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IN THE SUPREME COURT OF APPEAL OF SOUTH AFRICA
In the matter between
THE BENICON
GROUP APPELLANT
AND
NATIONAL UNION OF
METAL WORKERS OF
SOUTH AFRICA AND 185 OTHERS RESPONDENTS
BEFORE: HEFER, OLIVIER, ZULMAN JJA, FARLAM AND MADLANGA
AJJA
DELIVERED: 1 OCTOBER
1999
Labour law - unfair dismissal -
reinstatement
FARLAM AJA
________________________________________________________________
J U D G M E N T
________________________________________________________________
FARLAM
AJA:
[1] The appellant is a company involved in the mining industry, the
civil engineering industry and in leasing out civil engineering
and mining
equipment. [2] On 10 August 1992 the appellant dismissed those of its workers
who had participated in a nationwide stay-away
which took place on Monday 3 and
4 August 1992 and which was called by the ANC - COSATU - SA Communist Party
Alliance to protest
against the collapse of the CODESA constitutional
negotiations.
[3] The dismissed workers, together with their union, the
National Union of Metalworkers of SA, sought reinstatement in unfair labour
practice proceedings in the Industrial Court before Labuschagne AM.
All the
workers who were dismissed, with the exception of those who worked at a site at
Syferfontein, had participated in an earlier
stay-away on 23 July 1992. The
Industrial Court ordered the reinstatement of the workers who were employed at
the Syferfontein site
but the application failed in so far as it related to the
other employees.
[4] The unsuccessful applicants appealed to the Labour
Appeal Court (LAC) where the matter was heard by Cameron J and two assessors.
The appeal was allowed and the determination of the Industrial Court (insofar as
it related to the unsuccessful individual applicants)
was set aside and in its
place was substituted a determination to the effect that the dismissal of the
individual applicants was
an unfair labour practice and that they were to be
reinstated in their employ on terms and conditions no less favourable than those
which were operative at the date of their dismissal. It was further ordered
that the reinstatement was to be effected from 20 February
1996, being the date
of the Industrial Court determination but not from any preceding date. There
was no order as to the costs of
the appeal.
[5] The judgment of the
Industrial Court has been reported: see [1996] 3 BLLR 330 (IC). The judgment
of the LAC has also been
reported: see (1997) 18 ILJ 123 (LAC).
[6] Counsel for the appellant attacked some of the findings made by the LAC
and submitted that this court is not bound thereby. On the
other hand counsel who appeared for the respondents, relying on National
Union of Mineworkers v East Rand Gold and Uranium Co Ltd 1992 (1) SA 700 (A)
at 723 B - G, Performing Arts Council of the Transvaal v Paper,
Printing, Wood and Allied Workers’ Union and Others 1994 (2) SA 204
(A) at 214 E - F, National Union of Metalworkers of SA v Vetsak Co-operative
Ltd and Others 1996 (4) SA 577 (A) at 593 H - I and 583 I - 584 C and the
judgments of Smalberger JA and Scott JA in Betha and Others v BTR Sarmcol, a
Division of BTR Dunlop Ltd 1998 (3) SA 349 (SCA) at 387 C - F and 405 C -
406 E, contended that this court is bound by such findings inasmuch as they
related
to the facts.
The main findings which counsel for the appellant
attacked related to the question as to whether the workers in the
appellant’s
employ could have been
confused about the
appellant’s policy regarding stay-aways immediately before they
participated in the stay-away which took
place on 3 and 4 August. The findings
of the LAC which appellant’s counsel attacked are contained in the
LAC’s reported
judgment at 145 E - I. For the purposes of this judgment I
am prepared to assume, without deciding the point, that this Court is
entitled
to overturn the findings in question. On the view I take of the matter these
findings are not decisive on the question
as to whether the appellant’s
action in dismissing the individual respondents was an unfair labour
practice.
[7] This court’s task is to pass what by its nature is a
moral or value judgment on the question as to whether the appellant’s
action in dismissing the individual respondents amounted to an unfair labour
practice. The ultimate determinant in such an enquiry
is fairness, by which is
meant fairness to both the employer and the employee.
