South Africa: Labour Court

You are here: SAFLII >> Databases >> South Africa: Labour Court >> 2008 >> [2008] ZALC 134

| Noteup | LawCite

Professional Transport Workers Union (PTWU) v Fidelity Security Services (JS10/07) [2008] ZALC 134; [2009] 2 BLLR 157 (LC) ; (2009) 30 ILJ 1129 (LC) (15 October 2008)

Download original files

PDF format

RTF format

IN THE LABOUR COURT OF SOUTH AFRICA

HELD AT JOHANNESBURG

CASE NO: JS10/07

In the matter between:

PROFESSIONAL TRANSPORT WORKERS

UNION (PTWU) APPLICANT

And

FIDELITY SECURITY SERVICES RESPONDENT

JUDGMENT

Molahlehi J

Introduction

The applicants who are members of the Professional Transport Workers Union (PTWU), were dismissed by the respondent for participating in an unprotected industrial action. In this regard, the applicants contended that the unfairness of their dismissal arose from the fact that they were not given an ultimatum before their dismissals.
The applicants contended that they stopped working on two occasions because the respondent unilaterally implemented changes to the roster system at the site where they were assigned. In their statement of case the applicants alleged that their dismissals were unfair because:

The respondent failed to issue an ultimatum to them with the result that they were not given an opportunity to consider and reflect upon their actions and the consequences thereof if they did not return to work alternatively continued with work.
They were not aware that the employer intended to change the duty roster system or the 5-2 system that was agreed collectively to by the parties. The respondent failed to follow a proper procedure that was established in a collective agreement.
They were not aware that the respondent intended to ultimately dismiss them for engaging in an unprotected strike, and therefore they were not given an opportunity to resume work.
Failure to issue an ultimatum rendered their subsequent dismissal unfair.
The respondent failed to contact the first applicant during the course of the work stoppages with the result the first applicant was not able to properly advice them of their obligations in terms of their employment contracts, and their rights in terms of the Labour Relations Act.
The unilateral changing of the duty roster system for them was the sanction that the respondent elected to implement and was the manner in which the respondent responded to the strike. This was unfair in the circumstances in that they regarded it as constituting double jeopardy.

The applicants further contended that the dismissals were substantively unfair in that the respondent failed to warn the applicants of the possible consequences of their action if they were to embark on a strike action after the work stoppage on the 31 July 2006. The strike action could have been avoided according to the applicants, if the respondent had engaged applicants before making a decision to change the roster.

Background facts

It is common cause that the applicants engaged in a work stoppage on the 31^st July and 2^nd August 2006. It is also common cause that the respondent changed the working roster of the applicants.

The applicants were charged with the following charges:

“1. For participating in an illegal unprotected work stoppage on 31 July 2006 and on 2 August on the Country Bird Site.

2. Jeopardising a major contract of Fidelity Security Services, namely Country Bird through your actions.”

Issue for determination

The issues for determination in this case are as follows:

1. Whether the respondent issued an ultimatum to the second and further applicants on 31^st July and 2^nd August 2006, through the shopstewards, L Nthabalala and B Mabusha.

2. Whether the respondent unilaterally amended the terms and conditions of employment of the individual applicants.

3. Whether the procedure adopted by the respondent in the disciplinary enquiry was fair.

The case of the respondent

The respondent provided security services to Country Bird which commenced on 1 November 2005. The main obligation of the respondent in the services it provided to Country Bird was to ensure proper weighing of and stock control.
On 17^th July 2006 a meeting was convened between the respondent and Country Bird to discuss the issue of security services budget. After receipt of the budget which was emailed to the respondent on 18^th July 2006, it became apparent that there was a need for the respondent to restructure the services it provided to Country Bird.
Mrs Reyneke, testified that she arranged a meeting with two shop stewards representing SATAWU and the first applicant respectively, for the 27^th July 2006. The meeting did not take place because the two shop stewards did not turn up and the following day she addressed a letter to the security officers wherein she indicated that the purpose of the failed meeting was to discuss restructuring. She further indicated in the said letter that:

“As the client has requested that the changes take place urgently, I took it upon myself to draft a new roster for Day shift and Night shift for this site. You will notice that all current employees are still on the roster.

