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REPUBLIC OF SOUTH AFRICA

THE LABOUR COURT OF SOUTH AFRICA, JOHANNESBURG

JUDGMENT

Not Reportable

Case no: J2192/08

DATE: 18 DECEMBER 2013

In the matter between:

SABAWO obo MEMBERS................................................................................First Applicant

INDIVIDUAL EMPLOYEES...................................................Second to Further Applicants

And

STAFFGRO (PTY) LTD.......................................................................................Respondent

Heard: 25, 26 and 27 November 2013

Delivered: 18 December 2013

Summary: Applicants participated in unprotected strike action. Challenge procedural unfairness. Service of notices to attend disciplinary on union is proper service. Dismissal procedurally fair.

JUDGMENT

PRINSLOO, AJ

Introduction

[1] The Applicant trade union (SABAWO) on behalf of its 138 members (the striking employees) approached this Court for relief in terms of the provisions of section 187 (1)(a) of the Labour Relations Act (‘the Act’). They claim that their dismissal was automatically unfair in that they participated in a protected strike.

[2] In the alternative the Applicants claim that their dismissal was unfair in that they participated in an unprotected strike and the Respondent failed to comply with the provisions of the Act and specifically procedural requirements prior to their dismissal.

[3] The Respondent raised two points in limine. The first point in limine was that the issue of the strike had already been dealt with by this Court on a previous occasion and Mr Manchu for the Respondent referred to the urgent application filed by the Respondent in November 2007, wherein the Respondent sought for the strike action to be declared unprotected. A rule nisi was issued, declaring the strike unprotected. The Applicants filed opposing papers and after consideration of the matter, this Court confirmed the rule nisi on 15 February 2008, thereby confirming that the strike was unprotected.

[4] The Applicants never appealed the Court order issued on 15 February 2008 and therefore the Court order declaring the strike unprotected stands.

[5] The second point in limine was that the strike was unprotected and therefore it cannot be an automatically unfair dismissal as provided for in section 187(1)(a) of the Act. For the Applicants to sustain a claim in terms of section 187(1)(a) they have to show as a minimum that the strike action complied with the provisions of the Act and that it was a protected strike. The strike is already declared unprotected and therefore section 187(1)(a) cannot apply. Mr Munchu argued that this Court has no jurisdiction to determine the dispute as the Applicants were dismissed for participating in an unprotected strike.

[6] Mr Nyawuza for the Applicants conceded that there was no longer a claim in terms of the provisions of section 187(1)(a) of the Act and he argued that the Applicants’ claim is to be found in the provisions of section 191(5)(b)(iii) of the Act and the remaining attack was on the procedural fairness of the Applicants’ dismissals.

[1] Act No 66 of 1995.

[7] After considering the submissions made in respect of the two points in limine it is evident that the Court order declaring the strike action unprotected stands and that the issue is indeed res iudicata and cannot be determined afresh. The strike action is unprotected and it follows that the Applicants’ claim in terms of the provisions of section 187(1)(a) cannot be sustained.

[8] The Applicants’ alternative claim in terms of section 191(5)(b)(iii) however falls within the jurisdiction of this Court.

[9] In the pre-trial minute the parties agreed that it was in dispute wether the Applicants were notified of the date of the disciplinary hearing and whether as disciplinary hearing was indeed held prior to their dismissals.

[10] The matter proceeded only in respect of the alternative claim and the only issue to be decided is whether the Applicants were procedurally fairly dismissed for participating in an unprotected strike.

The pre-trial minute

[11] The parties signed a pre-trial minute and I have to mention that I raised concerns in respect of the pre-trial minute with the parties before commencement of the trial. It appears from the pre-trial minute that the parties did not apply their minds to narrow issues and to assist this Court in determining the dispute. It appears that the parties merely went through the motions to sign a pre-trial minute without attempting to narrow the issues and to reflect the real dispute and issues for this Court to determine.

[12] It is trite law that this Court and the parties are bound to the pre-trial agreement In Chemical, Energy, Paper, Printing, Wood and Allied Workers’ Union and Others v CTP Ltd and another it was held that:

“In MEC for Economic Affairs, Environment and Tourism, Eastern Cape v Kruizenga and another (Kruizenga), the SCA said the following about the role and importance of pretrial conferences and the significance of admissions of fact made in the course thereof:

'The rule [i.e. rule 37] was introduced to shorten the length of trials, to facilitate

[1] Chemical, Energy, Paper, Printing, Wood and Allied Workers’ Union and Others v CTP Ltd and another 2013 4 BLLR 378 (LC) / (2013) 34 ILJ 1966 (LC).

settlements between the parties, narrow the issues and to curb costs. One of the methods the parties use to achieve these objectives is to make admissions concerning the number of issues which the pleadings raise. Admissions of fact made at a rule 37 conference, constitute sufficient proof of those facts. The minutes of a pretrial conference may be signed either by a party or his or her representative. Rule 37 is thus of critical importance in the litigation process.'

These findings made in relation to rule 37 of the High Court Rules are equally applicable to rule 6(4) of the Labour Court Rules.

A pretrial minute is a consensual document and, in effect, constitutes a contract between the parties.”