[8] Obviously the
inquiry whether the dismissals in this case were fair or unfair involves a
consideration of all the relevant facts.
As the judgments of both the
Industrial Court and the LAC have been reported it will be sufficient to give a
summary of the more
significant facts.
[9] The first stay-away experienced by
the appellant was on Soweto Day, 16 June 1992.
On 15 June 1992 the
appellant had a meeting with representatives of the union, viz the union
organizer from Witbank and the elected
shop stewards. It was agreed at the
meeting that the 16 June stay-away would be dealt with by the application of the
principle “no
work/no pay/no penalty”.
[10] After the 16 June
1992 stay-away a meeting took place between the management of the appellant and
the union organiser and three
of the shop stewards. After this meeting
management issued a memorandum to all staff members in which it was stated that
in future
disciplinary action would be taken against any person taking part in
an illegal strike/stay-away action.
[11] On 21 July a further meeting took
place between management and the union organiser and certain shop stewards. At
this meeting
the union organiser mentioned that the union planned certain
actions beginning on 22 July but not that a stay-away was anticipated
for 23
July.
[12] On 22 July, after 4 pm, one of the shop stewards told the
appellant’s managing director and its plant director that a stay-away
was
planned for the next day. On 23 July the planned stay-away, which took the
form of a march to the office of the local receiver
of revenue, took
place.
[13] On 24 July the workers returned to work and each was served with
a notice to attend a disciplinary hearing on 25 July. The charges
were:
1 failing to report for duty on 23 July 1992;
2 absence without
permission from work; and
3 disobeying company rules and
regulations.
[14] On 25 July disciplinary hearings were held. Those who had
stayed away on 23 July were found guilty and dismissed. The dismissals
were
not implemented but instead, at the end of the proceedings on 25 July it was
agreed that a meeting would be held on Tuesday
28 July. On 27 July the workers
were given the day off to prepare themselves for the meeting the following
day.
[15] On 28 July the meeting to which I have referred was held at the
appellant’s head office between the whole workforce and
representatives of
management. The shop stewards were present but no union officials. The meeting
was held in a large marquee tent
which was hired for the occasion. In evidence
and argument this meeting was called the “tentberaad”.
Although
there was a dispute in the evidence between Van Rooyen, the appellant’s
plant director, who was the only witness called
on its behalf, and Maduna, one
of the shop stewards, who testified on behalf of the respondents, as to the
purpose of the “tentberaad”
the LAC found that the determination of
stay-away policy was pivotal to the meeting. A workers’ committee, or
liaison committee,
was elected in the presence of management. The LAC found
that the liaison committee idea originated with management and that its
purpose
was to liaise with management on future stay-aways. The LAC also found that the
liaison committee replaced the shop stewards
committee but that management in
initiating the liaison committee had not deliberately attempted to sideline the
union. Nevertheless,
so it was held, management had acted imprudently (albeit
in good faith) in procuring the replacement of the union and elected union
representatives by the workers themselves. The LAC in fact described
management’s action in initiating the liaison committee
as a
“gaffe”.
[16] There was a dispute on the evidence as to whether
those present at the “tentberaad” decided in principle, as
management
alleged, that the entire workforce would in future report for duty
in the event of a stay-away but, if not, the hours to be lost
would be worked
in, in advance, so as to stockpile coal. In addition it was agreed, so the
appellant averred, that a core of workers
would in any event report for duty
during stay-aways.
[17] The Industrial Court found that the workers did agree
at the “tentberaad” as the appellant alleged: see its judgment
at
337 E - F. This finding was overturned by the LAC which found that no final or
binding agreement was reached at the “tentberaad”:
see the LAC
judgment at 134 F. In my opinion there is no basis for not accepting this
finding by the LAC, whichever of the approaches
to factual findings of the LAC
set out in the various judgments in Betha and Others v BTR Sarmcol, a
Division of BTR Dunlop Ltd, supra is adopted.
