REPUBLIC OF SOUTH AFRICA IN THE LABOUR COURT OF SOUTH AFRICA, JOHANNESBURG) JUDGMENT JACOB MBELE & 51 OTHERS

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1 REPUBLIC OF SOUTH AFRICA IN THE LABOUR COURT OF SOUTH AFRICA, JOHANNESBURG) JUDGMENT Reportable CASE NO: JS 940/13 In the matter between: JACOB MBELE & 51 OTHERS Applicant and CHAINPACK (PTY) LTD KING GLORY PACKAGING (PTY) LTD KCY PROPERTY INVESTMENT (PTY) LTD First Respondent Second Respondent Third Respondent Heard: 18 February 2015 Delivered: 5 April 2016 Summary: Dismissal breach of section 64 of the LRA constitutes dismissible misconduct. Code of Good Practice, Schedule 8, Item 6, and & 7(2) considered. Substantive and Procedural aspects in dismissal for strikes in breach of section 64 of the LRA. 1

2 JUDGEMENT MOSIME, AJ [1] It is common cause 1 that on 12 June 2013, the Applicants embarked on an unprotected strike. In the pre-trial minute, the Applicants admitted that they neither followed the Strike Procedure as set out in the collective agreement nor the collective action procedures in the provisions of the Labour Relations Act 56, 0f 1995, as amended ( the LRA ). The facts surrounding what is described in the papers as an illegal strike, giving rise to the current dispute, are briefly as follows below. [2] The Applicants were at all times paid up members of the Chemical, Wood and Allied Workers Union ((CWAWU) the Union ). The Respondents are different entities with different shareholders but shared a centralised administrative office and premises where services are rendered and operational activities performed. They have one general manager, to whom managers representing the three entities report. It is common cause that the Union and the Respondent entered into a Collective Agreement as envisaged in section 23 of the LRA on 29 November The Agreement was still operative and binding on the Union and its members, including the Applicants, on the one hand, and the Respondents, on the other. [3] The Agreement provides for a Negotiating Procedure. 2 In terms of Clause 4.2, the annual negotiations on substantive conditions shall commence during the month of March on each year. Following this provision, the parties commenced their annual negotiations on substantive conditions as regulated in the agreement, for the year and held meetings on the 25 March 2013, 4 April 2013, 9 April 2013, and 2 May There was no 1 The Pre-Trial Minutes, A1, para 14.1: The Applicants admit that they did not follow the strike procedure set out in the collective agreement nor the strike procedure set out in the Labour Relations Act 65 of 1995 as amended. 2 Clause 4 of the Collective Agreement. 2

3 settlement reached during these sessions and they agreed that they were in a deadlock on a dispute of mutual interest. The Agreement provides that such disputes shall be resolved by a referral to the CCMA for conciliation. 3 [4] Following the deadlock and subsequent referral, the CCMA scheduled a conciliation of the matter on 4 June On that day, there was a provisional agreement reached through the facilitation of conciliation by the CCMA Commissioner. The union and the shop steward naturally could not sign and conclude any settlement agreement at conciliation without first obtaining a mandate from their members. The conciliation session was, therefore, adjourned to allow for the seeking of mandate and the parties agreed before the commissioner that they would return to the table on 11 June [5] On 11 June 2013, all parties were present for the finalisation of the conciliation session. The Union and the shop stewards confirmed the mandate that they received from their members and a settlement agreement was reached. The commissioner, Govender, drafted the substantive agreement 4 and it was duly signed and concluded by the parties. The relevant clauses of this agreement, styled as a Collective Wage Agreement, read as follows: The parties record the settlement of the dispute in the following terms. By signing the agreement, the parties acknowledge that they understand the content thereof. This agreement is in full and final settlement of the said dispute (Section 61 (1), 134), unless specifically excluded hereunder. 1. The employee s (sic) earning R8, 80 per hour and more will receive an increase of R2, 20 across the board. 2. The employee s (sic) earning less than R8, 80 per hour will be paid R11, 00 per hour. 3. The increase will be backdated to 1 April 2013 and will run until 31 march Clause of the Collective Agreement. 4 The Wage Agreement is attached to the papers, marked Exhibit F1 F2. 3

