applicant’s heads of argument application for leave to
TRANSCRIPT
Page 1 of 48
IN THE CONSTITUTIONAL COURT OF SOUTH AFRICA (HELD AT BRAAMFONTEIN)
Case no CCT131/15
JA44/2013 JS359-11 J2173-10 JA55-10
J1633-10 GPRFBC12878
In the matter between:
Transport and Allied Workers Union of South Africa obo MW Ngedle and 93 others
Applicant
aand
Unitrans Fuel and Chemical (Pty) Ltd Respondent
APPLICANT’S HEADS OF ARGUMENT (Application for leave to appeal and appeal)
1 INTRODUCTION
1.1 This is an application for leave to appeal against the
unanimous decision of the full bench of the Labour
Appeal Court in a mass dismissal dispute that was
handed down on 24 June 2015 (“the 2015 LAC
Page 2 of 48
decision”)i. The mass dismissal took place on 2
November 2010 pursuant to a strikeii In terms of
practice directive paragraph 7 the merits on appeal will
also be addressed.
1.2 For ease of reference Applicant will be referred to as
“TAWUSA” and Respondent will be referred to as
“Unitrans”.
1.3 TAWUSA brings this application in its own right and on
behalf of 93 TAWUSA members whose particulars
appear from a schedule attached marked “FA-01”iii to
the founding affidavit in the application for leave to
appeal (“the workers”).iv
1.4 TAWUSA claims that the dismissals of the workers were
automatically unfair, alternatively unfairv and seeks
reinstatement, alternatively compensation for the
workers.vi
2 CHRONOLOGY OF MATERIAL FACTS
2.1 It is common cause that at all times material to this
dispute the parties were bound by the Constitution of
the National Bargaining Council for the Road Freight
Industry (“the Bargaining Council”) and the Main
Page 3 of 48
Collective Agreement for the Road Freight Industry (“the
Main . Agreement”)vii
.
2.2 It is common cause that Unitrans conducts the business
of haulage of petroleum and gas page 342 paragraph
4; page 407 paragraph 8.
2.3 It is common cause that at all times material to this
dispute Unitrans unilaterally imposed wage rates in
excess of Bargaining Council standards that differed
from haulage contract to haulage contract within the
bargaining unit. This practice gave rise to arbitrary wage
discrepancies amongst Unitrans employees who
perform the same work but on different contracts.
2.4 It is common cause that a five - year contract between
Unitrans and the Shell Petroleum Company of South
Africa (“the Shell contract”) was terminated in February
2009viii
.
2.5 It is common cause that 31 of the 110 Shell contract
employees remained in Unitrans's employ after the
termination of the Shell contractix. It is common cause
that all but 7 former shell contract employees signed
new employment contracts with Unitrans in terms of
Page 4 of 48
which their remuneration was reduced.x The 7
employees referred to in this paragraph will henceforth
be referred to as "the Shell-7"
2.6 It is common cause that various disputes between
Unitrans and the workers as represented by TAWUSA,
including those that gave rise to the strike, were referred
for conciliation and that a certificate of nonresolution
was issued under case number GPRFBC12878.xi.
2.7 It is common cause that TAWUSA issued a strike notice
on 6 August, 2010xii
. [|009|]
2.8 The strike demands were defined as follows in the strike
notice: “2.1 Wage discrepancies 2.2 Wage cut 2.3
Coupling — R500 - pw 2.4 Unilateral change of the
administration of the fund from the Bargaining Council
to your in-house fund”xiii
[|006|]
2.9 It is common cause that Unitrans brought an urgent
application in the Labour Court on 11 August, 2010
under case number J1633-10 and obtained an interim
interdict on that day (“the August interdict”). In terms of
the interim order TAWUSA and the workers were
restrained from promoting, encouraging, supporting,
Page 5 of 48
participating in or otherwise furthering any strike in
support of the First Respondent’s strike notice dated 6
August 2010;”xiv
. [|007|]
2.10 It is common cause that on 3 September 2010 after
answering and replying affidavits had been filed, the
Labour Court discharged the interim order that was
granted in the August interdictxv
and furnished reasons
for that judgement on 8 September 2010xvi
.
2.11 It is common cause that on 10 September, 2010
TAWUSA uplifted its suspension of the strike and gave
notice that the strike was due to have commenced on
16 September 2010xvii
.
2.12 It is common cause that TAWUSA's demands are listed
as follows in the strike notice referred to at the
preceding paragraphxviii
: “2.1 Wage discrepancies -
there must be no wage discrepancy between
employees who perform work, but on different contract
2.2 Wage cut - former shell contract employees must
earn what they used to earn under Shell contract plus
annual increases 2.3 Coupling — R500.00 pw 2.4
Unilateral change of the administration of the fund from
the Bargaining Council to your in house fund - the
Page 6 of 48
process be reversed to accommodate Tawusa fund not
Councilfund.”
2.13 It is common cause that the Labour Court granted leave
to appeal to the Labour Appeal Court on 15 September,
2010xix
. It is common cause that the strike was further
suspended pending the outcome of the appeal.
2.14 It is common cause that the Labour Appeal Court
confirm that a strike may proceed on the wage cut and
wage discrepancy demands in a judgement dated 23
September 2010 under case number JA55-10.xx
2.15 It is common cause that TAWUSA notified Unitrans in a
letter dated 26 October 2010 that the suspension of the
strike would be uplifted on 28 October, 2010 in the
event of the parties failing to resolve disputes pertaining
to the following issues by that timexxi
: “1. Wage
discrepancies 2. Wage cut” [|008|]
2.16 It is common cause that Unitrans approached the
Labour Court under case number J2173-10 for urgent
relief on 26 October, 2010 in which it inter - alia sought
an order in the following terms (“the October
interdict”)xxii
: “2 Declaring that the intended strike
Page 7 of 48
action called by the respondent is unlawful. 3
Interdicting the respondent from embarking on a strike
in respect of the demands contained in the strike notice
dated 26 October 2010.”
2.17 It is common cause that TAWUSA did not deliver an
answering affidavit in the October interdictxxiii
.
2.18 It is common cause that the Labour Court made the
following order in the October interdictxxiv
: “2 The
intended strike action called by the respondent is
unlawful. 3 The respondent is interdicted from
embarking on a strike in respect of the demands
contained in the strike notice dated 26 October 2010.”
[|010|]
2.19 It is common cause that TAWUSA issued the following
strike notice on 27 October, 2011xxv
: “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
being as follows: (i) Wage discrepancies — there must
be no wage discrepancy between employees who
perform work, but on different contract. (ii) Wage cut -
Page 8 of 48
Former Shell contract employees must earn what they
used to earn under Shell contract plus annual
increases.” [|003|]
2.20 It is common cause that the strike commenced at 14:30
on 28 October 2010.
2.21 It is common cause that Unitrans's attorneys of record
issued a letter on 29 October 2010 alleging, inter alia,
that the strike was not protected and that disciplinary
action would be taken against TAWUSA's members,
which could result in dismissalxxvi
.
2.22 It is common cause that TAWUSA issued a letter dated
30 October 2011 in which TAWUSA expressed the view
that the strike was protected by virtue of the judgement
of the Labour Appeal Court and that Unitrans was not
entitled to have issued ultimatums to employees who
were on strikexxvii
.
2.23 It is common cause that Unitrans issued a series of
ultimatums to employees who were on strikexxviii
.
2.24 The employee parties averred that "TAWUSA explained
that the demands remained the LAC demands. The
Page 9 of 48
parties were merely engaged in negotiations and did not
introduce new demands"xxix
. [|004|]
2.25 Mr Wellington Ngedle (“Mr Ngedle”) testified for
TAWUSA and the workers in the Labour Court that the
purpose of the strike was to eradicate wage
discrepancies and to procure payment of remuneration
that was originally paid to the Shell-7.
2.26 Mr Ngedle maintained in cross-examination in the
Labour Court that employees who were on strike did not
demand a pay increase, but an adjustment.
2.27 It is common cause that the parties held a series of
meetings prior to and during the strike. Mr Ngedle
testified under cross-examination in the Labour Court
that TAWUSA and the workers demanded in those
meetings to "sort out" the wage discrepancies and the
wage cut in respect of the Shell-7.
2.28 Mr Ngedle testified in the Labour Court under cross-
examination that the second paragraph of one of the
ultimatums issued during the strike was factually
incorrect insofar as it suggested that the employee
parties’ wage discrepancy demand had shifted to a
Page 10 of 48
demand for a wage increase. In this regard Mr Ngedle
testified that the demand was always for wage
adjustments and that this was in accordance with the
ruling of the Labour Appeal Court.xxx
2.29 Mr Ngedle testified in the Labour Court that Unitrans
made no suggestions on how the strike would have
been resolved. Mr Ngedle testified that the parties
conducted a further meeting on 1 November 2011 at
which meeting Appellant suggested a compromise in
terms of which some wages would have been raised
and others would have been reduced so that everyone
would have met at R 38.00 per hour so as to achieve
wage parity. Mr Ngedle conceded in further cross -
examination that Unitrans said that this proposal would
have cost more money. In this regard Mr Ngedle
testified that if that was indeed the case, it was for
Unitrans to rectify the problem that it was responsible
for and that this was in accordance with the judgement
of the Labour Appeal Court.
2.30 Mr Badenhorst who testified on behalf of Unitrans in the
Labour Court acknowledged that the meeting referred to
at the preceding paragraph took place,xxxi
although
there were no minutes of this meeting, and had a vague
Page 11 of 48
recollection of a proposal that wage parity could be
achieved by fixing all wages at R 38.00 per hourxxxii
2.31 It is common cause that the employee parties initially
demanded that wage parity should be achieved by
increasing the wages of the lowest paid employees to
the highest paid rates. However, this position changed
as stated at paragraphs 310.35 – 10.36 above.
2.32 It follows that the employee parties never demanded an
increase for all during the course of the strike. [|005|]
2.33 It appears from the evidence of Mr Badenhorst that the
strike demand to rectify the wage reduction of the Shell-
7 rendered the strike lawful on Unitrans’s own
versionxxxiii
. The aforementioned passage ends with the
words “Absolutely, as far as we were concerned, there
was nothing else that could lead to a protected strike”.
[|011|]
2.34 It follows that on Unitrans’s own version, the strike was
protected until the time when the final ultimatum was
issued in terms of which it was announced that the
remuneration of the Shell-7 would have been
rectified.xxxiv
[|012|]
Page 12 of 48
2.35 It was the evidence of Mr Badenhorst that the final
ultimatum was issued on one November 2010 at
14:05xxxv
. [|013|]
2.36 It is common cause that Unitrans capitulated on the
wage cut demand in respect of the Shell-7 in the final
ultimatum that was issued on 1 November 2011xxxvi
.
[|014|]
2.37 It is common cause that the workers were summarily
dismissed at around 8:00 on 2 November 2011 on
account of participation in strike actionxxxvii
. [|015|]
2.38 TAWUSA and the workers challenged the dismissals in
proceedings before the Labour Court under case
number JS359-11 and the matter was heard during
August and October 2012xxxviii
.
