South Africa: Labour Court

[59] In consequence of the above finding I am required to determine the applicants’ claim in the alternative that the dismissal of the individual applicants was procedurally and substantively unfair as contemplated by section 188 (1) of the LRA. In this regard the LRA guarantees the right to procedural and substantive fairness to employees engaging in unprotected strike action. Section 68(5) of the LRA provides as follows:

“ Participation in a strike that does not comply with the provisions of this Chapter, or conduct in contemplation or in furtherance of that strike, may constitute a fair reason for dismissal. 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 provides as follows in item 6:

1. Participation in a strike that does not comply with the provisions of Chapter IV is misconduct. However, like any other act of misconduct it does not always deserve dismissal. The substantive fairness of dismissal in these circumstances must be determined in the light of the facts of the case, including -

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

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

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

(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 Code must be considered in the context of section 188 of the LRA which provides :

(1)A dismissal that is not automatically unfair, is unfair if the employer fails to prove –

(a)that the reason for dismissal is a fair reason-

(i)related to the employee’s conduct or capacity;

(ii)based on the employer’s operational requirements; and

(b)that the dismissal was effected in accordance with a fair procedure.

(2)Any person considering whether or not the reason for dismissal is a fair reason or whether or not the dismissal was effected in accordance with a fair procedure must take into account any relevant code of good practice issued in terms of this Act.”

Substantive fairness

Submissions

[60] The applicants submit that the dismissals were substantively unfair, inter alia, for the following reasons:

1. Bertrand failed to afford those employees present an adequate opportunity to take counsel from SACTWU and to assess their conduct in the light of that advice. Under the circumstances, the harm caused by the dismissal of those employees was disproportionate to the misconduct being perpetrated.

2. Bertrand failed to allow those employees present sufficient time to cool down, reflect on the advice given by SACTWU and a reasonable and practical time within which to return to work.

3. Bertrand failed to take into account that the issue in dispute was a matter of legitimate concern to the employees.

4. Bertrand failed to take into account that the employees were striking in the bona fide but mistaken belief that the strike was protected.

5. Bertrand ought to have implemented less severe forms of discipline, such as a final written warning.

6. Bertrand failed to afford the employees a hearing.

7. The dismissal of some employees was substantively unfair in that Bertrand applied the principle of collective guilt and failed to identify which employees had participated in the strike, in circumstances in which it was obliged to do so.

[61] In determining the question whether a strike dismissal is fair or not, Ms Ralehoko, relying on Grogan² contended that two questions must be answered i.e. whether the ultimatum was fair, and whether the dismissals pursuant to the ultimatum were fair. Both questions should be answered in the negative in respect of the ultimata of 22 September 2008, she submitted. Firstly, relying on Plaschem (Pty) Ltd v Chemical Workers Industrial Union (1993) 14 ILJ 1000 (LAC) and Paper Printing Wood & Allied Workers Union & Others v Tongaat Paper Co (Pty) Ltd (1992) 13 ILJ 393 (LC), it is clear that the individual applicants were not given adequate time to reflect on the ultimata and act on them. It was not disputed that when they arrived at Bertrand’s premises on that day, they were unaware that SACTWU would be addressing them about the legal advice obtained to suspend the strike. They understood the strike to be legal in that all procedural requirements had been complied with by their union. Bertrand issued the first ultimatum while Xola was busy addressing the individual applicants. The first ultimatum was issued barely half an hour after he arrived³ (i.e. at about 9h00), and this can hardly be considered reasonable and adequate time within the individual applicants could to take advice, reflect on it, cool down and make a decision as whether to comply with the ultimatum. In these circumstances, the ultimatum was not intended to persuade the individual applicants to return to work, and was insensitive and unreasonable. Moreover, the consequence of issuing the ultimatum was that workers became emotional and confused.

[62] Secondly, Ms Ralehoko submitted that it was unreasonable to expect any employee who wanted to comply with the ultimatum to do so at the time. The evidence of Mabelu was that the atmosphere was highly charged and it would have been dangerous if not stupid for any employee to remove themselves from the crowd : Performing Arts Council of the Transvaal v Paper Printing Wood & Allied Workers Union Others (1994) 15 ILJ 65 (A). In any event, there was no reason why Bertrand could not have extended the ultimatum until the next day. Those individual applicants who contemplated complying would have found it easier and less risky to do so then: Performing Arts Council (supra) at p217 para D).

