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CCT 233/20
Association of Mineworkers and Construction Union and Others v Anglo Gold Ashanti Limited t/a Anglo Gold Ashanti and Others (CCT 233/20) [2021] ZACC 42 (12 November 2021)
[20] Furthermore, the enquiry into reasonableness required a consideration of the form and duration of the anticipated secondary strike including the extent of the strikes impact, the sector in which it occurred, the number of employees involved and their conduct. In conducting a proportionality analysis to assess the reasonableness of the secondary strikes on the respondents, the Labour Court held that the secondary strikes would result in severe disruptions to the business of the secondary employers.[Anglo Gold Ashanti Limited t/a Anglo Gold Ashanti v Association for Mineworkers and Construction Union (2019) 40 ILJ 1552 (LC) (Labour Court judgment) at paras 273-5 and 278. The order of the Labour Court was upheld on appeal in Association of Mineworkers and Construction Union v Anglogold Ashanti Limited t/a Anglogold Ashanti [2020] ZALAC 45; (2020) 41 ILJ 2763 (LAC) (Labour Appeal Court judgment).]
[21] On the law, the Labour Court acknowledged that the effect of the secondary strikes on the primary employer did not necessarily mean that there had to be a nexus between the primary and secondary employers. It held, however, that it was difficult to conceive how a secondary strike could have a direct or indirect effect on the primary employers business without some relationship of sorts between the two employers.[Id at para 219 with reference to SALGA v SAMWU [2007] ZALC 43; [2008] 1 BLLR 66 (LC) (SALGA I).] On the facts, the Labour Court concluded that the anticipated secondary strikes would have no direct or indirect effect on Sibanyes business.[19] Accordingly, the Labour Court declared the secondary strikes unprotected with no order as to costs.[20] Aggrieved by the outcome, AMCU applied for leave to appeal, which the Labour Court refused with costs.
[31] Essentially, this appeal turns on the substantive requirements for lawful secondary strikes in terms of section 66(2)(c).[36] Specifically, the question raised is whether section 66(2)(c) imports the principle of proportionality in assessing the lawfulness of secondary strikes. More specifically, the question is whether section 66(2)(c) factors in a balancing of the impact of secondary strikes on secondary employers, on the one hand, with their effect on the primary employer on the other hand. Thus, if secondary strikes impact disproportionately harshly on secondary employers, as a party uninvolved in the primary strike, would secondary employers be entitled to interdict the secondary strikes under section 66(3)?
[67] The procedural requirements for a strike are infinitely more onerous than for a secondary strike. A strike must be preceded by conciliation, deadlock and notice to the employer. All this takes time before a strike can commence. Four months lapsed between AMCU commencing negotiations and the primary strike. In the case of secondary strikes, no conciliation, no deadlock, and no dialogue are prescribed as prerequisites. Once the primary strike is lawful, all that remains to be done is for the trade union to give seven days notice to the secondary employer of its employees intention to embark on a secondary strike.[87] Cumulatively, the absence of prior engagement, the brevity of the notice and the fact that the secondary employer and its employees have no interest in the outcome of the primary strike, distinguish the secondary employer from the primary employer. Secondary employers having employees who belong to other trade unions that are not engaged in the secondary strike, adds another dynamic to a situation already complicated by multi-dimensional power play.
First, the critical requirement is for a secondary strike to have an effect. The word possible lowers the threshold to mean something less than probable not actual[93] but more than notional. Third, the effect of the secondary strike must be on the business of the primary employer. If a relationship in which the secondary employer is able to influence market sentiment and ratings agencies that, in turn, impact adversely on the commodity price, the share price and the valuations of the primary employer, that would be another example. Fourth, the assessment of the effect is, unsurprisingly, directed at the primary employer. Fifth, the reference to the effect on the primary employer does not imply that the secondary employer is excluded altogether from the assessment. The impact on the secondary employer comes into the analysis in interpreting whether the nature and extent of the secondary strike is reasonable in relation to the effect that the secondary strike may have.
[87] It follows that if a secondary strike is incapable of having any effect whatsoever on the business of a primary employer, that would not be reasonable. That would be the end of the enquiry.
[109]...Thus, on the one extreme, if secondary strikes have no effect on the primary employer, or, on the other extreme, if the effect is disproportionately harsh on secondary employers, they would be entitled to interdict the strike under section 66(3).
JS316/18
NEHAWU obo Coetzee and Others v Kakamas Water Users Association (JS316/18) [2021] ZALCJHB 447 (8 December 2021)
[82] In SA Commercial Catering and Allied Workers Union and Others v Sun City[(2018) 39 ILJ 436 (LC) at para 81.] this Court held that:The distinction between a protected and unprotected strike is not an academic one. It is one that ought to have consequences. The Act establishes dispute resolution procedures that are inexpensive, expeditious and efficient. If the employees felt aggrieved, they could have and should have explored legitimate remedies to address their concerns.
JS1181/2013
Bam and Others v BME (a member of Omnia Group (Pty) Ltd) (JS1181/2013) [2021] ZALCJHB 419 (17 November 2021)
[194] In National Union of Metalworkers of SA on behalf of Dhludhlu & others v Marley Pipe Systems SA (Pty) Ltd (2021) 42 ILJ 1924 (LAC) the LAC recapped the approach to the doctrine of common purpose or derivative misconduct in the employment context:[16] The difficulties inherent in determining the individual culpability of an employee in the context of collective misconduct were considered by the Constitutional Court in Dunlop [National Union of Metalworkers of SA on behalf of Nganezi & others v Dunlop Mixing & Technical Services (Pty) Ltd & others (Casual Workers Advice Office as Amicus Curiae) 2019 (5) SA 354 (CC); (2019) 40 ILJ 1957 (CC)] In that matter, the court stated at para 46 that:Evidence, direct or circumstantial, that individual employees in some form associated themselves with the violence before it commenced, or even after it ended, may be sufficient to establish complicity in the misconduct. Presence at the scene will not be required, but prior or subsequent knowledge of the violence and the necessary intention in relation thereto will still be required.[17] The court recognised that employees may participate in and associate with misconduct in many ways, both direct and indirect, while cautioning that no one should be held accountable where no evidence can be adduced to substantiate the claim against individuals, solely on the basis of being part of the group.[18] In Food & Allied Workers Union & others v Amalgamated Beverage Industries Ltd, [(1994) 15 ILJ 1057 (LAC)] which predated the current LRA, more than 100 employees emerged from a room in which a driver was left seriously injured after an assault. In that matter, the court, relying on R v Blom [1939 AD 188] found that all the evidence presented was consistent with the inference that all of the employees had been part of the group which perpetrated the assault. This was so although on an abstract appreciation of the evidence this inference was not the most probable in that no alternative inferences had been advanced by the employees which had a foundation in the evidence. As a result, the court had to select that inference which was the more plausible or natural one from those that presented themselves. It was found that the inference drawn that all employees were involved became the most probable only because none of the individuals concerned came forward, either at the individual disciplinary hearings, or in the Industrial Court, to absolve themselves, a failure which was weighed in the balance against them. With no evidence that it was only a majority of the appellants who were present, the court found that the evidence was equally consistent with all employees having been present at the scene.[19] In the current matter reliance was placed by the Labour Court on the doctrine of common purpose to find all of the appellant employees responsible for the misconduct. All of the employees had embarked on an unprotected strike. There was direct evidence which proved that 12 employees had engaged in the assault. The remaining 95 employees were identified as having been in the group of strikers and to have directly associated with the misconduct. The 41 remaining employees, in respect of whom the appeal is pursued, were not identified through direct evidence as having been part of the group. It follows that for the inference to be drawn that they had associated themselves with the assault including before it commenced, or after it ended, whether through direct participation or association, such an inference must be consistent with all the proved facts.[20] The proven facts were that all employees had reported for duty, left their workstations and embarked on the strike. All employees, save for Mr Mokoena, were on the respondents premises and away from their workstations at the time of the assault. The striking employees, all of whom were NUMSA members, moved together towards Mr Steffens office, holding placards and presenting written demands which sought his removal. The employees sought out Mr Steffens and remained present on the scene during the course of and after his assault, with none of the striking employees coming to his aid. Apart from Mr Ledwaba no employee took advantage of the opportunities availed, both prior to and during the disciplinary hearing or before the Labour Court hearing, to distance themselves from the events of the day.