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6 word "legal" and MAWU the word "lawful". This appeared to be a semantic
15 Sampson recorded his discussion with ALA on 13 March 1985 in these
8
evidenced in subsequent sections when I deal with BTR's conflict with
MAWU and where I quote from the evidence itself. The immediate
provocation arises out of Sampson's attitude towards an agreement relating
to May Day that had been reached in July 1984 and is reflected in a letter
dated 30 July 1984. The relevant part of the letter reads as follows:
Subject to the conditions in para 5 hereof and subject further to suitable prior arrangements being made in writing with your Union in respect of essential and continuous services, the Company undertakes not to prevent any of your members concerned from clocking-out early on the first day of May provided that it is not before the commencement of the normal lunch-break on that day and provided further that such person will only be paid for the hours worked on that day.
(Para 5 is not relevant to the issue.)
Sampson and Schreiner had a telephonic conversation on Monday 29
April 1985 about the May Day arrangements. Sampson, for the first time
9
ever, adamantly insisted that the nightshift would not be given leave of absence at all on 1 May 1985, not even up till 22h00, as suggested by Schreiner, obviously as a compromise offer. Not surprisingly, Schreiner considered this to be unreasonable. When Sampson refused to negotiate further on this aspect, Schreiner warned him that trouble would ensue. It is to be noted that Schreiner did not blackmail Sampson by threatening strike action, nor did he cancel the agreement that he and Sampson would meet to discuss the outstanding issues. Under cross-examination Sampson conceded that he understood this warning to mean that there was going to be trouble as regards his attitude in relation to May Day.
Nevertheless, Sampson persisted in his attitude, well knowing of the interpretation placed on the agreement by MAWU. The point is not whether MAWU's interpretation was the correct one; the crux of the matter is Sampson's attitude after he became aware of the dissensus. It was
10
Sampson's stance over the May Day arrangements that sparked the strike, and his attempts to justify his stance as regards the May Day matter carry little or no conviction. The assumption that May Day celebrations would only take place during the day is not borne out by any evidence to that effect. That the matter of the night-shift was not mentioned in the
letter, is probably because the agreement was intended to include that shift. If Sampson adopted the uncompromising attitude because he was annoyed by the attitude of the employees in respect of overtime, it can hardly be justified as a mature, responsible or justifiable reaction. His refusal to allow the night-shift staff to clock-in three hours late, but rather to run the risk of escalating the existing tension and causing further trouble, of which he was warned by Schreiner, seems to be short-sighted and unreasonable.
I must also re-iterate that Sampson in taking up the attitude described, was not threatened by MAWU with a strike. BTR was not blackmailed over
11
the May Day issue. But Sampson was aware of the existing tension and was warned by Schreiner that his attitude would cause trouble. Nobody would deny Sampson the right to assume a firm attitude, as long as it was a fair and reasonable one. For the reasons stated above, I hold
that his attitude was not fair and reasonable and that this attitude finally ignited the tinder-box.
In its judgment the court a quo found as a fact that the immediate cause of the strike was the dispute about May Day, but also accepted that MAWU "adopted" the strike (in the sense that it used the failure to reach agreement on the recognition agreement as justification
for the strike).
I do not consider the conclusions reached herein as at variance with the finding of the court a quo. There is no indication in the record that the employees would have embarked on a strike merely because of BTR's attitude over the May Day matter, nor that they would have continued
the strike for an indefinite time for that reason alone. The real cause of complaint was the
12
failure to finalise the recognition agreement; the May Day dispute merely set fire to the timber. This is how I understand the judgment
of the Court a quo. To that extent I agree with its conclusions.
Where I differ from the court a quo, however, is that BTR was correct as regards its interpretation of the letter of 30 July 1984.
The interpretation to be given to a document such as a letter is not a question of fact but one of law. This Court is, therefore, not bound by the interpretation placed by the court a quo on the letter of 30 July 1984.