A new meeting will be called closer to the time when the new rosters must be drafted.

This roster will take effect on 01/08/2006.”

The restructuring entailed reducing the night shift from 7 (seven) to 4 (four) security officers. It was also indicated to the applicants that the restructuring was necessitated by the needs of the client. The applicants were clearly unhappy with the restructuring and on 31^st July 2006, instead of reporting at site they attended at Reyneke’s office. They refused to revert back to the site despite being told to do so. They insisted in presenting their demands which were capture in writing by Reyneke. There were 18 demands jotted down by Reyneke. The demand central to this matter read as follows:

“The maximum shifts should be 22 shifts and not less, this is company law.”

During the meeting where the demands were jotted down, Mr Boltz (Boltz) who had already been informed of the work stoppage contacted Reyneke and requested to speak to Mr Nthabalala (Nthabalala). Boltz informed Nthabalala during this telephone conversation that their action was wrong and that unless they returned to the site immediately disciplinary action would be taken against them.
After completing the list of demands made by the employees Reyneke undertook to revert back to them regarding the same in writing. This undertaking was overtaken by the subsequent work stoppage which took place a day or so thereafter.
On 2^nd August 2006 at about 5 pm the manager of Country Bird contacted the respondent and indicated that the security officers were standing around the site and not working. Reyneke then contacted Boltz who after speaking to Nthabalala advised that the situation was under control.
The second witness of the respondent was Boltz, the branch manager who testified about the function and the importance of the security officers for Country Bird, the respondent’s client. He testified that those of the security officers who were posted to access control were responsible for the incoming and out going stock including management of staff clocking in and out.
As concerning the work stoppage, Boltz testified, that he contacted Nthabalala, telephonically and informed him that their conduct was jeopardising the respondent’s contract with the client and that they should go back to work immediately. He informed Nthabalala that they should follow the procedure for dealing with grievance and should accordingly put their demands in writing and return to the site immediately.
The second work stoppage which was on 2^nd August 2006 in the evening, occurred at the change of the shifts. Boltz received a call from Country Bird informing him about the work stoppage. He then contacted Nthabalala and informed him that what they were doing was unacceptable and specifically informed him that the work stoppage was illegal and would be followed by a disciplinary action.
A meeting was convened with the union 3^rd August 2006. According to Boltz, it was agreed at this meeting that the issue of the work stoppages would not be discussed but the meeting would focus on the branch issues. The reason for not discussing the work stoppage at this meeting was according Boltz because the applicants were removed from the site and also disciplinary action was about to follow even though no formal notice were in this stage issued.
The testimony of Mr Naidoo (Naidoo), the group IR and the chairperson of the disciplinary hearing was that the disciplinary hearing was split between the SATAWU members and the first applicant’s members. He chaired the hearing concerning the first applicants’ members.
The defence of the applicants according to Naidoo was that they denied having participated in the work stoppages. He further testified that the applicants were represented by Mr Mabusha (Mabusha), an office bearer of the first applicant.
Naidoo conceded that the new roster introduced by the respondent reduced the security staff complements from 7 (seven) to 4 (four). The additional 3 (three) would, according to him, report for work as what is referred to as “spare”, and would have been redeployed, within 7 (seven) days. He further testified that because of the growing business opportunity the respondent would have been able to absorb the “spares”.
Mr Greig (Greig) of Country Bird, testified and made reference to an incident of theft which took place some time back. The security officers of the respondent were suspected of involvement in the incident. He also testified that Country Bird changed its security services budget resulting in the reduction in the number of security officers required on the site. He also testified about the telephone call he received from Nthabalala who wanted to discuss with him the problems they were having and that he should speak to the respondent’s management about these problems.
Mr Peters (Peters), the operational manager, testified that during the work stoppage he spoke to Nthabalala and indicated to him that they should return to work. According, to him the employees demanded that he should sign the occurrence book before they could return to the duties. The employees demanded that Peters should indicate in the occurrence book that they would be paid, which he apparently did after being authorised to do so Boltz.
According to Peters, he received a phone call from Boltz during the meeting with the employees. After speaking to him the phone was handed to Nthabalala. Peters could not hear what the two were discussing. He further testified not recalling Nthabalala speaking to the other employees about the conversation he had with Boltz. Few minutes after speaking to Nthabalala, Boltz phoned Peters again and authorised him to sign the occurrence book as per his discussion with Nthabalala. Peters signed the occurrence book indicating that all the security officers would be paid. The employees went back to work after the occurrence book was signed.