[21] In its approach to the circumstantial evidence available to it, it is the task of the court to select that inference which is the more plausible or natural one from those that present themselves. In having regard to the possible inferences available to be drawn, it is noteworthy that, as in FAWU, no alternative inferences founded in the evidence were advanced by the employees. There was no evidence that it was only 107 of the appellants, in respect of whom the appeal is no longer pursued, who were present on the scene of the assault. The undisputed evidence was that all the appellant employees had left their workstations and participated in the strike. The employees wanted to speak to Mr Steffens in the canteen and, when he did not arrive, they moved to the main gate and towards his office with demands that included his removal. There was no evidence that any of the 148 appellant employees distanced him- or herself from the actions of the group and the clear evidence was that the assault on Mr Steffens was perpetrated by members of the group of striking employees. None of the employees intervened to stop the assault and assist Mr Steffens, nor did they disassociate in any way from the assault before, during or after it. In fact, the undisputed evidence was that the striking employees celebrated the assault after the fact. It followed in the circumstances, having regard to the proven facts, that the inference drawn that all employees were involved in or associated themselves with the assault became the most probable and plausible.[22] In KPMM Road & Earthworks (Pty) Ltd [Association of Mineworkers & Construction Union & others v KPMM Road & Earthworks (Pty) Ltd (2019) 40 ILJ 297 (LAC)] this court took issue with the failure of the Labour Court to have careful regard to the established principles of common purpose in the context of collective misconduct. In Makhubela v S [2017 (2) SACR 665 (CC)] the Constitutional Court, relying on S Mgedezi & others [1989 (1) SA 687 (A)], set out the requirements necessary to prove common purpose , namely that the individual must have been shown to have been present at the scene where the assault occurred; to have been aware of the assault; have intended to make common cause with those who perpetrated the assault; have manifested some common purpose with the perpetrators of the assault by performing an act of association with the conduct of the others; and have possessed the requisite mens rea. These requirements were also considered in S v Thebus & another [2003] ZACC 12; [2003 (6) SA 505 (CC)] and in Dewnath v S Dewnath v S [[2014] ZASCA 57] it was held that:The most critical requirement of active association is to curb too wide a liability. Current jurisprudence, premised on a proper application of S v Mgedezi, makes it clear that (i) there must be a close proximity in fact between the conduct considered to be active association and the result; and (ii) such active association must be significant and not a limited participation removed from the actual execution of the crime.[23] In Dunlop, the court stated that association with the misconduct before it commenced or after it ended may be sufficient to establish complicity in the workplace context, with it not required that an employee be present at the scene. However, prior or subsequent knowledge of the misconduct and the necessary intention in relation to it is still required. This moves the requirements to prove common purpose in the workplace outside of the strict requirements set out in the case law from Mgedezi. It allows an employee to be held to account for collective misconduct where the employee associated with the actions of the group before or after the misconduct, even if not present on the scene; where the employee had prior or subsequent knowledge of the misconduct; and he or she held the necessary intention in relation to it.[9]
[2] Mr S Mpofu is liable to the Respondent for the damage caused to the boom gate at the main entrance to the Respondents premises on 11 September 2013. The Respondent may enrol the matter for determination of the payment of any just and equitable compensation due by Mr Mpofu under s 68(1)(b) of the Labour Relations Act, 66 of 1995, arising from the aforesaid damage.
[37] Item 6(1) of Schedule 8 to the LRA makes it clear that the substantive fairness of a dismissal as a result of participation in an unprotected strike, like other misconduct, does not always deserve dismissal and must be determined in the light of the facts of the case, including the seriousness of the contravention of the LRA, attempts made to comply with the LRA and whether or not the strike was in response to unjustified conduct by the employer.
Mzeku and Others v Volkswagen SA (Pty) Ltd and Others it was stated that:[[2001] ZALAC 8; 2001 (4) SA 1009 (LAC); (2001) 22 ILJ 1575 (LAC) at para 17.]
Once there is no acceptable explanation for the [workers] conduct, then it has to be accepted that the [workers] were guilty of unacceptable conduct which was a serious breach of their contracts of employment . . . The only way in which the [workers] dismissal can justifiably be said to be substantively unfair is if it can be said that dismissal was not an appropriate sanction.
[39] The Constitutional Court in Transport and Allied Workers Union of South Africa obo Ngedle and Others v Unitrans Fuel and Chemical (Pty) Ltd Limited[[2016] ZACC 28; 2016 (11) BCLR 1440 (CC); [2016] 11 BLLR 1059 (CC); (2016) 37 ILJ 2485 (CC) at para 50.] made it clear that in determining the appropriateness of a dismissal as a sanction for striking workers conduct, consideration must be given to whether a less severe form of discipline would have been more appropriate, as dismissal is the most severe sanction available. An illegal strike has been recognised by our courts to constitute serious and unacceptable misconduct by workers.[Performing Arts Council of the Transvaal v Paper Printing Wood and Allied Workers Union and Others [1993] ZASCA 201; 1994 (2) SA 204 (A) at 216E.] In this matter, the respondents acted outside the bounds of the recognition agreement entered into with the appellant, failed to adhere to the unequivocal ultimata issued by the appellant and refused to comply with the appellants instructions to halt their dangerous and unlawful industrial action. In such circumstances, dismissal has been found by our courts to be an appropriate sanction.[SA Clothing and Textile Workers Union and Others v Berg River Textiles A Division of Seardel Group Trading (Pty) Ltd (2012) 33 ILJ 972 (LC) at para 30 ]
JA20/2020
Sasol Mine Limited v Nhlapo and Others (JA20/2020) [2021] ZALAC 28 (9 September 2021)
From the evidence, it was apparent that those who remained on the appellants premises after their shift, after having been instructed not to do so, had retarded or obstructed work through their physical and intentional conduct even though off-duty and that by so doing they too had participated in the unprotected industrial action.[7] As much was made clear in Association of Mineworkers & Construction Union & others v AngloGold Ashanti [(2016) 37 ILJ 2320 (LC) at para 185.] where the court held that in certain circumstances, a failure to obey a lawful instruction amounts to strike action. The fact that the appellant immobilised machinery as a result of the strike did not alter the fact that the respondents had participated in the action.
Transport & Allied Workers Union of SA obo Ngedle & others v Unitrans & Chemical (Pty) Ltd (2016) 37 ILJ 2485 (CC) at para 106.
The dismissal of the respondent employees was procedurally and substantively fair.
JS172/2014
Chemical, Energy, Paper, Printing, Wood & Allied Workers Union and Others v Polyoak Packaging (Pty) Ltd (JS172/2014) [2019] ZALCJHB 105 (24 April 2019)
Mndebele and Others v Xstrata SA (Pty) Ltd t/a Xstrata Alloys (Rustenburg Plant) (2016) 37 ILJ 2610 (LAC) at para 27
The Code does not suggest how the ultimatum should be distributed or required that it must be in writing. Furthermore, it states that the issuing of an ultimatum is not an invariable requirement. The purpose of an ultimatum is not to elicit any information or explanations from the employees but to give them an opportunity to reflect on their conduct, digest issues and, if need to be, seek advice before making the decision whether to heed the ultimatum or not. The ultimatum must be issued with the sole purpose of enticing the employees to return to work, and should in clear terms warn the employees of the folly of their conduct and that should they not desist from their conduct they face dismissal. Because an ultimatum is akin to a final warning, the purpose of which is to provide for a cooling-off period before a final decision to dismiss is taken, the audi rule must be observed both before the ultimatum is issued and after it has expired. In each instance, the hearing may be collective in nature and need not be formal
County Fair Foods (Epping), a division of Astral Operations Ltd v Food and Allied Workers' Union and Others [2018] 8 BLLR 756 (LAC); (2018) 39 ILJ 1953 (LAC); See also Modise and Others v Steves Spar Blackheath 2000 ILJ 519 (LAC)
[104] a dismissal for failing to heed an ultimatum would be justified. In this case, I am willing to accept that the time period stipulated in the last ultimatum leading to the dismissals was insufficient.
JS 215/14
AMCU obo LS Rantho and Others v SAMANCOR Western Chrome Mines (JS 215/14 ;JS 406/14) [2019] ZALCJHB 85 (17 April 2019)
Rickett & Colman (SA) (Pty) Ltd v CWIU 1991 12 ILJ 806 (LAC)
[77] Most of the arguments as above have been addressed, safe to reiterate that selective dismissal and re-employment of employees is not per se unfair as circumstances may justify such conduct
Fidelity Guards Holdings (Pty) Ltd v Transport and General Workers Union and Another [1998] JOL 3333 (LAC) at para 45.
it was held that a duty was upon an employer when selectively taking back other employees, to demonstrate that a legitimate basis of differentiation between those reinstated and those not reinstated existed.
The criteria as evident from the settlement agreement itself was inter alia whether or not the employees had participated in the strike, whilst at the same time having valid final written warnings. Those that were not reinstated had not only participated in the unprotected strike, but had also been on valid final written warnings for similar conduct in accordance with the provisions of the settlement agreement.