[63] A further reason advanced by the applicants for the ultimata being unfair was that the grounds on which it was contended that the strike was illegal were technical, and the individual applicants were confused about the technicalities of bargaining levels. Mkhaliphi, a veteran of thirty years in the industry and who had been involved in the negotiations since the inception of the NTBC, himself used the terms “section” and “sub-sector” interchangeably and testified that this had never been an issue during negotiations. The uncontested evidence of Mabelu was that after the address by Xola, the employees were confused and could not understand how the strike could be unprotected when all procedures had been followed and Bertrand had participated in the balloting and conciliation process. This dilemma was understandable given that the wild cat strike of July had been abandoned to ensure that procedural requirements were met.

[64] In addition, it was submitted that, in dealing with this matter Bertrand adopted a rigid and inflexible approach that the hour requested by CTH would be sufficient to convince the individual applicants to return to work. Clearly no one was in a position to say with certainly how much time would be required to address them in order to persuade them to suspend the strike, and the attorneys had simply provided an estimate of the time required, and followed it with a revised undertaking to suspend as soon as was practical after it had been instructed that most of the individual applicants had left the area that Friday.

[65] The failure by the normal day shift and afternoon shifts to comply with the ultimata despite being aware of the dismissal of the morning shift, was also understandable and reasonable. Mabelu testified that after the dismissal of the morning shift, the later shifts resolved not to return to work in solidarity with their dismissed colleagues.

[66] Lastly, it was common cause that certain individual applicants returned to the premises after their dismissals. Mabelu testified that they could not believe that they had actually been dismissed and still considered themselves to be employees of Bertrand. Mabelu’s evidence when he was pressed on the issue was that a change of mind was quite possible, although they were concerned about the present situation. This version stands uncontested and it was submitted on this basis that SACTWU was opposed to the continuation of the strike and might have succeeded in ultimately influencing its members to work after they had been given an opportunity to cool down. Insofar as Bertrand blames Xola for not requesting more time if he was of the view that a change of mind was possible, Ms Ralehoko submitted that Xola’s evidence was that the final ultimatum, issued while he was still addressing the members, signaled Bertrand's intention to dismiss as soon as possible. In any event she submitted, his failure to request more time does not detract from the fact that the individual applicants were not given adequate time within which to take counsel, reflect on legal advice and decide their next course of action. Bertrand was obliged to give them sufficient time to reflect on the ultimatum and should have acted with restraint prior to dismissing given that the job security of so many employees was at stake. In these circumstances, three hours could hardly be considered as sufficient time: Performing Arts (supra) p217 para E and Doornfontein Gold Mining Co Ltd v NUM & Others (1994) 15 ILJ 527 (LAC) and WG Davey (Ply) Ltd v NUMSA (1999) 20 ILJ 2017 (SCA).

[67] A further factor which should be taken into account to determine whether the applicants were afforded reasonable time, Ms Ralehoko submitted, is that Bertrand gave the applicants the impression that they could engage in strike action until a day before the strike was scheduled to commence. It attended the conciliation, received the certificate of outcome and participated in the balloting and now seeks to contend that it did so reluctantly. This argument, built with the benefit of hindsight, was belated and opportunistic and should be rejected as such.

[68] Mr Wade submitted that, in determining this issue, regard should be had to the purpose of an ultimatum in the strike context. In Professional Transport Workers’ Union and others v Fidelity Security Services (2009) 30 ILJ (LC) at para [41] the court held as follows:"[T]he 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." Because of its intended purpose "such an ultimatum is required to give the strikers a sufficient opportunity to consider the matter and consequences of non-compliance with the ultimatum as well as to seek advice before taking the decision to comply or not to comply with the ultimatum". See Karras t/a Floraline v SASTAWU and others [2001] 1 BLLR (LAC) at [36]. Thus what the law requires is that the ultimatum should be communicated to the striking employees, in clear and unambiguous terms and should set out what is required of them, including the time-frames within which they are expected to comply, and should indicate the possible consequences of a failure to comply: NUMSA v G M Vincent Metal Sections (Pty) Ltd 1999 (4) SA 304 at para [21].

Evidence

[69] Grogan points out the factors to be considered in assessing the fairness of an ultimatum to include the developments that led to the decision to issue it, the terms of the ultimatum and the time allowed for compliance.⁴ This is a question of fact dependant upon a range of issues, and can only be determined once an analysis of the evidence led in regard to the circumstances leading up to the issue of the ultimatum is undertaken.