I consider, at best for BTR, that the letter was ambiguous, in that it did not specifically deal with the position of the night shift workers. But even accepting that to be the case, the point is that precisely because of such ambiguity, Sampson should not have adopted the attitude displayed by him on 29 April 1985, especially after Schreiner's offer that the night-shift would in fact commence, but three hours after the usual time. Such a finding is not
13 contrary to any finding of fact by the court a quo: I say that Sampson's
interpretation may have been correct, but not so his attitude in the light of all
the circumstances prevailing at the time. The question of the reasonableness
or not of Sampson's attitude is not a question of fact by which this Court is
bound, but a juristic evaluation, ie a matter of law.
Why, then, did Sampson adopt this unreasonable attitude? Why did he
knowingly create a new source of contention and the risk of destroying all
that had been achieved by negotiations?
BTR's desire to get rid of MAWU and its members
It was in my view correctly argued on behalf of the appellants
that Sampson's stance in respect of the May Day agreement was simply a
perpetuation of the attitude he consistently adopted on behalf of BTR towards
MAWU. A dominant strain in this attitude was that employees could "take
it or leave it"; and underlying that attitude was the intention of ridding the
14
factory floor of MAWU by dismissing the employees, a majority of whom
were MAWU members. The point is amply illustrated by the evidence of
what had already occurred during the strike of March 1985 and also by
subsequent events.
On 12 March 1985 BTR was advised by its industrial consultant,
Andrew Levy Associates ("ALA"), as follows: (I quote verbatim from
Sampson's notes.)
If failed by tomorrow morning, find worst offenders in worst depts, give him a final written warning, give him a couple of hours then fire him. If Giles unhappy, do it on a whole dept. basis and warn summarily dismissed if within
2 hours, back up with telex to dept.
Sampson said in his evidence in chief that a disciplinary enquiry would
have been held, but conceded it was to be one with a preconceived
determination to dismiss the workers.
terms:
21 09h56), that counter-suggestions "will not involve matters of principle or 23 Allied Workers Union and Others 1994(2) SA 204(A) at 214 G-H). 28 17 C(l)(a) of the Act of reaching this conclusion. 33 own proposals. This presupposes a continuation of the employee- employer 34 delivered to shop stewards at 15h00 that if they did not return to work by
17
strategy.
A damning piece of evidence, illustrating BTR's true motives, is
contained in a note made by Sampson during the March strike:
Schreiner might get them back (bad luck) before lunch.
Sampson conceded this meant that if Schreiner got the workers back at too early a stage. BTR would not be able to take punitive action against the workers and would not be able to fire the workforce and clean out the shop stewards. This would be the "bad luck" part of the note.
In my view, these contemporaneous notes made by Sampson speak louder than any protestations of regret at having to dismiss the employees later advanced by Sampson during his testimony.
As part of his underlying attitude, there is also ample evidence that Sampson imposed unreasonable deadlines on MAWU on more than one
18 occasion. I refer to some examples.
After the mediation of 20 March 1985, MAWU put up a set of proposals and asked BTR to respond the next day. BTR put up its package proposal the next morning. It was described in the covering letter as "a full, final and complete package offer'" and, subject to ratification, the proposal was stated to be "only open for acceptance in writing to be received by us not later than 14h30 today failing which it will automatically lapse without the need for any further notice to that effect." MAWU was, in effect, given two hours in which to consider and accept or reject BTR's
proposals.
MAWU responded by pointing out that it did not have enough time to
consider BTR's proposals in any detail but, importantly, it also stated:
It would appear however that this offer may provide a realistic basis for settlement and we would suggest that a further meeting be held after we have been able to consider same in more detail.
19 BTR acceded to the request for more time and extended the deadline
"for acceptance or rejection of our package until 12 noon, Monday 25
March 1985." (The Conciliation Board meeting had been postponed to 27
March).
BTR indicated on Monday 25 March 1985, in response to a MAWU request for further time, that its position was a final one to be accepted or rejected. MAWU considered this stance to be unreasonable and as undermining the enormous amount of effort put into securing agreement on certain fundamental issues. Significantly, Schreiner on behalf of MAWU offered to leave the retrenchment procedure out of the agreement entirely but Sampson, sadly, was unwilling to accept this rapprochement.