J 353/19
Association of Mineworkers and Construction Union v Sibanye Gold Limited t/a Sibanye Stillwater and Others (J 353/19; J 380/19) [2019] ZALCJHB 89; (2019) 40 ILJ 1607 (LC); [2019] 8 BLLR 802 (LC) (20 March 2019)
[74] To sum up: the ex post facto extension of a collective agreement is not unlawful or ultra vires and it takes effect by the operation of law if the formal requirements of section 23(1)(d) have been met.
[100] To allow minority unions, bound by an extended collective agreement, to strike over demands relating to a specific period either prior to the signing of the collective agreement or the extension thereof, will result in chaos and uncertainty, the direct antithesis of labour peace.
J420/19
AngloGold Ashanti Ltd t/a AngloGold Ashanti and Others v Association for Mineworkers and Construction Union and Others (J420/19, J424/19, J430/19, J431/19, J432/19, J438/19, J439/19, J440/19, J443/19 and J444/19) [2019] ZALCJHB 169; (2019) 40 ILJ 1552 (LC); [2019] 7 BLLR 646 (LC) (15 March 2019)
Applicants to suffer considerable loss; secondary strike is unreasonable
JS102/14
National Union of Mineworkers obo Members v Cullinan Diamond Mine A Division of Petra Diamond (Pty) Ltd (JS102/14) [2019] ZALCJHB 43; (2019) 40 ILJ 1826 (LC) (1 March 2019)
Where an employee alleges unfair discrimination on an arbitrary ground, the alleged arbitrary ground must be pejorative and somewhat linked to any of the listed grounds. Paying a bonus to certain employees and not to others for reasons related to operational requirements does not amount to discrimination as contemplated in section 5 (1) of the LRA.
[20]...Therefore, if the reason for differentiation is something else other than participating in a strike action, then section 5 (1) is not infringed. Whitcher AJ in Ngcobo [D268/2011 delivered on 08 May 2012] went to the extent of saying the following:I say so, first, taking note of the concessions made by the applicants witness under cross-examination to the effect that striking members of the union at other outlets were indeed paid bonuses. This, as a matter of logic, puts paid to the applicants complaint under section 5 of the Act that the strike was the cause of bonuses being withheld from them....[21] ...There is overwhelming evidence that no employee was paid any annual performance bonus. Makhuras evidence is that the respondent actually cancelled the payment of an annual performance bonus and replaced it with something else.
[34] In my view, this reasoning seems to ignore the fact that participating in a strike action is an individual right of an employee. If an employee decides not to exercise this right on his own without being coerced by the employer, then the employee cannot be denied the contractual benefits simply because other employees are exercising the right to strike. I fail to understand the policy considerations that would underpin the reasons not to reward in any manner an employee who chose not to strike. This reasoning suggests that an employer should not reward any hard work to employees during the time when the full labour contingence has been withdrawn. Such could not have been the intention of the legislature when the section 5 protection was enacted. To show that that was not the intention, section 67(3) provides that despite subsection (2), which insulates a striking employee from delict and breach of contract, an employer is not obliged to remunerate an employee for services that the employee does not render during a protected strike. The corollary of this provisions must be that by remunerating a non-striking employee, the employer does not offend the LRA. It must be remembered that even in a strike situation, an employer must still run its business.
[37] I further fail to understand why the approach of the appellate division in SACCAWU v OK Bazaars (1929) Ltd[[1995] 7 BLLR 1 (A)] is wrong in any manner. The Court in there held that because strikes are disruptive, measures to discourage them are to be encouraged and were legally permissible. Among the measures are the offerings of financial inducement to non-strikers. It was further held that threat of withholding a bonus from strikers or actual withholding thereof does not affect workers freedom to strike. Grosskopf JA, writing for the majority concluded thus:It would in my view be unreasonable to deprive workers who did not strike of a bonus merely because some others, perhaps even very few, engaged in a strike with which the non-striking workers might have no sympathy.[17]
[43] Section 6 of the EEA prohibits unfair discrimination. I have already found that the discrimination in section 5 of the LRA is not one contemplated in this section. That being so, I must conclude that section 6 has not been contravened.
[44]...The discrimination prohibited by the EEA is one that is unfair, one that impairs human dignity. When an employee is not paid any form of a bonus his or her dignity is not being impaired. The reason fathomed by the applicant for such non-payment is that it is because they participated in a strike action. Participation in a strike action is not a listed ground, nor could it be analogous to any of the listed grounds.
JS424/14
Rasenyalo v Moqhaka Local Municipality (JS424/14) [2019] ZALCJHB 20 (5 January 2019)
[38] Section 68(5) of the LRA provides that the participation in a strike that does not comply with the provisions of this Chapter, or conduct in contemplation or in furtherance of that strike, may constitute a fair reason for dismissal and further that in determining whether the dismissal is fair, the Code of Good Practice Dismissal in Schedule 8 must be taken into account. Item 6
Substantive fairness
National Union of Metalworkers of South Africa (Numsa) and Others v CBI Electric African Cables (2014) 35 ILJ 642 (LAC)
[29] In my view the determination of substantive fairness of the strike-related dismissal must take place in two stages, first under item 6 when the strike-related enquiry takes place and secondly, under item 7 when the nature of the rule which an employee is alleged to have contravened, is considered. It follows that a strike-related dismissal which passes muster under item 6 may nevertheless fail to pass substantive fairness requirements under item 7. This is so because the illegality of the strike is not a magic wand which when raised renders the dismissal of strikers fair (National Union of Mineworkers of SA v VRN Steel (1991) 12 ILJ 577 (LAC)). The employer still bears the onus to prove that the dismissal is fair.[30] In his work Grogan expresses the view that item 6 of the Code is not, and does not purport to be, exhaustive or rigid but merely identifies in general terms some factors that should be taken into account in evaluating the fairness of a strike dismissal. He therefore opines that in determining substantive fairness regard should also be had to other factors including the duration of the strike, the harm caused by the strike, the legitimacy of the strikers demands, the timing of the strike, the conduct of the strikers and the parity principle. I agree with this view as the consideration of the further factors ensures that the enquiry that is conducted to determine the fairness of the strike-related dismissal is much broader and is not confined to the consideration of factors set out in item 6 of the Code.
[49] The remaining issue is whether the dismissal was an appropriate sanction. Considering all the evidence before the court, including the seriousness of the misconduct (namely, the violent and unprotected strike), the conduct of the applicant, the refusal to comply with the ultimata, the effect of his conduct on the trust relationship, the trauma that the Municipal Manager and the managers were subjected to and the applicants lack of remorse, I am convinced that the dismissal was an appropriate sanction
Procedural fairness
Modise and Others v Steve's Spar Blackheath [2000] 5 BLLR 496 (LAC).
in our law an employer is obliged to observe the audi rule when he contemplates dismissing strikers. As is the case with all general rules, there are exceptions to this general rule. Some of these have been discussed above. There may be others which I have not mentioned. The form which the observance of the audi rule must take will depend on the circumstances of each case including whether there are any contractual or statutory provisions which apply in a particular case. In some cases a formal hearing may be called for. In others an informal hearing will do. In some cases it will suffice for the employer to send a letter or memorandum to the strikers or their union or their representatives inviting them to make representations by a given time why they should not be dismissed for participating in an illegal strike. In the latter case the strikers or their union or their representatives can send written representations or they can send representatives to meet the employer and present their case in a meeting. In some cases a collective hearing may be called for whereas in others - probably a few - individual hearings may be needed for certain individuals. However, when all is said and done, the audi rule will have been observed if it can be said that the strikers or their representatives or their union were given a fair opportunity to state their case. That is the case not only on why they may not be said to be participating in an illegal strike but also why they should not be dismissed for participating in such strike.
J 4390 / 18
Sibanye Gold Limited t/a Sibanye Stillwater v Association of Mineworkers and Construction Union and Others (J 4390 / 18) [2018] ZALCJHB 397; (2019) 40 ILJ 898 (LC) (5 December 2018)
SA Airways v SA Transport and Allied Workers Union and Others (2013) 34 ILJ 2064 (LC)
a particular picketing agreement or picketing rules only applies to a particular strike, and once that strike is resolved, the relevant rules / agreement falls away.
Tsogo Sun Casinos (Pty) Ltd t/a Montecasino v Future of SA Workers Union and Others (2012) 33 ILJ 998 (LC) at para 13.
But the exercise of the right to strike is sullied and ultimately eclipsed when those who purport to exercise it engage in acts of gratuitous violence in order to achieve their ends. When the tyranny of the mob displaces the peaceful exercise of economic pressure as the means to the end of the resolution of a labour dispute, one must question whether a strike continues to serve its purpose and thus whether it continues to enjoy protected status.
Verulam Sawmills (Pty) Ltd v Association of Mineworkers and Construction Union and Others (2016) 37 ILJ 246 (LC) at para 15.
