IN THE LABOUR COURT SOUTH AFRICA

Before Landman J 					Case Number: D5/97
In the matter between:
SACCAWU AND OTHERS						Applicant
and
SWINTON ROAD BUTCHERY 						Respondent

PRESIDING JUDGE:
Landman J

ON BEHALF OF APPLICANT:
Ms D Khumalo of SACCAWU
ON BEHALF OF RESPONDENT
Advocate W Bezuidenhout instructed by Lyle & Taverner Attorneys

DATE OF HEARING:
21 August 1998
PLACE OF HEARING:
Durban
DATE OF JUDGMENT:
24 Ausgust 1998

JUDGMENT

[1]	Swinton Butchery geared itself up for 13 December 1996. This was expected to be its fourth busiest day of the  year. It expected to gross about R100 000 from the sale of fresh produce and meat. This was known to the 20 employees; some of whom had worked there for many years. The Butchery was in the process of recognising SACCAWU and had agreed that wage negotiations would take place not earlier than 19 December 1996. 

[2]	On 12 December the employees were instructed by a shop steward, Mr Cyprian Chiliza, to be at work early. Even those whose shift started at 11:00 were to be there at 05:30. The plan, according to the employees, was to inquire from management when they would talk to the union about wages. A list of demands which the union had sent to their employer was produced. 

[3]	On 13 December all the employees save one arrived early. They changed into their working gear, went to see Mr Wayne Davis, a member of management, and, according to them, they  were chased out. They left and went outside were they sang, toy-toyed and danced.

[4]	At about Mr Chiliza and Mr Mlangeni, another shop steward, were called in to the shop and given an ultimatum to return to work. At this stage they were shown the cover sheet which the union had sent with the demands on 11 December. This was proof that the union had proposed 19 or 20 December for wage negotiations and that the employee’s demands were premature. The IR Consultant who was engaged by the Butchery proposed 23 December. This seems to have been acceptable to the union. 

[5]	The employees declined to return to work. Mr Chiliza left for the union offices. 

[6]	Management couriered documentation to the union and telephonically contacted the union (or vice versa) after 08:00. The national treasurer, Mr Gumede, happened to be in the office. He was appraised of the situation. Mr Mlangeni was called to the phone and spoke to Mr Gumede. Mr Gumede told him to tell the workers to return to work. Mr Mlangeni conveyed the message to the employees but they declined to do so.

[7]	At 08:30 a second ultimatum was give. It too was in writing. The ultimatum instructed the workers to return to work. They did not do so. 

[8]	The shop was at a stand still. Customers were being intimidated and those who bought meat returned the meat and asked for a refund. The stock was in danger of perishing. Eventually meat was sold to other butchers (who in the event defaulted on payment), some meat was given away and put on the pavement, other meat went to the lion park. A private security firm and SAP were called to the scene.

[9]	At 09:00 management issued a third ultimatum giving the employees 5 minutes to return or be dismissed. They did not return and were dismissed.

[10]	Mr Chiliza saw Mr Gumede. He was told, according to his testimony, that when he returned he would find the employees working. He returned from the union offices about 13:00. The employees were not working. He says they tendered to work but the tender was refused. There is dispute about this. The employees remained in the vicinity until about 16:00 or 17:00.

[11]	It was the union’s case that its members were not striking. They had been told to leave because they had inquired when management would meet for wage negotiations. This does not ring true. The careful marshalling of the labour force to arrive together at work early on 13 December, was done in contemplation of some confrontation with management. It may be that they wished to pressurise management to meet the union. This might seem probable but it cannot stand. Mr Siphele Nkwinkwa told this court that he had informed the shop stewards that a date had been set. Nevertheless the employees decided to press their employer for action. They could not having been doing this to secure a date. They knew of the date. It must be inferred that they were concentrating on the substance of the demand. 

[12]	The most probable reason for assembling was to strike for wages.  It is significant that the version that Mr Wayne Davis chased the employees from the shop was not put to other members of management who arrived on the scene within an hour. In addition Mr Gumede recognised that his members’ action was impermissible and urged the workers to return to work.

[13]	It was contended that the workers did not know Mr Gumede and therefore were not prepared to honour his suggestion that they return to work and then talk. It is true that they did not personally know Mr Gumede. Mr Chiliza went to the union office with the first ultimatum to ascertain what was going on. The employees were shown the union’s fax proposing a future meeting with management. This too they ignored. It may be that they were unsophisticated and that they did not believe Mr Gumede. This however does not save the day for they were at fault. They had caused the problem by embarking on the action without consulting their union. The employer had done what it could. It had sought the union’s intervention. If the union members did not accept the union’s advice for the reason mentioned above, their failure to do so cannot be laid at the employer’s door.

[14]	The union contended that it was reasonable for the worker to await the return of Mr Chiliza. It was further contented that when Mr Chiliza returned he told management that the workers were ready to return to work. His tender was rejected. Assuming there was such a tender, it came too late. The strike took place at 05:30. Trading was ruined. Efforts to persuade them to return to work had been exhausted. There was sufficient time for reflection. The union’s stance was communicated to them and its clarity shows that little time was required to comprehend the message and the ultimatum.

[15]	The employees participation in the strike which was unprocedural and amounts to a flagrant disregard of the provisions of the Act designed to ensure that conciliation must be explored before harm is inflicted by industrial action. There was no reason in law or fairness for the employees to have done what they did. Their strike constitutes misconduct. Cf para 6 of the Code of Good Practice, Schedule 8 to the Act. The strike was a serious contravention of the Act. There had been no attempt to comply with the Act. The employer had not provoked or precipitated the strike. On the contrary the employer and the union were ad idem on the need and the date for the meeting.

[16]	The employer had contacted the union as suggested in the Code. It had made known its intended action to the union and its employees on strike. Its first, second and third ultimata specified what would happen if they were ignored. The employees were assisted by the union to reflect on the import of the first ultimatum. This would have assisted them to understand the subsequent ultimata. The time length allowed to reflect on the ultimata must be viewed in the context of perishables. It was already too late to do much about parts of the stock.

[17]	In the premises the application is dismissed. The employer has incurred considerable expense in defending this case. The union decided to seek relief for its members who had participated in a wild cat strike. One which they warned, after it had commenced, was impermissible. The union has a responsibility to protect its members against unfair dismissal but it cannot institute a totally unmeritorious case. In my opinion the costs must follow the result. 

[18]	The application is dismissed. The applicant is ordered to pay the respondent’s cost.

Signed and dated at Durban this 24th day of August 1998.

A A Landman

Judge of the Labour Court

Date of hearing: 20, 21 April, 3, 4 , 5 June, 21 August 1998

Date of judgment: 24 August 1998

For the Applicant: A union official of SACCAWU

For the respondent: Adv W Bezuidenhout