[18] At the
“tentberaad” the dismissals of the workers for participating in the
23 July stay-away were withdrawn. There
was a dispute between the parties as to
whether after the dismissals were withdrawn the workers were given an oral final
warning.
Although the LAC said that it was open to question whether or not a
warning was given it held (at 136 F) that “the presence
or absence of such
a warning and its status as final or otherwise is . . . not decisive for the
justice of the case”.
[19] On Wednesday 29 July, after the
union’s Witbank organizer had warned one of the shop stewards that the
election of the
liaison committee meant “taking the union out”, the
workers had a meeting at which it was decided that those elected
to the liaison
committee would withdraw therefrom.
[20] During the morning of Thursday 30
July the two headquarters representatives on the committee met with management.
After lunch
the headquarters representatives did not return to the meeting:
instead they sent a letter saying that they had decided to withdraw
because
“to be in the committee is too demanding”. The LAC found that this
reason was absurd and evasive and that the
reason given later, that they
perceived the liaison committee to be a strategy of the appellant designed to
bypass proper consultation
with the duly elected shop stewards’ committee
and/or officials of the union, was “both more candid and more
accurate”
(at 135 G).
[21] Following on the collapse of the liaison
committee neither the representatives of management nor the workers appear to
have made
any effort to re-establish lines of communication so that hours could
be worked in, in advance, so as to stockpile coal before the
impending two day
stay-away planned for 3 and 4 August (for which a general nation-wide call had
gone out some three weeks before)
and arrangements could be made for a core of
workers to work on 3 and 4 August. Instead management caused a memorandum to
be put
in each worker’s pay packet on Friday, 31 July 1992. This
memorandum, which each worker received just before leaving on the
“pay
weekend” immediately before the stay-away planned for Monday 3 and Tuesday
4 August, read as follows:
“VERY IMPORTANT NOTICE!!!
The following steps will be taken against persons not at work on the 3rd of August 1992.
NO WORK NO PAY
NORMAL BONUS PENALIZATION PROCEDURE
Persons not at
work on 4 August 1992 or any other day in future on which a stay-away or mass
action takes place, will run the risk
of being
DISCHARGED IMMEDIATELY
!!!
By order
BENICON MANAGEMENT”
[22] On 3 and 4 August
only 63 of the appellant’s workforce reported for duty.
[23] On
Wednesday 5 August the workers returned to work. Each received an
“Advice to Attend disciplinary Hearing”, which
read in part as
follows:
“Alleged misconduct: not at work on 3rd and 4th of August 1992. The charges against you are: Absent from work without permission.”
[24] On Thursday 6 August, after a mass
hearing, conducted at the insistence of the workers, they were found guilty of
misconduct.
[25] Further discussions then took place on Friday 7 and Monday
10 August. The subject of the discussions was further stay-aways.
Van Rooyen
testified that these discussions were designed to ascertain whether
satisfactory arrangements could be made with regard
to future stay-away actions,
which could then serve as mitigation in the determination of an appropriate
sanction.
[26] No agreement on this topic was arrived at. The workers
insisted that the principle “no work/no pay/no penalty” should
apply
in respect of future stay-aways and that if some personnel was to be provided
during future stay-aways management had to furnish
full security for
it.
[27] Appellant was not prepared to agree thereto. Its response was to
propose to the union that the workers who had been found guilty
of misconduct
for participating in the stay-away should not be dismissed provided every
employee signed an agreement in the following
terms:
“1 Hundred per cent attendance of all employees during any further stay-away, mass action, illegal strike and/or any planned or unplanned work boycotts or go-slow actions.
2 With reference to
the actions mentioned in para 1 Benicon would not only expect employees to be
present at their normal place of
work, but also to perform their normal duties
at the required production tempo.
3 Normal working hours must be adhered to
during action referred to in para 1.
4 Should the employees not attend work
and perform as stipulated in 1, 2 and 3, the employees’ action will be
viewed as breach
of this agreement and will be dismissed
immediately.