[13] The parties disregarded the importance and significance of the pre-trial minute and they filed a document not even worth the paper it was written on. For instance the pre-trial minute made no mention of any points in limine, despite the fact that it is an aspect to be addressed in a pre-trial minute. On the day of the trial the Respondent wanted to raise two points in limine, which should have been dealt with prior to the trial. Further the parties agreed that it was disputed that the Applicants embarked on an illegal strike on 20 November 2007, yet there was a Court order issued declaring the strike was unprotected. How this issue could have been disputed after the Court order, is astonishing. There are many more aspects where the pre-trial minute is lacking and simply not assisting and not achieving the objectives of Rule 6(4) of the Rules of this Court.

[14] I raised my concerns regarding the pre-trial minute with the parties and my inclination was to postpone the matter.

[15] I subsequently decided to hear the matter as the parties indicated that the matter was set down for trial on 26 August 2013 but they were crowded out due to unavailability of judges. The matter dates as far back as 2007 and the only reason why I proceeded with the matter, despite the problems with the pre-trial minute, was because the matter was dating back since 2007 and it would be in the interest of all the parties to bring finality to the matter.

Issues the Court is required to determine

[16] In view of the points in limine and the concessions made by Mr Nyawuza, this Court is to determine only the procedural fairness of the Applicants’ dismissals.

The evidence adduced

The Respondent’s testimony

[17] The Respondent called two witnesses. The first witness was Mr Jansen van Rensburg, the Respondent’s human resources manager. He testified that the strike action commenced on 20 November 2007. On the same date the Respondent issued an ultimatum to the striking employees and the relevant parts thereof read as follows: “This here (sic) letter serves to notify you that the strike action / picketing you have embarked on is illegal and unprotected. You have until 12:00 pm 20 November 2007 to return back to work, failure to do so will result in disciplinary and legal action against you and could ultimately lead to you being dismissed.” This ultimatum was put up against the walls and gates of the Respondent as the union and striking employees refused to accept anything from the Respondent.

[18] Also on 20 November 2007 Mr van Rensburg personally faxed a letter to SABAWO wherein it was stated that the Respondent’s position was that the strike action was unprotected and the union was urged to suspend the strike action and to request its members to return to work. The union was warned that the Respondent would proceed with an application to interdict its members from continuing with the unprotected strike action. The union was invited to discuss the matter with the Respondent and was requested to respond by no later than 13:00 on 20 November 2007.

[19] The strike proceeded and Mr van Rensburg testified that the Respondent obtained the interim Court order on 21 November 2007. The Respondent has subsequent to obtaining the Court order notified the striking employees in writing that they had to attend a disciplinary enquiry scheduled for 23 November 2007. The Respondent attempted to hand the notices to the striking employees but they refused to accept the notices and said that they were acting on instructions from their union.

[20] A copy of the notice to attend a disciplinary hearing on 23 November 2007 was also faxed to the union on 21 November 2007 at around 13:58. The fax number used is the same fax number that appears on the union’s official letterhead. Mr van Rensburg testified that the notice to attend the disciplinary hearing was faxed to the union on 21 November 2007 as the union was representing the Applicants during the strike.

[21] The disciplinary hearings were scheduled for 23 November 2007, but nobody showed up. Mr van Rensburg then instructed Mr Speckman, the human resources officer, to find an alternative date and venue for the disciplinary hearings.

[22] On 27 November 2007 SABAWO was notified by way of a letter that the venue for the disciplinary hearings changed. The letter was sent to SABAWO as it was acting on behalf of its members.

[23] On 7 December 2007 the notices to attend the disciplinary enquiry were couriered to the offices of SABAWO and all the notices and charge sheets for the striking employees were included in this parcel sent to the union. Mr van Rensburg referred to the waybill showing that it was couriered to the offices of SABAWO, as per the address that appears on the union’s letterhead. The disciplinary hearings were scheduled for 11 December 2007.

[24] The Respondent’s human resources team told the witness that they met the union at the CCMA on 7 December 2011 in an unrelated matter and they were informed that the Applicants would not attend the disciplinary hearings as the strike was protected and there was no basis for taking disciplinary action.

[25] On 11 December 2007 the disciplinary hearing commenced as per the notice to attend a disciplinary hearing. The striking employees did not show up and after the Respondent tried to contact the union and the striking employees to convince them to attend and after it waited for two hours, the enquiry proceeded in their absence. This was the second attempt to hold disciplinary hearings for the striking employees and the second opportunity they had to attend and state their cases.

[26] On 14 December 2007 the chairperson made his findings and the striking employees were dismissed.

[27] On 1 February 2008 the union addressed a letter to the Respondent requesting a list of the dismissed employees and the date of their dismissal. Mr van Rensburg testified that this was the first correspondence the Respondent received from the union after the striking employees were dismissed in December 2007.

[28] On 4 February 2008 Mr van Rensburg responded to the union’s letter and he stated that the strike was illegal, that the striking employees were given two separate dates for disciplinary hearings, which they failed to attend as they were advised that the strike was protected and they were dismissed on 14 December 2007.

[29] In cross-examination Mr van Rensburg testified that they attempted to serve the notices on the striking employees on 21 November 2007, when the striking employees were across the street at the Premier Foods, Kroonstad site. The striking employees refused to sign and moved away from the employer.

[30] The second occasion when the Respondent attempted to serve notices was on SABAWO by way courier.

[31] Mr van Rensburg conceded that there was no attempt made by the Respondent to serve the notices to attend a disciplinary hearing on the personal addresses of the individual striking employees. He explained that the reason was that it was difficult to serve in the rural areas and the Respondent saw it fit to serve on the union as the representative of the striking workers. He emphasised that the first attempt to serve on the striking employees failed dismally and because the union was involved, it was served on the union.

