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IN THE LABOUR COURT OF SOUTH AFRICAs

HELD AT DURBAN

CASE NO. D 80/98

In the matter between :

MR CYRIL GEORGE GANGERDINE 1st Applicant

David Noel 2nd Applicant

Stanton Payne 3rd Applicant

Timothy Shezi 4th Applicant

Victor Mazibuko 5th Applicant

Desmond Payne 6th Applicant

and

LIKUSASA ENGINEERING Respondent

AND CONTRACTING (PTY) LTD

JUDGEMENT

MLAMBO J.

1. The applicants were employed in different positions on short duration contracts. The duration of their contracts was designed to cover the contract period of the respondent regarding the construction of a cold mill for Hullets aluminium in Pietermaritzburg. The contract between the respondent made provision for a strict time period within which the work was to be finished. Severe penalties were provided for in the event of delays in finishing the work. The Applicants were dismissed on 5 November 1997 after embarking on what the Respondent calls unprotected industrial action. The Applicants claim that their dismissal was unfair substantively and procedurally and claim reinstatement and compensation. Respondent, on the other hand, claims it was entitled to dismiss the applicants as they were engaged in an unprotected strike for which there was no justification.

2. David Noel and Cyril Gangerdine testified on behalf of the Applicants with

Gangerdine also acting as their representative. The common cause circumstances are that :

(a) on 23 October 1997 employees of the Respondent including the Applicants did not work from 12h30 to 15h30. Three notices to return to work and threatening dismissal were issued.

(b) on 27 and 29 October 1997 meetings were held between Respondent and

a worker’s representative committee in which two of the Applicants, Gangerdine and Desmond Payne, were members. During the meetings a number of so-called grievances were discussed.

(c) on 4 November 1997 employees of the Respondent including the

Applicants did not work from 12h40 to 15h55. Two notices to return to work threatening dismissal were again issued, one was ignored and the other was complied with with 5 minutes to spare.

(d) on 5 November 1997 again employees of Respondent downed tools from

7h45 and ne ver returned to work. There is a dispute regarding the participation of David Noel and Gangerdine in this work stoppage. The other Applicants did not testify, nor were their situations tendered in evidence.

(e) the strikers failed to heed an ultimatum to return to work by 09 : 00 and at 10h30 all employees including the Applicants were dismissed.

3. Gangerdine giving evidence for himself and the other Applicants denied that

he and the other employees were engaged in unprotected strike action on all

three occasions i.e. 23 October 1997, 4 & 5 November 1997. He claimed that

on 23 October 1997 they were legitimately airing grievances against the

respondent. One of such grievances was that the employees did not have copies of their individual employment contracts. They returned to work after demanding and being handed copies of their individual employment contracts. Gangerdine did not deny that they downed tools but stated that according to him this was not a strike nor an unprotected one at that.

4. Gangerdine did not deny that on 4 November 1997 he and other employees

failed to return to work from 12h40 until about 15h55. He justified this conduct on the basis that they used that time to complete union (“NUMSA”) application for membership forms. It is common cause that during this strike Mr Henebrey, the site manager, and Mr Dladla, the local NUMSA representative, spoke to the striking employees in an effort to get them back to work, to no avail. As regards the events of 5 November 1997 Gangerdine denied that he participated in the work stoppage by other employees. He stated that he only went to where the striking workers were gathered for the purpose of attending a meeting with management. Noel confirmed Gangedine’s evidence regarding the events of 23 October 1997 and 4 November 1997. As regards the 5 November 1997 he also denies participation in the strike. His story is basically that when other employees downed tools he and his assistant decided to go home after reporting to management.

5. The code of good practice in schedule 8 of the Labour Relations Act no. 66 of 1995 (“the Act”) sets out, though in general terms, certain principles in relation to dismissals. Item 6 states that it is misconduct to participate in unprotected industrial action but that dismissal is not always the appropriate sanction. In terms of item 6(1) the substantive fairness of such a dismissal must be determined in the light of the facts of the case, including: the seriousness of the contravention of the Act; attempts made to comply with the Act; and whether or not the strike was in response to unjustified conduct by the employer. Whilst the code has no binding effect it however provides invaluable guidance to parties. A reading of the provisions of the code also reveals that it is a codification of important principles that have been developed by courts in the past regardIng, in particular, strike related dismissals.

