
it to the Shell-7 employees and not “former
Shell contract employees” in respect of whom the demand was
made.
As defined in the notice this demand could be read as
encompassing all employees under the Shell contract and yet Unitrans
found
no difficulty in reading this demand as being restricted to the
Shell-7 employees and tendering to meet it.  At the relevant

meetings Unitrans resisted TAWUSA’s attempt to extend the
demand to all employees who were engaged under the Shell contract.

It did not argue that this constituted an expansion of the demand
which rendered the strike unprotected.  Yet the language
of the
demand did not restrict it to the Shell-7 employees.
[244]
But the wage-discrepancy demand was treated
as having been expanded, even though in essence it merely stated that
there must be
no wage discrepancy between employees who performed the
same work but on different contracts.  In its written argument
Unitrans
described this demand as the wage parity demand which
notionally could be realised by adjusting wages so that no employee
received
an increase and all were paid the same wages.
[245]
The assertion that the demand was changed
to the one that fell foul of the parties’ collective agreement
and that consequently
was not approved by Waglay DJP, was based on
what was said by TAWUSA at the negotiation meetings.  In this
way Unitrans and
the Labour Appeal Court which upheld this argument,
misconstrued the strike notice of 27 October 2010 and the
wage-discrepancy
demand defined in it.  There was no basis in
logic and principle for taking what was said at negotiations as
amending the
statutory notice.
[246]
When the strike commenced, there were two
demands in respect of which the employees went on strike.  There
was a tender to
meet one of them but not the other.  For as long
as the second demand was not met, the strike could not have changed
from
being protected to being an unprotected strike.
[247]
If Unitrans wanted to render the strike
unprotected, it should have tendered to meet both demands.  It
could have met the second
demand by doing what it says could be done
in its written submissions.  In respect of that demand, Unitrans
was required to
eliminate disparities in wages by discontinuing its
policy of paying higher wages in lucrative contracts and ensuring
that there
was parity in wages.  The choice was that of Unitrans
to determine the method to be followed to realise parity.  It
depended
on Unitrans to achieve this goal by either cutting down the
wages of employees in lucrative contracts or increasing the wages of

the lower earning employees.  Yet Unitrans followed none of
these options.  Instead it did nothing to meet the second

demand.
[248]
At the very least Unitrans must have
offered to meet the wage discrepancy demand, as it understood it in
the context of the judgment
of Waglay DJP.  This is what it did
in respect of the wage-cut demand, even though at the meetings TAWUSA
expanded that demand
to include all employees who were formally
engaged in the Shell contract.
[249]
In these circumstances Unitrans’
inaction in respect of the second demand could not change the strike
that was protected into
an unprotected strike.  Consequently the
94 employees continued to enjoy the protections in section 67 of the
LRA and section
68(5) found no application to their conduct.  As
a result they were dismissed for participating in a protected strike
and
that dismissal was automatically unfair.
[250]
Moreover, notice is issued so as to meet
requirements of section 64(1) which imposes pre-conditions for
exercising the right to
strike.  As mentioned all those
conditions were satisfied before the strike commenced on 28 October
2010.  Section 64
does not regulate negotiations between
the striking workers and their employer during the strike.  Nor
does the LRA prescribe
the issues to be covered in such
negotiations.  It is open to negotiating parties to raise
whatever issues they wish to place
on the agenda.  At those
negotiations workers may even expand the dispute in respect of which
the strike was undertaken.
It will be up to the employer to
reject the expansion of the demand.  This is what happened here
in respect of the wage-cut
demand.
[251]
The fact that the dispute is expanded at
the negotiations during a strike does not detract from the fact that
the strike was pursued
in order to resolve a particular and defined
dispute.  It is not open to the employer to simply regard the
strike as unprotected
because the dispute was expanded.  What
the employer needs to do to end the strike is to meet the demand
encapsulating the
dispute that was unsuccessfully conciliated and led
to strike.  In doing so the employer may reject the expanded
part of the
dispute and confine itself to the part in respect of
which the workers are entitled to strike.
