(1)
For the purposes of this item, an unfair labour practice means any unfair act or omission that arises
between an employer or and an employee, involving-
(a)
the unfair discrimination, either directly indirectly, against an employee on any arbitrary ground,
including, but not limited to race, gender, sex, ethnic or social origin, colour, sexual orientation, age, disability, religion,
conscience, belief, political opinion, culture, language, marital status or family responsibility;
(b)
the unfair conduct of the employer relating to
the promotion, demotion or training of an employee or relating to the provision of benefits to an employee;
(c)
the unfair suspension of an employee or any other
disciplinary action short of dismissal in respect of an employee;
(d)
the failure or refusal of an employer to reinstate
or re-employ a former employee in terms of any agreement.
(2)
For the purpose of sub-item (1)(a)-
(a)
‘employee’ includes an applicant for employment;
(b)
an employer is not prevented from adopting or implementing employment policies and practices that
are designed to achieve the adequate protection and advancement of persons or groups or categories of persons disadvantaged by unfair
discrimination, in order to enable their full enjoyment of all rights and freedoms; and
(c)
any discrimination based on an inherent requirement of the particular job does not constitute unfair
discrimination.”
[15]
Sub-items (1)(a) and (2) of item 2 were repealed by sec 64 read with Schedule 2 of the Employment Equity
Act 55 of 1998 with effect from 9 August 1999. However, in terms of sec 3 of Schedule 3 to the latter Act the items are to be regarded
as unamended in the present case. It was not the respondents’ case that a claim for wages such as the one in this case fell
within the ambit of an unfair labour practice dispute relating to the provision of benefits as contemplated in item 2(1)(b) of Schedule
7.
[16]
None of the arguments relied upon by Mr Vally provides a basis for the contention that either the Court
a quo or this Court has power to adjudicate upon the claims made by the employees in the light of general consideration of fairness.
In fact the description of the Labour Court and this Court as courts of equity does not add anything to the jurisdiction of these
two Courts. These two Courts are superior Courts of law. The only fairness that they apply in dealing with matters which come before
them is such fairness as they are specifically required to apply in specific sections of the Act in respect of specific types of
disputes as well as such fairness as every Court of law is required to observe in terms of the rules of natural justice. Examples
of such sections are 185, 187, 188, 191, 192(2), 193, 194 and 162 (1). Save for sec 162 (1), all these sections relate to unfair
dismissal disputes. Sec 162 (1) relates to orders of costs and obliges the Labour Court to have regard to the requirements of law
and fairness in deciding whether to award costs. In fact the reference in the Act to the Labour Court and this Court as courts of
equity (in addition to being courts of law) should be repealed because, while it adds nothing, it may cause unwarranted confusion.
The Court a quo was not required to have regard to general considerations of fairness extraneous to the Act in adjudicating the second
and further respondents’ claim. Accordingly Mr Vally’s submission falls to be rejected.
[17]
Even if considerations of general fairness governed the determination of the second and further respondents’
claim, I am of the opinion that this would not assist the second and further respondents. The exceptio on which Mr Reyneke relied is based on considerations of fairness, namely, that it is unfair for a party to a contract who has neither
performed his part of the contract nor tendered to do so to seek to compel the other party to such contract to perform his part in
circumstances where the former’s performance is already overdue or falls to be performed simultaneously with the latter’s
performance.
[18]
In his heads of argument Mr Vally submitted that, because a protected strike was not a breach of contract
of employment (see sec 67(2) (a) of the Act), the appellant’s reliance on the exceptio was misplaced. This submission, in effect, amounted to saying that section 67 (2)(a) of the Act had abolished the exceptio. The relevant portion of the provision reads:
“ A person does not commit…a breach of contract by taking part in-
(a) a protected strike…”
This submission fails to take account of the provisions of sec 67(3). Sec 67(3) reads thus:-
“Despite subsection (2), an employer is not obliged to remunerate an employee for services that the employee does not render during
a protected strike…” In my view the effect of these words is to retain the operation of the exceptio in circumstances such as those of this case. Accordingly, this submission also falls to be rejected.
[19]
During argument before us counsel for the respondents also sought to support the claim for wages in respect
of the period 23 January-5 February 1997 by the application of the provisions of sec 68(1)(b) of the Act. The provision reads as
follows:
“In the case of any strike or lock-out, or any conduct in contemplation or in furtherance of a strike or lock-out, that does
not comply with the provisions of this chapter, the Labour Court has exclusive jurisdiction-
(a)
…..
(b)
to order the payment of just and equitable compensation for any loss attributable to the strike
or lock-out, having regard to-
(i) whether-
(aa) attempts were made to comply with the provisions of this Chapter and the extent of those attempts;
(bb)the strike or lock-out was premeditated;
(cc)the strike or lock-out was in response to unjustified conduct by another party to the dispute; and
(dd)there was compliance with an order granted in terms of paragraph (a);
(ii) the interests of orderly collective bargaining;
(iii) the duration of the strike or lock-out; and
(iv) the financial position of the employer, trade union or employees respectively.”
[20]
It is relevant to this argument to note that counsel for the appellant conceded in his heads of argument
that the lock-out implemented by the appellant was an unprotected one. A claim for wages may, it would seem, qualify as compensation
for any loss attributable to an unprotected lock-out. I find it unnecessary to determine to what extent sec 68(1)(b) may affect the
applicable rules of common law. However, what is clear is that, before sec 68(1)(b) can be invoked, the loss must be quantified,
and in respect of the tender of partial performance during the period concerned, the respondents have made no attempt to do so.
[21]
In the light of the above, the cross-appeal must fail.