[32] Mr Nyawuza referred to Item 4(1) of Schedule 8 of the Act and asked Mr van Rensburg whether they notified the striking employees. Mr van Rensburg testified that they tried to notify the striking employees and they notified the union as the union represented them.

[33] Mr Nyawuza put it to Mr van Rensburg that the striking employees stayed at home since the Court order was obtained on 21 November 2007 and they were not present to be served with the notices as alleged by the Respondent. This was disputed by Mr van Rensburg who testified that he was involved in the strike on behalf of the Respondent, he attended Court with the attorneys when the order was obtained on 21 November 2007 and he remained involved until the disciplinary enquiries were finalised on 11 December 2007. Mr van Rensburg testified that the striking employees breached the Court order on numerous occasions after 21 November 2007 and that the South African Police Services (SAPS) had been called in numerous times to enforce the Court order.

[34] Mr Nyawuza further put it to the witness that the striking employees were given an instruction to stay at home. Mr van Rensburg denied this and testified that the strike happened during November to December 2007, which was a very busy time of the year for the Respondent and the Respondent rather tried to get the employees back at work. Mr Nyawuza said that the Applicants would testify that nothing was served on them and that they were told to stay at home. The Respondent disputed this.

[35] Mr van Rensburg testified that no one showed up for the disciplinary hearings scheduled for 23 November 2007 and it was rescheduled to 11 December 2007. The chairperson was Mr Thabo Khasapane, an independent person not employed by the Respondent and it took one day to complete the disciplinary hearings as the chairperson had to consider only the employer’s case as the union and striking employees did not show up.

[36] It was put to Mr van Rensburg that the union suspended the strike action on 11 December 2007 and that the striking employees were returning to work on that day. This was disputed and Mr van Rensburg testified that the union never communicated with the Respondent that the strike action was suspended and there was no letter or any other form of communication to that effect. He testified that even if the strike was suspended the Applicants had to attend their disciplinary hearings, which they failed to do. The only reason why the union suspended the strike is because they were aware that the disciplinary enquiries were scheduled for 11 December 2007.

[37] Mr Nyawuza put it to the witness that the Applicants would testify that in terms of the code of conduct the employees should have been issued only with final written warnings for participating in an unprotected strike and that they should not have been dismissed. Mr Nyawuza put it to Mr van Rensburg that procedural fairness was in dispute since the inception of the matter and procedural fairness had been consistently raised as an issue, yet the code of conduct is not part of the bundle before Court.

[38] Mr van Rensburg testified that the striking employees did not adhere to the Court order and ultimatums were issued and forwarded to the union and it was made clear that persistence with the conduct could result in dismissal. It was put to Mr van Rensburg that the Respondent did nothing to take action to correct the situation. Mr van Rensburg disagreed and testified that the Respondent made a number of attempts to get the striking employees back at work as they were needed at work but the striking employees told the Respondent that they would not return to work as their union had told them that the strike was protected. The Respondent tried to engage the striking employees on a number of occasions but they retaliated by stoning the Respondents representatives. SABAWO did not at any stage indicate to the Respondent that the strike was over and that the Applicants would be returning to work.

[39] Mr Nyawuza put it to the witness that dismissal was not appropriate. Mr van Rensburg disagreed and stated that the Respondent suffered losses, the Respondent had to approach this Court for urgent relief, the conduct of the striking employees placed a nationwide contract in jeopardy and the trust relationship broke down as the Applicants refused to engage with the Respondent in any way.

[40] Mr van Rensburg confirmed that he was present when the disciplinary hearings were held and denied that there was no compliance with the provisions of Schedule 8 of the Act.

[41] The second witness for the Respondent was Mr Hitge, the efficiency manager for the Premier Group. He testified that that he was involved in the strike in that he gave the striking employees the Court order obtained on 21 November 2007 and he gave them the notices to attend their disciplinary hearings. He testified that when Mr van Rensburg tried to read the Court order to the striking employees who were on the other side of the road, they threw stones at them.

[42] Mr Hitge testified that he was involved in serving the first notice of the disciplinary hearings and the striking employees were told that they had to attend the hearings. The employees however refused to accept the notices but became violent and threw stones to such an extent that he and Mr van Rensburg went back into the building for their own safety. He testified that the striking employees were violent and that they threw stones, stopped non-striking workers from coming to work, stopped trucks and positioned themselves in front of the main gate of the factory, in contravention of the Court order. Mr Hitge confirmed that the Applicants were present every day after the Court order was obtained.

[43] In cross-examination it was put to the witness that there was no violence and intimidation, which proposition was denied by Mr Hitge who testified that there was a lot of violence and intimidation.

The Applicants’ testimony

[44] The Applicants called two witnesses. The first witness was Mr Alfred Mtoyi. He testified that he commenced employment with the Respondent on 28 June 2006. He was part of the leadership of the union when he participated in the strike that commenced on 20 November 2007. Mr Mtoyi described the events prior to the strike and he testified that a certificate was issued that entitled them to strike and the strike started on 20 November 2007. One hour after the strike commenced, the union had a discussion with the Respondent to try and resolve the issues, however the Respondent was not interested to discuss matters raised by the union.

[45] Mr Mtoyi denied that the Court order was given to them or that it was put up against the walls as testified by Mr van Rensburg. He testified that they knew about the Court order because the SAPS members told them that there was a Court order and they were to stay 50m away from the Respondent’s premises, which they did. Mr van Rensburg never told them about the Court order.