[252]
In this matter Unitrans needed to meet not
only the wage-cut demand but also the wage-discrepancy demand, as
defined in the judgment
of Waglay DJP.  This was so because the
strike was pursued in respect of the two demands on which the learned
Judge had allowed
the employees to go on strike.  If at the
meetings the parties had, TAWUSA attempted to expand or alter that
demand, Unitrans
was entitled to reject the attempt.  But such
attempt did not relieve Unitrans from the obligation to meet the
wage-discrepancy
demand as defined if it wished to end the protected
strike.
[253]
Unitrans’ failure to meet the
wage-discrepancy demand as defined by Waglay DJP did not change
what was a protected strike
into an unprotected one.  To say
that TAWUSA pursued under this demand something other than what was
endorsed by Waglay DJP
is to overlook the notice of 27 October and
its text.  This is the notice that activated the strike and it
states expressly
that members of TAWUSA would go on strike in respect
of specific demands: the wage-discrepancy demand and the wage-cut
demand.
Both of which were endorsed by Waglay DJP.  There
is simply no legal basis for disregarding the contents of this
notice.
Without it, the strike could not have been protected.
[254]
If TAWUSA had failed to issue the notice
and had relied on statements alluded to it at the various meetings,
the strike could have
been unprotected.  There is no basis for
regarding what was said at negotiations as having altered the nature
of the strike
from being protected to an unprotected strike.
There are no grounds also for holding that what rendered the strike
protected
was wage-cut demand only.  The notice listed both
demands and even Basson J in the Labour Court on 27 October 2010, had
confirmed
that they could proceed with their strike on 28 October
2010 provided they did not introduce new issues but confined
themselves
to the demands approved by Waglay DJP.  This is the
context in which the notice of 27 October 2010 must be understood.
[255]
Unitrans having been a party to the
proceedings before Waglay DJP needed only its own lawyers to explain
to it what that order meant
with regard to the wage discrepancy
demand.  Consequently, it ought to have known what was required
of it to meet that
demand.  Yet it did nothing other than
insisting that the demand must be referred to the bargaining
council.  This was
wrong and its failure to meet the
wage discrepancy demand could not have rendered the strike
unprotected.
[256]
Moreover, determining the demands in
respect of which TAWUSA went on strike with reference only to what it
said at negotiations
and not the notice of 27 October 2010 loses
sight of reality.  That reality is that in negotiations parties
start by
advancing their highest demands and as negotiations proceed,
compromises are made at the end of negotiations each party may have

obtained less than what it sought to achieve.  This is the
nature of negotiations and the present were no different.
These
negotiations like any other negotiations were not regulated by any
statutes and no issue was excluded from the agenda.
[257]
Besides, when TAWUSA issued the notice on
27 October 2010, it was exercising a statutory power.  The
relevant provision authorises
employees or their union to issue
notice before commencing a strike action.  There is nothing in
the provision which suggests,
even remotely, that a union which has
issued the notice has the power to vary, amend or alter such notice
and least of all to do
so orally at a negotiation in these meetings.
Had TAWUSA purported to alter the notice by advancing a new demand,
it would
have acted without power.  What Unitrans was obliged to
do to end the protected strike was to meet both demands on the
notice.
This it failed to do.
[258]
It is for these reasons that I support the
order proposed by Zondo J.
For the Applicant:
For the Respondent:
F J Wilke instructed by Masango
Attorneys
A Redding SC
instructed by Cliffe Dekker Hofmeyr Inc
[1]
The
National Bargaining Council for the Road Freight and Logistics
Industry is a body corporate governed by the Labour Relations
Act 66
of 1995 (LRA) and was established to
inter
alia
:
negotiate, conclude and enforce collective substantive agreements on
wages, benefits and other conditions of employment; determine
by
collective agreement any matter which may not be an issue in dispute
for the purposes of a strike or a lockout in the workplace;
and
prevent and resolve labour disputes, within the Road Freight and
Logistics Industry.
[2]
Unitrans
Fuel
and Chemical (Pty) Ltd v Transport and Allied Workers Union of South
Africa and Another
[2010] ZALCJHB 359 (first Labour Court judgment).
[3]
Section 65
of the LRA provides:
“
(1)
No person may take part in a strike or a lock-out or in any conduct
in contemplation
or furtherance of a strike or a lock-out if—
(a)
that person is bound by a collective agreement that prohibits a
strike or lock out
in respect of the issue in dispute.”