Not only are picketing rules there to attempt to ensure the safety and security of persons and the employer's workplace, but if they are not obeyed and violence ensues resulting in non-strikers also withholding their labour, the strikers gain an illegitimate advantage in the power play of industrial action, placing illegitimate pressure on employers to settle.
purpose of section 69 has been described in SA Airways v SA Transport and Allied Workers Union and Others (2013) 34 ILJ 2064 (LC)
what is then exactly the purpose of s 69? The code in item 3(1) gives guidance in this respect, and it is clear from the content thereof that actual strike action is contemplated. Therefore, the very purpose of s 69, as read with the code, is to regulate protest action and demonstration during protected strike action, and to ensure it is lawful and peaceful. However, and considering the provisions of s 69(7), the section is further intended to offer striking employees protection against discipline and undue interference (for example by interdicts) where they conduct picketing in terms of s 69, and this picketing would attract the same protection as a protected strike in terms of s 67.
Shoprite Checkers (Pty) Ltd v Commission for Conciliation, Mediation and Arbitration and Others (2006) 27 ILJ 2681 (LC) at para 31.
The matrix of permissible conduct that evolves ultimately as the picketing rules is a particular permutation that balances logistics, the nature of the business, the industrial relations history of the enterprise and the union with the impact of the picket so that the rules are determined not too narrowly or too broadly to exacerbate industrial conflict or obstruct the substantive resolution of the dispute. Thus rules that put the pickets 'out of sight and out of mind' of the employer, a phrase coined in this application, could, on the one hand, prevent intimidation of non-striking workers and customers. On the other hand, it can be counter-productive to workplace peace in the longer term if the picketers became increasingly frustrated as they would be if their picket has little impact. The employer's incentive to resolve the dispute substantively could also diminish if the striking employees are out of sight and out of mind.
PA14/16
MTO Forestry (Pty) Ltd and Others v Chemical, Energy, Paper, Printing, Wood and Allied Workers Union (CEPPWAWU) (PA14/16) [2018] ZALAC 21; [2018] 10 BLLR 950 (LAC) (19 July 2018)
Mndebele and Others v Xstrata SA (Pty) Ltd t/a Xstrata Alloys (Rustenburg Plant) (2016) 37 ILJ 2610 (LAC).
The Code does not suggest how the ultimatum should be distributed or required that it must be in writing. Furthermore, it states that the issuing of an ultimatum is not an invariable requirement. The purpose of an ultimatum is not to elicit any information or explanations from the employees but to give them an opportunity to reflect on their conduct, digest issues and, if need to be, seek advice before making the decision whether to heed the ultimatum or not. The ultimatum must be issued with the sole purpose of enticing the employees to return to work, and should in clear terms warn the employees of the folly of their conduct and that should they not desist from their conduct they face dismissal. Because an ultimatum is akin to a final warning, the purpose of which is to provide for a cooling-off period before a final decision to dismiss is taken, the audi rule must be observed both before the ultimatum is issued and after it has expired. In each instance, the hearing may be collective in nature and need not be formal.
CA02/2017
County Fair Foods (Epping), a division of Astral Operations Ltd v Food and Allied Workers' Union and Others (CA02/2017) [2018] ZALAC 9; [2018] 8 BLLR 756 (LAC); (2018) 39 ILJ 1953 (LAC) (11 May 2018)
County Fair informed staff that annual discretionary bonuses would not be paid due to its financial position. In response, on 15 December 2010, more than 200 employees embarked on an unprotected strike. Three ultimatums were issued to employees. 64 employees returned to work on 15 December 2010 and 58 employees returned on 17 December 2010. All signed a comeback document, which included an undertaking that they would desist from such action, and received a final written warning for their conduct. The second respondents failed to comply with the final ultimatum to return to work on 17 December 2010, despite it being extended to provide additional time for them to do so. County Fair then instituted a lock out. The second respondents returned to work on Monday 20 December 2010, signed the comeback document but were suspended from duty pending disciplinary hearings at which they were found to have committed misconduct and were dismissed. The Labour Court found the dismissals unfair on the basis that the sanction was harsh since the respondents had only remained on strike for an extra 1_ days. County Fair was ordered to reinstate the respondents on a final warning with 6 months back pay. On appeal: found that the respondent employees failure to adhere to final ultimatum distinguished them from their fellow employees who had returned to work in response to the ultimatum. In such circumstances, the dismissal of the respondent employees was fair and the appeal succeeds with costs.
JA45/16
Sun International Limited v South African Commercial Catering and Allied Workers Union (JA45/16) [2017] ZALAC 24; (2017) 38 ILJ 1799 (LAC); [2017] 8 BLLR 776 (LAC) (3 May 2017)
[20] ...That the dispute between the parties ended but a week later simply illustrates that the issue between the parties turned on the particular facts of the case. The dispute is no longer live between the parties and therefore does not deserve the attention of this Court. When a live dispute triggers the application of s76(1)(b) of the LRA, the Labour Court and/or this Court will doubtless deal with the application of the section through the prism of the factual matrix confronted at the time.
Mawethu Civils (Pty) Ltd and Another v National Union of Mineworkers and Others (2016) 37 ILJ 1851 (LAC)
Counsel for the respondents argued that the appeal has become moot with the passage of time and will have no practical effect. That is not correct. There is a live dispute between the parties about the legal character and consequences of the strike that has continued relevance in the on-going industrial relations in which they are involved. The appellants legitimately seek judicial affirmation of their stance in regard to the appropriate means of resolution of a dispute of this nature.
J2876/1
Vector Logistics (Pty) Ltd v National Transport Movement ('NTM") and Others (J2876/17) [2018] ZALCJHB 75 (6 March 2018)
In terms of s 4(1) of the BCEA a basic condition of employment constitutes a term of any contract of employment except to the extent that it has been varied in terms of the BCEA or replaced by more favourable terms in a contract. The aggrieved employees entitlements to lunch breaks are part of their contracts of employment. Under s 77(3) of the BCEA, the Labour Court has concurrent jurisdiction with the civil courts concerning contracts of employment. The employees would consequently be able to refer their dispute over the non-compliance with the provisions of s 14(1) to the Labour Court for adjudication as a breach of a condition of employment, quite apart from being entitled to report the matter to the Department of Labour for enforcement as the simpler alternative. For present purposes, what matter is that the dispute is one that may be referred to the Labour Court for adjudication and accordingly, the issue in dispute falls within the ambit of the protected strike prohibition contained in s 65(1)(c). For this reason too, the strike would be unprotected.
Strike interdict; strike unprotected by virtue of provision in relationship collective agreement; strike also unprotected because complying with the demand would be in breach of s 14(1) of the BCEA and/or alternatively is a dispute capable of adjudication; interpretation of s 14(1) of BCEA
JS1106/14
National Union of Metal Workers of South Africa obo Members v Element Six Production (Pty) Ltd (JS1106/14) [2017] ZALCJHB 35 (7 February 2017)
contest the decision of the Respondent to pay a token to some of its employees who had performed additional tasks during the course of a protected strike...contravention of sections 5 (1); 5 (2) (c) (iii) and 5(2) (c) (vi) of the LRA. (discrimination against an employee for exercising any right conferred by this Act, then it must be presumed that such discrimination was unfair, until the contrary is established)
18.7The effect of such practices is to side-track employers from addressing legitimate concerns of the striking employees as long as production and business continues as normal during the strike. It can also degrade the status of collective bargaining as a constitutional tool to resolve disputes[11], defeat the purpose of the LRA as identified in its section 1[12], and undermine the rights of employees to freely associate and take part in the lawful activities of their unions;
FAWU & others v Pets Product (Pty) Limited [2007] 7 BLLR 781 (LC) (LC)
NUM v Namakwa Sands A Division of Anglo American Corporations Limited (2008) 29 ILJ 698
these provisions placed an indirect prohibition on an employer to ask non-striking employees to do the work of striking employees during a protected strike
JS315/12
Association of Mineworkers and Construction Union ("AMCU") and Others v Australian Laboratory Services (Pty) Ltd (JS315/12) [2017] ZALCJHB 398 (1 November 2017)
failure to explore ways of avoiding dismissal prior to taking decision; imposition of additional requirement before workers permitted to return; failure to invite representations prior to dismissal in circumstances where management doubted intention to return to work; relevance of conduct of union and strikers during strike; communications with strikers during a strike
National Union of Metalworkers of South Africa (NUMSA) v CBI Electric African Cables [2014] 1 BLLR 31 (LAC) at 36, par [26].