6. In regard to the procedure that should be followed prior to effecting such a dismissal, item 6(2) sets out the following requirements:

6.1 the employer should, at the earliest opportunity, contact a trade union official to discuss the course of action it intends to adopt;

6.2 the employer should issue an ultimatum in clear and unambiguous terms that should state what is required of the employees and what sanction will be imposed if they do not comply with the ultimatum;

6.3 the employees should be allowed sufficient time to reflect on the ultimatum and respond to it, either by complying with it or rejecting it;

6.4 the employer may dispense with these steps if it cannot reasonably be expected te extend them to the employees in question.

7. Two issues require consideration in this matter. The first is whether the dismissal was for a fair reason having regard to the factors set out in item 6(1). The second is whether the procedure followed by the respondent in effecting the dismissals was consistent with the provisions of item 6.

8. In determining whether a fair procedure was followed prior to dismissal, the Court should have regard primarily to the factors mentioned in item 6(2) of schedule 8 to the Act. In the Performing Arts Council (Transvaal) v Paper Printing Wood & Allied Workers Union (1994) 15 ILJ 65 (A) (“the PACT case”) Goldstone, JA at 75(b)-(c) quoted with approval the from Plaschem (Pty) Ltd v CWIU (1993) 14 1000 (LAC) at 1006H-I that:

“When considering the question of dismissal it is important that an employer does not act over-hastily. He must give fair warning or ultimatum that he intends to dismiss so that the employees involved in the dispute are afforded a proper opportunity of obtaining advice and taking a rational decision as to which course to follow. Both parties must have sufficient time to cool off so that the effect of anger on their decisions is eliminated or limited.”

see also Paper Printing Wood & Allied Workers Union & others v Tongaat Paper Co. (Pty) Ltd (1992) 13 ILJ 393 at 398(b) to 399(a).

9. In the PACT case at page 76(b) Goldstone JA had the following to say about the ultimatum issued in that case:

“In my judgment a fair ultimatum in the circumstances of this case should have been of sufficient duration to have enabled

(a) PACT to have ascertained what had gone wrong and caused the employees to behave as they did either by direct enquiry from the employees, the shop stewards’ Motau or some other representative of the trade union;

(b) The employees time to cool down, reflect and take a rational decision with regard to their continued employment, and for that purpose to seek advice from their trade union.” (At 76B)

10. In Liberty Box and Bag Manufacturing Co (Pty) Ltd v Paper Wood and Allied Workers’ Union (1990) 11 ILJ 427 ARB the following were regarded as elements of a fair ultimatum to striking workers:

(a) the ultimatum must be communicated to the strikers in clear, unambiguous terms, in a medium understood by strikers.

(b) the terms of the ultimatum should state what is demanded of the strikers, when and where they are required to comply and what sanction will be imposed if they fail to comply with the ultimatum.

(c) sufficient time, from the moment of giving the ultimatum, must elapse to allow the workers to receive the ultimatum, digest and reflect upon it, and to respond thereto by either compliance or rejection.

11. This aspect of the Liberty Box decision was approved by the Labour Appeal Court in the PACT decision and in Henred Freuhauf Trailers (Pty) Ltd v NUMSA (1992) 13 ILJ 593 (LAC).

Fair reason for the dismissal

12. Gangerdine and Noel did not dispute the respondent’s version that employees downed tools in the morning of 5 November 1995. They denied that they participated in this industrial action. This denial does not justify or defend the industrial action itself. It was not disputed that during the course of the morning at about 8:15 to 08:30 respondent issued an ultimatum to striking employees. This ultimatum read:

“You must return to work by 9:00 a.m 5 November 1997 if not you will be dismissed.”

It appears that after the ultimatum was handed to the strikers they gave Mr Odendaal (who had handed out the ultimatum) a piece of paper to give to Henebrey the site manager. The note’s contents are:

“Grievances

1. Welders want R 42 hr.

2. Pipe Fitters want R 38 hr.

3. B/ Makers want R 38 hr.

4. S/ Skilled want R 20 hr.

5. A assistants want R 15 hr.

6. Workers want answer by 9:00 a.m.”

The nature of the contents suggests that a wage demand of sorts was intended though Gangerdine pleaded ignorance of the note.