[4]
Unitrans
Fuel and Chemical (Pty) Ltd v Transport and Allied Workers Union of
South Africa (TAWUSA) and Another
[2010]
ZALAC 20
; (2010) 31
ILJ
2854 (LAC);
[2011] 2 BLLR 153
(LAC) (first LAC judgment).
[5]
Id at para
18.
[6]
Id at para
23.
[7]
Id at para
19 states, in relevant part:
“
Seen
in the context of what has transpired at the appellant’s work
place it is clear that the aforementioned demands relate
to the fact
that the appellant unilaterally decided to reduce the wages of those
of its employees who previously serviced the
Shell contract for the
appellant.  When the appellant’s contract with Shell came
to an end it did not seek to reach
an agreement (at least not with
the 7 employees referred to earlier) with those employees who
decided to remain in the appellant’s
employ but reduced their
wages.  The 7 employees were simply paid a lesser salary.  This
reinforces the first respondent’s
averment that the appellant
unilaterally reduced the wages of its employees.”
[8]
Id at para
20 provides:
“
As
counsel for the first respondent argued the demand for wage parity
is not a demand for an amount of money but requires of the
appellant
to adjust wages so as to arrive at a uniform level of remuneration
for employees performing the same work albeit on
different
contracts.”
[9]
In a letter
to TAWUSA dated 26 October 2010, the legal representatives of
Unitrans recorded that following from meetings held
between Unitrans
and TAWUSA it was apparent that
the
demand
was
not only in respect of the seven ex-Shell drivers that refused to
sign new employment contracts, but also
i
n
respect of all other ex
Shell
drivers, as well as other drivers on different contracts.  Also,
in a letter to TAWUSA dated 28 October 2010, Unitrans’
legal
representatives stated that it was of the view that TAWUSA had
misled its members, the Labour Appeal Court and Unitrans
with regard
to its demands
.
[10]
The minutes
of the meetings held on 27 and 28 October 2010 between Unitrans and
TAWUSA reflect that no consensus could be reached
between the
parties.
[11]
Unitrans
Fuel and Chemical (Pty) Ltd v Transport and Allied Workers Union of
South Africa (TAWUSA) obo Members
(J 2173/10) (LC) (second Labour Court judgment).
[12]
The final
ultimatum, dated 1 November 2010, is quoted in full at
[59].
[13]
Transport
and Allied Workers Union of South Africa (TAWUSA) and Others v
Unitrans Fuel and Chemical (Pty) Ltd
(JS 359/11)
(LC).
[14]
Transport
and Allied Workers Union of South Africa (TAWUSA) and Others v
Unitrans Fuel and Chemical (Pty) Ltd
[2015]
ZALAC 24
; (2015) 36
ILJ
2822 (LAC);
[2015] 11 BLLR 1151
(LAC) (second LAC judgment).
[15]
See section
39(2) of the Constitution.
[16]
National
Union of Metalworkers of SA and Others v Bader Bop (Pty) Ltd and
Another
[2002]
ZACC 30
;
2003 (3) SA 513
(CC);
2003 (2) BCLR 182
(CC) at para 13
.
[17]
Early
Bird Farm (Pty) Ltd v Food and Allied Workers Union and Others
[2004] ZALAC 2
; (2004) 25
ILJ
2135 (LAC) (
Early Bird
Farm
)
.
[18]
Afrox
Ltd v SA Chemical Workers Union and Others (1)
(1997) 18
ILJ
399 (LC) (
Afrox
)
at 403H-I.
[19]
Section
23(2)(c) of the Constitution provides that every worker has the
right to strike.
[20]
In terms of
section 167(3)(b)(i) of the Constitution, this Court decides
constitutional matters.
[21]
SATAWU
and Others v Moloto and Another NNO
[2012]
ZACC 19
;
2012 (6) SA 249
(CC);
2012 (11) BCLR 1177
(CC).  In
Moloto
this
Court decided that the strike notice notifying the employer of the
commencement and the issue of the strike, which was submitted
by the
union members, was the only requirement for the non union
members to join the strike.
[22]
See
Air
Chefs (Pty) Ltd v SA Transport and Allied Workers Union and Others
(2014)
35
ILJ
3088 (LC) (
Air Chefs
)
at para 19.