The case of the applicants

The first witness of the applicants, Mr Mphandana (Mphandana), the national skill facilitator for the first applicant and a union official based in North West Klersdorp, testified that he had a number of dealings with the respondents regarding union matters both at the branch and head office level. Previously whenever the respondent had problems with members of the first applicant he would be contacted for assistance by the respondent. He also specifically had had dealings with Boltz on issues related to employees’ problems.
Mphandana further testified that the first applicant was never contacted by the respondent on 31^st July 2006, to indicate that there was a problem with members of the first applicant. The first applicant was also not informed about an ultimatum requiring the employees to return to work. The same applies to the incident of the 2^nd August 2006.
The issue of the work stoppages was not discussed at the meeting held on 3^rd August 2006, between the respondent and the first applicant. According, to Mphandana, Boltz indicated that he did not whish to discuss the issue of Country Bird, referring to the work stoppages, because it was still under investigation.
In relation to the disciplinary proceedings Mr Mphandana, testified that after presenting the evidence they were not given an opportunity to present closing arguments and evidence in mitigation. The chairperson according to him simply required the parties at the end of the proceedings to submit closing argument. He was not sure whether an appeal was ever lodged with the respondent.
The second witness of the applicants Mr Mabusha (Mabusha), a former full time shop steward at the Klergsdorp branch of the respondent confirmed the testimony of Mphandana that regular meetings were held with the respondent and would always attend for and on behalf of the respondent. These meetings were generally attended on behalf of the respondent by Reyneke and Boltz.
As concerning the events of the 1^st August 2006, Mphandana testify that Boltz phoned him and informed him that there was a problem at Country Bird, but did not specify the nature of the problem.
He attended the meeting of the 3^rd August 2006, where Boltz said that the issue of Country Bird would not be discussed when the union sought clarity on the issue. He further indicated that there was never mention of the ultimatum when Boltz phoned him on 1^st August 2006.
Nthabalala in his testimony explained that the reason for the work stoppages was because of the changes which the respondent had effected on the roster which resulted in the reduction in the security officers’ complement at Country Bird. In terms of the restructuring, the shifts were reduced to between 8 (eight) and 12 (twelve) hours. The problem that arose was because salary structure of the employees was based on the hours they worked and therefore the restructuring would have had a negative impact on their earning capacity.
The request from the employees to Reyneke was that she should respond to those grievances in writing. The expectation according to Nthabalala was that the response would be given by the time night shift commenced. There was no response by that time or the following day. The employee then decided not to resume work until their grievances were addressed.
On 2^nd August 2006, at the time of change over of the shifts, the day shift employees informed the others that they had been told that they would not be paid. At that stage the employees were insistent in the use of the old roster, in other words 7 (seven) employees reported for night shift.
Nthabalala denied having spoken to Boltz about the ultimatum ordering the employees to go back to work.

Analysis of evidence and arguments.