5 Benicon undertakes not to lock out any employee who wishes to
attend work at such times referred to as in para 1.
6 All other Benicon rules
and regulations must be adhered to.”
This proposal having been
rejected, the workers were dismissed, retrospectively from 4
August.
[28] Management was however, despite the dismissals, prepared to take
the workers back, provided they accepted its terms. The re-employment
terms
included an absolute prohibition on future participation in stay-aways. A
Memorandum of Agreement dated 12 August between
the appellant and certain newly
re-employed workers read:
“1 The employee undertakes not to take part in any future illegal industrial action, mass actions, or stay-aways, and to be present at his workplace and to perform his duties faithfully.
2 The employee undertakes to abide by
all the rules and regulations of the company at all times.
3 The company
undertakes not to lock out the employee during any action referred to in para 1,
if he turns up to work.
4 The company undertakes to sanction [rescind?] the
decision to dismiss the employee as a result of the disciplinary hearing held
on
6 August 1992. Instead a final written warning will be placed on his
file.”
[29] The Industrial Court, as has been said, refused the application for re-instatement save in so far as it related to the workers at the Syferfontein site. A substantial part of its judgment is devoted to comparing the facts of this case with those in National Union of Mineworkers & Others v Free State Consolidated Gold Mines (Operations) Ltd; President Steyn Mine; President Brand Mine; Freddies Mine, 1996 (1) SA 422 (A) (the “Freegold case”): see the reported judgment of
the Industrial Court
at 349 F - 353 C.
[30] One of the factors strongly relied on by the
Industrial Court in support of its finding that the dismissals were not an
unfair
labour practice was the fact that the workers had, as the Industrial
Court put it, “reneged on their undertaking” given
at the
“tentberaad” to minimise the disruption of the appellant’s
operations: see the judgment at 351 E - F. As
has previously been pointed out,
the Industrial Court’s finding that such an undertaking was given by
workers at the “tentberaad”
was overturned by the LAC.
[31] The
Industrial Court also found that contracts the appellant had with its customers
had been cancelled because of the August
production standstill. The LAC found
that the evidence did not warrant this finding and that it was never established
that causally
the cancellations which did take place thereafter were
attributable to the standstill.
[32] The LAC held that the factual premises
and reasoning on which the Industrial Court concluded that the dismissals in
this case
were fair could not be sustained. It summarised its views on the
merits at 146 G - 147 C of the reported judgment.
[33] Among the points made
by the LAC was that management was “in central measure responsible”
for the breakdown in communication
between management and the workers shortly
before the pay weekend of 1 and 2 August, which preceded the stay-away. This
was because
“[i]ts liaison committee initiative was naive in its
conception and misdirected in its execution. After this”, so continued
the LAC, “the formulation or finalisation of a mutually acceptable policy
in time for the 3 - 4 August stay-away became impossible.
To hold the workers
solely liable, as the Industrial Court did, is most inequitable.” (See
the judgment at 146 H - I.)
[34] Mr Rabie, who appeared on behalf of
the appellant, contended that the LAC fell into error in adopting this approach.
He submitted that even
if the appellant did make a mistake in initiating the
election of the liaison committee this factor was irrelevant to a decision
as to
whether the dismissals were unfair. He said that this was so because it was
clear that even if the “tentberaad”
had not taken place the
stay-away would still have occurred and the dismissed workers would have
participated therein.
[35] He submitted further that the workers’
subjective perception of their entitlement to join the stay-away was also
irrelevant
to the decision as to whether the dismissals were unfair and that the
LAC erred in regarding it as a mitigating factor.
[36] He also argued that an
important aggravating factor to which adequate weight had not been accorded by
the LAC was the fact that
the continued existence of the appellant had been put
in danger by the workers’ participation in the stay-away.