[23]
First LAC
judgment above n 4 at para 21.
[24]
Id at para
20.
[25]
In the same
line, the minutes of the meetings dated 25 and 28 October 2010
stated respectively:
“
The
Union, explained that it want
all
employees to go from a lower rate to a higher rate
.
For example all code 14 licensed drivers should earn the same
nationally.  There are employees in Cape Town who are
earning
R47.00 per hour and those in Gauteng earning R27.00, it is the Union
demand that
all should be equal in
terms of rate.  It is not only those employees on the court
ruling but nationally
.”
“
It
is the Union stance that
all employees
should be paid at a higher rate
, and
no employee’s wages has to be reduced or cut.”
After
being requested to clarify the meaning of this statement, the “Union
said that they are not calling for a wage increase
but for wage
parity”.
[26]
Air
Chefs
above
n 22.
[27]
Id at paras
18-9.
[28]
First LAC
judgment above n 4 at para 19.
[29]
Id.
[30]
First LAC
judgment above n 4 at para 26.
[31]
Afrox
above n 18.
[32]
The
Afrox
principle was subsequently approved by the LAC in
SA
Clothing and Textile Workers Union v Free State and Northern Cape
Clothing Manufacturers’ Association
[2001] ZALAC 13
; (2001) 22
ILJ
2636 (LAC);
Chemical
Workers Industrial Union v Plascon Decorative Inland (Pty) Ltd
[1998]
ZALAC 27
; (1999) 20
ILJ
321 (LAC); and
Early
Bird Farm
above
n 17.  It was also approved by this Court in
Moloto
above
n 21 at para 89.
[33]
Early
Bird Farm
above
n 17 at para 27 and
Afrox
above n 18 at 403H-I.
[34]
See also
Moloto
above
n 21 at para 88.
[35]
Id at paras
89-90.
[36]
County
Fair Foods (a Division of Astral Operations Ltd) v Hotel, Liquor
Catering Commercial and Allied Workers Union and Others
(2006) 27
ILJ
348 (LC).  See also
Ceramic
Industries LTA t/a Betta Sanitary Ware v National Construction
Building and Allied Workers Union (2)
(1997) 18
ILJ
671
(LAC) at 672A-B.
[37]
Item 2(1)
of the Code provides that:
“
A
dismissal is unfair if it is not effected for a fair reason and in
accordance with a fair procedure, even if it complies with
any
notice period in a contract of employment or in legislation
governing employment.  Whether or not a dismissal is for
a fair
reason is determined by the facts of the case, and the
appropriateness of dismissal as a penalty.  Whether or not
the
procedure is fair is determined by referring to the guidelines set
out below.”
[38]
See items
6(1)(a)-(c) of the Code, quoted at [19].
[39]
Mzeku
and Others v Volkswagen SA (Pty) Ltd and Others
[2001]
ZALAC 8
;
2001 (4) SA 1009
(LAC); (2001) 22
ILJ
1575 (LAC) at para 17.
[40]
Performing
Arts Council of the Transvaal v Paper Printing Wood and Allied
Workers Union and Others
[1993]
ZASCA 201
;
1994 (2) SA 204
(A) (
Performing
Arts Council
)
at 216E.
[41]
See, for
example,
SA
Clothing and Textile Workers Union and Others v Berg River Textiles
– A Division of Seardel Group Trading (Pty) Ltd
(2012)
33
ILJ
972 (LC) at para 30 where dismissal was found to be appropriate as
the worker’s misconduct was particularly serious in
that the
unprotected strike was a contravention of the LRA; it disregarded an
unequivocal ultimatum; and it disregarded the provisions
of a
collective agreement, all relevant considerations to the matter at
hand.
[42]
See Item
2(1) of the Code above n 37.
[43]
Item 6(2)
of the Code provides:
“
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 issue an ultimatum in
clear and unambiguous terms that should state
what is required of
the employees and what sanction will be imposed if they do not
comply with the ultimatum.  The employees
should be allowed
sufficient time to reflect on the ultimatum and respond to it,
either by complying with it or rejecting it.
If the employer
cannot reasonably be expected to extend these steps to the employees
in question, the employer may dispense with
them.”