[70] Xola vigorously denied that the problems arose because he had arrived late on Monday 22 September, and testified that the time of arrival had been agreed with Van Tonder (the Managing Director of Bertrand) the previous Friday, because he had to drive three hours from Port Elizabeth. Van Tonder had suggested, in jest, that he should then depart at 3h00 to be on time. He arrived at 8h30 and the meeting commenced around 8h35 or 8h40. The strike had by then gained momentum and the individual applicants could not understand why it had to be suspended. The technical detail took time to explain and the meeting was interrupted by the issue of the final ultimatum, which a SACTWU official then read out loud. He did not consider the premature issue of the ultimatum to renege on the agreement he had with Van Tonder, but viewed it simply as an interruption. He was at a loss to provide a credible explanation for why he did not simply request more time if indeed this would have assisted the process. He ultimately sought to suggest that time was not requested as it was apparent to him that Bertrand was intent on "rushing" to a dismissal. During the course of his cross-examination it appeared that the alleged telephone discussion with Van Tonder took place on the Monday morning whilst Xola was en route from Port Elizabeth, not on the previous Friday. Despite Xola’s late arrival (he should have arrived at the premises between 06h00 and 07h00 as arranged) the respondent’s attitude was unambiguously that the union would have been given more time had this been requested. It is highly improbable that Xola would not protest when, on his version, Bertrand proceeded to issue the first ultimatum while he was still addressing the individual applicants. It exceeds the bounds of imagination that he would sit calmly by and simply capitulate while the employer proceeded to commit such a grossly unfair act. In any event, whether or not Xola’s version on the agreement with Van Tonder is accepted does not alter the material fact that the undertaking to suspend had already been given by the union’s attorneys the previous Friday.

[71] It is therefore not correct to contend, as Ms Ralehoko seeks to do, that the first ultimatum was issued about half an hour after Xola began addressing the workers at 8h30. It appears to have only been signed by the respondent at 9h10 and Xola’s conversation with Kirchmann occurred at about 10h41 after the ultimatum had been read. It would appear then to have been read after 10h00. Kirchmann’s version was that during the telephone conversation (while Xola was still on the premises), Xola informed him that he had read the ultimatum issued to the morning shift and they “had elected not to heed the ultimatum and would not be returning to work.” Kirchmann recorded this in a contemporaneous file note. He enquired from Xola whether more time would assist and the latter replied that he did not believe so as the individual applicants had made up their minds. He informed Xola that the prospect of dismissal was very real. Xola had agreed with him that it was a sad day when the dismissal of over 200 workers could not be avoided. Xola then left the premises to return to his office. Kirchmann’s file note records that Xola said he could not take the matter any further. Kirchmann testified that Bertrand would not have hesitated to allow more time had this been required. He said: “We are not in the business of firing people. The strike affected the business but they needed a fair opportunity to digest and understand what was going on. It wasn’t a question of confusion and misunderstanding – they had made up their minds”. Kirchmann’s evidence was furthermore that he had a telephone conversation with Jason Whyte of the applicants’ attorneys at about 9h25, which he again recorded in a contemporaneous file note. This occurred while Xola was still addressing the individual applicants. It was conveyed to him by Whyte that Xola understood the gravity of the situation and was attempting to persuade the individual applicants to return to work but was encountering difficulties.

[72] After the issue of the ultimatum Xola was still on the premises and it would have been open to him to seek more time from Kirchmann to persuade the individual applicants to return to work. It is common cause that he failed to do so. More importantly however, his explanation for this omission is simply nonsensical. Accordingly, his evidence that his discussion with Kirchmann was exceedingly short and he could therefore not request more time falls to be rejected in its entirety. It was not only plainly disingenuous, but the import of his evidence was at odds with the probabilities, and in particular with the patient attitude of the respondent up to that point. Xola testified that his discussion with Kirchmann was confined to him confirming that the workers had not returned to work after which Kirchmann said " we will have to do what we have to do”'. It is evidence which of course suggests that Kirchmann dishonestly fabricated his file note and his evidence. There was nothing preventing Xola from prolonging the telephone conversation if he can be believed that the conversation was too short to discuss an extension of the undertaking or additional time to address his members. Nor indeed was he prevented from calling Kirchmann back if the conversation was prematurely terminated by Kirchmann. On the probabilities the conversation was short because Xola had stated that the individual applicants had decided not to heed the ultimatum and this, as far as he was concerned, was the end of the matter. It would suggest that he was of the view that there was no prospect that they would change their minds and suspend the strike as had been agreed. Xola was also not a credible witness. He was hesitant and evasive and appeared at most times to be uneasy. His evidence would appear to have been plainly fabricated in order to conceal the fact that he had for all practical purposes informed Kirchmann that the union was powerless to bring an end to the strike.