THE APPEAL-THE PERIOD 6-14 FEBRUARY
[22]
It is common cause that during this period the second and further respondents made a tender of their
full services. This entailed that they would perform their contractual obligations normally and they would also work overtime. The
appellant rejected the tender. The reason which the appellant gave at the time for rejecting the tender was that the second and further
respondents’ return to work would “serve no purpose in resolving the dispute.” It did this in the meeting of the 5th February which has already been referred to above. In the same meeting, the appellant stated
that there was “no demand put to the workforce” in connection with the exclusion of the second and further respondents from the workplace. The union confirmed this in a letter dated
the 5th February.
[23]
In the second and third paragraphs of its letter of the 5th February addressed to the appellant, the
union wrote inter alia in these terms:-
“We wish to confirm the following:
(1)
That the union has once more reiterated that its members are willing to resume their normal duties
(full services) and once again this was put forward as a proposal by the union to the company today.
(2)
That the period from the 23rd January 1997 up to the date workers are allowed to resume their duties
should be paid.
Both of these proposals were rejected by the company. The company has also confirmed that the lock-out is not accompanied by any demand
to the union.”
[24]
In a letter dated the 6th February the appellant replied to the union’s letter of the 5th February.
It said this about the exclusion from the workplace and the presence or absence of a demand in connection therewith and about the
second and further respondents’ proposal to resume their duties:- “The company believes that (the resumption of duties) will serve no purpose in the resolution of the dispute which arose from your failure to accept the company’s final offer at the conclusion of the negotiations.
Furthermore, the company retains a reasonable apprehension that your members would either persist with disruptive activity or merely
resume strike action at a time favourable to them and prejudicial to the company” (Underlining supplied).
[25]
On appeal the only ground on which the appellant attacked this aspect of the judgement of the Court a
quo was that the tender of services by the second and further respondents was conditional. In support of this contention Mr Reyneke
submitted that the basis on which the second and further respondents tendered their services was that they could resume their strike
at any time after they had resumed duties. He submitted that they made their tender conditional and that a conditional tender of
services by an employee did not entitle the employee to payment of wages. In this regard Mr Reyneke relied on the first three sentences
of paragraph 18 of the judgement in Transportation Motor Spares v National Union of Metal Workers of SA and Others (1999) 20 ILJ 680 (LC) at 695 A-B.
[26]
Paragraph 18 of the judgement in the Transportation Motor Spares case reads thus:
“If workers who have commenced a strike seek to resume their work on the basis that they can still go out again later and resume
the strike, the employer is under no obligation to allow them back at work. This is so primarily because the tender of their services
is not unconditional. In terms of the law an employer’s obligation to pay wages to an employee who has not performed his duties
is dependent upon the employee’s tender of services being unconditional. Quite apart from this, the employer is entitled at the stage of the proposed
return to work on the part of the strikers to lock them out until the dispute over which they had gone out on strike has been resolved.
It is therefore up to the employer to enquire from the strikers when they seek to return to work, what the basis is for their return
to work and to decide whether he will allow them to resume their duties or not and if he will, then on what terms they will be so
allowed.”
[27]
The last of the first three sentences is correct. The balance of the passage requires qualification within
the context of the present case. In the present case where there was no protected lock-out, the employer is obliged to accept the
tender failing which he would be liable for wages if he did not accept the tender. Such a tender is not conditional.
[28]
The reason why a tender by strikers to resume their work on the basis that they may later on resume their
strike is not conditional is that, when strikers do that, they place themselves in the position in which they were prior to going
out on strike. Prior to the commencement of their protected strike, the employer would not, in the absence of a protected lock-out,
be entitled to reject their tender simply because they had indicated that they would be going on a protected strike but would be
so entitled if there was a lock-out. The position cannot be different when they have gone on strike but later tender their services
on the basis that they may later resume their protected strike. In the light of the above the appellant’s contention that the
second and further respondent’s tender was conditional falls to be rejected.
[29]
The appellant’s Counsel also submitted that the appellant was entitled to reject the tender because
it had a reasonable apprehension that the second and further respondents would persist with “disruptive activity”. If this refers to the go-slow and overtime ban, there was no
reasonable basis for such apprehension. If it refers to any
other conduct, that apprehension, too, was without any evidential basis. In those circumstances the appellant’s appeal in respect
of its claim for the period from the 6th to 14th February must fail.
COSTS
[30]
The respondents were substantially successful in the Court below and an order for payment of the remuneration
of the employees for the period 6th February to 14th February 1997 would also have amounted to substantial success in such Court.
[31]
Counsel for the respondents argued that the appellant’s conduct during the litigation we have been
called upon to adjudicate ought to be penalised in the costs order we make. I disagree. In this Court the appellant has been substantially
successful. It has reduced a period in respect of which remuneration is to be paid to the employees from 14 days to 9 days and it
has successfully resisted the cross-appeal which would have had such remuneration increased by that due in respect of an additional
nine days. In these circumstances it seems to me that the appellant is
entitled to its costs of the appeal.
[32]
In the result I make the following order:-
1.
The appeal succeeds.
2.
The order of the Court a quo is amended by the substitution of “6 February” for
“1 February” in paragraph (i).
3.
The cross-appeal is dismissed.
4.
The respondents are ordered to pay the appellant’s costs of the appeal and the cross-appeal
jointly and severally the one paying, the others to be absolved.
------------------------------
RMM ZONDO
I agree.
------------------------------
E.L. GOLDSTEIN
Acting Judge of Appeal
I agree.
------------------------------
D.M. DAVIS
Acting Judge of Appeal
Appearances:
For the Appellant:
Mr Reyneke SC
Instructed by:
Hofmeyr
Herbstein & Gihwala Inc
For the respondent:
Mr Vally
Instructed by:
E.S.
Makinta Attorneys
Date of hearing:
7th November 2000
Date of Judgement:
15th February 2001
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