[46] The witness denied that Mr van Rensburg approached them and tried to talk to them and that the notice to attend a disciplinary enquiry was ever served on the striking employees or the union.

[47] Mr Mtoyi testified that that they were dismissed on 11 December 2007. The union told them to go back to work and they went, however Mr Kruger told them they were no longer welcome. He testified that 138 workers were present and they were all told that they were dismissed with effect from 11 December 2007. Mr Mtoyi testified that the striking employees were unaware of the charge sheets and the disciplinary hearings that were scheduled for 11 December 2007.

[48] Mr Mtoyi denied that they were violent during the strike, he denied any acts of intimidation and any breach of the Court order. He testified that the striking employees stayed 100m away from the Respondent’s premises and never blocked the entrance gate or any vehicles.

[49] In cross-examination it was put to Mr Mtoyi that he would not have been aware of all correspondence between the Respondent and SABAWO as it was not addressed to him, but the Respondent sent corresponce to Mr Nyawuza. The witness accepted that.

[50] Mr Mtoyi denied that as a shop steward he was aware that the Respondent’s attitude was that the strike was unprotected. He specifically stated that he was unaware that the strike was unprotected. He further denied that the Respondent told them to stop the strike at the meeting that was held within hours of the commencement of the strike. He conceded that the Applicants were already on strike at the time of the meeting, but denied that the strike was discussed, as the workers knew that the strike was protected.

[51] Mr Mtoyi conceded that they were aware of the Court order obtained on 21 November 2007 and that they continued to strike, even after the order was obtained. He however denied that he was aware that the strike was unprotected, as they did not know the contents of the Court order. According to Mr Mtoyi SAPS members merely told them about the Court order and told them to move away from the Respondent’s entrance gates, they were not informed about the contents of the Court order.

[52] Mr Mtoyi denied that Mr van Rensburg attempted to serve the first notice of disciplinary hearing on the striking employees and that they stoned the Respondent’s employees. He stated that they did not go to the disciplinary hearings because they did not receive the notice to attend the disciplinary hearings.

[53] In cross-examination it was put to the witness that the Respondent was serious to ensure the Applicants’ attendance at the disciplinary hearings and for that reason the first hearing scheduled for 23 November 2007 was postponed and rescheduled for 11 December 2007. Mr Mtoyi denied any knowledge of the disciplinary hearings.

[54] It was put further that the Respondent subsequently sent the notices to attend a disciplinary hearing on 11 December 2007 to SABAWO as the union was representing the Applicants during the strike. Mr Mtoyi accepted that the union represented the Applicants’ during the strike and accepted that there was correspondence between SABAWO and the Respondent. He however denied that they received any notice to attend a disciplinary hearing from the union, however he testified that the union updated the Applicants on everything that happened.

[55] It was put to Mr Mtoyi that the union and the Applicants were aware that the strike was unprotected and that hearings were scheduled but refused to attend because they persisted with the view that the strike was protected and there was no need to attend hearings and to adhere to the Court order. Mr Mtoyi testified that they knew that the strike was legal, but denied that they received notice of the disciplinary hearings.

[56] Mr Manchu also put it to the witness that it was no coincidence that the strike was called off on 11 December 2007 as that was the date of the disciplinary hearings and the union was aware of that and the reason why they were told to go back to work on that date was to avoid the disciplinary hearings. Mr Mtoyi stated that they went back to work on 11 December 2007 because the union told them to go back. He denied that the union would mislead them.

[57] Mr Mtoyi was asked why the strike action was called off on 11 December 2007 and he responded that the union told the Applicants that the Respondent took the matter to the Labour Court. This was disputed by Mr Manchu who put it to the witness that the union and the Applicants knew since 21 November 2007 that the matter was taken to the Labour Court and by 11 December 2007 they were aware for almost 3 weeks that the matter was taken to the Labour Court and this could not have been the reason to return to work on 11 December 2007. Mr Mtoyi persisted that there was a certificate that entitled them to strike and that the union subsequently and on 9 December 2007 informed them that the strike was suspended as from 11 December 2007.

[58] Mr Manchu put it to the witness that there was no other reason to return to work on 11 December 2007, but the fact that the disciplinary hearings were scheduled for that day. The union never communicated with the Respondent that the strike was called off and there was no agreement reached between the parties by 11 December 2007 and the only reason to call off the strike was to avoid disciplinary action. Mr Mtoyi stated that he could not respond on behalf of the union but insisted that the union told the Applicants to return to work on 11 December 2007.

[59] It was put to Mr Mtoyi that the Applicants were violent during the strike because if they were not, there was no need obtain a Court order on 21 November 2007 and to involve the SAPS. Mr Mtoyi denied any violence.

[60] It was also put to Mr Mtoyi that there was a discrepancy in the date of dismissals in that he testified that the Applicants were dismissed on 11 December 2007 and on the referral form to the CCMA it was indicated that they were dismissed on 16 January 2008. Mr Mtoyi persisted with his testimony that the Applicants were dismissed on 11 December 2007.

[61] Mr Mtoyi confirmed that for the period between 21 November and 11 December 2007 the Applicants were picketing every day at the bus stop near the Respondent’s premises and they did not stay at home.