It appears that Sampson's initial attitude of accommodating MAWU's request for time changed following his consultation, inter alios, with ALA resulting in a refusal of the request for more time and an insistence that the
20 package offered was a final one, open for acceptance by noon on Monday
25 March 1985 after which it would be withdrawn. It emerged that this
strategy had come from ALA who had advised Sampson not to meet with
Schreiner. It was put to Sampson in cross-examination that this was not a
suitable way of handling a dispute, a statement which Sampson could not
refute. The suggestion that BTR/s refusal to afford MAWU more time on 25
March 1985 was no more than a tactic, is refuted both by the evidence
relating to the advice given by ALA and followed by Sampson (which is not
reconcilable with mere tactics) but also by Sampson's own concession,
mentioned in my previous, underlined sentence.
Furthermore, Giles, on behalf of BTR, sent a telex to MAWU on 26
March 1985, ostensibly keeping its final offer open but "strictly" subject to
certain conditions, inter alia, that "full details" of counter-suggestions be
telexed before 15h00 that same day (the telex reflects that it was sent at
substance," and that the retrenchment procedure, including severance pay "be
treated as an inseparable part of the complete package and not left over."
Subject to these pre-conditions, BTR was prepared to meet on 27 March at
10h00, with the additional proviso, however, that "such meeting will only
last for a maximum period of 4 hours .. . whereupon (BTR's) final offer
will lapse without further notice to that effect. . ."
While dealing with this matter, a matter of principle should be addressed. It is true that deadlines for the acceptance of offers, threats of industrial action and the like are typical "tactics" adopted in the bargaining process contemplated by the Act. But surely a court can not turn a blind eye if illegitimate, unreasonable or mala fide tactics are employed.
For a court to sit idly by when tactics of the latter kind are used, would be to make a mockery of the law, of justice and of the administration of
22
justice. We must guard against the apellant's right of appeal becoming
illusory (Protea Assurance Co Ltd v Casey 1970(2) SA 643(A) at 648 E).
Fortunately, our law does not require such an approach by any court. On the
contrary, it was said in National Union of Metalworkers of Sa v Vetsak Co-
operative Ltd and Others 1996(4) SA 577(A) at 593 F-G.
The rationality of the conduct of the respective parties will always be a factor : so too their flexibility and bona fides, the cause, purpose and continued 'functionality' of the strike, the financial and economic repercussions for both sides of the strike and of the dismissals, the ability of the employer and his employees to absorb the harm done thereby and the duration of the strike, actual and anticipated. There are, I am sure, other considerations as well. The relevant factors cannot all be captured in a single formula or formulation.
(See also Media Workers Association of South Africa and Others v
Press Corporation of South Africa Ltd(Perskor) 1992(4) SA 791(A) at 802
B -1; Performing Arts Council of the Transvaal v Paper Printing Wood and
But even if the court is only to become involved in evaluating the reasonableness of the tactics used in extreme cases, the present one surely is such a case. I can hardly think of a more prolonged, frustrating endeavour of a worker's union to get an employer to agree to a standard recognition agreement. Certainly no more serious and extreme case has ever been reported in our law reports. The consequences of the dismissal under discussion by themselves mark this case as an extreme one. In my view, therefore, this Court is not only entitled but required closely to analyse the "tactics" of the parties in order to ascertain whether one or both acted unreasonably or in bad faith.
BTR's attitude can hardly be described as reasonable, or as one conducive to solving the labour dispute, or as one of sensitivity to the position of its employees, or as one consonant with the requirements of bona
24 fide labour negotiations.