4 [6] It appears from the Applicant s statement of claim 5 that this was not the mandate that the union had supposedly received from its members. It is stated therein that the Union and shop stewards were mandated to seek an increase of R25, 00 per month to be implemented across all employees employed by the Respondents. When the employees, members of the Union, and the Applicants received feedback from a shop steward during tea time on 12 June 2013, they were shocked and outraged that their shop stewards and Union had accepted and signed on a R2, 00 increase and had done so without seeking a further mandate from them. There was seemingly an immediate turmoil as the employees demanded that a certain union official be called and they would not continue with their work until that was done. They did not return to work and had apparently embarked on an unprotected strike action. [7] The Respondent s management representatives, Messrs Willie Huang and L Holliday contacted the union and shop stewards and informed them of the Applicants actions and advised them of the consequences if they did not heed the request to return to work immediately. The shop stewards and the union officials made attempts to speak to employees but that did not help. They later informed Huang and Holliday that the employees, including the Applicants, refused to listen to them. They were not happy with the settlement agreement concluded by the union on their behalf. Claiming that the Respondent paid less salaries than other companies in the industry. [8] Management then issued a general memorandum and distributed it amongst employees, in which included a final ultimatum to them that if they did not return to work at 12h30 on that day, they would face dismissal. The ultimatum was also communicated to the shop steward during their meeting with Huang and Holliday. The memorandum also included a notice to the employees that irrespective of whether or not they returned to work, disciplinary inquiries would be instituted against all employees that participated in the unprotected strike action on 14 June 2013, at the King Glory Boardroom. 5 At paragraphs 9 and 10 Statement of Claim. 4

5 [9] The shop stewards then reported back to management and informed them that the employees had rejected the demand to return back to work and were walking out of the gate, shop stewards also informed management that the group included workers from both the day and night shifts. Management informed the shop stewards that the planned disciplinary hearings would exclude employees that were ill, on leave or had permission to be absent from work. [10] This was the fourth unprocedural strike action undertaken by the employees of the Respondents in a space of a year. The Peace Obligation clause, 6 in the Collective Agreement, proscribes unprocedural industrial action concerning any issue which is the subject matter of a substantive agreement between the parties, unless the other party against whom the action is directed had prior to that action, conducted itself or acted in breach of either the Collective Agreement or any substantive agreement reached by the parties. 7 According to the Respondents, the Applicants had acted in breach of these agreements by participating in the unprocedural strike action on 12 June Furthermore, the parties had concluded another agreement styled a Peace Treaty, 8 on 14 February 2013, following the third unprocedural industrial action. In the Peace Treaty, the employees agreed that no industrial action in any form as defined in the LRA and the Collective Agreement shall be launched if the issue or matter in question has not been discussed and approved by the union officials. [11] The strike was supported by day shift workers and night shift employees of the Respondents. The Respondents dismissed the employees after it became clear that they would not heed the instruction to return to work and the deadline in the ultimatum of 12h30 had passed. A notification of disciplinary enquiry regarding the unprotected strike action and subsequent dismissal of striking employees was issued also through a letter from Mr Holliday, on 6 Clause 16, Collective Agreement. 7 Sub-clause Exhibit E1. 5

6 behalf of the Respondents, to the President of the union, Mr Alfred Tshabalala. 9 [12] Despite their dismissal, the night shift workers arrived at the gates in the evening and, according to the Respondents, started chanting and toyi-toying without any effort to report at their work stations. Management closed the gates and ordered them to leave. It is unlikely, as contended by the Applicants, that the night shift workers would have arrived at work to tender services after they had been informed that they were dismissed when they supported the day shift workers and were also supplied with notices to attend disciplinary hearings scheduled to take place on 14 June It seems more probable that the resolve not to return to work until the employees had met with their union officials, was also adopted by the night shift workers and that their arrival at the gates at the beginning of the night shift was only designed to advance the cause that was already pursued during the day. [13] The disciplinary hearing did take place as scheduled on 14 June 2013 and the employees were represented therein by the union officials including the President of the union, the General Secretary, the national Organiser and the shop stewards. At the conclusion of the disciplinary hearing, the dismissal of all the employees that participated in the unprotected industrial action, including the Applicants, were confirmed and they were duly informed by their representatives. [14] The Applicants referred a multitude of disputes to the CCMA though the union and other community based organisations, such as the Solidarity Committee and another, known as Casual Advice Centre. There were also several individual claims for alleged unfair dismissals but all these were subsequently resolved except this present matter before the court, which was referred initially to the CCMA on behalf of the Applicants by the Casual Advice Centre. The union is noticeably not a party to that and this referral. [15] On 1 August 2013, the CCMA scheduled a conciliation hearing, which was facilitated by a Commissioner Bonge Masote. The union s General Secretary 9 See Exhibit H1. 6