2.39 In a judgement dated 13 December 2012xxxix
the Labour
Court dismissed the application referred to at the
preceding paragraph with costs. This judgement shall
henceforth be referred to as “the final Labour Court
judgement”.
2.40 The employee parties took the final Labour Court
judgement on appeal to the Labour Appeal Court under
Page 13 of 48
case number JA44/2013. The appeal hearing took
place on 12 May 2013, and the appeal was dismissed in
a judgement dated 24 June 2015. It is against this
judgement that leave to appeal to the Constitutional
Court is sought.
3 LEAVE TO APPEAL TO THE CONSTITUTIONAL COURTxl
3.1 It is apparent from the contents of these heads of
argument that TAWUSA has raised substantial points of
constitutional law pertaining to the right to engage in
collective bargaining, the right to strike and the right to
be protected against unfair labour practices conferred
under section 23 of the Constitution and has strong
prospects of successxli
3.2 The gist of the employee parties’ submissions pertaining
to constitutional law was presented in the court a quo
although that court made no reference to those
arguments in the 2015 LAC judgement.
3.3 This dispute raises the question as to whether or not the
conduct of Unitrans is inconsistent with the Constitution.
In this regard it is emphasised that Unitrans refused to
negotiate actual wages unilaterally imposed in excess of
Bargaining Council rates, unilaterally reduced the
Page 14 of 48
wages of the shell seven and dismissed the workers
within the context of a strike.xlii
3.4 The court a quo’s interpretation of the Main Agreement
does not promote the spirit, purport and objects of the
Bill of Rights as is required under section 39 (2) of the
Constitution as it justifies a system in terms of which
actual wages can never be negotiated either at central
or at plant levels.xliii
3.5 The erroneous reasoning of the Labour Appeal Court
gave rise to an untenable outcome of the matter from a
constitutional perspective.xliv
3.6 This is a matter that includes issues involving the
interpretation, protection or enforcement of the
Constitution.xlv
3.7 It follows from the foregoing that this appeal relates to a
constitutional matter and to issues connected with the
2015 LAC judgement on a constitutional matter.xlvi
3.8 TAWUSA has exhausted all other avenues of appealxlvii
Page 15 of 48
3.9 TAWUSA did not apply for leave or special leave to
appeal to any other court against the 2010 LAC decision
and does not intend to do so in future.xlviii
3.10 The judgement in the matter of Air Chefs (Pty) Ltd v SA
Transport & Allied Workers Union & others (2014) 35
ILJ 3088 (LC) (“the Air Chefs case”) underscores the
need for this court to grant leave to appeal so as to
settle the tension between collective bargaining at
central level and at plant level in cases where collective-
bargaining on certain issues appears to be impossible
at both levels.
3.11 It is in the interests of justice that leave to appeal to the
Constitutional Court be granted.xlix
4 DIRECTIVE 8 (A): RES JUDICATAl
4.1 In the matter of BMW (SA) (Pty) Ltd v Van der Walt
(2000) 21 ILJ 113 (LAC) the Labour Appeal Court found
that an employee may be subjected to a second in-
house disciplinary enquiry for the same misconduct. In
coming to this conclusion the majority (Zondo AJP, as
he then was, dissenting) held that “… it is unnecessary
to ask oneself whether the principles of autrefois acquit
or res iudicata ought to be imported into labour law.
Page 16 of 48
They are public policy rules” and further that “ In labour
law fairness and fairness alone is the yardstick”.li It is
submitted that this judgement is not authority for the
proposition that the res judicata principle does not apply
in casu.
4.2 There is a striking similarity between the facts that came
before the Labour Appeal Court in the matter of Fidelity
Guards Holdings (Pty) Ltd v Professional Transport
workers Union & Others (1999) 20 ILJ 82 (LAC) (“The
Fidelity Guards Case”) and the present matter. In the
Fidelity Guards Case an employer party sought to
interdict a strike for the second time after a previous
attempt to do so had failed in the Labour and Labour
Appeal Court’slii On appeal in the second attempt to
interdict the strike the Labour appeal court upheld a
plea of res judicata and dismissed the application to
interdict the strike on that basis.
4.3 The requirements for the exceptio rei judicatae are that
a prior final judgment had been given in proceedings
involving (a) the same persons; (b) based on the same
relief claimed; and (c) involving the same subject-matter
or cause of action.liii
Page 17 of 48
4.4 “The cause of action is the same whenever the same
matter is in A issue … An issue is a matter of fact or
question of law in dispute between two or more parties
which a court is B called upon by the parties to
determine and pronounce upon in its judgment, and is
relevant to the relief sought:”liv
4.5 Section 213 of the LRA95 provides that “'issue in
dispute', in relation to a strike or lock-out, means the
demand, the grievance, or the dispute that forms the
subject matter of the strike or lock-out” and a dispute
includes “an alleged dispute”.
4.6 It is apparent from the statement of claim and both pre-
trial conference minutes that the employee parties inter-
alia relied on the exceptio rei judicataelv and the facts of
this matter show that all requirements were met.
4.7 The conclusion of the 2010 LAC judgement appears at
paragraph 25 of the judgement which reads as follows:
"[25] In the circumstances I am of the view that the First
Respondent's demands that the appellant implement a
system of wage parity for the drivers irrespective of
which contract they service and that there be no
reduction in salary without there being an agreement to
Page 18 of 48
that effect are demands which fall outside the ambit of
clause 50 (1) and (3) of the main collective agreement
and as such the First Respondent is not prohibited in
terms of s 65(1)(a) and (3) (a) (i) of the LRA from calling
upon its members to strike in respect of these
demands.”lvi
[|002|]
4.8 The issue as regards the wage discrepancy demand
was whether or not a demand that Unitrans must
“implement a system of wage parity for the drivers
irrespective of which contract they service” would
sustain a protected strike. This issue was determined in
TAWUSA’s favour in the 2010 LAC judgement.
4.9 The issue as regards the wage cut demand was
whether or not a demand “that there be no reduction in
salary without there being an agreement to that effect "
would sustain a protected strike. This issue was
determined in TAWUSA's favour in the 2010 LAC
judgement.
4.10 It is common cause that the strike that was the subject
of the 2010 LAC judgement was suspended pending
litigation between the parties and attempts at settlement
until 28 October 2010 when the strike commenced.
Page 19 of 48
4.11 It is apparent from the contents of paragraphs [|008|]
and [|003|] that the strike notices dated 26 and 27
October 2010 reiterated the demands that came before
the Labour Appeal Court in the 2010 LAC judgement.
4.12 It is apparent from the contents of paragraphs [|004|] –
[|005|] above that the essence of the dispute that came
before the Labour Appeal Court in the 2010 LAC
judgement remained unaltered throughout the strike.
4.13 The fact that shop stewards and union officials
expressed the view that wage parity ought to have been
achieved by fixing all wages on the higher rates paid on
more lucrative contracts or by fixing all wages at a
specified hourly rate did not alter the nature of the wage
discrepancy dispute as determined in the 2010 LAC
judgement.
4.14 The recognition of the exceptio rei judicatae requires
“careful scrutiny. Each case will depend on its own facts
and any extension of the defence will be on a case-by-
case basis… relevant considerations will include
questions of equity and fairness, not only to the parties
themselves but also to others ...."lvii
Page 20 of 48
4.15 The exceptio rei judicatae is underpinned by policy
considerations aimed at preventing “mutually
contradictory decisions due to the same action being
aired more than once in different judicial
proceedings:”lviii
This is of particular importance in the
context of a strike where workers must be left in no
doubt as to the status of a strike, particularly because of
the consequences of an unprotected strike which may
include dismissal and claims for damages.lix
4.16 It is apparent from the approach in the THE Fidelity
Guards Caselx that the factual matrix of the strike should
not be over-analysed in a quest to redefine the
underlying issue in dispute pursuant to litigation on the
status of a strike.
4.17 In casu Unitrans sought to sidestep the exceptio rei
judicatae relied upon by TAWUSA and the workers by
showing that demands that would have resulted in wage
increases for some employees were articulated by shop
stewards and union officials during strike negotiations.
On this basis it was found by the court a quo that the
strike had slipped from the protection afforded by the
2010 LAC judgement.
Page 21 of 48
4.18 The “true” or “real issue” in the dispute that gave rise to
the dismissal of the workers must be determined and
compared with the issue in dispute in the 2010 LAC
judgement so as to determine whether or not those
issues became res judicata. “In conducting that enquiry
a court looks at the substance of the dispute and not at
the form in which it is presented”.lxi
In casu this process
must also be tempered by the policy considerations that
underpin the exceptio rei judicatae.
4.19 The focus of the court a quo on an analysis of the strike
demands was not in pace with the constitutional right to
strike as it now stands and lost sight of the policy that
underpin the exceptio rei judicatae that requires of the
court to determine the broader issue in dispute which
does not only include the demand but also “the
grievance, or the dispute that forms the subject matter
of the strike or lock-out;”lxii
4.20 The Labour Relations Act 28 of 1956 (“the LRA56”)
defined a strike inter-alia with reference to the nature of
the underlying demandlxiii
4.21 The LRA95 that was enacted to give effect to section 23
of the constitution, which inter-alia includes the right to
Page 22 of 48
strike contains a new strike definition that no longer
describe a strike with reference to demands. The focus
has now shifted to the purpose for which work does not
proceed as per usual.lxiv
4.22 The purpose of all demands and suggestions articulated
during the course of the strike concerning the wage
discrepancy dispute was always to achieve wage parity
as is apparent from the contents of paragraphs [|004|] –
[|005|] above.
4.23 It follows from the foregoing that it will be fair and
equitable for the court to exercise its discretion in
TAWUSA’s favour and find that the following became
res judicata as between the parties:
4.23.1 The “wage cut” demand and the “wage
discrepancies demand” would sustain a
protected strike.
4.23.2 The demands pertaining to “coupling” and
Provident fund Administration would not
sustain a protected strike.
4.24 In the result the strike was protected and the dismissals
were automatically unfair.
Page 23 of 48
5 DIRECTIVE 8 (B):lxv
8 (C)lxvi
AND 8 (D)lxvii
STARE DECISIS ET NON QUIETA MOVERE
5.1 Labour Appeal Court judgements are binding upon the
Labour Court under the LRA95lxviii
and common lawlxix
5.2 In terms of the common law principle of stare decisis
Labour Appeal Court judgements which were not
delivered per incuriam are binding upon the Labour
Court.lxx
5.3 It is clear from the first LAC judgement that applicable
legislation and collective agreements were duly
considered and that consequently the judgement was
not pronounced per incuriam.
5.4 “… a lower court) I is bound by previous judgments in
respect of specific legal principles or the application of
legal principles to similar or comparable factual
situations”lxxi
5.5 It follows that the second Labour Appeal Court
judgement was binding on both Basson J and Bhoola J.