I have come to the conclusion that prior to the strike of 30 April 1985, BTR's actions were influenced by a desire to get rid of MAWU and its members. Far be it from me to say that these actions directly caused the strike or that they justified the strike. The relevance of the conclusion is that it explains why the unfair labour practice, as alleged by MAWU, viz the over-hasty dismissal coupled with the refusal to re-employ the employees en bloc, was committed. As such, the rationality of the conduct of both parties, their flexibility and bona fides are always relevant factors (see Vetsak at 593 B-G).
Am I precluded by the provisions of s 17 C(l)(a) of the Act from reaching this conclusion?
The fact that I have reached a conclusion in this respect differing from that of my brother Smalberger JA is regrettable. However, the relevant
25
criterion against which the questions just posed should be answered is: what
did the LAC hold on this point and how did it justify its decision?
The relevant full passage from the judgment of the LAC reads as
follows at 93 D-J:
As noted earlier in the judgement the appellants (MAWU) contended as their first main argument that the dismissals were unfair in that by negotiating over the recognition agreement in the manner in which the respondent (BTR) did it precipitated or contributed to the strike. In support of this contention Mr Brassey embarked on an exhaustive analysis of the negotiations between the parties from 1979. He dealt with the various aspects of the negotiation in phases over the years 1979 to 1985 and contended that the tardiness of the respondent in recognising the union and thereafter negotiating with it on a recognition agreement led to frustration, anger and irritation on the part of the workers which culminated in the strike. We do not intend dealing with the evidence of the events from 1979 leading up to the strike in April 1985. That the respondent initially was hostile towards the union and reluctant to recognise
26
and negotiate with it admits of no doubt. That it ultimately recognised the union and ultimately negotiated over a period of two years until an agreement had just about been reached is however also true. It is apparent that up until the strike commenced the respondent was anxious to reach finality on the agreement and was prepared to negotiate to that end. The fact that the respondent may have been guilty of unnecessarily prolonging the negotiations did not however justify the strike. As we have already said, the parties were very close to agreement and were still negotiating when the strike broke out. In any event, we have already found that the cause of the strike was not any delay on the part of the company in signing the recognition agreement. Once it is found that the strike was not justified, then it cannot be said that the respondent in any way contributed to the strike. If the appellant's argument were to hold water, then it would be applicable in every case where economic pressure has been exerted by way of a strike in collective bargaining because in each such case the other party by not acceding to the others demands could be said to have contributed to the strike. There is accordingly in our view no merit in this argument. (My emphasis.)
21 The court a quo expressly stated that it did not deal with the evidence
of the events from 1979 leading up to the strike in April 1985. Ex confesso
the LAC did not base its finding that"... the respondent (BTR) was anxious
to reach finality on the agreement and was prepared to negotiate to that end"
on an analysis and evaluation of the evidence. Consequently this Court is
not bound by such finding - see Strathmore Holdings(Pty) Ltd v
Commisioner for Inland Revenue 1959(1) SA 460(A) at 467 H - 468 C - and
is free to scrutinise the record and make its own findings (ibid at 468 C-D).
In this respect, this Court is, in any event, in as good a position as the LAC,
the latter also being only a court of appeal - see National Union of
Mineworkers v East Rand Gold Ufanuim Co Ltd 1992(1) SA 700(A) at
723 C-D.
For the reasons set out above, I am of the view that BTR's true desire
was to get rid of MAWU and its members, and that I am not precluded by s
One can now understand and properly evaluate, in line with the judgment in Vetsak, quoted above, why BTR acted as it did when the strike of 30 April 1985 occurred. Snatching at the opportunity to dismiss the employees
Consistent with BTR's true desire, described above, its dismissal of the employees took the form of a particularly rapid and unreasonable snatching at the opportunity of getting rid of MAWU by dismissing the employees.