7 and Regional Organiser attended the conciliation hearing and insisted that since Mbele and 50 others had not resigned from the union, they were still their members. The commissioner was surprised when a different group of 29 employees appeared on their own and when he was advised of another group of 21 that did not attend. It appears that there was another list of 40 employees, produced by the Applicants, which was also said to be not final. Confronted by this hassle, the Commissioner issued a ruling in the following terms: (1) The Applicants should formally resign from the CWAWU; (2) The Applicants should then re-refer the matter because the above referral was submitted when they were still members of the union; (3) The Applicants should apply for condonation for their late referral as the referral would be outside the 30-day period; (4) Their referral would then be on their own. [16] The Commissioner further directed that the Applicants should prepare a proper list of the applicants, with tabulated columns populated with list with names, surnames, identity numbers, dates of employment and earnings on each and every applicant on whose behalf the referral is made. [17] However, on 5 August 2013, the Commissioner disavowed the ruling above, and varied it in the following terms: (1) The Applicants properly referred the dispute to the CCMA. As the dispute could not be resolved during the conciliation stage, I hereby issue a certificate of outcome to enable the Applicants the opportunity to refer the dispute for arbitration; (2) The Applicants were entitled to refer the dispute on their own despite the fact that they were union members if they believed that the union did not refer the dispute on their behalf. [18] The Commissioner issued a certificate on this date and directed that the dispute be referred to arbitration. The Applicants have, notwithstanding the 7

8 Commissioner s ruling and direction, referred this dispute to this court for adjudication. The Respondent has raised a point in limine raising a jurisdictional issue related to the referral of this dispute to this court instead of taking to the CCMA for arbitration. The Jurisdictional Factors [19] The Respondent objects to the jurisdiction of the court to adjudicate over this matter. The Respondent s objection is based on the grounds that the Collective Agreement between itself and the Applicants requires that the present matter should have been referred to either private arbitration, or arbitration by the CCMA, and not to this court for adjudication. The provision 10 in the Collective Agreement relied on by the Respondent states that: Both parties specifically recognise that disputes in terms of the disciplinary and Grievance Procedure shall be appropriately resolved through arbitration should the appeal procedure fail to resolve the dispute. [20] The question whether the Collective Agreement concluded between the Respondent and CWAWU bound the Applicants in all respects affecting their conduct in the circumstances surrounding their dismissal, can be answered with reference to section 23 of the LRA. In Kern-Lin Fashions CC v Brunton and Another, 11 Zondo, J noted that [f]or the present purposes, it is not necessary to say any more than simply that a collective agreement is binding on those who are parties to it as well as their respective members. [21] The Applicants, in this case, were not only bound by the Collective Agreement but also by another agreement as shown above called the Peace Treaty concluded 14 February 2013 after the employees, including the Applicants, had embarked on a third unprotected strike action at that time. In the Peace Treaty, 12 the parties agreed as follows, inter alia: 10 Clause , Collective Agreement. 11 [2001] 1 BLLR 25 (LAC) at para 12; see also PSA v Minister of Safety and Security and Others (2010) ILJ 1471 (LC), where Molahlehi J deals to some extent with the interpretation, application and the binding nature of collective agreements as defined in section 23 of the LRA. 12 Annexure E1, at clauses 3, 4 and 5. 8