[44]
National
Union of Mineworkers and Others v Goldfields Security Ltd
(1999) 20
ILJ
1553 (LC) (
Goldfields
)
at para 34.
[45]
Id at para
36;
Professional
Transport Workers Union and Others v Fidelity Security Services
(2009) 30
ILJ
1129 (LC) (
Fidelity
)
at para 43;
Performing
Arts Council
above n 40 at para 217D.
[46]
Transport
and General Workers Union and Others v Coin Security Group (Pty) Ltd
(2001)
22
ILJ
968 (LC) (
Coin Security
Group
)
at para 74.
[47]
Id.  The
Court went on to state that “the refusal to [grant a union
official the opportunity to make representations]
is a serious
impediment to the fairness of a strike dismissal”.
[48]
Id.
[49]
See
National
Union of Metalworkers of SA and Others v Datco Lighting (Pty) Ltd
(1996)
17
ILJ
315 (IC) at paras 330I and 331D.
[50]
National
Union of Metalworkers of SA v GM Vincent Metal Sections (Pty) Ltd
[1999]
ZASCA 18
; (1999) 20
ILJ
2003 (SCA) (
GM
Vincent
)
at para 21.  See also
W
G Davey (Pty) Ltd v National Union of Metalworkers of SA
(1999) 20
ILJ
2017 (SCA) at para 12.
[51]
Id.
[52]
Section
187(1)(a) of the LRA provides:
“
(1)
A dismissal is automatically unfair if the employer, in dismissing
the employee,
acts contrary to section 5 or, if the reason for the
dismissal is—
(a)
that the employee participated in or supported, or indicated an

intention to participate in or support, a strike or protest action
that complies with the provisions of Chapter IV.”
[53]
Plaschem
(Pty) Ltd v Chemical Workers Industrial Union
(1993) 14
ILJ
1000 (LAC) (
Plaschem
)
at 1006H-I.
[54]
Allround
Tooling (Pty) Ltd v NUMSA and Others
(1998) 8 BLLR 847
(LAC) (
Allround
Tooling
).
[55]
Id at para
48.
[56]
NUMSA
and Others v Pro Roof Cape (Pty) Ltd
(2005) 11 BLLR 1126
(LC) (
Pro
Roof Cape
).
[57]
Id at para
35.
[58]
Plaschem
above n 53 at 1006G-I.
[59]
See
Modise
and Others v Steve’s Spar Blackheath
[2000] ZALAC 1
; (2000) 21
ILJ
519 (LAC), which confirmed the applicability of the
audi
alteram partem
principle in the context of a dismissal effected pursuant to an
unprotected strike.
[60]
See
Plaschem
above n 53 at 1006G-I.
[61]
A protected
strike is a strike that complies with the provisions of Chapter IV
of the Labour Relations Act, 1995 (LRA).
See section 67(1) of
the LRA.
[62]
A dismissal
is automatically unfair if it was effected for any one or more of
the reasons listed in section 187(1)(a)-(h)
of the LRA.
One of those reasons is participation in a protected strike.
[63]
A dismissal
is substantively unfair if there is no fair reason for it.  See
section 188 of the LRA.
[64]
A dismissal
is procedurally unfair if a fair procedure was not followed in
effecting it.  See section 188 of the LRA.
[65]
Second LAC
judgment above n 14.  There is an earlier judgment of that
Court that is defined as the first LAC judgment see
[110].
[66]
See the
second LAC judgment above n 14 at para 34.
[67]
Id at para
9.
[68]
See [39],
[41] and [66].
[69]
See [39].
[70]
See [51].
[71]
See [72]
and [74].
[72]
The reason
why I say 16h00 and not 14h05 appears later in my judgment at [131].
[73]
Such notice
is required by section 64 of the LRA.
[74]
Section
23(2)(c) reads:
“
(2)
Every
worker has the right—
.
. .
(c)
to strike.”
[75]
66 of 1995.
[76]
See first
LC Judgment above n 2
.
[77]
Unitrans
Fuel and Chemical (Pty) Ltd v Transport and Allied Workers Union of
South Africa and Another
[2010]
ZALCJHB 370.
[78]
See first
LAC judgment above n 4.
[79]
See
Afrox
above
n 18.
[80]
See
Early
Bird Farm
above
n 17.