[37] In my
view these contentions cannot be sustained. It is clear from what was said in
the Freegold case (at 449 C) that even if the stay-away was not to be
regarded as a legitimate form of protest in the particular circumstances
of this
case (a matter on which I, like the LAC, express no opinion), the fact that
those who participated in the stay-away perceived
it to be legitimate and
regarded their absence as being for good reason constitutes a mitigating factor
to be taken into account
in any equitable assessment of the fairness of the
dismissals.
[38] It was also not correct to say that the management’s
“tentberaad” initiative regarding the liaison committee
was not
causally related to what happened thereafter and was accordingly irrelevant.
While it is true to say that the workers on
all the probabilities would have
participated in the stay-away even if the “tentberaad” had not taken
place the matter
does not end there. I say that because Mr Rabie
contended that it was an aggravating factor, weighing against the workers, that
their participation in the stay-away had put the
future existence of the
appellant at risk. This was due, in part at least, to the fact that extra hours
had not been worked in,
in advance, before the stay-away so that a stockpile of
coal could be produced to tide the appellant over the stay-away period when
production would cease. In my view the fact that a stockpile was not produced
was due, again in part at least, to the breakdown
in communication between
management and the workers which followed on management’s
“gaffe”, as the LAC called it,
in initiating the formation of the
liaison committee. That being so, there was a causal connection between the
putting at risk of
the continued existence of the company and the
appellant’s actions at the “tentberaad”, which affected the
weight
to be given to this factor in deciding on the fairness of the dismissals.
It follows that in assessing the fairness of the dismissals
what one can call
the “tentberaad” factor was relevant. It follows further that the
factor which Mr Rabie submitted was an important aggravating factor
weighing against the workers was not accorded insufficient weight by the
LAC.
[39] When a moral judgment or value judgment has to be passed regarding
the fairness or unfairness of the dismissals it is important
to bear in mind,
in my view, on the particular circumstances of this case, that the appellant,
even after the stay-away, was willing
to keep the workers in its employ if they
were prepared to agree not to participate in future illegal stay-aways. If they
had breached
such an agreement in the future it would have been difficult to
contend that their dismissal for such breach would not be fair.
But essentially
the same result could have been achieved by keeping them in their employment but
giving them a final written warning.
Such an approach would have been more in
keeping with the view, to which this court has given its approval
(Freegold case at 448 H - I), that dismissal “is the ultimate
sanction; a course of last resort”.
[40] In my opinion the dismissals
in this matter were unfair and the appeal against the LAC’s judgment
should be dismissed
with costs including those of two counsel, there being in
my view no reason that costs should not follow the result.
[41] Together with
the appeal three applications for condonation were argued: two brought by the
appellant (one for the late filing
of the notice of appeal and the other for the
late filing of the record) and one by the respondents (for the late filing of an
affidavit
opposing the appellant’s application for condonation of the late
filing of the record).
[42] In my opinion all three applications should be
granted. The respondents’ application was not opposed and nothing more
need be said about it. The appellant’s applications were opposed but it
is clear that its failure to file its notice of appeal
and the appeal record
timeously was not due to any default on its part but to the negligence of its
attorney. It cannot be said
on the facts of this case that it must have been
obvious to the appellant that there was a protracted delay and it is not
disputed
that it had left the matter entirely to its attorney, in whom it had
full confidence, and that it had no reason to believe that the
rules had not
been complied with. As far as the costs of the appellant’s applications
for condonation are concerned Mr Rabie conceded that the respondents were
entitled to the costs of the application including the costs of
opposition.
[43] Since writing paragraphs [1] to [42] above I have had
the advantage of reading the judgment prepared in this matter by my learned
brother Olivier in which the view is stated that the respondent workers were not
unfairly dismissed by the appellant. I have carefully
considered all the points
made in my learned brother’s judgment and have retraced in my mind all the
steps along the path which
led me to the conclusion that the appeal should be
dismissed. Having done so, I remain of the view that the dismissals in question
were unfair.