9 The employees agree that no industrial action in any form as defined in the Labour Relations Act 66 of 1995 and the collective agreement will take place if the issue or matter has not been discussed and approved by the union officials. The Employees understand that they would not be paid for the time lost during the strike. Any dispute of rights as defined in the collective agreement will not resort (sic) to any strike action and has to follow the necessary procedures. [22] It is needless to state that the collective agreement also contained a Peace Obligation 13 providing prohibitive clauses in terms of which neither the Company nor the Union or its members shall cause, sanction or participate in any industrial action against the other party in circumstances concerning some issues, in which such action would be in breach of any collective agreement. The collective agreement also contains some obligatory clauses on Dispute Resolution, 14 compelling the parties, when in dispute, to follow specific steps including the declaration of dispute by the aggrieved party, submission of a written statement of the issue giving rise to the dispute and the settlement desired. The Applicants did not comply with any of these provisions. [23] The facts in this case indicate that the Applicants acted wholly and deliberately in breach of all the principles contained in these provisions. There was a substantive agreement concluded with the union on wages and conditions of employment. The agreement was negotiated with, approved and sanctioned by the Union. In the circumstances, both the Union and its members, including the Applicants, were bound by the provisions of the Collective Agreement on Peace Obligations and Dispute Resolution. By embarking on an unprotected industrial action, the Applicants openly exposed themselves to possible sanction for acts of misconduct including breaches of collective agreements. 13 Clause 16, Collective Agreement. 14 Clause 13, Collective Agreement. 9

10 [24] The substantive merits of this case concern the breaches of the prohibitive clauses of the Collective Agreement. It does appear from the undisputed facts 15 that the Applicants had, without their union s involvement and sanction, called for and participated in an unprotected industrial action in breach of the Collective Agreement and the Peace Treaty concluded after they had embarked in such action for the third time on 14 February It is clear from the facts in the pleadings as well, that the night shift employees had joined in that action in support of the day shift and also during the unrest that ensued during the onset of the night shift. Through some meticulous involvement of the Respondent s management in attempts to resolve the issue, they were able to determine the involvement of individual employees including those that were willing to work but were fearful of the illegal strikers. There is no doubt that the applicants were, to a very great extent, correctly identified as participants in the action that even their union and shop stewards were not in agreement with. [25] The preliminary issue before this court at present, however, is one concerning the procedural aspects provided for in the Collective Agreement, following the dismissal of the Applicants after a disciplinary enquiry. The Respondent contends that the Applicants were bound by the Collective Agreement to refer disputes of right to private arbitration, as I understand. Clause 6.10 of the CA provides as follows in this regard: DISPUTES OF RIGHTS Should the dispute remain unresolved after the 10 (ten) days the parties shall within 3 (three) days meet for the purpose of nominating a mediator or decide if the matter should be referred for arbitration in terms of the Labour Relations Act Should the Workplace forum be unable to agree upon a mediator within 3 (three) days, the Company and Union shall, without delay, refer the matter for arbitration in terms of the Labour Relations Act. 15 Clauses 7 and 14, Pre-Trial Minutes. 10

11 Both parties specifically recognise that disputes in terms of the disciplinary and Grievance Procedure shall be appropriately resolved through arbitration should the appeal procedure fail to resolve the dispute. (My emphasis) [26] A dismissal dispute is a dispute of right and would thus be appropriately processed in terms of the clauses referred to above. It is common cause that the Applicants did not comply with any of these clauses but preferred to refer their dispute to arbitration in terms of the provisions of the Labour Relations Act. This, they did by referring the dispute to the CCMA for conciliation and then later, when the dispute still remained unresolved at the CCMA, to this court. The Respondent contends that the Applicants were bound by the collective agreement to refer this dispute to private arbitration. There is nothing in the agreement, the LRA nor case law, cited in the Respondent s heads of argument, supporting this contention. The recognition agreement clearly provides for the referral of disputes for arbitration and, expressly, states that this shall be done in terms of the Labour Relations Act, and without further delay. Furthermore, there is nothing in the statement that both parties specifically recognise that disputes in terms of the disciplinary and Grievance Procedure shall be appropriately resolved through arbitration should the appeal procedure fail to resolve the dispute suggests that arbitration therein means private arbitration, especially when in the same clause it is mentioned twice that arbitration shall be one in terms of the LRA. [27] In the following clause, 16 dealing with Disputes of Mutual Interests, it is specifically mentioned that if the matter (of mutual interest) is not resolved, it will be referred to CCMA or Private for an Arbitration/Conciliation process where a presiding officer is chosen by the Union and the Company respectively. It is provided further that in that clause, if private arbitration is not agreed upon, the matter shall be referred to the CCMA in terms of this agreement. It is pain by the reading of these two clauses that there was no intention by the parties that private arbitration would be automatically invoked for the resolution of disputes of rights. Reference to the LRA processes in these clauses ousts the possibility of that conclusion. This court is, therefore, 16 Clause , Collective Agreement. 11