[73] Kirchmann said further that at no stage after the issue of the final ultimatum or dismissals did the union or its attorneys allege that the individual applicants had been confused or that insufficient time had been afforded to consult with them on the morning of 22 September. Although he conceded in cross examination that there could have been room for confusion regarding the technical terms concerning bargaining levels authorised by the Constitution, he said that all the applicants needed to understand was that their union and attorneys had advised that they suspend the strike as there was a possibility of dismissal if they failed to comply. It appeared that the individual applicants had determined not to heed the advice of their union and attorneys. The impression he got was that that SACTWU did its bit to persuade the individual applicants to suspend the strike and was dismayed at their attitude. His understanding was fortified by developments afterwards when he invited SACTWU to indicate if Bertrand had acted unfairly and received no response.

[74] Xola’s evidence must also be rejected on the probabilities for the following reasons: despite his position in the union he did not know whether dismissal could follow as a logical conclusion from a final written warning for the same conduct; and he was unable to say whether the individual applicants understood that they could be dismissed if they went on strike again after the final warnings issued pursuant to the July strike. His version was moreover completely at odds with that which was put to Arnold during the course of his cross-examination.

[75] Mr Wade submitted that it is clear from the evidence that the individual applicants reacted to the final ultimatum with absolute disdain and disinterest. In so doing they blatantly ignored the advice of both their trade union and their attorneys, and the undertaking made on their behalf. They moreover advanced no pleaded reason as to why they were justified in persisting in their apparently belligerent refusal to work. If indeed it is correct that they were confused about the bargaining levels contemplated in the Constitution, then there is no reason why they could not simply have asked for more time for this to be explained. On the facts it is clear that this was not a genuine concern, and in any event it was only raised ex post facto in the trial. Moreover, if Xola had any inkling that the conduct of his members could be attributed to simple confusion, it would have been negligent for him as a senior trade union official to not seek more time to explain the circumstances to them, and if this had been refused, vehemently challenged or at the very least placed the refusal on record at the time.

[76] At a more elementary level, however, Mr Wade submitted that Xola's version was not even put to Kirchmann during his cross-examination. What was put to him was that the individual applicants would deny that they had instructed CTH and/or SACTWU in regard to the undertaking to suspend. Also, it was put to him that Xola would testify that he had given his attorneys the NTBC Constitution and the first ultimatum, and that it was apparent from the undertaking and the subsequent concession that the strike was unprotected that they had not properly considered these. Mr Wade submitted that in considering the material issues left unchallenged in the cross examination of Xola, regard should be had to the legal principles stated in Small v Smit 1954 (3) SA 434 (SWA) at 438:

"It is, in my opinion, elementary and standard practice for a party to put to each opposing witness so much of his own case or defence as concerns that witness and if need be to inform him, if he has not been given notice thereof, that other witnesses will contradict him, so as to give him fair warning and an opportunity of explaining the contradiction and defending his own character. It is grossly unfair and improper to let a witness' evidence go unchallenged in cross-examination and afterwards argue that he must be disbelieved. Once a witness' evidence on a point in dispute has been deliberately left unchallenged in cross-examination and particularly by a legal practitioner, the party calling that witness is normally entitled to assume in the absence of notice to the contrary that the witness' testimony is accepted as correct." (See also, President of the Republic of South Africa & others v South African Rugby Football Union & others 2000 (1) SA 1 (CC) at paras 61-63; SA Nylon Printers (Pty) Ltd v Davids [1998] 2 BLLR 135 (LAC) at 137 - 138A; and Masilela v Leonard Dingler (Pty) Ltd (2004) 25 lLJ 544 (LC) at para 28).

Were the ultimata fair ?