[62] The Applicants’ second witness was Mr Paul Mofokeng, who was employed by the Respondent since 2 January 2002. He denied that he ever received a notice to attend a disciplinary hearing. He also denied that he had seen Mr van Rensburg and Mr Hitge during the strike action.

[63] Mr Mofokeng testified that they were dismissed on 14 December 2007 when Mr Kruger called them to the Respondent’s premises to collect their UIF certificates.

[64] In cross-examination the witness testified that on 21 November 2007 Mr Kruger told them to stay at home and only to come back to work on 15 February 2008 to be informed about the outcome of the Labour Court case. He however testified that he did not stay at home but participated in the strike action.

[65] Mr Mofokeng testified that the strike was called off because the union wanted to wait for the outcome of the pending Labour Court case. It was put to the witness that the union was aware of the Court order, however persisted with the strike action for a further 3 weeks and there was no reason to call off the strike on 11 December 2007 or to wait for the outcome of the Labour Court case on 15 February 2008. Mr Mofokeng was unable to respond to this.

[66] He disagreed with the evidence of Mr Mtoyi that they were dismissed on 11 December 2007 and insisted that they were informed about their dismissals on 14 December 2007. Mr Manchu put it to the witness that there were three versions on the date of dismissal namely Mr Mtoyi’s version that they were dismissed on 11 December 2007, Mr Mofokeng’s version that they were dismissed on 14 December 2007 and the union’s version on the referral form that it was 16 January 2008. It was put to the witness that the Respondent’s version is that the Applicants were dismissed with effect from 14 December 2007.

[67] Mr Mofokeng conceded that he could not dispute that Mr van Rensburg had dealings with the union during the strike period. He testified that he did not see Mr van Rensburg but that did not mean that he was not there.

Closing arguments

[68] In closing argument Mr Nyawuza on behalf of the Applicants submitted that schedule 8 of the Act was not followed, the trade union was not notified and did not receive notices of the disciplinary hearings to be instituted against the striking employees.

[69] Mr Nyawuza submitted that service of the notice to attend a disciplinary enquiry was crucial and that the Respondent should have served the notices on the individual Applicants as per the addresses that appear in their contracts of employment.

[70] He argued that the Applicants were not afforded an opportunity to state their cases as they were unaware of the disciplinary enquiries and the Respondent deliberately did not want to afford the Applicants an opportunity to state their cases and to attend their disciplinary hearings.

[71] Mr Nyawuza also raised the issue of hearsay evidence and argued that Mr van Rensburg’s evidence should not be accepted, as it is hearsay. He argued that Mr Speckman should have been called as a witness and in his absence, the evidence before this Court is hearsay.

[72] The Applicants were procedurally unfairly dismissed and they seek re-instatement.

[73] Mr Manchu on behalf of the Respondent submitted that Mr van Rensburg’s evidence is not hearsay as he testified that he was involved in the strike action, he attended the disciplinary hearings and tried to serve the notices on the Applicants. His evidence is sufficient and it is not necessary for Mr Speckman to confirm his testimony. I agree that the evidence of Mr van Rensburg is not hearsay insofar as he was personally involved and testified about the events where he was so involved and to that extent I accept his evidence.

[74] Mr Manchu submitted that there was a meeting held on 20 November 2007, after the strike commenced and the Respondent would have, in all probability, intimated its view that the strike was unprotected. He argued that the union and the striking employees were aware of the Court order and the fact that the strike was unprotected.

[75] At the first disciplinary hearing scheduled for 23 November 2007 there was no attendance and the Respondent took a decision to postpone the hearing to 11 December 2007 to ensure the attendance of the Applicants. It is indicative of an intention to notify the striking employees and to ensure their attendance.

[76] The notice of the second hearing was served on the union, as all efforts to serve it on the striking employees failed on the first occasion. The union was in contact with the Applicants as it was in a position to order them to return to work on 11 December 2007. Nobody from the union testified and the Applicants’ witnesses were in no position to testify about whether the union received the notices or not. He argued that the Respondent was entitled to regard the union as representative of the Applicants and to serve the notices on the union.

[77] Mr Manchu argued that it was no co-incidence that the strike was called off on 11 December 2007, the same date the disciplinary hearings were held. The strike was called off on that date as the union knew about the disciplinary proceedings scheduled for 11 December 2007.

[78] Mr Manchu submitted that schedule 8 of the Act does not assist the Applicants’ case as the Respondent complied insofar as it was required to comply and that the Applicants’ dismissals were procedurally fair.

Analysis of the evidence adduced

[79] After due consideration of the evidence adduced and the closing arguments submitted, I accept the following:

79.1 The Applicants embarked on strike action on 20 November 2007;

79.2 Shortly after the commencement of the strike the Applicants and the Respondent held a meeting to resolve the issues and to try to stop the strike action;

79.3 An ultimatum was issued on 20 November 2007 advising the striking employees that their strike action was illegal and unprotected. They were informed that: “You have until 12:00 pm 20 November 2007 to return back to work, failure to do so will result in disciplinary and legal action against you and could ultimately lead to you being dismissed.”