5.6 “… it may be useful to keep the essential meaning of
and the reasons behind the doctrine of precedent in
mind. Often expressed in the Latin maxim stare decisis
Page 24 of 48
et non quieta movere (to stand by decisions and not to
disturb settled matters), it means that in the interests of
D certainty, equality before the law and the satisfaction
of legitimate expectations, a court is bound by the
previous decisions of a higher court and by its own
previous decisions in similar matters.”lxxii
5.7 The Labour Appeal Court may only depart from its
previous decisions if convinced that those decisions are
clearly wrong.lxxiii
5.8 The court a quo did not address the question as to
whether or not the first Labour Appeal Court judgement
was wrong and was consequently not entitled to have
departed from it. However, the conclusion of the court a
quo is tantamount to a judgement on appeal that
overturned the conclusion of the 2010 LAC judgement.
5.9 The judgement in the the Air Chefs case at paragraphs
18 - 19 on pages 3095 - 3096 was not correct insofar as
it might have come to a different conclusion on how the
law should be applied and is in conflict with the 2010
LAC judgement. The Air Chefs case is also
distinguishable on the facts as it was concerned with a
Page 25 of 48
job grading dispute under collective-bargaining
agreements of another Bargaining Council.
6 DIRECTIVE 8 (G): AFROX PRINCIPLElxxiv
6.1 It is common cause that all participants in the strike
were subjected to wage discrepancies that arose from
the Unitrans system of wage disparity premised on the
difference in income derived from different haulage
contracts. However, it was only the Shell 7 whose
wages had been unilaterally reduced, which reduction
gave rise to the wage cut dispute.
6.2 In terms of the Afrox principle the strike would not have
been rendered unprotected or transformed into a
secondary strike by virtue of the participation of
TAWUSA members employed by Unitrans who were not
directly affected by the wage cut dispute.lxxv
6.3 The Afrox principle was subsequently endorsed by the
Labour Appeal Court and extended to non-bargaining
unit employees employed by the same employer.lxxvi
6.4 In Early Bird Farm (Pty) Ltd v Food & Allied Workers
Union & others (2004) 25 ILJ 2135 (LAC) the Labour
Appeal Court concluded at paragraph 48 on page 2154
Page 26 of 48
that in a case where employees who were not directly
affected by a dispute participated in a protected strike in
terms of the Afrox principle it was strictly speaking not
required of the court to examine whether or not other
demands made by those employees were good or bad
as the Afrox principle demand rendered the strike
protected.
6.5 In this vein the Labour Court found in National Union of
Metalworkers of SA & others v Edelweiss Glass &
Aluminium (Pty) Ltd (2010) 31 ILJ 139 (LC)lxxvii
that
demands and proposals aimed at resolving deadlocked
during the course of a strike may be much broader than
those referred for conciliation. This applied in cases
where the original dispute was not abandoned and
where the original dispute was not used as a deliberate
stratagem to strike over other issues.
6.6 It follows from the foregoing that in casu the strike
remain protected until Unitrans capitulated on the wage
cut demand even if it is found that the wage discrepancy
demand and proposals as articulated in strike
settlement negotiations rendered the strike on the wage
discrepancy dispute unprotected. This is also in
accordance with the understanding of Unitrans at the
Page 27 of 48
time as is apparent from the contents of paragraphs
[|011|] – [|012|] above.
7 DIRECTIVE 8 (F): UNFAIR DISMISSAL IN TERMS OF SECTION 188 OF THE LRA95
lxxviii
7.1 It is apparent from the pleadings in the pre-trial
conference minute that TAWUSA and the workers
averred in an alternative claim that the dismissals of the
workers were ordinarily unfair in terms of section 188 of
the LRA95.lxxix
7.2 In this regard it was contended that the dismissals were
both procedurally and substantively unfairlxxx
. In support
of this averment it was contended that:lxxxi
Disciplinary
enquiries were not conductedlxxxii
and that dismissal
was inappropriatelxxxiii
considering the seriousness of
the statutory contravention, attempts by the workers to
comply with the LRA95, unjustified conduct by Unitrans
that precipitated the strike in response and the bona fide
belief of the workers that the strike was protected.
7.3 TAWUSA and the workers also averred that Unitrans
did not engage TAWUSA in discussions concerning its
intention to dismiss the workerslxxxiv
, that there was
insufficient time to consider the ultimatums and that the
Page 28 of 48
requirements of the LRA95 and the code of good
practice on dismissal were not followed.lxxxv
7.4 The workers showed remarkable restraint in their quest
to comply with the provisions of the LRA95 and
postponed the strike through a series of suspensions
from early September until the end of October 2010.
7.5 It is apparent from the contents of paragraphs [|009|],
[|006|] & [|007|] and [|008|] above that the demands
that came before the Labour Court in the August
interdict as per the strike notice of 6 August 2010 and
ultimately before the Labour Appeal Court in the 2010
LAC judgement were exactly the same as those that
came before the Labour Court in the 2010 October
interdict as per the strike notice of 26 October 2010.
7.6 It follows from the foregoing that in terms of the res
judicata and stare decisis principles that the order in
the October interdict restraining the workers from taking
strike action “in respect of the demands contained in the
strike notice dated 26 October 2010” referred to at
paragraph [|010|] above, was not competent. This order
gave rise to much confusion amongst the workers and a
firm belief that the order in the October interdict was in
Page 29 of 48
conflict with the order of the 2010 Labour Court
judgement and clearly wrong for that reason.
7.7 The confusion that arose from the October interdict was
compounded by the following remarks of the presiding
judge: "Let me just for argument sake just make this
clear. I accept if it is the same demand, the same
demand that was the subject of litigation for the Labour
Court, I accept you can strike about that, …"lxxxvi
.
7.8 Mr Ngedle testified in the Labour Court that he held the
belief that the strike was protected in view of the
judgement of the Labour Appeal Court. Mr Ngedle
testified that in the circumstances Unitrans was never
able to persuade him that the strike was unprotected,
notwithstanding the ultimatums and meetings.
7.9 It is apparent from the contents of paragraphs [|011|] –
[|012|], [|013|], [|014|] and [|015|] above that the
dismissals were effected less than 24 hours after the
strike had, on Unitrans’s own version, become unlawful.
7.10 Even if the dismissals are not found to have been
automatically unfair then it could not have been
expected of the workers to have reasoned as did the
Page 30 of 48
court a quo so as to confine the otherwise clear wording
of paragraph 25 of the 2010 LAC judgement to the
Shell-7 wage cut demand. The difficulties in this regard
are compounded by the fact that the workers had, but a
few hours at their disposal to have come to this
conclusion in the atmosphere of a strike.
8 DIRECTIVE 8 (E): COURT A QUO’S FAILURE TO CONSIDER ORDINARY UNFAIR DISMISSAL
lxxxvii
8.1 TAWUSA does not know why this issue was not
addressed in the judgement of the court a quo.
8.2 An appeal was noted against the whole of the final
Labour Court judgement that was inter-alia premised on
the grounds that the court in the final Labour Court
judgement erred in the following respects:
8.2.1 “In having found that Respondent "was left
with no reasonable alternative other than to
dismiss" (Judgement 58).”lxxxviii
8.2.2 “In having found that the dismissals were
therefore justified (Judgement 61)”lxxxix
8.2.3 “In having dismissed Applicants’ claims”xc
Page 31 of 48
8.3 it was also argued in the alternative in Appellant’s main
heads of argument on appeal and at paragraph 14 of
Appellants’ additional submissions that the dismissals
were ordinarily unfair in terms of section 188 of the LRA
95 .xci
8.4 In having failed to have addressed the question as to
whether or not the dismissal of the workers was also
unfair in terms of section 188 of the LRA95 above the
court a quo misconceived its function in the following
respects:
8.4.1 It was required of the court a quo to have
determined whether or not a mass dismissal
was automatically unfair in terms of section
187 of the LRA95, alternatively whether or
not that mass dismissal was unfair in terms of
section 188 of the LRA95.
8.4.2 It follows that it was required of the court a
quo to have determined whether or not
UNITRANS had breached appellant’s rights
to fair labour practices in terms of section 23
(1) of the constitution as crystallised in the
provisions of the LRA95.
Page 32 of 48
8.4.3 In having narrowed its enquiry the court a
quo breached Applicant’s right under section
33 of the constitution to have the dispute that
Applicant had placed before the judiciary
finally decided.
9 THE RIGHT TO STRIKE FOR WAGE PARITY
9.1 Notwithstanding the clear and unambiguous language
used in the final conclusion of the 2010 LAC judgement,
quoted at paragraph [|002|] above, the court a quo
found as follows: “The crisp question for determination
was whether, in terms of the Labour Appeal Court’s
judgment to which I have made reference, appellants
had been prohibited from striking in respect of those
demands relating to wage discrepancies. This issue
thus requires a careful engagement with the judgment
of the Labour Appeal Court.”xcii
9.2 The court a quo found that the 2010 LAC judgement
“was founded on a central proposition, namely that all
negotiations in relation to wages and substantive issues
are required to be conducted at the Bargaining Council.
Neither party may resort to industrial action concerning
these defined issues”. Substantive issues are regarded
Page 33 of 48
as “all issues involving costs and affecting the wage
packets of employees”xciii
.
9.3 The court a quo was misdirected in having made this
finding. It is apparent from the contents of paragraphs
17 – 19 of the 2010 LAC judgement that the central
proposition that underlies the judgement is that
unilateral action in breach of employment contracts and
collective agreements may be addressed through
protected strike action. In this regard the following must
be noted:
9.3.1 Wage rates provided for in the main
agreement are binding upon the parties in
terms of section 23 of the LRA95.
9.3.2 Mr Badenhorst testified that actual wages
and not minimum rates are determined by the
main agreement.
9.3.3 There is no essential difference between
breaching the main agreement by unilaterally
reducing wage rates and breaching the main
agreement by unilaterally raising wage rates.
Page 34 of 48
9.3.4 Unitrans practice to introduce wage disparity
amongst workers on various contracts by
increasing wage rates in breach of the Main
Agreement gave rise to the wage
discrepancy dispute and is in conflict with the
ubuntu principle.xciv
9.4 The court a quo then proceeded to summarise the facts
of the matter pertaining to the unilateral reduction of the
Shell-7 wagesxcv
and concluded that the wage
discrepancy dispute was confined to the Shell-7xcvi
.
However, the court a quo was misdirected in this regard
as the conclusion that the wage discrepancy demand
was confined to the Shell-7 only, disregards the facts of
this matter that came before the Labour Appeal Court in
the 2010 hearing.xcvii
9.5 The approach adopted by the court a quo merely
compounds the wage discrepancy dispute because it
would reinstate the higher Shell contract wage rates
which were not received by most other employees.
9.6 It is in this context that the court a quo ought to have
measured the conduct of the parties and the scope of
the Main Agreement against the provisions of section 23
Page 35 of 48
of the Constitution so as to harmonise the unambiguous
conclusion in the 2010 LAC judgement with the Main
Agreement prohibition on plant level bargaining.
9.7 A proper interpretation of the provisions of the Main
Agreement so as to give effect to the Constitution does
not prohibit strike action to procure wage parity across
all Unitrans’ haulage contracts.
9.8 In terms of the Main Agreement the “wage cut” and
“wage discrepancies” disputes are disputes that cannot
be resolved through collective-bargaining under the
auspices of the Bargaining Council.
9.9 The parties to the Bargaining Council are comprised of
an employers’ organisation and trade unionsxcviii
. This
means that employers are not Bargaining Council
members as individual entities.xcix
9.10 It is apparent from the first page of the Main Agreement
that the Road Freight Employers' Association is the only
employer party to the Main Agreement.