The respondent argued that it had been made clear to the employees that unless they returned to the site, disciplinary action would be taken against them. It was argued in this respect that Boltz did not consider it necessary to state what the consequences of the outcome of the disciplinary action might be because he did not deem it within his powers to determine the outcome of the disciplinary enquiry.
With regard to the change in the roster the respondent argued that it was changed pursuant to the demand made by the security officers and was accompanied by the memorandum dated 1^st August 2006, wherein it was explained that:

“This contract is currently restructured on client request due to implementation of various technological features…”

The memo went further to explain that if the restructuring was to affect the status of the employees’ contracts they would be informed accordingly.

As concerning what happened on 1^st August 2006, the applicant argued that, Boltz had phoned Mabusha and it was agreed during this telephone conversation that the employees would continue with the ordinary duties and the matter could be discussed latter. The respondent further argued that the denial of Mabusha that the employee would go back to work should be rejected, because he had conceded that he had advised Boltz to speak to Nthabalala when his mobile phone battery went flat and that on Mabusha’s own evidence the conversation had lasted for more than three minutes.
The case of the respondent in essence was that Boltz had issued the ultimatum to the employees to return to work through Nthabalala and that was done during a telephone conversation. It was argued that the denial of Nthabalala that no ultimatum was given should be rejected as being inherently improbable.
It is common cause that the applicants engaged in two unprotected industrial actions in that in embarking the work stoppages they did so without compliance with the provisions of section 64 of the Labour Relations Act 66 of 1995 (the Act). Thus the issue that needs to be determined is whether the respondent issued the applicants with an ultimatum and if so was it fair in the circumstances of this case.
In terms of Schedule 8: Code of Good Practice: Dismissal, the guidelines set out in the schedule firstly recognise that participation in a strike that does not comply with the provisions of chapter IV constitutes misconduct. The code further recognises that participation in an unprotected strike, like any other misconduct, does not always deserve dismissal. The substantive fairness of dismissal in cases of unprotected industrial action has to be determined in the light of the facts of the case, including -

“(a) the seriousness of the contravention of this Act;

(b) attempts made to comply with this Act; and

(c) whether or not the strike was in response to unjustified conduct by the employer.

It is further provided in the Code of Good Practice item 6(2) that:

“(2) Prior to dismissal the employer should, at the earliest opportunity, contact a trade union official to discuss the course of action it intends to adopt. 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. The employees should be allowed sufficient time to reflect on the ultimatum and respond to it, either by complying with it or rejecting it. If the employer cannot reasonably be expected to extend these steps to the employees in question, the employer may dispense with them.

The purpose of an ultimatum is to afford the striking employees an opportunity to consider their position before action which may have dire consequences is taken against them. See National Union of Metal Workers Union of SA & Others v Elm Plastics Pty Ltd (1989) ILJ 328 (IC).
The first inquiry in the determination of the fairness of dismissals of strikers entails an investigation into the fairness of the ultimatum issued against the strikers. The second inquiry entails the determination of whether the dismissal pursuant to the ultimatum was fair. In the evaluation of the fairness of the dismissals following the issuance of the ultimatum, the following factors are to be taken into account; (a) the response of the employee on receipt of the ultimatum, (b) were there any attempts at compliance with the ultimatum by the employees, (c) the explanation for non compliance by the employee, and (d) the circumstances that prevailed between the issuance of the ultimatum and the dismissals. See National Union of Metalworkers of SA v GM Vincent Metal Sections (Pty) Ltd[1999] 2 All SA 358 (A) and W.G Davey (Pty) Ltd v Metal Workers Union of SA (1999) 20 ILJ 2017 (SCA).
In compliance with the principles of fairness an ultimatum must:
There is authority that an ultimatum must be issued with the sole purpose of enticing the employees to return to work. See ICS Groups v National Union of Food Beverage and Allied Workers Union & others ( 1998) 19 ILJ 775 (LAC).

