[15]
The Mokopanele case is distinguishable from this case. In the Mokopanele case, the employer issued an ultimatum to striking employees the effect of which was that if they returned to work on the stipulated
date, the employer would waive its right of dismissal. The employees returned to work on that date but they were nonetheless dismissed.
It was for that reason that the Appellate Division found that on the doctrine of election, the employer had approbated and reprobated
which it could not do. In this case, the employer never gave any intimation that the individual Respondents would not be dismissed
if they returned to work immediately. It specifically reserved its right to take disciplinary action against them, with the possibility
of a dismissal. In any event, unlike in the Mokopanele case, the individual Respondents did not comply with the ultimatum. I therefore find that this basis for reducing the sanction is
also wrong.
[16]
The fact that all the grounds for the reduction of the sanction of dismissal, relied on by the Court
a quo, have been rejected does not necessarily mean that this Court must reinstate that sanction. I will now consider the appropriateness
of dismissal as a sanction with reference to other relevant factors.
Other considerations relevant to sanction
[17]
In considering whether or not the dismissal of the individual Respondents is fair I must take into account
the relevant provisions of the code of good practice (“the code”). (s 188 of the Labour Relations Act No. 66 of
1995 (“the LRA”)). Item 6(1) of the code deals with dismissals for participating in an industrial action in the following
terms:
“(i)
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.”
I will now consider the circumstances relating to the strike which are relevant to the sanction.
[18]
It is not disputed that the individual Respondents were members of the union, that they participated
in the balloting process and even voted in favour of the industrial action. These are the steps they took to comply with the LRA.
It is also common cause that the strike which followed this process was protected. However, the individual Respondents did not fall
within the bargaining unit and the Appellant partly relied on this point, from the outset, for suggesting that the individual Respondents
were participating in an unprotected strike. This issue is settled as appears in CWIU v PLASCON DECORATIVE (INLAND) (PTY) LTD (1998) 12 BLLR 1191 (LAC) at 1199 at paragraph (29):
“[29]
The issue in the present case is whether non-bargaining unit employees, whose conditions of service the
strike demand did not directly affect, could embark on an otherwise protected strike. That parallels the question Zondo AJ dealt
with in Afrox Ltd v SA Chemical Workers Union and others (1) (supra), where workers employed by the same employer at different plants
embarked on strike action. Zondo AJ concluded (at 403I) that ‘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’.
It follows that in my view this conclusion was correct.”
Clearly, the fact that the individual Respondents were non-bargaining unit members cannot on its own render the strike unprotected
in so far as they participated in it whereas it remains protected for the participating employees who fall within the bargaining
unit.
[19]
In considering the question of whether dismissal was an appropriate sanction, certain factors of this
case need to be taken into account. The one is the factor that drove the Court a quo to the conclusion that the second and further Respondents’ participation in the strike was illegal. That is that the second
and further Respondents had made a demand that the Appellant pay them a 10% increase before they return to work. This occurred in
circumstances where the rest of the strikers were demanding a 12% increase. On the reasoning of the Court a quo, this turned what was a legal participation by the second and further Respondents in the strike into an illegal participation. I
refrain from expressing a view on the correctness or otherwise of this conclusion by the Court a quo because there was no cross-appeal. Accordingly I have to approach the matter on the basis that that finding by the Court a quo stands. In my view, assuming that the making of that demand by the second and further Respondents was a breach of the provisions
of the Act, such breach was of a minor nature.
[20]
Another factor which must be taken into account is that the period during which the second and further
Respondents did not work was a period during which they were entitled to withhold their labour by participating in the country-wide
strike anyway. There can simply be no doubt that the second and further Respondents would have participated in the country-wide strike
even if they had not made the demand for a 10% increase. They had participated in the ballot the result of which was that the majority
of the workers voted in favour of a strike. Their participation in the strike only ended when the country-wide strike ended. When
the country-wide strike ended, they did not continue striking for purposes of achieving their own demand for a wage increase.
[21]
There is something illogical about the Appellant’s approach to this matter. That is that it had
a workforce whose members withheld their labour from it for the same period demanding a wage increase. One section of the workforce
demanded a 12% wage increase before they could return to work while the other section demanded a lower increase, namely 10% increase,
before they could return to work. The two sections of the workforce returned to work on the same day. Apart from this difference
in the wage increase demanded, the conduct of the two sections of the strikers cannot be distinguished. The Appellant now seeks to
visit that section of the workforce that demanded a lower increase with dismissal whereas that section of the workforce that demanded
a higher increase is not being visited with any disciplinary action.
[22]
In the light of all the above circumstances I am of the opinion that the sanction of dismissal was inappropriate
and that it rendered the dismissal unfair. For the above reasons, I can see no basis for interfering with the decision of the Court
a quo. Accordingly, the appeal is dismissed with costs.
____________________
M.T.R. MOGOENG
JUDGE OF APPEAL
I agree
________________
R.M.M. ZONDO
JUDGE PRESIDENT
I agree
______________
M.M. JOFFE
ACTING JUDGE OF APPEAL
Appearances
Appearing for the Appellant :
Adv G.O. van Niekerk SC instructed by Millar & Reardon Attorneys
Appearing for the Respondent :
Adv S.M. Govender instructed by Jay Reddy Attorneys
Date of hearing
:
24 August 2000
Date of judgment
:
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