[29] In my view the determination of substantive fairness of the strike-related dismissal must take place in two stages, first under item 6 when the strike related enquiry takes place and secondly, under item 7 when the nature of the rule which an employee is alleged to have contravened, is considered. It follows that a strike-related dismissal which passes muster under item 6 may nevertheless fail to pass substantive fairness requirements under item 7. This is so because the illegality of the strike is not a magic wand which when raised renders the dismissal of strikers fair (National Union of Mineworkers of SA v Tek Corporation Ltd and others (1991) 12 ILJ 577 (LAC)). The employer still bears the onus to prove that the dismissal is fair.[30] In his work Grogan expresses the view that item 6 of the Code is not, and does not purport to be, exhaustive or rigid but merely identifies in general terms some factors that should be taken into account in evaluating the fairness of a strike dismissal. He, therefore, opines that in determining substantive fairness regard should also be had to other factors including the duration of the strike, the harm caused by the strike, the legitimacy of the strikers demands, the timing of the strike, the conduct of the strikers and the parity principle. I agree with this view as the consideration of the further factors ensures that the enquiry that is conducted to determine the fairness of the strike-related dismissal is much broader and is not confined to the consideration of factors set out in s not confined to the consideration of factors set out in item 6 of the Code.
[2] The respondent must pay each of the second and further applicants, identified in paragraph [1] of this order, compensation equivalent to eight (8) months remuneration calculated at their rates of remuneration at the time of their dismissal in November 2011, which must be paid within 30 days of the date of this judgment.
J2689-17
Imperial Cargo (Pty) Ltd v DETAWU and Members (J2689-17) [2017] ZALCJHB 389 (25 October 2017)
[21]However, as indicated earlier on it, is necessary to analyse each demand separately, as it may be that the strike is protected in respect of one or more of the other demands.
Intercape Ferreira Mainliner (Pty) Ltd and another v NUMSA and others (2015) ZALCCT 22 at paragraphs [13] to [17].
[28] Employees may strike in support of a demand to change a work practice where the strike has been processed in terms of section 64(1), which was done in this case
[37] In light of my findings that the second demand is lawful and that the remaining demands are severable (each can stand alone), the applicant cannot succeed to have the strike interdicted.
J1799/17
City of Johannesburg Metropolitan Municipality v South African Municipal Workers Union (SAMWU) and Others (J1799/17) [2017] ZALCJHB 292; [2017] 12 BLLR 1244 (LC) (10 August 2017)
[12] This court is thus confronted with conflicting judgments and approaches. On the approach of Murphy AJA in Mawethu Civils (albeit tentative and at best obiter), which is consistent with that of Snyman AJ in Sibanye (1), the strike herein is unprotected because, although styled as a dispute about a unilateral change to terms and conditions of employment, the dispute is actionable in terms of section 77(3) of the BCEA as a breach of contract, with the result that the strike is hit by the section 65(1)(c) limitation of the right to strike. But on the approach of Van Niekerk J in Sibanye (2), the fact that SAMWU might otherwise have characterised the dispute as a breach of contract, does not detract from the fact that the actual nature of the dispute herein is a dispute about a unilateral change to terms and conditions of employment, with there being nothing that provides that such a dispute may be referred to arbitration or to this court for adjudication. Accordingly, on the latter approach, the strike is not hit by the section 65(1)(c) limitation of the right to strike.
J949/17
South African Airways (Soc) Ltd v South African Cabin Crew Association and Others (J949/17) [2017] ZALCJHB 158 (10 May 2017)
Vodacom (Pty) Ltd v Communication Workers Union (2010) 31 ILJ 2060 (LAC) at para 11.
In this particular case,itiscommon cause that there wasacollective agreement which applied. Accordingly whatever certificate may have been produced and may have been shown to the employer, the certificate cannot override the clearly stated limitation upon theright to strikeascontained in s65(1)(a). In short,acertificate can in no way trump the clear provisions of the limitation. For this reason, the courtaquo erred in its approach to the law. It should not have held that the certificate issued in terms of s 64 provided an unqualified and unlimited 'passport' to the employees to strike, no matterthe provisions of s65(1)(a),asIhave outlined them.
Strautmann v Silver Meadows Trading 99 (Pty) Ltd t/a Mugg & Bean Suncoast and Others (2009) 30 ILJ 2968 (LC) at para 9
When a commissioner completes form 7.12 and categorizes the dispute referred to the CCMA by ticking one of the boxes provided, the commissioner does not make a jurisdictional ruling. Nor does the ticking of any of the boxes marked "CCMA arbitration", "Labour Court" "None" or "Strike/Lockout" amount to a ruling on which of those courses of action must be pursued by a referring party.
Bombardier Transportation (Pty) Ltd v Mtiya NO and Others (2010) 31 ILJ 2065 (LC) at para 14. See also Mbele and Others v Chainpack (Pty) Ltd and Others (2016) 37 ILJ 2107 (LC) at paras 31 32; Cook4life CC v Commission for Conciliation, Mediation and Arbitration and Others (2013) 34 ILJ 2018 (LC) at paras 8 9.
a certificate of outcome is no more than a document issued by a commissioner stating that, on a particular date, a dispute referred to the CCMA for conciliation remained unresolved. It does not confer jurisdiction on the CCMA to do anything that the CCMA is not empowered to do, nor does it preclude the CCMA from exercising any of its statutory powers. In short, a certificate of outcome has nothing to do with jurisdiction. If a party wishes to challenge the CCMA's jurisdiction to deal with an unfair dismissal dispute, it may do so, whether or not a certificate of outcome has been issued.
Helderberg International Importers (Pty) Ltd v McGahey NO and Others (2015) 36 ILJ 1586 (LAC) at para 11.
I align myself with the conclusions reached in the Bombardier judgment, as have a number of other decisions in this court, that a certificate of outcome has no legal significance beyond a statement that the dispute referred to conciliation has been conciliated and was resolved or remained unresolved, as the case may be.
SA Post Office Ltd v Moloi NO and Others (2012) 33 ILJ 715 (LC) at para 37.
The status of the certificate of outcome has received attention in a number of cases in the Labour Court and Labour Appeal Court. Although the status of the certificate of outcome was dealt with in the context of unfair dismissal cases, in my view the same principle applies in cases involving disputes of mutual interest. In this respect, I align myself with Van Niekerk J, in Bombardier Transportation (Pty) Ltd v Mtiya NO & others
JS649/13
AMCU obo Sibiya and Others v Shanduka Coal (Pty) Ltd (JS649/13) [2017] ZALCJHB 134 (25 April 2017)
participation in an unprotected strike and violent conduct
respondent had not complied with the provisions of Item 6(2) of the Code as it failed to contact AMCU prior to the dismissal, let alone furnish it with an ultimatum. I am further satisfied that the Respondent acted procedurally unfairly by not allowing the Employees to be represented by representatives of their choice during the appeal proceedings... compensation in the amount equivalent to two (2) months salary.
J2801/16
Xinergistrix (Pty) Ltd v Motor Transport Workers Union of South Africa (MTWUSA) and Others (J2801/16) [2016] ZALCJHB 548 (30 December 2016)
any intended strike action would be unprotected as there was no unilateral changes to the employees terms and conditions of employment;[7] Since the Applicant never provided transport to the employees during the course of the Nampak contract, there was no stoppage of such transport and thus it could not be argued that there was a unilateral change to terms and conditions of employment. To this end, any intended strike action would be unprotected as there was no unilateral changes to the employees terms and conditions of employment;
[14] A dispute concerning a unilateral change by an employer to employees terms and conditions of employment is legitimately a matter in respect of which the right to strike may be exercised. This right accrues to employees by virtue ofinter alia, the provisions of section 64 (4)
(JS766/12
PTAWU obo Khoza and Others v New Kleinfontein Goldmine (Pty) Ltd (JS766/12) [2016] ZALCJHB 121; (2016) 37 ILJ 1728 (LC) (30 March 2016)
am also concerned that the issue of liability for compensation under section 68(1)(b) was only raised with it after the event, at a stage when PTAWU could not have done anything to minimise its exposure to such liability.
J2525/15
Mbekele and Another v Phahlane and Another (J2525/15) [2016] ZALCJHB 5 (5 January 2016)
The other requirement to satisfy in relation to urgency is to show that there are no other satisfactory remedies available to the applicant and that if the relief is not granted on an urgent basis the applicant will suffer irreparable harm.
MEC for Education, North West Provincial Government v Gladwell [2012] 8 BLLR 747(LAC).