79.4 The strike action proceeded and the Respondent obtained an interdict on 21 November 2007 wherein the strike action was declared unprotected;

79.5 SABAWO was representing the Applicants during the strike action;

79.6 The Applicants were made aware of the Court order on 21 November 2007. I do not accept that the Applicants were unaware of the contents of the Court order as this is so improbable that it is untrue;

79.7 The Applicants proceeded with the unprotected strike action as from 20 November until 11 December 2007;

79.8 On 21 November 2007 the Respondent issued a notice to attend a disciplinary enquiry on 23 November 2007 to the striking employees, but they refused to accept it. This notice was also faxed to the union;

79.9 The disciplinary enquiries scheduled for 23 November 2007 did not proceed but were rescheduled to 11 December 2007 as the Applicants did not attend;

79.10 On 7 December 2007 the Respondent issued a notice to attend a disciplinary enquiry on 11 December 2007 and couriered these notices to the union’s physical address;

79.11 The disciplinary enquiries scheduled for 11 December 2007 took place, but the striking employees did not attend and the hearings proceeded in absentia;

79.12 The Applicants were dismissed with effect from 14 December 2007, after the chairperson of the disciplinary enquiries found them guilty of the charges levelled against them;

79.13 I do not accept that the striking employees were told to stay at home on 21 November 2007. Not only was this version not supported by the Applicants’ evidence but it in fact was contradicted by the witnesses who testified that they participated in the strike as from 20 November to 11 December 2007 and did not stay at home;

79.14 I cannot accept that the union did not receive the fax on 21 November 2007 notifying it about the disciplinary enquiries scheduled for 23 November 2007, nor can I accept that the union had not received the notices that were sent by way of courier on 7 December 2007 to its physical address. There was no one from SABAWO who adduced evidence before this Court to deny receipt of the documents and in the absence of such evidence, I have to accept the Respondent’s version that the notices were faxed and couriered to the union on 21 November and 7 December 2007 respectively and that it was in all probability received;

79.15 The striking employees reported for duty on 11 December 2007 and the Applicants’ witnesses were unable to provide any reason why they reported for duty on 11 December 2007. They testified that they were told by the union to report for duty on 11 December 2007. There was no evidence to show that the dispute was resolved on 11 December 2007 or that the union communicated with the Respondent that the strike action was called off. The only reasonable inference I can draw is that the union was aware that the disciplinary hearings were scheduled for 11 December 2007 and the striking employees were instructed to report for duty to avoid disciplinary action. There is simply no other factor connecting the suspension of the strike to 11 December 2007.

The Applicant’s case

[80] The Applicants’ case is limited to the procedural fairness of their dismissals and the issues raised before this Court were that the Respondent did not comply with Schedule 8 of the Act and that the Applicants were not afforded an opportunity to state their case at their disciplinary hearings as they were not notified about the disciplinary hearings.

Was there compliance with Schedule 8 of the Act

[81] The first question I have to deal with is whether the Respondent complied with Schedule 8 of the Act.

[82] Mr Nyawuza in his cross-examination referred to Item 4(1) and 4(2) of Schedule 8 of the Act and asked Mr van Rensburg whether they notified the striking employees and the union as per the provisions of the said paragraphs. The union denied that an ultimatum was issued.

[83] The Respondent’s case is that Schedule 8 does not assist the Applicants’ case as the Respondent had to comply with Item 6 of Schedule 8 and it indeed complied with the provisions of Schedule 8 in that the union was contacted and an ultimatum was issued.

[84] In Steel Mining and Commercial Workers Union and others v Brano Industries (Pty) Ltd and others the Court dealt with the requirements of the Act and held that:

“Section 68(5) of the Act provides: 'Participation in a strike that does not comply with the provisions of this Chapter, or conduct in contemplation or 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.'

The Code of Good Practice: Dismissal (the code) in schedule 8 of the Act largely codifies the legal principles that were developed in labour law jurisprudence under the previous Act. I am of the view that the provisions of item 6 of the code, headed 'Dismissals and industrial action' apply in a case such as the present, that is, a dismissal for participation in an unprotected strike.

There is no merit in the argument put forward on behalf of the applicants that the provisions of items 3, 4 and 7 of the code, headed 'Dismissals for misconduct', 'Fair procedure' and 'Guidelines in cases for dismissals for misconduct' apply in such case. Clearly these items deal with dismissals for individual misconduct whilst dismissal for participation in unprotected strike action is dismissal for collective misconduct which is dealt with separately under item 6.”

[85] In National Union of Metalworkers of SA and others v Malcomess Toyota, A Division of Malbak Consumer Products (Pty) Ltd the Court held that:

“I do not agree that all the principles applicable to dismissal for misconduct as set out in the code, should be followed in the case of dismissal for participation in unprotected action. The legislator has deemed it fit to deal with these matters separately.

Item 6 of the code is clearly an attempt to codify the law as it pertains to substantive and procedural requirements pertaining to the unprotected strike situation. In Cheadle et al Current Labour Law 1997 at 97 et seq it is stated that pre-dismissal hearings do not generally have to be observed in respect of strikers who have been given an ultimatum.”

[1] 2000) 21 ILJ 666 (LC)

 

[1] (1999) 20 ILJ 1867 (LC)

situation. In Cheadle et al Current Labour Law 1997 at 97 et seq it is stated that pre-dismissal hearings do not generally have to be observed in respect of strikers who have been given an ultimatum.”

[86] The Respondent indeed communicated with the union and an ultimatum was issued on 20 November 2007, therefore there was compliance with Item 6 of Schedule 8. The Applicants’ reliance on Item 4 of Schedule 8 of the Act is misplaced and not applicable in cases of dismissal for participation in unprotected strike action.

Were the Applicants notified about the disciplinary enquiries and were they granted an opportunity to state their cases:

[87] Mr Nyawuza argued that service of the notices to attend disciplinary hearings was critical. I agree with this argument.