Turning to the facts of the present case, it is common cause that as concerning the first work stoppage the employees returned to work soon after Reyneke jotted down their grievances and promised to revert back.
In relation to the second work stoppage, there are two conflicting versions as to whether or not the respondent issued the employees with an ultimatum that they should return to work. The version of the respondent which is disputed by the applicants is that it issued the ultimatum to the employees through their shop steward, Nthabalala over the telephone after speaking to Peter. The probabilities do not favour the version of respondent. If indeed, Boltz issued an ultimatum over the phone to Nthabalala it is surprising that he never informed Peter of this fact either immediately after speaking to Nthabalala or for that matter when he called Peter the second time. This has to be understood in the context in which Peter, was the manager who would have informed Boltz if there was compliance with his ultimatum. Peter also testified that Nthabalala never communicated to the other employees any ultimatum communicated to him by Boltz. It was also not clear from the evidence of Boltz as to what the exact terms of the ultimatum were. There is further no evidence as what time frame was given for the employees to return to work. In this regard it should be noted that each of the stoppages did not last for a full day- the one did not exceed two and a half hours. In the one instance the applicants returned to work as soon as the occurrence book was signed, guaranteeing that the employees would be paid their salaries even those who were not supposed to have been on duty in terms of the new roster.
It cannot be denied that the restructuring process was a sensitive issue. It is clear that from the time that the issue was introduced, tempers and tension started running high on the side of the employees. They left the site, met with Reyneke and presented their various grievances including the restructuring process. It should have become apparent at that stage that there was a need to involve their union which had a formal relationship with the respondent and had previously been approached by the respondent whenever employees’ problems arose. The need to involve the union became even much clearer with the second work stoppage. It is not clear in the light of the formal relationship that existed between the respondent and the first applicant and the established regular meetings that both parties had why the respondent failed to involve the first applicant in the problem that had arisen as a result of the restructuring. In fact in my view the first applicant should have been involved right from the beginning of the restructuring process. This would have probably avoided the reaction that followed the announcement of the decision to implement the restructuring.
Thus even though the applicants did not follow the required procedure as set out in section 64 of the Act, before embarking on their work stoppages, the respondent contributed significantly in their negative reaction that resulted in the work stoppages. It is also apparent that having created this situation and having failed to involve the first applicant in the restructuring process, the respondent further failed to issue an ultimatum demanding that the applicants should return to work.
The ultimatum would have been unfair even if it was to be concluded that it was issued to Nthabalala during the telephone conversation he had with Boltz. The ultimatum would have been unfair because its terms would have not been clearly communicated, there is no evidence as to the time provided as to when the employees were expected to comply with the terms of such an ultimatum and the respondent failed to involve first applicant as the representative union into attending and assisting its members with the approach they should have adopted in dealing with their grievances.
In the light of the above, it is my view that the dismissals of the applicants were unfair alternatively too harsh a sanction regard being had to the following factors:
There can be no doubt that the applicants engaged in an unprotected industrial action and whilst it has been found that the dismissals were unfair there is a need for the Court to show its disapproval and discourage this kind of conduct on the part of the employees. In general the Court should in cases of this nature not grant the primary relief of reinstatement as a sign of showing its disapproval of this kind of behaviour. I am however of the view that the general approach does not apply in the present instance regard being had to the factors referred to above and the totality of the evidence presented. It is therefore my view that in the circumstances there is no reason why the primary relief of reinstatement should not be granted.
In relation to the disciplinary inquiry, I accept the version of the applicants that the procedure followed by the chairperson was unfair in that he failed to afford the applicants an opportunity of making representation before concluding that they were guilty as charged.
In the circumstances of this case fairness does not require that cost should follow the results in particular regard being had to the fact that at the beginning of the proceedings some time was spent on an irrelevant issue arising from the contention of the applicants that their conduct fell within the ambit of a protected industrial action.
In the premises I make the following order:

__________________

Molahlehi J

Date of Hearing 4^th March 2008

Date of JUDGMENT 15^th October 2008

Appearances

For the Applicant: Adv Hardy

Instructed by: Allardyce & Partners

For the Respondent: Adv Hulley

Instructed by: Blake Bester Inc.