[77] In my view, even if it can validly be contended that the individual applicants were confused about the bargaining levels and acted in the genuine belief that their strike was legal, they must at the very least have known that plant level strikes were an exception in the industry. Even if they did not understand the technicality of the sections and sub-sectors at which legitimate collective bargaining could occur, it is clear from the evidence of Mkhaliphi and Mabelu that, at the very least, they must have known that a legal strike could only be undertaken at Worsted level. In any event, any confusion about the status of the strike on the part of the first shift would have been dispelled by the time the final ultimatum to the subsequent shifts was issued. It surely would then have occurred to them that the spectre of dismissal stood large. However, even if it became apparent then, on the applicants’ case the subsequent shifts had decided that all the individual applicants should be dismissed in solidarity with one another.

[78] Accordingly, on the facts and in the light of the applicable authorities, it cannot be contended that the ultimata did not set out in clear and unambiguous terms what was expected of the individual applicants and what possible consequences would follow a failure to comply. Indeed the clear and consistent message of Bertrand, from the very inception of the dispute and at the very least from the first ultimatum of 17 September, was that the strike was illegal and that it (given the history of unprotected strikes at the plant) could result in dismissal. Nor can it be contended, in the light of the evidence led, that insufficient time was given to comply. Indeed even if there is some doubt that the final ultimatum provided a reasonable time within which the individual applicants could consider the union’s advice and decide how to proceed, the probabilities favour the respondent’s version of Xola’s frustration that his members had determined not to heed legal advice. In the circumstances, the ultimata were eminently fair and reasonable.

Other factors relevant to substantive fairness

[79] Ms Ralehoko made the following submissions on additional factors relating to substantive fairness:

(a) The issue is of legitimate concern: The concern of the individual applicants that their employer was paying them less than the minimum prescribed wage rate was legitimate. Although they were aware of this in 2007, it was almost a year later that they embarked on the unprotected strike in July and only later the strike of September 2008. The uncontested evidence of Mabelu was that the July strike was abandoned on the advice of SACTWU that procedural compliance was necessary. In embarking on the September strike the individual applicants were satisfied that the procedural requirements had been met but were then faced with the possibility that their strike may be illegal on account of a technicality. Any reasonable person in the position of a striking employee would have needed more time to understand the basis of the legal advice, reflect upon it and decide whether to comply with the ultimate or not. The individual applicants were not afforded this opportunity: Performing Arts Council of the Transvaal (supra) at para 26.

(b) Duration of the strike: The strike lasted for only three days, and Bertrand failed to lead evidence that the strikers sought to unfairly inflict maximum harm on its business. In any event no evidence was led on the extent of the harm suffered by Bertrand as a result of the strike and if any, that the strikers were to blame. Any strike action is meant to cause harm to the employer's business and in the absence of evidence that the employees exceeded the limits, it is submitted that the duration of the strike was a mitigating factor.

(c) Conduct of the strikers: The unchallenged evidence of Gajuna, a monthly paid employee who was a supervisor at the time of the strike, was that the strike was peaceful. Although the police visited the premises during the course of the strike, it is common cause that no arrests were made, although some individual applicants who persisted in coming to the premises were arrested after the strike. There was no evidence that any property had been damaged or that anyone had been assaulted. The employer did not lock out or seek an interdict to deal with unruly strikers. The testimony of Arnold that there was intimidation, assaults, and storming of the company premises could not be substantiated and should be rejected.

(d) Reasonable but erroneous belief that the strike was protected: At the time the strike notice was issued, Bertrand was aware that SACTWU held the erroneous but bona fide belief that the strike was protected: Early Bird Farm v FAWU (2004) 25 ILJ 2135 (LAC). This was not unreasonable considering that the alleged illegality was merely technical: Coin Security Group (Pty) Ltd v Adams & Others (2000) 21 ILJ 924 (LAC). Once legal advice had been obtained, SACTWU accepted such advice and advised its members to suspend the strike. Therefore, the applicants submitted, had Bertrand allowed the individual applicants additional time to take counsel, reflect on the advice and cool down, the likelihood was that a change of mind would have prevailed and the individual applicants would have accepted the advice of SACTWU to suspend the strike.

[80] In dealing with the additional and mitigating factors Mr Wade submitted that on the facts and evidence the contention that the strike was short-lived, that the respondent should have borne another day of striking in order to induce a return to work, and that it acted insensitively in not so doing, cannot correctly be submitted. Arnold’s evidence on the damage suffered as a result of the strike was not challenged, and the evidence of a monthly paid employee that he saw no intimidation or aggressive conduct did not take the issue any further. Moreover, the strike was protracted and in no way functional to collective bargaining: See inter alia, National Union of Metal workers of SA and others v SA Truck Bodies (Pty) Ltd (2008) 29 ILJ 1944 (LC).