At approximately 07h50 on 30 April 1985 Sampson saw workers pouring out of the factory buildings. Sampson then, according to his evidence, immediately recalled his conversation with Schreiner the previous day in connection with the May Day celebrations and the
latter's warning of trouble. He also testified that within half an hour of the actual
29 commencement of the strike BTR's Industrial Relations Officer, Mr van Zyl,
went to the canteen where the workers were sitting, spoke to the shop
stewards, and was told quite emphatically that the strike had been caused by
BTR's failure to sign the recognition agreement. This was also confirmed in
a telex received from MAWU at approximately 13h30 that same day. The
telex once again requested signature by BTR of MAWU's draft of the
recognition agreement. In the event, there could have been no doubt that the
strike, although precipitated by Sampson's attitude as regards the May Day
arrangements, was now aimed at reaching agreement in respect of the
recognition agreement.
But BTR had no intention of signing the MAWU draft. On the
morning of 30 April, after the strike had commenced, Sampson had a
telephone conversation with Mr Brown of ALA. I quote portions of
Sampson's note reflecting ALA's advice:
30
Be careful of threats at this sensitive stage. Do this post May Day situation. Sit out today, no threats. Don't get aggressive today (very tense, staff dragged out).... We could consider loct out, and only allow people in on basis that there will be no work stoppage on the question of recognition agreement.
BTR apparently accepted this advice. On the next day, 1 May 1985,
BTR considered its options for dealing with the strike. These are recorded by
Sampson as follows:
Options on Strike/Agreement
1.
Sign the agreement as presented by the Union (MAWU).
2.
Meet with the Union and try to settle the five fundamental differences.
3.
Meet us in (2) above under a mediator.
4.
Stand fast on our ground, ie. the agreement as presented by us to the Union last month.
The only option we see is 4 above. The fundamentals are such that there is no prospect of reaching agreement on them, nor can we accept the Union position on these
31 fundamentals. (My emphasis)
The view that "... the fundamentals are such that there is no prospect of reaching agreement on them" was a gross over-statement of the true position, not only objectively speaking, but also in the light of Sampson's concession under cross-examination that the four points of difference mentioned above were capable of being solved. A fifth difference related to the credit to be given to retrenchees for past service
if re-employed. This difference was capable of solution and did really not relate to a fundamental matter. In fact MAWU had offered to withdraw the most difficult one, the retrenchment package, from the table.
The very justification of BTR's decision to adopt option 4, ie to "stand fast", was therefore clearly false especially when seen against the background of BTR's true motives as described earlier. It was the direct cause of the tragic consequences that followed.
32 Sampson's notes Continue:
Having duly considered the above, it is our view that we should take the following steps :
1.
Fire the entire weekly workforce either on Thursday or Friday - timing to be discussed.
2.
Urgently meet with our legal and LR advisers and yourself to devise an appropriate plan for remanning the works. We suggest we try and set this up for tomorrow (Thurs 2 May), either in JHB, Durban or Howick.
At the same time Sampson recorded the following advice as emanating from ALA:
He (ALA) goes along with no lockout. ... He agrees, dismiss - but it's the worst timing for us due to international implications on BTR in UK (United Kingdom). This is total war mode. Andrew (Levy) believes this is the route, but very bad for us. Gear up and go ahead for tomorrow ... (My emphasis)
A remarkable feature of this note is that on the one hand it states, after
discussing the various options, that the only option was to "stand fast" on its
relationship. But on the other hand and without any indication to negotiate
further, it is then decided to fire the entire workforce.
The next day, 2 May 1985, BTR responded to MAWU's telex of 30 April mentioned previously. The response stated, inter alia, that BTR regarded "the striking of your members and refusal to return to work as a material breach of their employment contracts with the Company and they are being informed accordingly. The Company reserves its rights to take appropriate action." Sampson stated in evidence that he doubted very much if BTR would have been prepared to negotiate towards a compromise position. It had already taken a decision the previous day to "fire the entire weekly workforce". If the door was slammed on further negotiations, it was certainly done by BTR.
On 2 May 1985 BTR gave the strikers an ultimatum by a notice
16h00 that day (or if the nightshift workers who received a copy of the notice
when they came on shift did not start within an hour of the shift commencing)
BTR reserved the right to terminate their services without further notice.
That evening, it decided to implement the previous decision to terminate the
services of the strikers the next morning.
On the morning of 3 May 1985 BTR dismissed the employees.