12 constrained to finding that the Applicants were bound by the collective agreements to refer their dismissal dispute to private arbitration. [28] The second point in limine raised by the Respondent related to the question whether the directive by the Commissioner in the certificate of outcome requiring that the matter should be referred to arbitration by the CCMA and not this court, as in understand it, is binding on the Applicants. [29] This last question has been hammered and shaped into clarity by a conspectus of judgments in this court and the Labour Appeal Court before. This position is summed up aptly by Justice Rabkin-Naicker in Helderberg International Importers (Pty) Ltd v McGahey NO and Others 17 as follows: I align myself with the conclusions reached in the Bombardier judgment, as have a number of other decisions in this court, that a certificate of outcome has no legal significance beyond a statement that the dispute referred to conciliation has been conciliated and was resolved or remained unresolved, as the case may be. Further, in the absence of any relevant and prior jurisdictional ruling made by a conciliating commissioner, any party to a dispute referred to arbitration may raise any challenge to the CCMA s jurisdiction at that stage, and the challenge must be dealt with by the arbitrating commissioner in terms of s 138(1). [30] To complete this picture, I quote hereunder to some extent, an extract from the judgment by Van Niekerk, J, in Strautmann v Silver Meadows Trading 99 CC (Pty) Ltd t/a Mugg and Bean Suncoast and Others: 18 A certificate of outcome requires only that the commissioner states that, as at a particular date, the dispute referred to the CCMA remains unresolved. I am aware that Form 7.12 provides for a classification of the dispute and an indication as to what further rights of recourse might be open to an applicant should the dispute remain unresolved. But any classification that is made or indication that is given as to which forum or courses of action might be open to an applicant wishing to pursue a dispute has no legal significance other than to certify that on a particular date a particular dispute referred to the 17 (2015) 36 ILJ 1586 (LAC) at para (2009) 30 ILJ 2968 (LC) at paras 8. 12

13 CCMA for conciliation remained unresolved. Any other views expressed by a commissioner, even if cast in directory language, amount to little more than gratuitous advice. In National Union of Metal Workers of SA and Others v Driveline Technologies (Pty) Ltd and Another (2000) 21 ILJ 142 (LAC), Zondo AJP (as he then was) held: A commissioner who conciliates a dispute is not called upon to adjudicate or arbitrate such dispute. He might take one or another view on certain aspects of the dispute but, for his purposes, whether the dismissal is due to operational requirements or to misconduct or incapacity, does not affect his jurisdiction. It is also not, for example, the conciliating commissioner to whom the Act gives the power to refer a dismissal dispute to the Labour Court. That right is given to the dismissed employee. (See s191 (5) (b)). If the employee, and not the conciliating commissioner, has the right to refer the dispute to the Labour Court, why then should the employee be bound by the commissioner s description of the dispute? I am aware that the Driveline case concerned a retrenchment dispute referred to this court in which the referring party sought to upgrade to a dispute concerning an automatically unfair dismissal. In that sense, no matter what the nature of the dispute, it was always going to be adjudicated by this court. The present dispute, of course, concerns a dismissal dispute that the applicant contends is arbitrable but which the commissioner obviously regarded as justiciable. But I don t think that this distinction affects the principle. The principle is that a referring party is not bound by a commissioner s classification of a dispute or any directive as to its destiny. If this were not so and if some legal significance were to be attached to a commissioner s categorisation of a dispute in a certificate of outcome, then by electing the forum in which the dispute is to be determined, the commissioner denies the referring party the freedom to pursue her rights as she deems fit. Certificates of outcome are issued at the conclusion of the conciliation phase more often perhaps than not in circumstances where no evidence would have been led as to the nature of the dispute. The conciliating commissioner is not always well placed to make judgments, based as they would be only on the say-so of one or both parties during conciliation, as to what the true nature of 13