Conclusion

[81] In my view, it is clear that on the probabilities it is not correct that SACTWU and/or the individual applicants were unaware that, whether termed a final written warning or otherwise, repeat misconduct in the nature of participation in unprotected strike action would in all probability result in termination of their employment. Notwithstanding this the individual applicants chose to disregard the advice of both their attorneys and their trade union, and persisted with the strike. They could not under any circumstances have been said to be acting in the genuine and reasonable belief that their strike was legal. Moreover, Bertrand had exercised restraint until it was finally informed that there was no prospect of ending the strike. In the context of the history of illegal strikes at its plant and the effect on its business, as was the uncontested evidence of Arnold, the reason for the dismissal was fair. However, what is finally determinative is that in accepting the evidence of the respondent on the probabilities, it is clear that the union had become frustrated by the attitude of the individual applicants in ignoring the ultimata and adamantly persisting with their illegal strike despite advice to the contrary. SACTWU had also acknowledged that a general warning should be issued following the July strike stating in no uncertain terms that further unprotected strike action would result in dismissal. In the circumstances, the applicants cannot now contend that there was no valid reason for their dismissal.

Procedural unfairness

[82] The applicants submit that the dismissals were procedurally unfair, inter alia, for the following reasons:

(a) Bertrand failed to afford the individual applicants a pre-dismissal hearing as required by the LRA, the Code of Good Practice: Dismissal and established legal principles.

(b) Accordingly, Bertrand failed to comply with any or all aspects of the audi alteram partem rule as is required for the purposes of fair disciplinary action.

[83] It is common cause that no formal disciplinary hearings preceded the dismissals.

Although the applicants concede that they were afforded an opportunity to make representations prior to the decision to dismiss being taken, they submitted that the time afforded to make such representations was inadequate. Ms Ralehoko submitted that given that the ultimatum to the morning shift required representations by 10h30, it would have been unreasonable and impractical to expect SACTWU to be in a position to take instructions from the approximately 278 members and submit timeous representations. It was also possible that not all the individual applicants were present at the time. The applicants contend that despite the fact that it was common cause that no representations were made prior to the dismissals, nor were appeals lodged thereafter, subsequent to the dismissals SACTWU did seek a meeting to explore resolution of the matter, but Bertrand refused its request. The incontrovertible fact is that Bertrand was simply not willing to engage SACTWU.

[84] In any event, Ms Ralehoko submitted, the failure to make representations prior to or subsequent to dismissals, or to appeal, could not turn an otherwise unfair dismissal into a fair one. This is particularly so in circumstances where no evidence was led that an appeal would have resulted in the reversal of the dismissals. Instead, even in these proceedings Bertrand persisted in its views that the strike was unprotected and since the employees failed to comply with the ultimata, the decision to dismiss was fair. That Bertrand would not have reversed the decision to dismiss was evident from Arnold’s rhetorical question to the effect that "were workers going to work?" when he was asked in cross examination whether any of the individual applicants were considered for re-employment. Unfortunately the individual applicants were themselves not afforded the opportunity to answer the question.

[85] Insofar as the applicants contend that the failure to afford the individual applicants pre-dismissal hearings contravened the audi rule, Mr Wade referred the court to the decision of the Labour Appeal Court in this regard. In Modise & Others v Steve's Spar Blackheath [2000] 5 BLLR 496 (LAC) at para [73], Zondo JP made it plain that, in the context of a strike, a hearing and an ultimatum were not synonymous. The learned Judge President dealt at length with the law relating to a fair ultimatum and hearings before dismissal in the context of a strike and said the following:

"A hearing and an ultimatum are two different things. They serve separate and distinct purposes. They occur, or, at least ought to occur, at different times in the course of a dispute. The purpose of a hearing is to hear what explanation the other side has for its conduct and to hear such representations as it may make about what action, if any, can or should be taken against it. The purpose of an ultimatum is not to elicit any information or explanations from the workers but to give the workers the opportunity to reflect on their conduct, digest issues and, if need be, seek advice before making the decision whether to heed the ultimatum or not. The consequence of a failure to make use of the opportunity of a hearing need not be dismissal whereas the consequence of a failure to comply with an ultimatum is usually, and, is meant to be, a dismissal. In the case of a hearing the employee is expected to use the opportunity to seek to persuade the employer that he/she is not guilty and why he/she should not be dismissed. In the case of an ultimatum the employee is expected to pursue the opportunity provided by an ultimatum to reflect on the situation, before deciding whether or not he will comply with the ultimatum. In the light of all these differences between the audi rule and the rule requiring the giving of an ultimatum, there can be no proper basis, in my judgment, for the proposition that the giving of a fair ultimatum is or an ever be a substitute for the observance of the audi rule."