MAWU immediately telexed BTR in the following terms:
We note your unlawful termination of employees' contracts of employment yesterday. We fail entirely to see how such provocative action can possibly help to solve the current dispute and point out that same -
1.
Will greatly increase the possibility of intimidation
which we understood the Company was actually
trying to prevent;
37 an acceptable reason for the hasty dismissal of the workers. Moreover this
explanation fails to stand up to scrutiny in view of the fact that BTR and
MAWU had previously agreed that in the event of a lawful strike, no action
would be taken against the workers before the expiry of five days. It has not
been explained why BTR could not have waited for a few more days before
dismissing the strikers if the strike continued, even if it was an unlawful
strike. The fact that the strike was an unlawful one, is of course no excuse
for BTR acting unfairly towards its employees. (Performing Arts Council of
the Transvaal v Paper Printing Wood and Allied Workers Union and Others,
supra, at 215 E et seq.)
I am likewise not impressed by the further argument that BTR would
have lost heavily or even been broken financially by a prolonged strike. Had
it reconsidered the matter maturely, it would have been clear to BTR that
there was no impasse as regards the recognition agreement, that the parties
38 were in fact very close to an agreement and that with a little give and take and
40
the workers, having given their best years to BTR, would be unable to find any alternative employment; others would be forced to take less advantageous positions. The knowledge and expertise which they had gained at BTR would, in many cases, become useless.
No responsible employer, in such weighty circumstances would dismiss a workforce of nearly 1 000 employees with an average term of 25 years, after giving it an ultimatum of only one hour, nor would it
dismiss the workers some hours later without at least trying to keep negotiations open. There is very little that the employees and MAWU could have achieved in one hour's time - except to bow to BTR.
BTR should also have known that the May Day dispute being the immediate cause of the strike, the emotions in respect of May Day would blow over in a few days and that it would be possible to resume negotiations in a more calm atmosphere.
41
BTR also knew that the obstacles in reaching a recognition agreement were not insurmountable and it knew that the ball was in its
court. It was obliged to respond to the MAWU draft, which was the latest offer on the table.
In my view, the shortness of the ultimatum and the final dismissal of the employees within a few hours thereafter, constituted an unfair labour practice.
In this respect, there is a conspicuous similarity between the facts of the case now under consideration and those of Performing Arts Council of the Transvaal v Paper Printing Wood and Allied Workers Union
and Other 1994(2) SA 204(A) ('PACT'). In that case, PACT, through its attorney, issued an ultimatum to 299 of its employees engaged in a "wildcat" strike. The ultimatum was communicated to the employees at 14h20, requiring them to return to work at 14h30. They were dismissed 40 minutes later. Some of
42 the backgrounds facts in that case (summarised in the report at 215 G et seq.)
are reminiscent of those in the present matter, ia that most of the dismissed
employees had given many years (between 4 and 20 years) of service to
PACT; the cause of the unhappiness related to a matter which was of
legitimate concern to the employees in relation to the employment; the trade
union was not associated with the strike; PACT should have realized that
something had gone wrong in the communication between the trade union
and the employees; the employees were in an emotional state; and they had
been on strike for a relatively short time.
In the PACT case, it was said by Goldstone JA, delivering the majority
judgment at 216 8-D:
In all of those circumstances fairness and good sense dictated that the employees should have been given a reasonable ultimatum. As it was put by Van Rensburg J in Plaschem (Pty) Ltd v Chemical Workers Industrial Union (1993) 14ILJ 1000 (LAC) at 1006 H-I:
43
'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.'
and again at 217 B et seq:
In my judgment a fair ultimatum in the circumstances of this case should have been of sufficient duration to have enabled:
(a)
PACT to have ascertained what had gone wrong and caused the employees to behave as they did, either by direct enquiry from the employees, the shop stewards, Motau or some other representative of the trade union;
(b)
the employees time to cool down, reflect and take a rational decision with regard to their continued employment, and for that purpose to seek advice from their trade union.
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