14 the dispute might be. Even less, for the reasons stated above, should those judgments be binding on a referring party. (Emphasis supplied). [31] Judge Van Niekerk posited further in this judgment that when a commissioner completes Form 7.12 and categorises the dispute referred to the CCMA by ticking one of the boxes provided, the commissioner does not make a jurisdictional ruling. Nor does the ticking of any of the boxes marked CCMA arbitration, Labour Court None or Strike/Lockout amount to a ruling on which of those courses of action must be pursued by a referring party. Consistent with the principle established in the Driveline case, it is not for commissioners, by means of certificates of outcome or otherwise, to dictate to litigants either how they should frame the disputes that they might wish to pursue or which forum they are obliged to approach to have those disputes determined. 19 [32] The fact that the commissioner in this case has ticked the box arbitration did not bind the applicants to follow that gratuitous opinion. The LRA is clear that employees alleging that the reason for their dismissal is based on their participation in a strike that did not comply with the provisions of Chapter IV of the LRA may refer the dispute to the Labour Court. Section 191(5)(b) of the Act provides that: (b) The employee may refer the dispute to the Labour Court for adjudication if the employee has alleged that the reason for dismissal is- (i) (ii) (iii) automatically unfair; based on the employer's operational requirements; the employee's participation in a strike that does not comply with the provisions of Chapter IV; or (iv) because the employee refused to join, was refused membership of or was expelled from a trade union party to a closed shop agreement. 19 Ibid at para 9. 14

15 [33] The Applicants allege, 20 strangely, that their dismissal was unfair on the basis that having participated in an unprotected work stoppage, the Respondent did not issue them with ultimatums that were clear; that set out what was required of them, including time frames within which they are expected to comply; and that provided them with sufficient opportunity to consider the matter and consequences thereof. [34] It is now plain that the Respondent did issue an ultimatum 21 to the employees that were in the premises and participating in the work stoppage. This Ultimatum was clear and unambiguous in its terms and issued a caution, a warning and a notice to the striking employees that the employer would take disciplinary steps against them. Despite this warning and ultimatum, the Applicants refused to return to their workstations and continued with the work stoppage. The Respondent contended that there were also acts of intimidation against other employees that desired to return to work and also that an attempt of arson was reported. The disciplinary hearing were conducted as scheduled and the Applicants were dismissed. The Applicants claim that their dismissal was procedurally and substantively unfair, and thus pray for retrospective reinstatement. The Law [35] Section 68 (5) of the Labour Relations Act (LRA) 22 is a statutory provision affording a right to the employer to dismiss employees who participate in a strike that fails to comply with the provisions of the Act. In determining the fairness of the dismissal effected as a consequence of the employees participation in an unprotected strike, the Act enjoins the Judge, who is called upon to determine the fairness of the dismissal, to have regard to the Code of Good Practice: Dismissal in Schedule 8 ( the code ). 23. [36] The Code stipulates in Item 6, which deals with substantive fairness of dismissals and Industrial Action, stipulates that: 20 Paragraph 26.3, Statement of Claim. 21 Annexure G of See Ahlesa Blankets (Pty) Ltd v South African Clothing and Textile Workers Union (SACTWU) and Others (CA 5/2010) [2012] ZALAC 45 (02 March 2012) at para

16 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) (b) (c) the seriousness of the contravention of this Act; attempts made to comply with this Act; and whether or not the strike was in response to unjustified conduct by the employer. [37] Sub-clause (2) in this Item makes a provision that prior to dismissal of illegal strikers, the employer should, at the earliest opportunity, the following: (1) Contact a trade union official to discuss the course of action it intends to adopt; (2) Issue an ultimatum in clear and unambiguous terms, stating what is required of the employees and what sanction will be imposed if they do not comply with the ultimatum; (3) Allow the employees sufficient time to reflect on the ultimatum and respond to it, either by complying with it or rejecting it. [38] If the employer cannot reasonably be expected to extend these steps to the employees in question or comply with them to the full extent, the Code permits, in my view, that the employer may dispense with them. [39] The Applicants claims are inconsistent with the undisputed facts on the papers. The facts indicate that the Respondent, in this case, has complied wholly with the provisions of the Code. To that extent, the Respondent has shown that an ultimatum, titled Memorandum and issued to all reachable striking employees, was issued and delivered by hand to each of the Applicants, on the 12 June This Memorandum cautioned and warned the employees and also informed them as follows: 16