13. I accept that when the industrial action started Gangerdine and Noel were performing their normal duties. It is not clear when Gangerdine left his duties to go to where the striking employees were gathered. He testified that when he did this it was to attend a meeting with respondent’s management to resolve the strike. He was however seen standing on a trolley and addressing the striking workers. It is however common cause that at some stage during the course of the strike Gangerdine left the strikers and went back to his workplace. He said it was at this stage that he informed the Mr Henebrey that he was not part of the strike. He however testified further that he had gone to fetch his bag and not to continue with his normal duties. He returned to the strikers and stayed with them until they were dismissed at 10H30.

14. It is also common cause that after the ultimatum was issued and before the dismissal decision was taken, Mr Dladla an official of NUMSA spoke to the strikers requesting them to get back to work. The strikers failed to return to work.

15. Thereafter Mr. Dladla and the worker representative committee requested a meeting with management. At this meeting management informed Gangerdine and the other members of the Worker representative committee that they must all get back to work before any discussions could proceed. This also failed to induce the strikers to get back to work. It was at this stage that the dismissal notice was issued to the strikers. Gangerdine dit not offer any justification for the strike save to deny participation and to state that he was in a meeting with management trying to resolve the strike.

16. In NUMSA v Elm Street Plastics (1989) 10 ILJ 328 (IC) the industrial court held that a court must consider whether there are factors which suggest that the strike is legitimate or acceptable. If such factors are present the court will be inclined to protect the strikers from dismissal. In NUMSA v Tek Corporation Limited (1990) 11 ILJ 721 (IC) the court found that the following circumstances in that case rendered an illegal strike, “acceptable”:

1. The prime cause of the strike was the consequence of an unfair labour practice by the company.

2. The workers held a reasonable and genuine fear that the unfair labour practice would spread;

3. The employees perceived the first respondent to be engaged in a concrete and deliberate campaign to undermine the union, and this perception had to be considered by the court as its existence impaired the fabric of collective bargaining.

4. Before going on strike, there had been genuine attempts by the employees to negotiate the cause of their grievances with the respondent, which attempts had proved fruitless.

17. My view is that there was no legitimate reason for the strike on 5 November 1997 to warrant protection. It was not in response to anything initiated by respondent. No evidence was given in these proceedings suggesting any reason at all why employees embarked on that strike. No evidence was tendered suggesting that the strikers complied with or attempted to comply with the Act before they embarked on this strike. In fact this strike followed the same pattern as those of 23 October 1997 and 4 November 1997. This was so despite respondent’s efforts at educating the workers committee, of which Gangerdine was a member, on 27 October 1997 of the procedures set out in the Act in particular in relation to industrial action and the detrimental consequences of unprotected industrial action.

Fair procedure

18. When the time set out in the ultimatum expired with no compliance therewith by the strikers the respondent was entitled to dismiss the strikers. Respondent could not be expected to do anything else under the circumstances. Whilst the ultimatum given might be viewed as being of very short duration, it cannot be viewed in isolation. The conduct of the strikers on 5 November 1997 should be viewed as forming part of one event which started on 23 October 1997 and continued on 4 November 1997 until 5 November 1997. Viewed in this light it is clear that the employees were aware from 23 October 1997 that respondent would not tolerate their conduct and that persistence with that conduct could lead to their dismissal . On 23 October 1997 the strikers returned to work after a third ultimatum was issued. On 24 October 1997 the respondent issued a notice to all employees which left no doubt that such conduct was not acceptable and could lead to serious consequences. This notice read as follows:

“The company would like to re-emphasis that the work stoppage that some of you took part in yesterday was illegal and that your action did not, in any way, comply with the provisions of the LRA. (Labour Relations Act). The company cannot tolerate such action and should you participate in action like this again the company will take strict disciplinary action which could include dismissal. You must also understand that you may still be under probation and you could be, unnecessarily, placing your continued employment in jeopardy by future unprocedural actions.”

19. The strike of 4 November 1997 was also abandoned after a second ultimatum. The very next morning 5 November 1997 workers embarked on another strike. The respondent, correctly, considered this strike as a continuation of the strike of the previous day hence it issued what it termed a third notice which gave the strikers 30 minutes to return to work. The ultimatum issued on 5 November 1997 was respondent’s reiteration of its attitude towards the conduct of the strikers and the steps it would take should they persist. The procedure followed by the respondent on 5 November can therefore not be faulted.