[88] Mr Nyawuza further argued that the Applicants were not served with the notices to attend disciplinary enquiries, wherefore they had no knowledge of the hearings and did not attend.

They were denied the opportunity to state their cases.

[89] The Respondent’s case is that disciplinary hearings were scheduled for 23 November 2007 and the Respondent attempted to serve the notices on the striking employees on 21 November 2007, but they refused to accept anything from the Respondent. The same notice was faxed to the union on 21 November 2007.

[90] The disciplinary hearings scheduled for 23 November 2007 did not proceed but was postponed to 11 December 2007 to afford the Applicants an opportunity to attend. The second notice was send to the union’s physical address by way of a courier. The Applicants did not attend on 11 December 2007 and the hearings proceeded.

[91] The Respondent did not proceed on 23 November 2007 when no one showed up, but postponed the disciplinary enquiries to 11 December 2007. This is not the conduct of an employer that wants to dismiss its employees at the first possible opportunity and that wants to deny them the right to attend and to be heard.

[92] I am satisfied that the Respondent made two attempts to hold disciplinary enquiries for the Applicants and that the striking employees were indeed afforded an opportunity to be present at the enquiries and to state their cases.

[93] Being afforded the opportunity to attend a disciplinary hearing on two occasions, the next issue to be considered is why the Applicants did not attend. The Applicants’ case is that they were not notified and were therefore unaware of the disciplinary enquiries. Mr Nyawuza presented the case that the Respondent should have served the notices on the individual Applicants on the addresses as reflected in their contracts of employment and that the Respondent was not entitled to serve on the union and to have the expectation that the union would inform the striking employees.

[94] The Respondent’s case is that the union represented the Applicants and it was entitled to serve on the union. The Respondent argued that the reason why the Applicants did not attend the disciplinary hearings was because they were of the view that the strike was protected and there was no need to attend any hearing.

[95] The question is whether service of the notices to attend a disciplinary enquiry on the union constituted proper service.

[96] The Applicants confirmed that the union was representing them during the strike.

[97] Trade unions specifically derive their power to make decisions on behalf of their members in terms of the provisions of s 200 of the Act which provides as follows:

'(1) A registered trade union or registered employers' organisation may act in any one or more of the following capacities in any dispute to which any of its members is a party —

(a) in its own interest;

(b) on behalf of any of its members;

(c) in the interest of any of its members.

(2) A registered trade union or a registered employers' organisation is entitled to be a party to any proceedings in terms of this Act if one or more of its members is a party to those proceedings.'

[98] The issue of the power and authority to make decisions by registered trade unions as envisaged in section 200 of the Act has received attention in a number of the decisions of the Labour Court.

[99] In Manyele and others v Maizecor (Pty) Ltd and another , the Court held that:

'These last two mentioned categories warrant examination. To act in the interest of any of its members would be evidenced by an application by a union where, other than asserting its representative capacity, it need not cite any of its members as such. This would cover situations where a controversy affected members other than personally or individually, in other words, intrinsically collective interests. It might be regarded as a species of class action. Where a union "acts on behalf of" members, it does not "become" the agent of those members, because its pre-existing representative relationship already constitutes the foundation for that status and power. In my view, the union's role under this rubric is akin to that of a curator ad litem in civil proceedings; that is to say, the union is the party in the proceedings. Philosophically, the union constitutes the institutional embodiment of the several members involved in the dispute.'

[100] In Mzeku and others v Volkswagen SA (Pty) Ltd and others at paragraph 57 the Labour Appeal Court held that:

'It is clear to us that the effect of s 200(1) is to give a union that is registered — as opposed to one that is not registered — a statutory right to represent any of its members in any one or more of the three capacities there set out. This, therefore, means that in this matter the union was entitled to act on behalf of the appellants in dealing with the first respondent about the conduct of the appellants which threatened not only their own employment but also the employment of many of its other members who were not on strike. If the union was entitled to act on behalf of the appellants, the first respondent had to respect that right. The way to respect that right was to deal with the union on the basis that it was acting on behalf of its members. For the commissioner to have found, as he did, that the first respondent was not entitled to deal with the union as a representative of the appellants was to make a finding that is contrary to the express provisions of the Act.'

[1]  (2002) 23 ILJ 1578 (LC).

[1]   2001 (4) SA 1009 (LAC); (2001) 22 ILJ 1575 (LAC); [2002] 10 BLLR 972 (LAC)

[101] The Court further held in paragraph 58 that:

'It is, therefore, clear also that s 200(1) gives a registered union the right to act on behalf of its members when there is a dispute involving any one or more of its members and that s 202(1) takes this further and provides that, once a registered trade union acts, as it is entitled to, on behalf of its members, the employer has a right not to serve documents on the individual members themselves but to serve them on the union. It provides that such service on the union is as good as service on the members of the union themselves. If this is so, the position must be that even with regard to the giving of the opportunity to be heard, the employer is entitled to deal with the union.'

[102] In casu the Respondent served both notices of disciplinary enquiries on the union and there was no testimony adduced by the union that the notices were not received. I accepted that the notices were served on the union and in all probability were received.

[103] It is common case that the union represented the Applicants during the strike.