9.11 It is apparent from the evidence of Mr Badenhorst that
the issues that gave rise to the strike pertain only to
employees in Unitrans’ employ and are of no
Page 36 of 48
consequence to other employees employed elsewhere
in the road freight industryc
9.12 It follows from the foregoing that the “wage cut” and
“wage discrepancies” disputes do not lie between
parties to the Bargaining Councilci and may therefore
not become the subject of collective-bargaining at
central level under the auspices of the Bargaining
Council.
9.13 In terms of clause 48 of the Main Agreement the
Bargaining Council "shall annually negotiate substantive
issues, excluding definitions and procedural issues,
affecting all employees..."
9.14 The expression "all employees" in clause 48 of the Main
Agreement refers to all employees in the road freight
industry in respect of whom "minimum wages are
prescribed" in terms of the Main Agreementcii
.
9.15 It follows that substantive issues not "affecting all
employees" in the road freight industry in respect of
whom minimum wages are determined in the Main
Agreement, are not subject to annual negotiations under
the auspices of the Bargaining Council. The “wage cut”
Page 37 of 48
and “wage discrepancies” disputes affect only Unitrans
employees and are not issues affecting all employees in
the road freight industry and are therefore not subject to
annual wage negotiations under the auspices of the
Bargaining Council.
9.16 It was indeed Mr Badenhorst's evidence that Unitrans's
own actual wage rates paid on its haulage contracts,
insofar as they are in excess of Bargaining Council
minimums, could never be negotiated at central level
under the auspices of the Bargaining Councilciii
. This
accords with the provisions of the Main Agreement.civ
9.17 Mr Badenhorst testified that all wage components in
excess of Bargaining Council minimum proportional
increases were determined by Unitrans and that this
was not negotiable at plant level or at Bargaining
Council levelcv
. Mr Badenhorst testified that Unitrans
unilaterally determined actual wages paid on each of its
haulage contractscvi
.
9.18 Mr Badenhorst testified that actual wages for work of
the same kind differed from contract to contract as
same depended on the labour cost component that
Unitrans was able to negotiate under each contractcvii
.
Page 38 of 48
Mr Badenhorst explained that Unitrans rates were
higher than Bargaining Council rates in order to retain
skilled employees.cviii
9.19 The circumstances explained at the preceding
paragraph gave rise to the “wage discrepancy” dispute.
9.20 Unitrans has through its conduct created an island of
privilege whence it may determine actual remuneration
of its own accord, unfettered by the constraints of
collective-bargaining. This is reminiscent of the pre-
constitutional past.
9.21 Unitrans’s refusal to negotiate actual remuneration at
plant level smacks of arrogance and is in conflict with
the purpose of the Labour Relations Act 66 of 1995
(“the LRA95”) as stated in section 1 of that act, and
seeks to deny TAWUSA’s constitutional right to
collective bargaining.
9.22 It is against the backdrop of the foregoing facts and
considerations that the prohibition on plant level
bargaining in terms of the collective agreements of the
Bargaining Council must be interpreted.
Page 39 of 48
9.23 The Main Agreement prohibition on plant level
bargaining reads as follows:cix
“50. 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 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 lockout, to
negotiate the issues referred to in subclause (1)
above at any level other than the Council.”
9.24 The Main Agreement defines “substantive issues” as “all
issues involving costs and affecting the wage packets of
employees."
9.25 “It is also an accepted interpretative principle in our
constitutional jurisprudence that if there is more than
Page 40 of 48
one interpretation of a statutory provision that is
constitutionally compliant, the interpretation that best
conforms with the spirit, purport and objects of the Bill of
Rights should be preferred”.cx
9.26 “The right to strike is protected as a fundamental right in
the Constitution without any express limitation”.cxi
9.27 “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”.cxii
9.28 In order to give effect to TAWUSA’s constitutional right
to engage in collective bargaining and to give effect to
the constitutional right of the workers to strike, the
words “wages, benefits and other conditions of
employment” as they appear in clause 50 (1) of the
Main Agreement must be interpreted so as to exclude
those “wages, benefits and other conditions of
employment” that cannot be negotiated at central level
in terms of the Main Agreement.
Page 41 of 48
9.29 It is a necessary consequence of the aforesaid
interpretation of the Main Agreement that the strike that
gave rise to the mass dismissal would have been
protected.
9.30 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 the
Constitutional Court in the matter of National Union of
Metalworkers of SA & Others v Bader Bop (Pty) Ltd &
Another (2003) 24 ILJ 305 (CC) at paragraph 13 on
pages 316 – 317:
9.31 The right to strike is an integral part of collective
bargaining.cxiii
9.32 A substantial portion of the judgement of the court a quo
seeks to demonstrate that the plane grammatical
meaning of the conclusion in the 2010 LAC judgement
as it appears at paragraph 25 of the judgement, should
be curtailed to a finding that the wage discrepancy
dispute was limited to a dispute over the remuneration
of the Shell-7.
Page 42 of 48
9.33 The right to strike should not become entrammelled by
interpretations of restrictive measures that would spawn
uncertainty concerning the exercise of the right to
strike.cxiv
9.34 The court a quo erred in having failed to have
interpreted clause 50 (1) of the Main Agreement so as
to allow strike action to address wage discrepancies
arising from actual wages unilaterally imposed by
Unitrans outside of the framework of collective
bargaining under the auspices of the Bargaining
Council.
10 APPEAL
10.1 In having erred as stated above the full bench of the Labour
Appeal Court did not exercise their discretion judicially
and/or was influenced by wrong principles and/or was
misdirected and/or was clearly wrong and/or reached
decisions which could not reasonably have been made by a
court properly directing itself to all the relevant facts and
principles.cxv
10.2 The appeal ought to be upheld.
11 CONDONATION
Page 43 of 48
11.1 The 2015 LAC judgement was critical of the employee
parties’ application for condonation for the late filing of
the record on appeal and pointed out that there was no
explanation for a delay of more than one yearcxvi
11.2 It is not disputed that the workers were unaware of the
delaycxvii
, that the circumstances were not such that
they ought to have suspected the delaycxviii
and only
became aware of it when the matter was argued in the
court a quo.cxix
The workers did not cause the delay.cxx
11.3 The merits of this matter are so strong that this court
would be inclined to exercise its discretion in favour of
the employee parties and grant condonation
notwithstanding the scant explanation for the delay in
filing the record on appeal.
12 CONCLUSION
12.1 The late delivery of the record on appeal in the court a
quo ought to be condoned.
12.2 Leave to appeal ought to be granted with costs.
12.3 The appeal ought to be upheld with costs on a finding
that the dismissal of the workers were automatically
Page 44 of 48
unfair, alternatively unfair which entitles them to
reinstatement and compensation.
……………………. Masango Attorneys
Applicant's Attorneys Friday, 6 November 2015
Office 414 Fourth Floor
Elephant House 107 Albertina Sisulu Road
Johannesburg, 2001 Tel: (011) 333 2084
FJWilke Francois Wilke
Applicant's Counsel Friday, 06 November 2015
Tel: (011) 646 4294
i DR Harms Civil Procedure in the Superior Courts (“HRM”): paragraph D19.1 CC Rule 19 (1) (a). ii Record page 40 paragraph 3.1 & page 43 paragraph 5.3.13.
iii Record pages 46 – 48
ivIt is common cause that the workers were members of TAWUSA. Record page 40
paragraphs 2.1 & 2.3; page 41 paragraph 5.1. v Record page 3 paragraph 7.
vi Record page 35 paragraph 6.
vii Record page 41 paragraphs 5.1 – 5.2.
viii Record page 343 paragraph 7; page 408 paragraph 9.3.
ix Record pages 343 – 344 paragraph 10; page 408 paragraph 9.3.
x Record page 344 paragraphs 11 - - 12; page 408 paragraphs 9.3 - - 10; Record page 344
paragraphs 11 – 12; page 408 paragraphs 9.3 - - 10. xi Record page 31 paragraph 3.2 – 3.3; pages 351 – 352 paragraph 33; page 396; page 423
paragraph 27. xii
Record page 3 paragraph 10; page 23 paragraph 36; page 357 paragraph 50; pages 404 – 405. xiii
Record page 405. xiv
Record page 338 paragraph 2.1. xv
Record page 487 paragraph 1. xvi
Record pages 487 – 492. xvii
Record page 502. xviii
Record page 503. xix
Record page 508 paragraph 1. xx
Record pages 877 – 878. The judgement of the Labour Appeal Court under case number JA55-10 was reported as Unitrans Fuel & Chemical (Pty) Ltd v Transport & Allied Workers Union of SA & Another (2010) 31 ILJ 2854 (LAC. xxi
Record page 4 paragraph 17; page 24 paragraph 42; page 570. xxii
Record pages 550 – 551 paragraphs 2 - - 3. xxiii
Record page 5 paragraph 18; page 24 paragraph 43; page 584 lines 13 – 17. xxiv
Record page 613 paragraphs 2 & 3. xxv
Record page 5 paragraph 21; page 24 paragraph 44; page 582. xxvi
Record page 5 paragraph 22; page 24 paragraph 44; pages 693 – 694.
Page 45 of 48
xxvii
Record page 6 paragraph 23; page 24 paragraph 45; page 695 paragraphs 1 & 5. xxviii
Record page 6 paragraph 24; page 24 paragraph 46; pages 699 – 700; page 701; pages 704 – 705 & pages 707 – 708. xxix
Record page 4 paragraph 16; see also record page 5 paragraph 21. xxx
Record page 304 lines 4 – 19. xxxi
Record page 287 lines 1 – 3. xxxii
Record page 287 line 19 – page 288 line 23. xxxiii
Record page 197 line 3 – page 198 line 7. xxxiv
Record page 707 lines 29 – 32. xxxv
Record page 201 lines 13 – 23. xxxvi
Record pages 707 – 708. xxxvii
Record page 710. xxxviii
Record page 839 line 14. xxxix
Record pages 839 – 865. xl HRM: paragraph d 19.1 cc rule 19 (three) (b).
xli HRM: paragraph C6.11.
xlii HRM: paragraph D1.5; sections 172(1)(a) and 167(4)(a) of the Constitution.
xliii HRM: paragraph D1.5.
xliv HRM: paragraph C1.26.
xlv C96: section 167 (7); HRM: paragraph D1.2 (7) A.
xlvi C96: paragraph 167 (3) (b) (i); HRM: paragraph D1.2; HRM paragraph D1.8; HRM:
paragraph D20.1 CC Rule 20. xlvii
HRM D1.6. xlviii
HRM: paragraph D19.1 CC Rule 19 (3) (d). xlix
C96: section 167 (6) (b); HRM: paragraph D1.2 (6). l Directions of 16 September 2015 paragraph 8 (a) Whether there are any issues between the parties which became res judicata after the judgment of the Labour Appeal Court by Waglay DJP in case no JA55/2010 and, if so, which;. li paragraph 12 on page 118.
lii The Fidelity Guards Case at paragraphs 1 – two on pages 83 – 84.