20. Gangerdine argued that respondent should have extended the ultimatum when requested to do so by the worker representative committee. It is correct that the respondent did not take the decision to dismiss at 9:00 am as stated in the ultimatum. The decision to dismiss was taken at 10:30 i.e two hours from when the ultimatum was first issued. This was more than sufficient time to afford the strikers an opportunity to reflect on their situation. The strike by employees on 5 November 1997 was not the first one in a short space of time. Employees were aware from previous ultimata that the respondent would not tolerate their conduct. It cannot be expected of respondent to have extended the ultimatum further under the circumstances. In particular respondent received no indication from Gangerdine or any other members of the worker representative committee that an extension of the ultimatum would result in the workers returning to work. In fact no evidence was adduced in these proceedings suggesting that the respondent was given a reason for the strike in those discussions. Having endured similar conduct on two previous occasions respondent cannot therefore be faulted for refusing to extend the ultimatum further and it was perfectly entitled to dismiss on non compliance with that morning’s ultimatum.

21. The facts concerning Noel however deserve further consideration. He testified that when the strike began on 5 November 1997 he had had enough of this “nonsense”, as he put it. He mentioned that income was lost as a result of the two previous stoppages and nothing was achieved. He decided that he would not take part in the stoppage and would go home. It was not disputed that he reported to his supervisor that he was going home. Mr Henebrey confirmed that Noel informed him that he was going home to which he responded by saying Noel must inform his supervisor. That response on its own must have conveyed to Noel that it was in order for him to go home if he informed his supervisor. Had Mr Henebrey told him that he did not have the permission to go then the situation would have been different.

22. I accept Noel’s testimony that when he reported for work the next day he could not gain entry. Mr Henebrey confirmed that the security guards at the gate were given instructions not to let any dismissed strikers to come into the premises. It is clear that respondent viewed Noel as a dismissed striker and hence he was denied entry.

23. It is clear therefore that Noel was not on strike and should not have been treated as one of the strikers. It was argued by Mr. Todd, for the respondent, that Noel had no acceptable reason to leave as not all employees went on strike. Whilst this may be so Noel did not go on strike nor did he desert his post without notice. It is clear that he frowned upon the strike action and felt that it was better for him not to join the strikers but to go home having informed management of his intentions. My view is therefore that Noel should not have been treated as a striker and it follows that I find his dismissal to be unfair.

24. As regards Gangerdine I find that he participated in the strike on 5 November 1997 and further failed to comply with an ultimatum to go back to work. The other applicants did not testify and Gangerdine did not explain why they did not do so, nor did he request any indulgence or assistance to have them testify. In fact it appears that he never intended to call them as witnesses. He further said nothing in particular, about them during his testimony. He tried during his cross examination of Henebrey to make out a case regarding Desmond Payne. The court did not permit him to do this as he had led no evidence regarding Payne, nor had Payne testified. The statement of case also contained no allegations regarding Payne’s situation on 5 Novemnber 1997. Nothing is also mentioned regarding the other applicants.

I therefore find that the dismissal of the applicants save for David Noel was not unfair.

25. As far as relief to Noel is concerned no evidence was led suggesting that reinstatement was not available as an option. In fact Noel testified that he was still interested in working for the respondent. In view of the fact that Noel should not have been dismissed I find it appropriate that he be reinstated in the respondent’s employ on the conditions as they presently prevail in the job category occupied by Noel. I further find it appropriate that David Noel be paid compensation equivalent to Ten (10) months’ salary based on his salary at the time of his dismissal. This amount should be paid to Noel within 10 days.

26. Costs

The respondent was largely successful in these proceedings as only one out of six applicants was successful. Under normal circumstances costs would follow the result. In this matter however I am of the view that it would be proper and fit if I made no order as to costs.

Therefore the order I make is :

1. The dismissal of the applicants save for David Noel was not unfair.

2. David Noel is reinstated in the respondent’s employ on such terms as presently prevail to Noel’s job category.

3. The respondent is ordered to pay David Noel compensation totalling ten (10) months salary calculated at his rate of pay at the time of his dismissal.

4. There is no order as to costs.

MLAMBO J.

Date of the hearing: 7 to 9 September 1998.

Date of judgment: 27 October 1998

For the applicants: Mr Cyril Gangerdine.

For the respondent: Mr Todd of Bowman Gilfillan Hayman Godfrey Incorporated.

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