[46] Disputes concerning alleged unfair labour practices must be referred to the CCMA or a bargaining council for conciliation and arbitration in accordance with the mandatory provisions of section 191(1) of the LRA. The respondent in this case instead sought a declaratory order from the Labour Court in terms of section 158(1)(a)(iv) of the LRA to the effect that the suspension was unfair, unlawful and unconstitutional. A declaratory order will normally be regarded as inappropriate where the applicant has access to alternative remedies, such as those available under the unfair labour practice jurisdiction. A final declaration of unlawfulness on the grounds of unfairness will rarely be easy or prudent in motion proceedings. The determination of the unfairness of a suspension will usually be better accomplished in arbitration proceedings, except perhaps in extraordinary or compellingly urgent circumstances. When the suspension carries with it a reasonable apprehension of irreparable harm, then, more often than not, the appropriate remedy for an applicant will be to seek an order granting urgent interim relief pending the outcome of the unfair labour practice proceedings. (Footnote omitted)
true nature of issue in dispute determined real issue about case of improper / incorrect application of grading constitutes a rights dispute strike unprotected
J1746/16
City of Johannesburg Metropolitan Municipality v South African Municipal Workers Union and Others (J1746/16) [2016] ZALCJHB 310 (19 August 2016)
true nature of issue in dispute determined; real issue about case of improper / incorrect application of grading; constitutes a rights dispute; strike unprotected. Issue in dispute thus regulated by collective agreement; strike unprotected
JA123/2014
Metsimaholo Local Municipality v South African Municipal Workers Union and Others (JA123/2014) [2016] ZALAC 19 (11 May 2016)
strike notice defective due to vagueness of the commencement of the strike strike notice a procedural requirement. Strike unlawful for lack of proper notice
Permissible if the employer unilaterally changes workers terms and conditions of employment. If changes merely amounted to changes in work practice, workers could not use s 64(4).
The court held that the applicant had to show that the workers constitutional right to be within the area concerned should be subject to limitations on account that they had no legitimate reason for being there other than for illicit purposes. On the other hand the applicant had a right to conduct its business and affairs with whomsoever, unhindered, and had a right to have its employees who wanted to render their services to do so unhindered. A radius of 4 km of the mine. Orders obliging unions to ensure that their members act in a lawful and peaceful manner during strikes.
Inappropriate and meaningless that notice of order read in a language that employees did not speak or understand. Insufficient that notice only brought to attention of employees who might have been present at a particular time.
Collective agreement not permitting bargaining at workplace level on remuneration.
Duty of good faith extending even after working hours. Could impact on the employers goodwill and reputation.
Participation in an unprotected strike and acts related thereto specifically prohibited by court order. Dismissal justified.
Terminology of continuing the strike, in court order (contempt of court application) whatever broad meaning might be attributed to that term, was too vague to be useful in a context where quasi criminal sanctions were at issue. The court ultimately held that there had been no evidence that the appellant, in its own right, had breached the order of court
Damages.
Party entitled to bring such claim by way of application. Applicant in present application not providing evidence of quantum of damages and matter referred for hearing of oral evidence on this issue.
Requirement in collective agreement that written notice be provided to other party of dispute together with proposed settlement. Such requirement to be adhered to over and above requirements in LRA.
Unprotected, Substantive fairness: new shift system, duration of the strike, the harm caused by the strike, the legitimacy of the strikers demands, the timing of the strike, the conduct of the strikers and the parity principle. Procdural fairness: The respondent had not followed a proper procedure in issuing the ultimatum. It was incumbent on the respondent to engage with the union before issuing the ultimatum. There was a duty on the respondent to afford the affected employees an opportunity to be heard before a decision to dismiss them was taken.
S 66(2)(c)
actual harm must be proportional
Only one day strike
JA26/2007
SALGA v SAMWU
Refer compulsory arbitration
Ultimatums
Clear and unambiguous communicated, what was required from ee, time frames, consequence of failing, not always hearings,
manager be disciplined
the issue upon which they intended striking was governed by a collective agreement which was in place and was enforceable between the parties
No need grievance or 30 days expired
No need for demand and rejection of demand
strike over
discharged as order can not be indefinite
Warn e/e; Persuade e/e
inconsistency re-employment
opportunity was given to individual ee's to be heard
employers sick leave policy, prevailing Act or existing company agreement or practice would apply.
This brought the issue in dispute within the realm of s 65(1) of the LRA. It was therefore covered by the provisions of the collective agreement.
the parties had to hold different positions on an issue, and they must have reached a stage where none of them would change their stance.
demand
court found that dismissal was too harsh, given the role of BP and Unitrans in the whole process.
strike protected if changes amounted to unilateral changes in conditions of employment
Unprotected strikers; ultimatum
the employees response on receipt of the ultimatum; whether the employees made any attempts to comply with the ultimatum and the explanation offered by the employer for non-compliance thereof; and the circumstances that prevailed between the issuance of the ultimatum and the dismissals
64
JS10/07
PTWU v Fidelity Security Services
What constitutes; Demand for increase in BBEEE shareholding constitutes a matter of mutual interest and therefore legitimate demand for industrial action
Refusal to park busses at prescribed venue
clear intention to strike
Unprotected not referred to CCMA
66(2)
Ultimatum time to reflect
disciplinary enquiry: audi alteram partem
Main Agreement prohibiting strike in support of demand for wage negotiations at plant level; Unprotected
Held that the decision to grant the in-store picketing was clearly against the interests of the employer who should have been granted a hearing before the rules were established
that the minority unions were not part of the bargaining unit and that as they were not recognised, could not serve notice of an intention to strike. Held further that s 64(1) referred to every employee and therefore the scope was wide enough to include non-union members. The Court also noted that to limit the strike to union members only would be to deny the other employees their fundamental right to strike
failed to meet the requirements established in Modise & Others v Steves Spar Blackheath ((2000) 21 ILJ 519 (LAC)) and Karras t/a Floraline v SA Scooter & Transport Allied Workers Union & Others ((2000) 21 ILJ 612 (LAC)) in that the employees had been given insufficient time to reflect on, and respond to, the notice; in Modise v Steves Spar Blackheath (supra) the LAC had not determined whether the employer was required to observe the audi alteram partem rule before issuing an ultimatum but that they had made clear that the hearing contemplated was a matter of pre-dismissal procedure. Noted further that the Code of Good Practice on Dismissal specifically required an employer to engage with the trade union before a final warning or ultimatum was issued and that this would have satisfied the requirement of a hearing as described in Modise v Steves Spar Blackheath (supra). Held that a hearing of that kind which took place prior to the ultimatum could not resolve the question whether workers complied with the ultimatum and therefore the audi rule had to be observed both before and after the ultimatum, either before or after workers had been dismissed. The Court noted that in this instance, no hearing was held after the dismissals and the manner of issuing the ultimatum had not given the parties any opportunity for meaningful engagement. It was held therefore, that the dismissals were procedurally unfair.
Two ultimatums 1 1/2 hours apart was followed by dismissal notice
; the employer had behaved provocatively and had thereby contributed to the strike action
although hearings had been held they were largely an exercise in selective reinstatement and the lack of objective criteria suggested that the company had not viewed the strike as a serious enough reason to justify permanent non-employment of strikers; procedurally and substantively unfair.
C156/03
NUMSA & 41 Others v Pro Roof Cape (Pty) Ltd
meaning that the written notice of a strike must give in exact terms when the strike is to commence Ceramics Industries Ltd t/a Betta Sanitary Ware v National Construction Building & allied Workers Union [1997] 18ILJ 671(LAC)
Employer's losses
and the trade union becomes aware of such unprotected strike and is requested to intervene but fails to do so without just cause, such trade union is liable in terms of s68(1)(b) of the [LRA] to compensate the employer who suffers losses due to such an unprotected strike
whether employer can negotiate with employees directly, where employees in conflict with Union; in conflict with s 200(1); Baloyi v M&P Manufacturing (2002) 22 ILJ 391 (LAC)
Replacement labour
audi alteram partem rule
Right to have a hearing prior to dismissal
JA136/2021
Southern Sun Hotels Interests (PTY) LTD v South African Commercial Catering and Allied Workers Union (JA136/2021) [2022] ZALAC 120 (15 November 2022)
[22]...Since the substantive agreement is binding on the parties in terms of section 23[7] of the LRA, any attempt by Southern Sun to vary its obligation to pay that wage increase, whatever the justification and however characterized, remains an issue that is regulated by that agreement.
[28]... A demand by an employer that employees accept a reduction in wages is a legitimate issue of mutual interest that may form the subject of a lock-out, provided that the reduction does not take away any vested rights that employees have to an increase in wages in terms of a collective agreement.