liii Fidelity Guards Holdings (Pty) Ltd v Professional Transport Workers Union & Others (1999)
20 ILJ 82 (LAC) at page 85 A. liv
Fidelity Guards Holdings (Pty) Ltd v Professional Transport Workers Union & Other S (1999) 20 ILJ 82 (LAC) at page 86 A; National Union of Mineworkers v Wanli Stone Belfast (Pty) Ltd (2015) 36 ILJ 1261 (LAC) at page 1268 C – H. lv Record page 3 paragraph 12 – page 4 paragraph 13.2; page 4 paragraphs 16 – 17; page 5
paragraph 21; page 6 paragraph 23; page 7 paragraph 32.3; page 31 paragraphs 3.8 – 3.8.2; page 34 paragraphs 4.4 & 4.6; page 35 paragraph 4.8.3; page 42 paragraphs 5.3.6 & 5.3.7; page 43 paragraphs 6.2 – 6.2.2 & 7.1.2. lvi
Record page 877. lvii
National Union of Mineworkers v Wanli Stone Belfast (Pty) Ltd (2015) 36 ILJ 1261 (LAC) at page 1268 G. lviii
Fidelity Guards Holdings (Pty) Ltd v Professional Transport Workers Union & Others (1999) 20 ILJ 82 (LAC) at page 86E. lix
Fidelity Guards Holdings (Pty) Ltd v Professional Transport Workers Union & Others (1999) 20 ILJ 82 (LAC) at page 86 E – 88 A; See also in this regard National Union of Mineworkers v Wanli Stone Belfast (Pty) Ltd (2015) 36 ILJ 1261 (LAC) at paragraph 23 on page 1269. lx Fidelity Guards Holdings (Pty) Ltd V Professional Transport Workers Union & Others (1999)
20 ILJ 82 (LAC) at page 85 C - G. lxi
Coin Security Group (Pty) Ltd v Adams & others (2000) 21 ILJ 924 (LAC) at paragraph 16 on page 930. lxii
LRA95 section 213 definition of issue in dispute. See also in this regard Adams & others v Coin Security Group (Pty) Ltd (1999) 20 ILJ 1192 (LC) at paragraph 58 on page 209. lxiii
Labour Relations Act 28 of 1956 section 1 “strike' means any one or more of the following acts or omissions by any body or number of persons who are or have been employed either by the same employer or by different employers- (a) the refusal or failure by them to continue
Page 46 of 48
to work (whether the discontinuance is complete or partial) or to resume their work or to accept re-employment or to comply with the terms of conditions of employment applicable to them, or the retardation by them of the progress of work, or the obstruction by them of work; or (b) the breach or termination by them of their contracts of employment, if- (i) that refusal, failure, retardation, obstruction, breach or termination is in pursuance of any combination, agreement or understanding between them, whether expressed or not; and (ii) the purpose of that refusal, failure, retardation, obstruction, breach or termination is to induce or compel any person by whom they or any other persons are or have been employed- (aa) to agree to or to comply with any demands or proposals concerning terms and conditions of employment or other matters made by or on behalf of them or any of them or any other persons who are or have been employed; or (bb) to refrain from giving effect to any intention to change terms or conditions of employment, or, if such a change has been made, to restore the terms or conditions to those which existed before the change was made; or (cc) to employ or to suspend or terminate the employment of any person;”. lxiv
Labour relations act 66 of 1995 section 213: “'strike' means 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;”. lxv
Directions of 16 September 2015 paragraph 8 (b) The extent, if any, to which Basson J was bound by the Labour Appeal Court's judgment per Waglay DJP under case no JA55/2010 in making the order she made on 26 October 2010 under case no J2173/2010;. lxvi
Directions of 16 September 2015 paragraph 8 (c) The extent, if any, to which Bhoola J was bound by the Labour Appeal Courts's judgment per Waglay DJP under case no JA55/2010 in deciding whether the strike was protected;. lxvii
Directions of 16 September 2015 paragraph 8 (d) To what extent the Labour Appeal Court per Davis JA was obliged to give effect to the Labour Appeal Court's judgment per Waglay DJP under case no 3A55/20 10 when the Labour Appeal Court, per Davis JA, made the decision sought to be appealed against;. lxviii
Section 182 of the LRA 95. lxix
Bargaining Council for the Clothing Industry (Natal) v Confederation of Employers of SA & Others (1998) 19 ILJ 1458 (LC) at paragraph 11 on page 1463 where it was held that section 182 of the LRA 95 is a restatement of common law and that consequently the stare decisis rule applies. lxx
Bargaining Council for the Clothing Industry (Natal) v Confederation of Employers of SA & Others (1998) 19 ILJ 1458 (LC) at paragraphs 11 – 12 on page 1463. lxxi
Chizunza v MTN (Pty) Ltd & others (2008) 29 ILJ 2919 (LC) at paragraph 7 on page 2923. lxxii
Gcaba v Minister for Safety & Security & others 2010 (1) SA 238 (CC); (2010) 31 ILJ 296 (CC) at paragraph 58 on page 315. lxxiii
Toyota SA Motors (Pty) Ltd v Radebe & others (2000) 21 ILJ 340 (LAC) at paragraph 46 on page 353 and paragraph 50 on page 354; Deelkraal Gold Mining Co Ltd v National Union of Mineworkers & others (1994) 15 ILJ 573 (LAC) at page 581A – B. lxxiv
Directions of 16 September 2015 paragraph 8 (g): Whether the principle captured in Afrox Ltd v SA Chemical Workers Union & Others (1997) 18 ILJ 399 (LC) and approved and followed in cases such as Chemical Workers Industrial Union v Plascon Decorative (Inland) (Ply) Ltd (1999) 20 ILJ 321 (LAC) and Early Bird Farm (Pty) Ltd v Food and Allied Workers Union & Others (2004) 25 1LJ 2135 (LAC) is applicable and, if so, how. lxxv
Afrox Ltd v SA Chemical Workers Union & others (1) (1997) 18 ILJ 399 (LC) at page 403 H – 404 C; 404 G – 405 E. lxxvi
Chemical Workers Industrial Union v Plascon Decorative (Inland) (Pty) Ltd (1999) 20 ILJ 321 (LAC) at paragraph 23 on page 328 and paragraphs 27 & 29 – 30 on page 329; Early Bird Farm (Pty) Ltd v Food & Allied Workers Union & others (2004) 25 ILJ 2135 (LAC) at paragraphs 46 – 47 on page 2154.
Page 47 of 48
lxxvii
National Union of Metalworkers of SA & others v Edelweiss Glass & Aluminium (Pty) Ltd (2010) 31 ILJ 139 (LC) at paragraphs 61 & 66 on page 155 & paragraphs 70 – 72 on page 156. lxxviii
Directions of 16 September 2015 paragraph 8 (f): Whether it is part of the applicants' case that, even if the strike was unprotected, that the dismissals were, nevertheless, unfair, and, if so, the grounds for that contention;. lxxix
Record page 3 paragraph 7 & page 9 paragraph 6. lxxx
Record page 3 paragraph 9; Record page 35 paragraph 5. lxxxi
Record pages 8 – 9 paragraphs 33 – 33.6. lxxxii
Record page 34 paragraph 4.7.2. lxxxiii
Record page 35 paragraph 4.8.1. lxxxiv
Record page 34 paragraph 4.7.1. lxxxv
Record page 35 paragraph 4.8.2. lxxxvi
Record page 600 lines 23 - 25. lxxxvii
Directions of 16 September 2015 paragraph 8 (e): Why the Labour Appeal Court per Davis JA did not consider and decide whether, even if the strike was unprotected, the dismissal was unfair by reason of one or more of the factors provided for in item 6 of Schedule 8 to the Labour Relations Act, 1995 and whether it should have done so;. lxxxviii
Record page 755 paragraph 3.32; page 756 paragraph 3.37. lxxxix
Record page 756 paragraph 3.38. xc
Record page 3.41 on page 756. xci
Record page 988 paragraph 14. xcii
Record page 832 paragraph [19]. xciii
Record page 834 paragraph [22]. xciv
Barkhuizen v Napier 2007 (5) SA 323 (CC) at paragraph 51 on page 339: “Notions of fairness, justice and equity, and reasonableness cannot be separated from public policy. Public policy takes into account the necessity to do simple justice between individuals. 33 Public policy is informed by the concept of ubuntu. It would be contrary to public policy to enforce a E time-limitation clause that does not afford the person bound by it an adequate and fair opportunity to seek judicial redress.”; “I [71] Had the case been properly pleaded, a number of interlinking constitutional values would inform a development of the common law. Indeed, it is highly desirable and in fact necessary to infuse the law of contract with constitutional values, including values of ubuntu, which inspire much of our constitutional compact. On a number of occasions in the past this court has had regard to the meaning and content of the J concept of ubuntu. It emphasises the communal nature of society and (p277) 'carries in it the ideas of humaneness, social justice and fairness' 17 and A envelopes 'the key values of group solidarity, compassion, respect, human dignity, conformity to basic norms and collective unity'. 18. QWP at paragraph [71] on page [+276+] . xcv
Record page 834 paragraph [24]. xcvi
Record page 835 paragraph [25]; page 837 paragraphs [32] & [33]. xcvii
It is clearly apparent from paragraph 8 of the judgement in the August interdict that appears at record pages 535 – 536 that it was understood that the wage discrepancies demand was not confined to the Shell-7. This was not challenged on appeal as is apparent from the notice of appeal at record pages 559 – 562 read with the application for leave to appeal at record pages 538 – 546.
xcvii.
xcviii Main Agreement first page.
xcix Record page 781 paragraph 3.14.1.
c Record page 253 lines 3 – 14.
ci Record page 781 paragraph 3.14.3.
cii Main Agreement clause 1 (2).
ciii Record page 246 lines 1 – 17.
civ At one stage Mr Badenhorst suggested that it would theoretically be possible to negotiate a
fixed rate per job category under the auspices of the Bargaining Council for all employees in respect of whom the Main Agreement is applicable. However, Mr Badenhorst conceded that this would have been impractical and has not been done in the past in respect of any job category. This evidence was mere conjecture and in conflict with the main agreement.
Page 48 of 48
cv
Record page 252. line 12 – page 253. line 13. cvi
Record page 245 line 17 – page 246. line 17. cvii
Record page 243 line 10 – page 245. line 16. cviii
Record page 163 lines 16 – 21. cix
Record page 481. cx
SATAWU, Dumisani Jama and 44 Others v Lebogang Michael Moloto N. O. and Jerry Sekete Koka N.O. at paragraph 72. cxi
Record page 779. paragraph 3.12.2; SATAWU, Dumisani Jama and 44 Others v Lebogang Michael Moloto N. O. and Jerry Sekete Koka N.O. at paragraph 62 Case number CCT 128/11. cxii
SATAWU, Dumisani Jama and 44 Others v Lebogang Michael Moloto N. O. and Jerry Sekete Koka N.O. at paragraph 44 Case number CCT 128/11. cxiii
National Union of Metalworkers of SA & Others v Bader Bop (Pty) Ltd & Another (2003) 24 ILJ 305 (CC) at paragraph 13 on pages 316 - - 317 and South African Transport and Allied Workers Union SATAWU, Dumisani Jama and 62 Others v Lebogang Michael Moloto N. O. and Jerry Sekete Koka N.O. at paragraph 62 Case number CCT 128/11. cxiv
South African Transport and Allied Workers Union SATAWU, Dumisani Jama and 62 Others v Lebogang Michael Moloto N. O. and Jerry Sekete Koka N.O. at paragraph 85. cxv
National Coalition for Gay and Lesbian Equality and Others v Minister of Home Affairs and Others 2000 (2) SA 1 (CC) at paragraph 11 on page 14. cxvi
Record page 829 paragraph 7. cxvii
Record page 792 paragraph 11.2. cxviii
Record page 792 paragraph 11.5; Record page 792 paragraph 11.6. cxix
Record page 792 paragraph 11.3. cxx
Record page 792 paragraph 11.4.