Equity
Aviation Services (Pty) Ltd v SA Transport and Allied Workers Union
& Others
[2009] ZALAC 3
; (2009) 30
ILJ
1997 (LAC).
SA
Clothing & Textile Workers Union v Free State and Northern Cape
Clothing Manufacturers Association
above
n 32.
Chemical
Workers Industrial Union v Plascon Decorative Inland (Pty) Ltd
above n 32.
[81]
See
Moloto
above
n 21 at para 89.
[82]
See above n
80.
[83]
See [41]
and [66].
[84]
See [67] to
[69].
[85]
See [106].
[86]
Marine
and Trade Insurance Co Limited v Haug
1961 (3) SA 658
(W) (
Marine
Trade and Insurance
).
[87]
Coin
Security (Cape) v Vukani Guards Allied Workers Union
1989 (4) SA 234
(C) (
Coin
Security (Cape)
).
[88]
Id at
239I-J.
[89]
See first
LAC judgment above n 4 at para 18.
[90]
Id.
[91]
Id at para
23.
[92]
See [149].
[93]
See first
LAC judgment above n 4 at para 20.
[94]
Id at para
21.
[95]
Although in
SA
Breweries Ltd v Food and Allied Workers Union and Others
1990 (1) SA 92
(A) this was held in regard to an overtime ban, the
principle will also apply where one is not dealing with overtime but
with
a time like lunch break or, any day when the employees
concerned are not contractually obliged to work.  It was in
response
to this case that in the current LRA the definition of
strike was formulated in such way as to make it clear that where
there
is a collective overtime ban that will be a strike even if the
working of overtime is voluntary.
[96]
See [169]
and [170].
[97]
I am
deliberately leaving out for present purposes a strike where the
conduct is retardation or obstruction of work.
[98]
Black
Allied Workers Union & Others v Prestige Hotels CC t/a Blue
Waters Hotel
(1993) 14
ILJ
963 (LAC) (
Blue
Waters Hotel
).
[99]
Id at
972C-D.
[100]
Id at 964J
to 965B.
[101]
Performing
Arts Council
above
n 40 at 219H-I.
[102]
Billiton
Aluminium SA Ltd t/a Hillside Aluminium v
Khanyile
& Others
[2010] ZACC 3
; (2010) 31
ILJ
273 (CC);
2010 (5) BCLR 391
(CC) (
Billiton
Aluminium SA
).
[103]
See section
193(2)(d) of the LRA which provides:
“
(2)
The Labour Court or the arbitrator must require the employer to
reinstate or re-employ the employee unless—
.
. .
(d)
the dismissal is unfair only because the employer did not follow
a
fair procedure.”
See
further,
H M Liebowitz (Pty) Ltd t/a The Auto Industrial Centre
Group of Companies v Fernandes
[2002] ZALAC 1
; (2002) 23
ILJ
278 (LAC) and
Mzeku
above n 39.
[104]
Second
judgment at [125].
[105]
Section 23(2) provides:
“
Every
worker has the right—
(a)
to form and join a trade union;
(b)
to participate in the activities and programmes of a trade union;

and
(c)
to strike.”
[106]
S v Zuma and Others
[1995]
ZACC 1; 1995 (2) SA 642 (CC); 1995 (4) BCLR 401 (CC).
[107]
Section 36 provides:
“
(1)
The rights in the Bill of Rights may be limited only in terms of law
of general
application to the extent that the limitation is
reasonable and justifiable in an open and democratic society based
on human
dignity, equality and freedom, taking into account all
relevant factors, including—
(a)
the nature of the right;
(b)
the importance of the purpose of the limitation;
(c)
the nature and extent of the limitation;
(d)
the relation between the limitation and its purpose; and
(e)
less restrictive means to achieve the purpose.”
[108]
See
Moloto
above n 21
.
[109]
Id at para 44.
[110]
Id at para
53.
[111]
Kubyana
v Standard Bank of South Africa
[2014] ZACC 1
;
2014 (3) SA 56
;
2014 (4) BCLR 400
(CC) at para 78.
[112]
Natal
Joint Municipal Pension Fund v Endumeni Municipality
[2012] ZASCA 13; 2012 (4) SA 593 (SCA).
[113]
Id at para
18.