[30] For these reasons, I consider there to be no basis in law or fact to interfere with the Labour Courts conclusion that Southern Suns lock-out is unprotected and in direct contravention of section 65(3)(a)(i) of the LRA, as the substantive agreement which is binding on Southern Sun regulates the issue in dispute.[30] For these reasons, I consider there to be no basis in law or fact to interfere with the Labour Courts conclusion that Southern Suns lock-out is unprotected and in direct contravention of section 65(3)(a)(i) of the LRA, as the substantive agreement which is binding on Southern Sun regulates the issue in dispute.[30] For these reasons, I consider there to be no basis in law or fact to interfere with the Labour Courts conclusion that Southern Suns lock-out is unprotected and in direct contravention of section 65(3)(a)(i) of the LRA, as the substantive agreement which is binding on Southern Sun regulates the issue in dispute..[30] For these reasons, I consider there to be no basis in law or fact to interfere with the Labour Courts conclusion that Southern Suns lock-out is unprotected and in direct contravention of section 65(3)(a)(i) of the LRA, as the substantive agreement which is binding on Southern Sun regulates the issue in dispute.[30] For these reasons, I consider there to be no basis in law or fact to interfere with the Labour Courts conclusion that Southern Suns lock-out is unprotected and in direct contravention of section 65(3)(a)(i) of the LRA, as the substantive agreement which is binding on Southern Sun regulates the issue in dispute.
[32] In terms of section 65(1)(c) of the LRA, a lock-out is unprotected if the issue in dispute is one that a party has the right to refer to arbitration or to the Labour Court. Since Southern Sun has not implemented the 5.5% wage increase provided for in the substantive agreement, it is in breach of the substantive agreement and the individual contracts of employment (as varied by the former) of SACCAWUs members. SACCAWU was, therefore, entitled to refer an interpretation and application dispute to the CCMA which it duly did on 30 September 2021. This referral predated Southern Suns cancellation of the Recognition Agreement and its demand that SACCAWUs members forfeit the 5.5% increase for the period 1 April 2020 to 31 March 2021.[33] SACCAWU would be equally entitled to approach the Labour Court, in terms of section 77(3) of the Basic Conditions of Employment Act,[12] as its members have performed their services for the April 2020 to March 2021 year, but have not received the increased remuneration to which they have an accrued right.
[34]...This makes it plain that the lock-out is unprotected for the further reason that the issue in dispute is one which a party can either refer to arbitration or to the Labour Court as contemplated in section 65(1)(c) of the LRA.
J398/21
Airline Pilots Association of South Africa (ALPA-SA), as represented by the South African Airways Pilots Association (SAAPA), a branch of ALPA-SA obo Members v South African Airways (SOC) Limited and Others (J398/21) [2021] ZALCJHB 57 (23 May 2021)
[12] The requirements for granting interim relief are well known. Other than establishing urgency, the applicant is required to establish that it is entitled to interim relief on the grounds that; (a) the right which is the subject-matter of the main application and which the applicant seeks to protect by means of interim relief is clear or, if not clear, is prima facie established, though open to some doubt; (b) if such case is only prima facie established, there is a well-grounded apprehension of irreparable harm to the applicant if the interim interdict is not granted and the applicant ultimately succeeds in establishing his or her right; (c) there is no other satisfactory remedy; and (d) the balance of convenience favours the granting of interim relief.[4]
In Eriksen Motors (Welkom) Ltd v Protea Motors, Warrenton and Another[1973 (3) SA 685 (A) at 691C-G], it was held that the granting of interim relief pending an action is an extraordinary remedy within the discretion of the Court, and that the discretion would be exercised with due regard to the requirements to be met and the facts of the case.
J 566/20
Association of Mineworkers and Construction Union and Others v Safety and Security Sectoral Vunene Mining (Pty) Ltd (J 566/20) [2020] ZALCJHB 114 (7 July 2020)
[27] Mr Letlaka, in paragraph 34 of the answering affidavit, says it was carefully explained to AMCU's representatives when they were served with a lock-out notice. Still, he does not state that there was a demand made, because when it comes to a lock-out issued in terms of subsection 64(3)(d),in my view, a demand might be made orally before a lock-out, if there was a demand he would have stated as such. As he has done with the notice issued on 25 May 2020.[28] It is clear that the lock-out notice, as issued on 22 May 2020 by the Employer was in response to an unprotected strike. The answering affidavit does not suggest that there was a demand. I say this because there is no indication that the employees were ordered to do something or refrain from doing something.
The lock-out implemented by the Respondent, on the First Applicants members, as per the order 3 above, is both unlawful and unprotected.
J2290/19
National Association of South African Workers obo Members v Kings Hire CC (J2290/19) [2019] ZALCJHB 345; (2020) 41 ILJ 685 (LC); [2020] 3 BLLR 312 (LC) (29 November 2019)
purpose of notice provisions considered unresolved dispute already reached impasse and failure to settle in the CCMA strike notice already given employer entitled to give lock out notice proper lock out notice given
JA25/18
National Union of Metal Metalworkers of South Africa and Another v Aveng Trident Steel (A Division of Aveng Africa Proprietary Limited) and Others (JA25/18) [2019] ZALAC 36; (2019) 40 ILJ 2024 (LAC); [2019] 9 BLLR 899 (LAC) (13 June 2019)
could, if its proposals were refused, embark on a section 189 exercise with a view to retrenching those who were not prepared to work to its operational requirements provided the retrenchment was final and irrevocable, and the requirements of section 189 were met.
[47] The law of lock-outs in South Africa was fundamentally altered with the enactment of the LRA in 1995. Section 64... It specifies only one form of employer conduct, namely exclusion from the workplace (with or without a breach of contract).[11] Unlike the definition of a lock-out in the LRA of 1956, the current definition of lock-out does not include the termination lock-out. A dismissal cannot therefore by definition constitute a lock-out, and vice versa. (...Rather, the target of section 187(1)(c) of the LRA was the termination lock-out.) ...[57] The essential question for determination in this appeal is whether the amendment to section 187(1)(c) of the LRA by the LRAA has altered the law in that respect.
JA29/2021
National Union of Metalworkers of South Africa (NUMSA) and Others v AFGRI Animal Feeds (PTY) Ltd (JA29/2021) [2022] ZALCJHB 147 (17 June 2022)
[1] This appeal, with the leave of this Court, is against the judgment and order of the Labour Court (Mahosi J) delivered on 20 January 2021 which upheld a preliminary point raised by the respondent, Afgri Animal Feeds (Pty) Ltd. The Court found that the first appellant, the National Union of Metalworkers of South Africa (NUMSA) lacked the requisite locus standi to refer this matter and to represent the second to further appellants (the employees) in their unfair dismissal claim before the Labour Court in that they were employed in a sector which fell outside the scope of NUMSAs constitution. Costs were awarded against the appellants.
JR 2841/2019; JR 2743/2019; JR 1026/2021
National Union of Metal Workers of South Africa (NUMSA) obo Its Members v MIS Engineering (PTY) Ltd t/a MITAK (JR 2841/2019; JR 2743/2019; JR 1026/2021) [2022] ZALCJHB 148 (14 June 2022)
(See, for example, Plastics Converters Association of SA v MEIBC [(2017) 38 ILJ 2081 (LC).] and SALGA v IMATU[[2014] 6 BLLR 569 (LAC).].) In Wallenius Wilhelmsen Logistics Vehicle Services National Union of Metalworkers of South Africa[(2019) 40 ILJ 1254 (LAC).] the LAC had occasion to consider a dispute where both parties fell within the registered scope of a bargaining council and where in the absence of an operative main collective agreement, the union had sought to negotiate wages increase directly with one employer, a member of the employers organisation, party to the council. The LAC considered whether under the bargaining councils constitution, plant level bargaining was permitted. The court found that it was not, and that wages and other substantive conditions of employment were, in terms of the constitution, required to be negotiated at the centralised level. The court held that the union was bound by the bargaining councils constitution and was thus obliged to raise its demand negotiated at the central level in terms of the constitution.
[26] In summary: the union has failed to advance a plausible reading of the bargaining councils constitution which permits plant level bargaining on substantive issues. The contrary is true. The bargaining councils constitution does not contemplate disputes concerning wages and substantive conditions of employment between trade unions and individual employers. The unions actions in tabling wage demands as against individual employers and subsequently referring disputes against those individual employers to the bargaining council are ultra vires the constitution. The rulings under review are thus correct.
J997/2021
United National Transport Union v Transnet SOC Limited and Another (J997/2021) [2022] ZALCJHB 157 (3 June 2022)
J1260/2021
Combined Cleaners (Pty) Ltd t/a Spot On Cleaners v National Union of Metalworkers of South Africa and Others (J1260/2021) [2021] ZALCJHB 348 (12 October 2021)
[7] In the circumstances, on the face of it, the applicants employees are not eligible for membership of the union. That being so, the union is not entitled to organisational rights. The applicant is thus entitled to the interim order that it seeks.
J 806/21
South African Transport & Allied Workers Union v Servest Security (Pty) Ltd - A Division of Servest Group and Another (J 806/21) [2021] ZALCJHB 235 (17 August 2021)
[2] As a consequence of the conclusion of the closed shop agreement, SATAWUs members, who were previously members of KAWU, find themselves in an unenviable position, where they have to pay double subscriptions to both unions.