IN THE CONSTITUTIONAL COURT OF SOUTH AFRICA
(HELD AT BRAAMFONTEIN)
CASE NO: CCT131/15
JA44/2013
JS359-11
J2173-10
JA55-10
J1633-10
GPRFBC12878
In the matter between:
TRANSPORT AND ALLIED WORKERS UNION
OF SOUTH AFRICA obo MW NGEDLE AND
93 OTHERS Applicants
and
UNITRANS FUEL AND CHEMICAL (PTY) LIMITED Respondent
RESPONDENT’S WRITTEN ARGUMENT IN THE APPLICATION FOR
LEAVE TO APPEAL
2
Contents
THE MERITS OF THE APPLICANT’S CASE ........................................................... 3
THE ISSUES ................................................................................................................. 4
LEGAL ISSUES ............................................................................................................ 5
SERIOUSNESS OF THE EMPLOYEES’ CONTRAVENTION OF THE LRA ......... 6
ATTEMPT MADE TO COMPLY WITH THE ACT ................................................. 18
UNJUSTIFIED CONDUCT BY THE EMPLOYER .................................................. 19
SUBMISSIONS ........................................................................................................... 20
OTHER CONSIDERATIONS IN TERMS OF SECTION 167(3) ............................. 22
DIRECTIONS DATED 16 SEPTEMBER 2015 ......................................................... 24
Issue 8(a) – Issues Which May Have Become Res Judicata ....................................... 24
Issues (b) – (d) ............................................................................................................. 26
Issue (e) – Failure to Consider Item 6 of Schedule 8 ................................................... 27
Issue (f) – Unprotected Dismissal ................................................................................ 27
Issue (g) – Dismissal During a Protected Strike .......................................................... 28
CONCLUSION ............................................................................................................ 29
3
1. The respondent opposes the application for leave to appeal. It is
submitted that the matter does not raise an arguable point of law of
general public importance which ought to be considered by the
Constitutional Court in terms of section 167(3)(b)(ii) of the Constitution.1
2. It is also submitted that the case does not raise a constitutional matter
(section 167(3)(b)(i) of the Constitution).
3. It is intended in these heads of argument to deal first with the prospects
of success of the applicant (i.e. the merits of the appeal) and then with
the questions of whether the applicant has met the further requirements
for the Court to exercise its jurisdiction in terms of section 167(3).
THE MERITS OF THE APPLICANT’S CASE
4. The first applicant is a trade union which brought a claim against the
respondent on behalf of approximately 93 employees dismissed by the
respondent for participating in a six day strike from 28 October 2010 to 2
November 2010.
5. The applicants contended that the dismissal of the employees was
automatically unfair, alternatively, procedurally and substantively unfair.
In a judgment dated 13 December 2012 the Labour Court dismissed the
applicants’ claim with costs.
1 See Paulsen and Another v Slip Knot Investments 777 (Pty) Limited 2015 (3) SA 479 (CC) at para
[12] ff
4
6. The applicants appealed against the judgment to the Labour Appeal
Court. In a judgment dated 24 June 2015 that appeal was dismissed.
The applicants now seek relief from the Constitutional Court.
THE ISSUES
7. The applicants articulated their contentions in the pre-trial minute of 30
August 2011 to the following:
7.1. Procedural issues:
7.1.1. It is alleged that the respondent did not conduct
hearings before the dismissals;
7.1.2. It is alleged that no discussions were held with the
first applicant prior to the dismissals.2
7.2. Substantive issues:
7.2.1. Whether the strike action related to those issues
“permitted” for strike action by the Labour Appeal
Court in case number JA55/10;
7.2.2. Whether the dismissal was effected in accordance
with the Code of Good Practice on Dismissals;3
2 Minute of the pre-trial conference, Vol 1, p34 para 4.7
3 Item 6, Schedule 8 of the Labour Relations Act, 66 of 1995 (“the LRA”)
5
7.2.3. Whether the dismissal was the appropriate sanction
for the alleged misconduct.4
8. The respondent contended that the dismissals arose following
participation by the individual applicants in an unlawful and unprotected
strike. It alleged that the conduct of the employees amounted to
misconduct. This misconduct persisted for a considerable period (six
days) and there was no reasonable prospect of the dispute being
resolved through negotiation. The company contended that it had no
reasonable alternative but to dismiss the employees, which it did only
after the delivery of four separate ultimatums and invitations to the first
applicant and striking employees to address the company’s
management on why they should not be dismissed.
LEGAL ISSUES
9. Employees who participate in an unprotected strike may be dismissed
fairly. This is recognised by section 68(5) of the Labour Relations Act
1995 (“the LRA”) which states:
“(5) Participation in a strike that does not comply with the
provisions of the 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.”
4 Pre-trial Minute, Vol 1 p35 para 4.8
6
10. In determining whether employees who participated in an unprotected
strike should be dismissed, a number of considerations form part of the
decision. Item 6(1) of the Code of Good Practice provides as follows:
“(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 the dismissals 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.”
SERIOUSNESS OF THE EMPLOYEES’ CONTRAVENTION OF THE LRA
11. It was common cause that the first applicant and employees embarked
upon the strike in pursuant of two demands. Precisely what those
demands were is central to the determination of whether the strike was
protected, or whether it contravened the provisions of section 65 of the
LRA.
12. When the employees initially gave notice of the strike, they relied on four
grounds:
12.1. A wage cut;
12.2. Wage discrepancies;
7
12.3. A coupling allowance of R500,00 per week; and
12.4. A demand in relation to the transfer of the Provident Fund.
13. The respondent attempted to interdict the strike on the basis that all four
demands were unlawful. It was unsuccessful in the Labour Court, but on
appeal, the respondent maintained that the first three demands fell foul
of the provisions of clauses 50(1) and (3) of the Main Agreement of the
Bargaining Council having jurisdiction over the parties – the National
Bargaining Council for the Road Freight Industry. Clause 50(1) of the
Main Agreement provided that the forum for negotiation and conclusion
of substantive agreements and wages, benefits and other conditions of
employment was the Bargaining Council. Clause 50(3) provided that no
Trade Union or employers’ organisation could compel its negotiating
partner by way of a strike or lockout to negotiate issues at any level
other than the Council.
14. The Labour Appeal Court (per Waglay DJP) accepted that the demand
for a coupling allowance of R500,00 per week was a demand for an
increase in wages, it was a cost to the company, and therefore fell foul of
clauses 50(1) and (3).5 He held that the demand in relation to a wage cut
was not in fact a demand for wages, but a demand in respect of seven
employees to restore the terms and conditions of employment that
5 Waglay DJP said the following in relation to the “coupling” demand – “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 it is connected
and related to substantive issues because it involves costs and affects the employees’ wage packets”.
First LAC Judgment, Vol 11, p18, para 23 (emphasis supplied)
8
applied to them prior to the termination of the Shell Contract. It was a
dispute about a unilateral change to terms and conditions of
employment.6
15. The third dispute, relating to wage discrepancies, was determined by the
Labour Appeal Court not to fall foul of clause 50(1) of the Main
Agreement. It reasoned that the claim for wage parity was not a demand
for an amount of money and acceptance thereof therefore would not
constitute the conclusion of a substantive agreement on wages, benefits
and other conditions of employment.7
16. The effect of the judgment was to find that the two demands relating to
“wage cut” (i.e. the reduction in the wages of the Shell 7) and to “wage
discrepancy” (i.e. the demand for the respondent to adjust wages to
arrive at a uniform level of remuneration) were issues in respect of which
the first applicant and its members could strike.
17. The alleged unilateral reduction in the wages of the Shell 7 was disputed
by the company. It argued that even if there had been a reduction in
wages, the change in the wages, if it was a breach of contract, had been
acquiesced in by the employees and that the dispute could no longer be
one about a unilateral change to terms and conditions of employment.
The applicants could not therefore strike on the issue. However, by the
end of the strike – and in order to resolve the issue finally – the
6 The seven employees became known in the later litigation as the “Shell 7”.
7 First LAC Judgment, Vol 11, p874 para 19-21
9
respondent abandoned its defence to the claim and conceded to the
demand of the employees. The issue accordingly fell away as a dispute
between the parties, leaving only the dispute concerning “wage
discrepancy”.
18. The Labour Appeal Court had made it clear that it accepted that the
“wage discrepancy” demand was one for wage parity. The LAC appears
to have accepted that conceptually a demand for wage parity is not
necessarily a demand for increased wages. Wage parity could notionally
be achieved by adjusting wages so that no employee received an
increase. In such an event, it would be almost inevitable that if no
employee was to receive a wage increase, those employees on higher
wages would have to have their wages reduced in order to achieve
parity.
19. It therefore became of considerable importance to the respondent to
establish the precise nature of the first applicant’s demand in relation to
wage parity. If the first applicant was prepared to accept either a
reduction in wages or a wage freeze until such time as those employees
on a lower wage caught up, the first applicant’s demand would not
offend against clauses 50(1) and 50(3) of the Main Agreement.
20. However, if the first applicant’s demand was that the wages of the lower
paid employees be increased so as to achieve parity with those paid a
higher amount, this would in effect be a demand for an increase in
10
wages. If the company acceded to the demand it would mean an
increase in the company’s wage bill for a substantive increase in wages.
21. Subsequent to the judgment, the respondent and the first applicant met
on 21 and 25 August 2012. On both occasions the first applicant was
pertinently asked to identify precisely what their demands were. In
respect of the “wage cut” issue the first applicant indicated that it sought
that all employees whose wages had changed since February 2009
should have their wages restored, regardless of whether there had been
a unilateral change to their conditions of employment or not. In respect
of the “wage discrepancy” demand, the first applicant stated that it
demanded that the wages of those on a lower level be brought up to the
wages of those on the highest level.8
22. The respondent considered that both of these demands were now
different to those which had been made before and had gone beyond
the demands which the Labour Appeal Court had said were permissible.
This view was shared by the Labour Court in a second urgent application
brought by the respondent. The Court issued an order interdicting the
strike based on the demands as articulated on 21 and 25 October.
8 The Minutes of those meetings record that the question of what the precise Union demand was, was
posed four times and “the standing 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” (see Minutes,
25 October 2010, Vol 8, p580, lines 1, 12-15
The Minutes also record that later in the meeting the Union “reiterated” that the lower paid employees’
rates of pay “should be raised to equal with those who are paid on the highest rate” (ibid, p580 lines 32-
33).