[86] Mr Wade submitted that the above dictum does not mean that the employer is required to convene a formal disciplinary enquiry, or that some form of representations have to actually be made. All that is required is that the employees be afforded the opportunity of persuading the employer that they ought not to be dismissed. Thus, he submitted, hearings are most certainly not necessary in circumstances where the opportunity for representations has been extended and rejected. It is apparent from the following dicta in Modise that the opportunity of making written representations on its own may suffice:

“[53] The only situation which I am able to envisage where it can be said that an employer's failure to give a hearing may be justified on the basis that a hearing would have been pointless or utterly useless is where either the workers have expressly rejected an invitation to be heard or where it can, objectively, be said that by their conduct they have said to the employer: We are not interested in making representations on why we should not be dismissed. The latter is not a conclusion that a court should arrive at lightly unless it is very clear that that is, indeed, the case. However, in my view the latter scenario falls within the ambit of a waiver. Accordingly, the normal requirements of a waiver must be present”.

[87] Modise⁵ also recognised that the form of the hearing could vary vastly:

"In the light of all the above I have no hesitation in concluding that in our law an employer is obliged to observe the audi rule when he contemplates dismissing strikers. As is the case with all general rules, there are exceptions to this general rule. Some of these have been discussed above. There may be others which I have not mentioned. The form which the observance of the audi rule must take will depend on the circumstances of each case including whether there are any contractual or statutory provisions which apply in a particular case. In some cases a formal hearing may be called for. In others an informal hearing will do. In some cases it will suffice for the employer to send a letter or memorandum to the strikers or their union or their representatives inviting them to make representations by a given time why they should not be dismissed for participating in an illegal strike. In the latter case the strikers or the union or their representatives can send written representations or they can send representatives to meet the employer and present their case in a meeting. In some cases a collective hearing may be called for whereas in others - probably a few - individual hearings may be needed for certain individuals. However, when all is said and done the audi rule will have been observed if it can be said that the strikers or their representatives or their union were given a fair opportunity to state their case. That is the case not only on why they may not be said to be participating in an illegal strike but also why they should not be dismissed for participating in such strike (see Zenzile’s case at (1991) 12 ILJ 259 (A) at G-H).

[88] The Labour Appeal Court therefore clearly contemplated that circumstances may even be such that the combination of ultimata (depending upon how they are phrased), meetings and other attempts to bringing striking employees to their senses could adequately serve the purpose of providing a fair opportunity to make representations as to why employees should not be dismissed (or indeed the ultimata acted upon⁶). This approach was expressly acknowledged by the Constitutional Court in Xinwa & Others v Volkswagen of South Africa (Pty) Ltd [2003] 5 BLLR 409 (CC), where the Court was required to deal with a situation in which employees were dismissed for embarking on strike action considered to be illegal and unprotected. The intervention of the national trade union federation, COSATU, evoked little or no response, and it appeared that the strikers intended to persist in their strike until NUMSA revoked the suspension of shop stewards. The Court was faced with the argument that Volkswagen had acted procedurally unfairly. In dismissing what it construed to be an application for leave to appeal, the Constitutional Court⁷ held as follows:

" 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."

[89] The Court⁸ said further prior to concluding that there was no prospect of the applicants persuading it that the dismissal was procedurally unfair.

“On appeal, the LAC upheld the finding that the dismissal was substantively fair

but set aside the finding that the dismissal was procedurally unfair…It found that both NUMSA and the applicants were given ample opportunity to make representations prior to the decision to dismiss the applicants. It added that because the dismissal had been in accordance with the agreement to end the strike that was the end of the applicants’ case”.

[90] As regards precisely when - in the context of a strike - the employer is required to afford the envisaged hearing, this was dealt with in Modise, although the question of whether it is an absolute rule that the hearing should be held before or whether it can be held after an ultimatum is issued was not decided.