[104] In view of the provisions of the Act and the principles laid down in the Mzeku matter, I accept that service on the union is as good as service on the members of the union themselves and with regard to the giving of the opportunity to be heard, the employer is entitled to deal with the union. The Respondent’s services of the notices to attend the disciplinary enquiry on the union constituted proper service and the Respondent was entitled to serve the notices on the union.

[105] There is no merit in the Applicants’ claim that they were not notified about the disciplinary enquiries because they were not personally served with the notices to attend disciplinary enquiries.

[106] In Xinwa and others v Volkswagen of SA (Pty) Ltd the Constitutional Court held that:

[1] The Court’s emphasis

[1] [2003] ZACC 7; 2003 (4) SA 390 (CC);(2003) 24 ILJ 1077 (CC)

‘The facts show that management held meetings with the delegation of the striking workers and NUMSA, separately, to try to end the strike. At these meetings, management warned that the strike was illegal and that those participating in it faced possible dismissal. Management resorted to the closure of its plant in an attempt to get the workers to return to work. It required workers returning to the plant to resume their duties or face dismissal. This too did not work. The agreement between NUMSA and management to end the strike did not succeed in getting the applicants back to work. Nor did the warning that those workers who did not return to work on 31 January would face disciplinary action which would include dismissal. An ultimatum calling upon the workers to return to work on 3 February 2000 and warning that failure to return to work would result in dismissal did not succeed in getting the applicants to return to work either.

In the light of these facts, the applicants have no prospect of persuading this court that their dismissal was procedurally unfair. Having concluded that the dismissal was procedurally fair, and in the absence of a challenge to the substantive fairness of the dismissal, it is not necessary to consider the question of the relief.”

[107] There was proper service and it begs the question why did the Applicants fail to attend the disciplinary enquiries. The only inference that can be drawn is that the Applicants’ persisted with the view that the strike action was protected and there was no need to attend disciplinary enquiries. Even in his testimony before this Court Mr Mtoyi persisted with the view that the strike was indeed protected.

[108] In Coin Security Group (Pty) Ltd v Adams and Others, the Labour Appeal Court held that:

‘It was argued by Mr Trengove for the respondents that they bona fide but mistakenly believed their strike to be protected. Whilst a bona fide, and reasonable, yet mistaken, belief by strikers in the legality of their strike action may have a bearing on the fairness of any subsequent dismissals (especially if the illegality is technical) that is not the case in circumstances where strikers have been warned that their belief is mistaken. In those circumstances the

 [1] [2000] 4 BLLR 371 (LAC) at para 18.

strikers, as the collective entity that they are when they undertake concerted action, must bear the risk that their union is wrong and their employer is right.’

[109] The striking employees’ belief and insistence that their participation in the strike was protected, is unfortunate. They should have been aware that their belief was a mistaken one when they were notified about the Court order declaring the strike unprotected. They must bear the consequences of the fact that they ignored the Respondent and accepted advice from their union when such advice was wrong.

[110] The Applicants dismissals were procedurally fair.

Costs

[111] Costs should be considered against the provisions of section 162 of the Act and according to the requirements of the law and fairness. The requirement of law has been interpreted to mean that the costs would follow the result.

[112] In considering fairness, this Court has held that the conduct of the parties should be taken into account and that mala fide, unreasonableness and frivolousness are factors justifying the imposition of a costs order.

[113] The general accepted purpose of awarding costs is to indemnify the successful litigant for the expense he or she has been put through by having been unjustly compelled to initiate or defend litigation. In considering whether costs should be awarded, the requirements of law and fairness become applicable.

[114] In Wallis v Thorpe and Another, the Court held:

‘In relation to costs, this court has a discretion in terms of s 162 to make an order for costs according to the requirements of the law and fairness. The ordinary rule, i.e. that costs follow the result, is a factor to be taken into account, but it is not a determinative factor.… This litigation was ill-considered from the start…. Ultimately, the applicant is the author of his own misfortune. This court encounters many indigent and illiterate litigants who seek to enforce what they perceive to be their rights. The court is often wary of the effect of a costs order on persons such as these, who more often than not sincerely but

[1] (2010) 31 ILJ 1254 (LC) at para 16.

misguidedly institute ill-conceived proceedings. The applicant in these proceedings is neither indigent, nor is he illiterate. On the contrary, he is an articulate, experienced business person, who was quite capable of considering the consequences of his decision….’

[115] SABAWO is a well-established trade union that should be able to advise its members properly, especially in instances where the employer has obtained a Court order declaring a strike unprotected. SABAWO did not advise the striking employees properly when they were told that the strike action was indeed protected and that they should continue to strike, despite the Court order obtained on 21 November 2007. This persistence with unprotected strike action resulted in disciplinary action and dismissal. The litigation that followed this ill advice was equally ill considered. This Court has to discourage ill-conceived litigation, especially where the Applicants had failed to establish any basis for their claim.

Fairness dictates that the Respondent cannot be expected to endure enormous costs defending litigation that ought not to have been brought in the first place.

Order

[116] In the premises, I make the following order:

116.1 The dismissal of the individual Applicants for embarking on unprotected strike action is not automatically unfair in terms of s 187(1)(a) of the Act;

116.2 In the alternative claim, the dismissal of the individual Applicants was procedurally fair;

116.3 The First Applicant, SABAWO, is to pay the costs.

Prinsloo, AJ

Acting Judge of the Labour Court

Appearances:

For the Applicants: Mr Nyawusa (SABAWO official)

For the Respondent: Advocate Manchu

Instructed by: Routledge Modise Attorneys

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