11
23. Following the Court Order, the attorneys for the respondent, Glyn
Marais, wrote to the first applicant on 28 October 2010 making it clear
that the demands in respect of which the employees were entitled to
strike were limited to the seven ex-Shell Contract drivers and a demand
about “weighted average wages”. No strike in respect of a wage
increase was permissible.9
24. Notwithstanding this, at a meeting between the first applicant’s
representatives and the respondent’s management on the afternoon of
28 October 2010, the company indicated that the only basis upon which
an adjustment could take place which did not increase costs was that
certain employees would have to take a wage cut. However, the Minutes
(the correctness of which was never disputed) record –
“It is the Union stance that all employees should be paid all at a
higher rate, and no employees’ wages has to be reduced or cut”
(emphasis supplied).10
25. At a further meeting on 29 October 2010 the same issues were
discussed again. In the course of the meeting, the first applicant’s
General Secretary, Zach Mankge, arrived and was briefed by the shop
stewards. The Minutes of that meeting record that the first applicant’s
representatives then made the following statements:
25.1. “It is illegal that the company reduce employees’ rates without
any reasons”;11
9 Glyn Marais letter, 28 October 2010, Vol 682, line 29-36
10 Minutes, 28 October 2010, Vol 9, p685, lines 12-13
12
25.2. “In essence, there should not be any reduction on rates”;12
25.3. “In wage discrepancies, e.g. 20-40 [everyone should be paid
equally].”13
26. Mr Nico Badenhorst testified that the first applicant was adamant at this
meeting that there should be no reduction in wages, but the wages
should be equal for all employees on the same contracts. The
respondent’s representatives pointed out that it would be impossible to
achieve wage parity which did not have an additional cost to the
company without employees taking a cut in wages. An increase in cost
was inevitable to fulfil the demand.14
27. On the same date, the respondent’s attorneys again wrote to the first
applicant warning that on the basis of the demands articulated on 29
October the strike would be illegal and the right to dismiss employees
who embarked on the illegal and unprotected strike was reserved.15
28. Nevertheless, the strike began on the afternoon of 28 October 2010.
29. The respondent then issued four ultimatums. The first two were issued
on 29 October, one in the morning and one in the afternoon. Both
ultimatums pointed out that the demands being made by the employees
11
Minutes, 29 October 2010, Vol 9, p689, line 4 12
Minutes, 29 October 2010 Vol 9, p689, line 4 13
Minutes, 29 October 2010, Vol 9, p689 line 5 14
Badenhorst, Vol 3, pp176-187 15
Letter, Glyn Marais, 29 October 2010, Vol 9, p693-694
13
were the same as those which the Labour Court had determined on 27
October 2010 to be unlawful. The third and fourth ultimatums were
issued on the following Monday, 1 November 2010. The fourth ultimatum
was headed “Final Ultimatum”. These ultimatums were also sent to the
first applicant.
30. In the Final Ultimatum, the respondent unequivocally acceded to the first
applicant’s demand in respect of the seven ex-Shell employees. The
company indicated that any strike which continued in respect of that
demand would be unlawful (since there was no longer a dispute on this
issue). In all the ultimatums the respondent reiterated that the first
applicant’s demand in respect of wage discrepancies or wage parity was
a demand for an increase in wages. This, the company explained, made
the demand one concerning substantive issues and one which must be
negotiated at centralised bargaining level only, and could not be
negotiated directly with the company.
31. During the cross-examination of Badenhorst it was put to him that a
further meeting was held between the first applicant and the company’s
representatives on 1 November. It was put that at that meeting the
demand was to put all drivers on a wage of R38,00. Badenhorst
responded saying that the R38,00 proposal “rings a bell” and stated that
he pointed out to the first applicant that the proposal was still for an
increase and meant an on-cost to the company and an effect on the
wage packages and must, therefore, be one which should be made at
14
the Bargaining Council.16 The single first applicant witness, Mr
Wellington Ngedli, agreed that a demand of a minimum of R38,00 was
indeed made at the 1 November meeting. In cross-examination he
conceded that this demand would involve a further cost to the company,
but the company deserved it as it had created the inequality in the first
place.17 It could be said at this point that the first applicant’s case
collapsed.
32. Badenhorst testified that the concept of single-tier centralised sectorial
bargaining was one decided upon between the employers and the first
applicant in 1996. The policy decision in this regard was taken to the
then Minister of Labour, Mr Tito Mboweni, who approved it. The principle
of a single forum for bargaining substantive issues was accordingly
introduced into the Bargaining Council’s constitution and was included
as a term in each main agreement reached thereafter.
33. Badenhorst also pointed out that the Bargaining Council was able to
negotiate on minimums and actual wage increases.18 It was also able to
(and did) negotiate on wage parity. The policy concerning the level of
bargaining was supported by the main Unions to give primacy and
effectiveness to centralised bargaining and to remove the prospect of
second-tier or plant level bargaining on substantive issues.19 He made
the point that the first applicant official, Mr Madolo, had been aware of
16
Badenhorst, Vol 4, p286 line 12 to p288 line 23 17
Ngedle, Vol 4 p309 line 14 to p310 line 6 18
Badenhorst, Vol 3, p136 lines 1-7 19
Badenhorst, Vol 3 p134 line 3 to p135 line 25
15
the policy, having been engaged in the discussions concerning the topic
in 1995 and 1996. This was not denied by the first applicant.20 Mr
Madolo, although present during the hearing in this matter, did not
testify.
34. Accordingly, in respect of the seriousness of the contravention of the
LRA, the following factors must be taken into account:
34.1. The first applicant was a party to and understood the rationale of
bargaining at sectorial level on substantive issues i.e. wages,
terms and conditions of employment and issues which were a
cost to the company and affected the employees’ wage packets.
34.2. Following the decision of the Labour Appeal Court, both the
company and the first applicant were quite clearly aware that the
employees could not make a demand in relation to wages which
had any cost implications for the company.21
34.3. After the judgment by the Labour Appeal Court, the first
applicant made demands which were for increases and
resolutely failed to agree to any wage cuts in order to achieve
parity. This required the company to go to Court to obtain a
20
Badenhorst, Vol 3 p184 lines 3-15 21
Badenhorst testified that he regarded it as impossible for any demand for wage parity to be one
which was not a demand in respect of substantive issues in the sense that it concerned conditions of
employment, affected employees’ pay packets and had cost implications. It is submitted that although
Badenhorst is correct, it is unnecessary in these proceedings for a Court to make a finding in this
regard. The evidence is clear that at all material times, up to and including 1 November 2010, the
Union’s demands were for an increase which had an effect on increasing the cost to the company.
16
second interdict against a strike on the basis of the “increased”
demands i.e. the demands which went beyond the Shell 7 and
which required the company to pay additional wages or costs to
achieve wage parity.
34.4. Notwithstanding the Labour Appeal Court judgment, and the
interdict of the Labour Court, the first applicant persisted in its
demands which were for an effective increase in wages. All the
evidence points to this – the Minutes of the meetings in October,
the evidence concerning the meeting on 1 November 2010 and
the fact that the assertions that the first applicant wished to have
an increase contained in each of the ultimatums went
unanswered.
34.5. The argument that the first applicant’s demand was simply for
parity and nothing else is disingenuous. The first applicant was
not articulating a principle in relation to wage parity, it was
making a real demand that wage parity be achieved by
increasing wages of the lower paid employees. At no stage did it
envisage that any employee receive a wage reduction in order to
achieve parity. The means or method by which the parity was to
be obtained was identified by the first applicant: parity should be
obtained by way of a wage increase. This was clearly expressed
in the meeting of 1 November 2010 where the demand was that
17
drivers have their wages increased to a base of R38,00 an
hour.22
34.6. It is submitted that there was an element of deviousness in the
way that the first applicant went about making the demand. The
first applicant insisted that the demand was for an “adjustment”
but, when pressed, it emerged each time that the demand was
actually for an increase or which would have the effect of further
costs for the company. The first applicant’s representatives were
simply parroting the words used by the LAC.23
34.7. The company made endeavours to establish precisely what the
demand was. The central demand clearly was for an increase in
wages. The issue of the seven Shell workers was conceded and
it therefore fell away as an issue in the strike. The central reason
why the strike commenced and continued, despite the
ultimatums, was the demand for a wage increase.
34.8. The strike lasted approximately six days. Badenhorst testified
that it cost the employer over R3 million.
34.9. The first applicant was intransigent in respect of its demand in
wage parity. Badenhorst was clearly correct when he said that
22
The point can be made by posing the question: if the company had conceded to “wage parity” but
declined to increase any employee’s wages, would that have put an end to the strike? Clearly not: the
employees were striking to raise the wages of the lower paid employees to a higher level, to be the
same as the higher paid employees. 23
LAC Judgment, Vol 11 p874 para [20]
18
there was no realistic prospect of terminating the strike action
short of dismissing the employees, given their adamant position.
35. It is accordingly submitted that the contravention of the LRA was serious.
The respondent had to sustain a six day strike and attendant losses
because the first applicant pursued a demand for a wage increase which
it knew could not be made at plant level.
ATTEMPT MADE TO COMPLY WITH THE ACT
36. The compliance of the first applicant with the procedural formalities
relating to strike action (at section 64 of the LRA) is not an issue.
However, the first applicant failed to recognise the terms of a collective
agreement (the Bargaining Council Main Agreement) and accordingly
made itself guilty of an infringement of the provisions of section 65.
37. Item 6 of the Code of Good Practice: Dismissal requires an employer to
contact a Trade Union official to discuss the course of action it intends to
adopt at the earliest opportunity. It requires an employer to issue an
ultimatum in clear and unambiguous terms. The employees should be
allowed sufficient time to reflect on the ultimatum and respond to it,
either by complying with it or rejecting it. It is submitted that the
respondent complied with each of these requirements. The ultimatums
were clear and unambiguous.24 They informed striking workers of the
company’s position in relation to the strike and their demands. The
24
Examples of the ultimatums may be found at Vol 9, p704-705 and 707-708
19
ultimatums required the striking workers to return to work and clearly
explained the consequences if they failed to do so. The final ultimatum
clearly informed the striking workers that if they failed to comply, they ran
the risk of dismissal.
38. The ultimatums also called upon the employees to make representations
as to why their strike was protected and why they should not be
dismissed. The employer complied with the requirements of audi alteram
partem. It indicated to the employees what steps it might take if the
ultimatum was not complied with. It called for representations as to why
the consequence of non-compliance with the ultimatum should not be
dismissal. These requests were sent not only to the employees but also
to the first applicant. Accordingly, the requirements of procedural
fairness were fully met.
UNJUSTIFIED CONDUCT BY THE EMPLOYER
39. It is submitted that there was no unjustified conduct by the respondent in
this case. On the contrary, the employer showed remarkable
forbearance, not only in its repeated meetings with the first applicant but
in issuing four ultimatums and waiting a period of approximately six days
before resorting to termination.
20
SUBMISSIONS
40. It is respectfully submitted that the dismissal of the striking workers
arose as a direct consequence of the insistence by the first applicant and
its members that they negotiate substantive issues relating to wage
discrepancies at company level. Such an approach was simply
impermissible as it was a breach of clauses 50(1) and (3) of the
Bargaining Council Main Agreement.