Conclusion

[91] In my view, it is on the facts clear that the respondent adequately complied with the requirement of affording the individual applicants an opportunity to be heard prior to a final decision to dismiss being taken. Not only were the applicants' repeatedly invited (in correspondence) to make representations, they were in the ultimata afforded a designated period within which to indicate why the respondent should not act in accordance with its final ultimatum by dismissing those of the individual applicants who failed to comply. No such representations were forthcoming. Arnold testified that he received no representations from SACTWU or any of the individual applicants as to why the ultimata were not complied with and why no efforts could be made to resolve the dispute. The applicants were clearly invited to make representations to Arnold as to why they should not be dismissed for failure to heed the ultimata. Insofar as the applicants sought to contend that the time afforded for this was unreasonable, there is no reason why they could not have urged Xola to engage the employer in this regard. Xola was at the time still on the premises but on the point of leaving in frustration, and it was common cause that he made no request for any extension of time or any other indulgence to enable representations to be made either en masse or individually. Instead, as appears from the dismissal notices and the evidence, management was advised that the individual applicants had already made a decision not to return to work.

[92] In addition, the applicants also at no stage after their dismissals sought to advance any reasons as to why those dismissals ought not to stand. It was also common cause that they specifically spurned the opportunity to appeal in respect of the dismissal. Arnold’s evidence was that they were given 5 days to appeal. Xola's evidence on the reason for not utilising the right to appeal is simply inexplicable – he said it was because of the belief that the strike was legal. In these circumstances, it can hardly be contended that the individual applicants were denied the right to be heard. Whilst it is true that the applicants were ultimately not heard in relation to their dismissals per se, SACTWU’s lack of interest in pursuing representations or indeed lodging an appeal could be said to be consistent with its frustration at the decision of the individual applicants not to heed legal advice. However, it is the individual applicants who are ultimately responsible for their decision, and irrespective of whether they were confused about the legality of the strike or not, could have suspended pending resolution of the issue. It is inconvertible that ultimately they acted in blatant disregard of the advice of their union and its attorneys. Insofar as Xola testified to this effect, and it was put to Kirchmann that the union’s attorneys may not have been properly mandated to agree to suspension of the strike, Xola’s evidence in this regard must be disbelieved, since the same firm of attorneys continued to represent the applicants in the trial. Had Xola been genuinely of the view that the attorneys had acted improperly, he would no doubt have taken appropriate steps and in the absence of this it cannot be contended that the undertaking to suspend was improperly made.

[93] In my view, therefore “ample opportunity” (as per Volkswagen) was extended to the applicants to make representations prior to their dismissal, which they rejected. In any event, consistent with the finding in Volkswagen (supra), the undertaking to suspend is in itself dispositive of the issue. In the circumstances, the dismissal of the individual applicants cannot be said to have been effected without fair procedure.

Costs

[94] The parties were ad idem that costs should follow the result in the main action. They addressed me on the issue of the wasted costs occasioned by the postponement of the trial on 30 November 2009 following the applicants’ indication of their intention to amend their statement of claim in a substantive respect to remove the concession that the strike was unprotected. The applicants submit that there was a reasonable explanation why their notice to amend was only brought at the beginning of the trial, in that the complexity of the issue only emerged at the eleventh hour after the document gathering process and final consultations with witnesses in preparation for trial. Of course it is trite that pleadings can be amended at any time prior to judgment and this court exercises a discretion in this regard. To the extent that the court would be inclined to grant a wasted costs order in respect of 30 November 2009, the applicants submitted that the respondent's conduct in failing to co-operate with finalising the amended pre-trial minute and in persisting with its locus standi challenge should be taken into account. I do not consider the applicants’ change of stance to be relevant to my determination, save to state that the initial concession was in my view well made and its withdrawal led to a rather prolonged proceeding which could have been avoided. In my view an order that the applicants pay the wasted costs occasioned by the postponement of the trial enrolled for five days on 30 November 2008 would be in the interests of law and fairness. However, I am equally of the view that the respondent should pay the costs occasioned by the postponement of the matter for a day to enable the parties to finalise the pre-trial minute.

Order

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

(1) The dismissal of the individual applicants for embarking on unprotected strike action is not automatically unfair in terms of section 187(1)(a) of the LRA.

(2) In the alternative claim, the dismissal of the individual applicants is not substantively or procedurally unfair in terms of section 188(1) of the LRA.