[7] Following the correspondence as above, SATAWU filed an amendment to its Notice of Motion, to further seek in its Part A, an order interdicting and restraining Servest from dismissing its members by relying on the closed shop agreement, whilst the validity thereof was to be adjudicated upon under Part B.
2.1 The First Respondent is interdicted and restrained from unilaterally making any further deductions from the wages of the Applicants (SATAWU) members as identified in Annexure A of the First Respondents correspondence to the Applicants attorneys of record dated 20 July 2021;
J735/21
National Union of Metal Workers of South Africa v Eskom Holdings SOC Ltd and Others (J735/21) [2021] ZALCJHB 182; [2021] 10 BLLR 1049 (LC) (6 July 2021)
National Union of Mineworkers and Others v Eskom Holdings (2012) 33 ILJ 669 (LC).
[18] Both representatives seem to bead idemthat going to arbitration is part of collective bargaining. I disagree. Arbitration is a process where a deadlock is broken. Likewise mediation is a process intended for that. On the other hand collective bargaining simply means negotiation at the collective level. Whilst negotiations are continuing, there will be no dispute to be resolved through any agreed process. Parties bring their own mental faculties to bear in order to find each other. Once they fail to find each other in negotiations parlance they deadlock and should find a deadlock breaking mechanism. Arbitration is one such mechanism. Once the parties reach an impasse, there is a temporary cessation of the bargaining process due to lack of parties negotiating efforts. During the pre-impasse period, the duty to bargain in good faith necessarily operates to preclude the employer from undertaking unilateral change, in order that bargaining be given a suitable opportunity to succeed. However, once the impasse is reached both the bargaining process in good faith are superseded by the overriding need for more drastic measures to resolve the impasse. Lawful unilateral action constitutes one such measure, and may be utilised only once the parties have exhausted the duty to bargain in good faith. Interest arbitration was never designed to displace collective bargaining; it was intended to be a substitute only of particular forms of industrial warfare such as strike and lockout. The parties have deadlocked, bargaining time is over.
J 215/20
Communication Workers Union v Sentech SOC Limited and Another (J 215/20) [2020] ZALCJHB 240 (22 October 2020)
[41] Accordingly, Sentech is entitled to issue a notice of its termination as no party to the agreement can be forced by this Court to remain in an indefinite collective agreement. Van Niekerk J in TAWUSA succinctly states that to force a party to remain in an indefinite contract would be an unwarranted interference in a collective bargaining relationship. I agree fully with this.
[52] I thus agree with the submission made on behalf of Sentech that it is apparent from the above authority of the Constitutional Court and section 18 of the LRA that an employer and a majority trade union may enter into an agreement in terms of section 18 to determine a threshold. However, what section 18 does not authorise is an employer and majority trade union determining what constitutional rights may be exercised by other trade unions.
JR2413/16
Bidair Services (Pty) Ltd v Makgoba N.O and Others (JR2413/16) [2019] ZALCJHB 235; (2020) 41 ILJ 169 (LC) (1 August 2019)
the dispute between the parties is one that s 64(2) of the LRA refers to as a dispute that concerns a refusal to bargain, in the form of a dispute about a refusal to recognise a trade union as a collective bargaining agent and/or a dispute about the definition of an appropriate bargaining unit. It should be recalled that the basic structure of the LRA is one that does not impose a duty to bargain. Rather, the constitutional right to engage in collective bargaining finds expression in a strong set of organisational rights (those referred to in sections 12 to 16 of the LRA) and the right to strike in support of a demand that a party be recognised as a collective bargaining agent, or any other element of what the LRA defines as a refusal to bargain. If the conceptual integrity of this structure is to be maintained (as it must), then commissioners (and judges) must be cautious not to confuse what are two discrete concepts and thus run the risk of imposing a duty to bargain. The structure of the LRA is one in which commissioners and judges have no role in determining whether one party should bargain collectively with another, the subject matter of any collective bargaining, the level at which bargaining should be conducted, or the identity of any bargaining partner.[9] In summary: the true nature of the dispute between the parties is one that is contemplated by s 64(2) and thus a dispute that does not fall to be determined by arbitration, except by way of the advisory arbitration procedure referred to in s 64(2). It follows that the CCMA had no jurisdiction to issue an arbitration award in the present circumstances and on that basis, the award stands be reviewed and set aside.
JR1969-18
Putco (Pty) Ltd v SA Road Passenger Bargaining Council and Others (JR1969-18) [2019] ZALCJHB 137; (2019) 40 ILJ 2389 (LC) (11 April 2019)
Trafford Trading. At paragraph 24 the judgment, the court said the following: [24] The exemptions committee as well as the second respondent correctly, in my view, approached the matter on the basis that the appellant was obliged to comply with the provisions of the collective agreement. For an exemption to be granted the appellant must establish a justifiable reason why the collective agreement should not be complied with. It is therefore incumbent upon the applicant for exemption to place facts and evidence, before the two tribunals, representing special circumstances that justify the exemption of the applicant from complying with the collective agreement. This approach makes sense since the purpose of the Act as stated in sec.1 is also the advancement of economic development, social justice, labour peace and the democratization of the workplace by fulfilling the primary objects of the Act. Subsection 1 (c) states as one of the primary objects of the Act, provision of a framework within which employees and their trade unions, employers and employers organisations can collectively bargain to determine wages, terms and conditions of employment and other matters of mutual interest and formulate industrial policy.[30] The applicant, having placed before both the exemption and appeal authority special circumstances in the form of facts and evidence that clearly justify an exemption from compliance with the main agreement, were entitled to expect the respective exemption authorities to interrogate the evidence and to make a considered and reasoned decision, based on that evidence, as to whether or not the exemption sought ought to be granted. While the factors listed in the main agreement are generally relevant, the crisp issue in the present instance was one of affordability.
DA8/2018
Lufil Packaging (Isithebe) (A division of Bidvest Paperplus (Pty) Ltd) v Commission for Conciliation, Mediation and Arbitration and Others (DA8/2018) [2019] ZALAC 39; (2019) 40 ILJ 2306 (LAC); [2019] 11 BLLR 1212 (LAC) (13 June 2019)
A trade union cannot create a class of membership outside the provisions of its constitution, and if they purport to do so they act in excess of their powers and the act has no validity... Such a decision is ultra vires and invalid and, as such, susceptible to challenge by the employer from whom organisational rights based on the membership concerned is sought.
JA80/1
Rukwaya and Others v Kitchen Bar Restaurant (JA80/16) [2017] ZALAC 51; (2018) 39 ILJ 180 (LAC); [2018] 2 BLLR 161 (LAC) (5 September 2017)
Employees obliged to follow the dispute resolution process provided for in the collective agreement.
Held that the legal basis of the appellants claim is founded on the respondents non-compliance with the collective agreement and not upon a breach of their contracts of employment - the substance of employees complaint is the employers failure to pay them the industry minimum wages and bonuses in terms of the collective agreement.
JR388/14
National Union of Mineworkers and Another v Commission for Conciliation, Mediation and Arbitration and Others (JR388/14) [2016] ZALCJHB 508; [2017] 4 BLLR 405 (LC) (15 December 2016)
hypothetical approach
had final positions that were too far apart to allow for agreement, and that it is therefore the arbitrators role to anticipatewhere the bargain should have been struck, in the light of available data, had the bargaining continued to conclusion and in good faith.
fairness of approach
arbitration is a process of reason. While the parties to Interest arbitration cannot point to rights to sustain their cases, they are obliged at least to persuade the arbitrator why in fairness their position should be accepted. Only if both parties fail in that regard, may the arbitrator consider possible intermediate positions. The approach I have adopted in the present arbitration is accordingly to ask, in the first instance, whether the parties have advanced sufficient reasons for acceptance of their respective positions.
JA103/2014
Association of Mineworkers and Construction Union and Others v Chamber of Mines of South Africa and Others (JA103/2014) [2016] ZALAC 11; (2016) 37 ILJ 1333 (LAC); [2016] 9 BLLR 872 (LAC) (24 March 2016)
infringing its right to collectively bargain and strike as contemplated in section 23 of the Constitution in that it prohibits minority unionfrom striking when bound by collective agreement that was extended to it -nothing unconstitutional about the majoritarianism principle
section 23 having its own extension mechanisms:collective agreement binding on employees not members of the trade union or unions which are party to the collective agreement, if they are identified in the agreement, the agreement expressly binds them, and the trade union, or unions, who are party to the agreement have as members the majority of employees employed by the employer in the workplace.
Could still use economic power very best it amounted to a unilateral change to the terms and conditions of employment and was not disruptive at all.
Other case law cited
Unica Plastic Moulders CC v NUSAW
Deregistered
Could recruit and represent members; No representation at Lc and CCMA
lost its majority membership
In the absence of a collective agreement regulating consultation in the event of retrenchment, the Respondent was in my view obliged to consult with the applicant.