[44] As appears from paragraph [6] of my learned brother’s
judgment the major point of disagreement between us is whether the
decision of
the LAC that management was “in central measure” responsible for the
breakdown in communications and that
“its liaison committee initiative
was naive in its conception and misdirected in its execution” has to be
accepted as
correct and relevant. I agree with the LAC’s finding on the
point and am of the view that we are bound by it. Whichever of
the differing
approaches to factual findings of the LAC set out in the BTR case is
adopted I am satisfied that no basis exists for overturning the LAC’s
finding on this point. I am not aware of any
misdirection by the LAC nor do I
think that it can be said that no reasonable court could have come to that
finding.
Indeed the passages from Van Rooyen’s evidence quoted by my
brother in my respectful view, support the LAC’s finding.
When asked
the direct question who first came up with the idea of a new committee Van
Rooyen’s answer was hardly a model of
clarity but he did say that the
workers agreed that the problem at the various sites was different and he
added that they, i e, management, said that if every site chose its
representative
to bring the site’s problems to management then the problem
would be so much easier. These answers go very far in my view
in providing a
basis for the LAC’s finding on the point that the initiative for the
setting up of the liaison committee came
from management, as Maduna testified.
Once one accepts this finding by the LAC then the impact of the other factors
listed in paragraph
[14] (a) to (h) of my brother’s judgment becomes far
less important.
[45] My learned brother then poses two questions which he
says are the real important ones: (a) was the appellant’s demand that
the
workers undertake not to participate in future illegal stay-aways reasonable?
And (b) was the refusal of the workers to accede
to this request
reasonable?
I am not sure that these questions are the real important ones
nor do I think that the converse of a finding in favour of management
on the
first is a finding against the workers on the second. As my learned brother
fairly points out (in paragraph [13] of his judgment)
the workers were in an
invidious position.
[46] What may be called the bottom line of my learned
brother’s judgment is to be found, in my view, in his statement in
paragraph
[11] that the refusal of the employees to agree to a regime of
non-participation in illegal stay-aways inexorably implies an intention
to take
part in illegal action against the employer and “the law cannot
countenance such an attitude”.
I agree that the law cannot countenance
such an attitude and I also agree that the law will not inexorably uphold a
dismissal
in such a situation. I have tried to show in my judgment that there
was something the employer could have done, falling short of
dismissal, which
would have been appropriate in this case.
[47] That does not mean that the
workers were free from blame and not liable to disciplinary action. Indeed as
counsel for the respondents
pointed out, the order made by the LAC, that the
workers were only to be re-instated with effect from the date of the Industrial
Court’s order, does involve disciplinary steps being taken against the
workers. Though they were not solely responsible for
the fact that steps were
not taken to minimise the effects of the disruption (as the Industrial Court
wrongly found) they were to
a substantial degree responsible and disciplinary
steps, falling short of dismissal, were appropriate.
[48] My learned brother
seeks to make something of the fact, which I accept without hesitation, that the
appellant adopted an accommodating
and supportive attitude towards the workers
and says (paragraph [14] (d)) that “this, surely is not the attitude of an
employer
bent on getting rid of its employees in an unfair manner”. I do
not understand that to be the test. The dismissals cannot
only be set aside if
the employer was “bent on getting rid of its employers in an unfair
manner” (and to be fair to my
learned brother I do not understand him to
say that that is the test).
[49] What has been said over and over again in
these cases is that one must be fair to both sides. If the only test to
be applied is fairness to the employer then there is much to be said for a
finding in the appellant’s
favour. But fairness to the workers, in my
considered judgment, requires a disciplinary step falling short of the course of
last
resort.
[50] The following order is made:
1 (a) Appellant’s applications for condonation for the late filing of the notice of appeal and the appeal record are granted.
(b) Appellant is ordered to pay the respondents’ costs of the applications including the costs of opposition.
2 Respondents’ application for condonation of the late filing of their affidavit opposing appellant’s application for condonation for the late filing of the appeal record is granted.
3 The appeal is dismissed with costs including the costs of two counsel.
I G FARLAM
ACTING JUDGE OF APPEAL
CONCUR
ZULMAN
JA
MADLANGA AJA
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