17 That they are on an unprotected strike action for the fourth time and have done so despite their union having signed a Peace Treaty in which they undertook never to embark on such actions again; They were on Final Written Warning for their participation in similar actions before; That the Respondent had been in contact with their union, which was not aware of the issues raised by its members in their grievance; That they seem to be ignoring advice from their union to desist from such behaviour; That they were urged to return to their work stations, and if they failed to do so, they would be dismissed; That the Union had confirmed that their unlawful action was supported by the day and night shift workers; That irrespective of whether or not they would return to work, disciplinary action would be taken against them for their participation in the work stoppage; and Giving them notices of the details of the disciplinary hearings. [40] The LAC in the Ahlesa Blankets case also found that it was clear from the provisions of section 68 (5) that participation in a strike that does not comply with the provisions of Chapter IV (strike and lock-outs) constitutes a misconduct. The court opined that a Judge, who is called upon to determine the fairness of the dismissal effected on the ground of employees participation in an illegal strike, should consider not only Item 6 of the code but also Item 7(b) which provides that any person who is determining whether dismissal for misconduct is unfair should, inter alia, consider whether dismissal was an appropriate sanction for the contravention See Hendor Steel Supplies (A Division of Argent Steel Group (Pty) Ltd formerly named Marschalk Beleggings (Pty) Ltd) v National Union of Mineworkers of SA and Others (2009) 30 ILJ 2376 (LAC) at para 7. 17

18 [41] I have considered, accordingly, that the determination of substantive fairness of the strike-related dismissal in this case must take place in two stages; first under Item 6 when the strike related enquiry takes place; and secondly, under Item 7 when the nature of a rule which an employee is alleged to have contravened is considered. I have already found in this regard that for the reasons already given, the Respondent has complied with procedural imperatives imposed by these provisions on them. The dismissal of the applicants was procedurally fair. [42] Although, as the LAC also indicated, a strike-related to dismissal which passes muster under Item 6 may nevertheless fail to pass substantive fairness requirements under Item 7. There are factors in this case that are key in assisting the court to determine that the substantive aspects of the dismissal of the Applicants have rendered it a fair dismissal. These include: 1) That the dispute giving rise to the unrest amongst the employee was not one in which the Respondent was involved. This dispute concerned discontent amongst union members with their union officials, who had allegedly concluded a substantive agreement with the Respondent without seeking the union members mandate. There were avenues available to the Applicants in terms of the union s constitution and these could have enabled the Applicants to deal with their issues without affecting their employer s operations; 2) There was an agreement already concluded with the Applicants union and if there was any issue regarding the validity of that substantive agreement, the Applicants could have used the Dispute Resolution Clauses in the Collective Agreement to resolve them. This, they failed to do, but instead resorted to measures outside of the agreed processes and the law to resolve their grievances. 3) It was the fourth time that the Applicants had embarked in an unlawful industrial action in a period less than 24 months; 18

19 4) The Applicants acted without their union s sanction and support and instead, as it appears, in direct insubordination to the directives and advice given them by their union officials; 5) The Applicants failed to comply with an ultimatum which fully complied with the requirements stipulated in the Code. [43] I have also considered and come to a conclusion that the failure by the employees to comply with the ultimatum constituted gross insubordination on the part of the employees. This was compounded and aggravated by the additional disregard of the advice from the union shop stewards to return to work and give the union a chance to deal with the issues, as I understand, through internal structures. There is nothing that the applicants could point at as conduct by the employer that could have provoked their conduct. Instead, the facts from the papers point at a backward-bending effort by the Respondent to accommodate, assist and guide the employees to understanding that their action constituted misconduct and that severe action could be averted if they complied with the ultimatum. The applicants opted to stick with their resolve. [44] Our courts have held that the relationship between employer and employee is in essence one of trust and confidence and that, at common law, conduct clearly inconsistent with it would entitle an innocent party to cancel the agreement. 25 The Applicants misconduct in this case falls within such conduct as would constitute a fatal breach of their contracts of employment and would entitle the employer to terminate. [45] It is my view that, for the reasons stated above, the employees dismissal was fair. In the circumstances, I would dismiss the application. [46] It is plain to this court that in the Applicants personal financial circumstances, an award of costs would result in hardship and lead to unfairness. I would, therefore, be disinclined to order the losing party to pay the costs of the successful party but would instead order that each party pay its own costs. 25 Council for Scientific and Industrial Research v Fijen (1996) 17 ILJ 18 (A). 19

20 The Order [47] In the result, the application is dismissed with no order as to costs. Mosime, AJ Acting Judge of the Labour Court of South Africa Appearances: For the Applicants: For the Respondent: Mr D. Cathwright, Cathwright Attorneys Inc. Mr ML Holloday, SAUEO Representative 20