41. Clumsy efforts were made by the first applicant to cast the demands as
an “adjustment”. However, on each occasion it became clear that the
first applicant’s demands were in respect of substantive wage issues and
in particular a demand that involved a cost to the company and affected
the employees’ wage packets. It is submitted that it is hard to justify the
first applicant’s and employees’ adamant conduct. It is a reasonable
inference that the first applicant and its members were motivated by a
desire to establish themselves at the company’s workplace through
successive demands for an increase in wages – a prize that other
Unions could not achieve because of their compliance with the Main
Agreement.
42. It is submitted that the company had little choice in the circumstances
other than to bring this dispute to an end through dismissal.
21
43. In the circumstances, it is submitted that the judgments of the Labour
Court and Labour Appeal Court is correct. The attacks against it made
by the applicants are simply not justified.
44. It was central to the applicants’ arguments at the trial that the first
applicant’s demands and the strike were considered permissible by the
Labour Appeal Court in what the applicants have called the
Unitrans/TAWUSA LAC judgment. However, it is submitted that it could
not be reasonably argued that the Learned Judge misunderstood or
misinterpreted the LAC judgment. In her judgment, the Learned Judge
identifies the reasoning and conclusions of the LAC and (at paragraphs
[41] and [42] of the judgment) describes them as “clear”.
45. Accordingly it is submitted that there can be no reasonable criticism of
the Learned Judge in her finding that the LAC judgment did not open the
way to a strike by the first applicant and its members at the respondent’s
premises.
46. If that is the case, and it must be found that the Learned Judge correctly
understood the First LAC Judgment.
47. It is submitted further that the criticism that the Learned Judge failed to
appreciate the ambit of the constitutional right to strike and the
Constitutional Court judgments which deal with this is similarly
misplaced. It is trite that the right to strike is not an unlimited right.
Further, it is not controversial that the right may be limited by collective
22
agreement (such as the Main Agreement). It is submitted that the
limitation of the right was self-evidently recognised in the judgment of the
Learned Judge and applied to the common cause facts of the present
case. No case was made out that the Main Agreement was
unconstitutional; and none of the parties to that Agreement were cited or
joined in the trial.
48. It is accordingly submitted that the Learned Judge was correct in holding
that the demand and strike were unprotected since it was impermissible
for the strike to engage in strike action on that demand.
49. It is submitted that in respect of the Learned Judge’s findings of the
seriousness of the misconduct and the fact that the respondent had
followed a procedurally appropriate route, there is no reasonable or
serious criticism raised by the applicants. The criticisms, it is submitted,
are either trivial or are not supported by any serious argument.
50. Accordingly, it is submitted that there are no prospects that the
applicants can succeed on appeal and that therefore the application for
leave to appeal should be refused.
OTHER CONSIDERATIONS IN TERMS OF SECTION 167(3)
51. It is submitted that the present case does not concern a “constitutional
matter”.
23
52. The applicants, in their papers before the Labour Court, did not rely upon
the breach of any provision of the Bill of Rights or any contravention of
the Constitution. It was not alleged that any law, agreement, or conduct
was inconsistent with the Constitution. Further, no issues concerning the
status, powers and functions of any organ of State were referred to.
53. It is also submitted that the applicant did not raise the interpretation of
any legislation, nor did it contend for the development of the common
law in order to promote the spirit, purport and objects of the Bill of
Rights.25
54. It is also submitted that the matter is not one of general public
importance which ought to be considered by the Constitutional Court. It
is submitted that none of the issues raised in the matter are:
“Substantial, broad-based, transcending the litigation-interests of
the parties, and bearing upon the public interest”26
55. While the matter is clearly of concern to the company and the first
applicant and its 93 members, it is submitted that the issues in the case
do not transcend their litigation interests. No significant principle of
employment law is engaged. No major matter of public importance is
raised.
25
As to what constitutes a constitutional matter: see S v Boesak 2001 (1) SA 912 (CC) at para 13;
Fredericks and Others v MEC for Education and Training, Eastern Cape and Others (2002) 23 ILJ 81
(CC) at para 10-11 26
SAJ v AOG and Two Others, Supreme Court of Kenya [2013] e KLR, para 31, quoted in Paulsen
and Another v Slip Knot Investments 777 (Pty) Limited (supra) at para 25
24
56. Accordingly, it is submitted that the applicants do not establish a basis
for appeal in terms of section 167(3) of the Constitution. The application
for leave to appeal should, accordingly, be dismissed.
DIRECTIONS DATED 16 SEPTEMBER 2015
57. At paragraph 8 the Chief Justice has requested that written argument
include submissions on seven issues set out at paragraph 8 of the
Directive. Insofar as these issues have not been traversed above, it is
intended to deal with them briefly below.
ISSUE 8(A) – ISSUES WHICH MAY HAVE BECOME RES JUDICATA
58. The first applicant had four issues upon which it sought to strike in 2010.
The Labour Appeal Court determined that in respect of two of the issues,
there could be no lawful strike. The disputes in respect of those issues
were accordingly resolved by the Labour Appeal Court and play no
further role in the present dispute.
59. The issue concerning the Shell 7 similarly plays no significant role in the
dispute. The respondent conceded to the demands in respect of the
Shell 7. The strike nevertheless continued in respect of the wage
discrepancy demand and it was on the basis of the continued strike in
relation to this demand that the dismissals were effected.
25
60. In respect of the wage discrepancy demand, it was the first applicant’s
case in the Labour Appeal Court (before Wagley DJP) that the demand
was not a demand for an amount of money, but required the company to
make an adjustment.27 Insofar as that, in fact, was the case, the parties
were clearly bound by the LAC Judgment.
61. However, in determining the subject matter of a dispute (or demand), the
Court examines the surrounding facts in order to ascertain the real
dispute underlying the demand. The Labour Appeal Court, per
Froneman DJP held:
“The refusal of a demand, or the failure to remedy a grievance,
always needs to be examined in order to ascertain the real
dispute underlying the demand or remedy. The demand or
remedy will always be sought to rectify the real, underlying
dispute. It is the nature of that dispute that determines whether a
strike in relation to it is permissible or not.”28
62. Likewise, a dispute is determined by its substance, and not by the form
in which it is cast.29
63. The true nature of the dispute or demand, as the evidence before the
Labour Court showed, was that it was a demand for money, not a
27
LAC Judgment Vol 11, p874, para 20. “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” 28
Ceramic Industries Limited t/a Betta Sanitary Wear and Another v NCBAWU and Others 1997 (18)
ILJ 671 (LAC) 29
Fidelity Guards Holdings (Pty) Limited v PTWU and Others (1998) 19 ILJ 260 (LAC) at 135;
County Fair Foods (a division of Astral Operations Limited) v Hotel Liquor Catering Commercial and
Allied Workers Union and Others (2006) 27 ILJ 348 (LAC) at para 31
26
demand for an adjustment in principle. Wage increases were demanded,
and wage cuts deprecated.
64. Accordingly, on the facts, the demand – the true demand – was for
money; it was not the demand for an adjustment in wages which was the
subject of the LAC case. Since the demand was a different one, the
parties were not bound by the decision of the LAC and, on the facts, the
issue was not res judicata.
ISSUES (B) – (D)
65. The nature of the issue before Basson J is apparent from the transcribed
address of counsel before her. The learned Judge gave an order, but did
not give reasons – probably due to the urgency the matter. It is
submitted that it can be inferred that she accepted the argument
advanced by Mr Kennedy SC, counsel for the respondent.
66. The central argument of Mr Kennedy was that the demand that was now
being made by the first applicant was not the demand which formed the
basis of the decision in the LAC.30
67. Mr Kennedy refers to the LAC judgment and draws the Court’s attention
to why the case before the Labour Court is a different one:
“So the ratio of this judgment [the LAC Judgment] is, if there is
no demand for an actual increase, then it does not forfend of the
30
Address, Vol 8, p587 lines 11-14
27
LRA, it is a protected strike. If it does demand an actual
increase, then the logic of the ratio is then that it would forfend
…So my lady, the simple point is this, the ratio is if there is a
demand for an actual increase, it is not strikable. At the time that
the Labour Appeal Court considered the matter, on those papers
there was no demand for an actual increase in wages. It had to
be referred to as a possible inference, but the Court said ‘well, it
is not the only inference you can draw’, and they gave the
benefit of the doubt as it were, to the Union and said ‘well if
there is no actual demand for an actual increase, it is safe’.
Since then the Union has changed its demand. If the Union had
said nothing more, there would be no negotiations, no meetings,
no correspondence. They just simply said ‘we are now striking
for the demand that we put to you in March’. They would have
been safe because of res judicata, because the Labour Appeal
Court would apply because those facts had not changed…”31
68. Accordingly, it is submitted that neither Basson J, Bhoola J nor Davis JA
were bound by the decision of the LAC given by Wagley DJP.
ISSUE (E) – FAILURE TO CONSIDER ITEM 6 OF SCHEDULE 8
69. It is submitted that the principal debate before the Labour Appeal Court
and upon which Davis AJ was required to decide concerned the issues
in relation to the protectable nature of the strike. Oral argument did not
concern these issues.
ISSUE (F) – UNPROTECTED DISMISSAL
70. The company’s contentions in this regard have been dealt with above.
31
Address, Vol 8, p591 line 10 to p592 line 12
28
ISSUE (G) – DISMISSAL DURING A PROTECTED STRIKE
71. It is submitted that the strike was not protected. The principal established
in the Afrox case is that once a Union has complied with the
requirements of section 64 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 were employed by the same employer
wanted to join the strike in respect of the same dispute which was
protected.
72. It is submitted that on the above analysis, the dispute was not protected
by virtue of the fact that the demand which was the subject matter of the
actual strike was not the same demand was had been the basis of the
decision in the LAC.
73. As the LAC had itself indicated, a demand which was for money (an
increase in wages) was not a demand which was legitimate and
protectable, and a strike in support of that demand would be in
contravention of the provisions of section 65(1)(a) of the LRA or section
65(3)(a) of the LRA.
29
CONCLUSION
74. It is accordingly submitted that the application for leave to appeal be
dismissed with costs.
A REDDING SC Chambers 20 November 2015
LIST OF AUTHORITIES
Paulsen and Another v Slip Knot Investments 777 (Pty) Limited 2015 (3) SA
479 (CC)
S v Boesak 2001 (1) SA 912 (CC)
Fredericks and Others v MEC for Education and Training, Eastern Cape and
Others (2002) 23 ILJ 81 (CC)
SAJ v AOG and Two Others, Supreme Court of Kenya [2013] e KLR,
Ceramic Industries Limited t/a Betta Sanitary Wear and Another v NCBAWU
and Others 1997 (18) ILJ 671 (LAC)
Fidelity Guards Holdings (Pty) Limited v PTWU and Others (1998) 19 ILJ 260
(LAC)
County Fair Foods (a division of Astral Operations Limited) v Hotel Liquor
Catering Commercial and Allied Workers Union and Others (2006) 27 ILJ 348
(LAC)
30