Klienboy and Others v Contro Cupboards (J 2583/06) [2007] ZALC 173 (15 June 2007)

IN

THE LABOUR COURT OF SOUTH AFRICA

HELD

AT JOHANNESBURG

CASE NO: J 2583-06

In the matter between:

MODIBA KLEINBOY AND 20 OTHERS Applicant

and

CONTRO CUPBOARDS Respondent

____________

JUDGMENT

A VAN NIEKERK AJ

This is an opposed application, argued on 14 June 2007. On 15 June 2007, I issued an order in the following terms:

The Respondent is ordered to pay each of the Applicants the remuneration for the period 5 December 2006 to 16 March 2007.

The amounts referred to in paragraph 1 are to be paid within fourteen (14) days of this order.

These are the reasons for that order.

The Applicants, who are represented by the National Union of Furniture and Allied Workers of South Africa (“the Union”) claimed that they were locked out of the Respondent’s premises on 5 December 2006. They sought an order declaring the lockout to be unprotected and claimed the wages that they would have earned between the commencement of the lock-out and the day on which they were ultimately dismissed by the Respondent, being 16 March 2007.

The origins of this dispute can be traced to a notice issued by the Respondent to employees of its intention to implement short time with effect from 27 November 2006. The Respondent claimed that during the first week of December 2006, the Applicants engaged in unprotected strike action, in the form of a go-slow, or as the Labour Relations Act puts it, the “retardation or obstruction of work”.

This was disputed by the Applicants who averred that any shortfalls of production were the consequence of the short-time that the Respondent had implemented. When this matter was called, the Respondent's representative submitted that the application should be referred to oral evidence, given the disputes of fact concerning production figures and the like for the relevant periods in late November and early December 2006. I was satisfied that on the papers, the issue in dispute was essentially a matter of law, and that on the Respondent’s own version of events, the matter could be decided without any reference to oral evidence.

I will assume in the Respondent’s favour, solely for the purposes of this judgment and without making any findings to this effect, that the Applicants engaged in industrial action in the form of a go-slow, that their action constituted a strike as defined by the Labour Relations Act, and that the strike was unprotected.

On 30 November 2006, the Respondent issued an ultimatum requiring the Applicants to return to work and to “complete all given projects for the day, or face what were described as ‘serious consequences’. On 4 December 2006, the Applicant issued a further ultimatum, using the same pro-forma document, but this time requiring the Applicants to end their unlawful conduct and to return to work by 10h30 that morning. The same notice records that it was handed to the Applicants personally (none of the notices were addressed to any particular employee, despite provision on the standard form to this effect) and there was a further endorsement on the notice to the effect that the content of the notice was “interpreted to the employee from 10h00 to 11h00”.

Leaving aside for the moment the fact that the Applicants were seemingly required to commence work during the hour in which it was recorded that the ultimatum was being interpreted for their benefit, the Respondent, for reasons that remain unknown, issued a further ultimatum, using the same pro-forma, during the same afternoon. This time, the Applicants were instructed to return to work before “16 am” (sic). The notice recalls that it was handed to employees personally at 10 am on the same day and that it was “interpreted” from 15.30 pm to 16 pm.

These measures by the Respondent, confused as they were, clearly did not have the desired effect. On 5 December 2006 the Respondent changed tack and issued what is termed a “notice of lock-out and notice of disciplinary hearings”. The notice reads as follows:

You are informed herewith that your refusal to work amounts to an unprotected strike. This conduct is unlawful and could have serious consequences for you. In terms of section 64(3)(d) of the Labour Relations Act the employer herewith gives notice of a lock out as were hereby do. You are hereby informed that you must leave the workplace on 5/12/2006 (date) 7:53am (time). Notice to appear at a disciplinary hearing at Contro Factory (place) 17/01/2007 (dat) 09:00 m (time). The purpose of the disciplinary inquiry will be to establish whether you have committed the following misconduct as alleged:

Not adhere to an ultimatum to return to work on 30/11/06 / 04/12/06 x 2 Taking part in an unprotected strike.”

(The balance of the notice is not recorded here and relates to the manner in which the Respondent intended to conduct the disciplinary hearings).

At this stage, the Union became involved in the dispute. On the same day that the notice was issued, 5 December 2006, a Union official addressed a letter to the Respondent recording that the Applicants had been denied access to the Respondent’s premises, and that the Respondent’s action constituted an illegal lockout. The Union’s letter stressed the union’s willingness to meet and resolve the dispute.

The Applicants aver that they again tendered their services on 6 December 2006, and again on 7 December 2006. This is not denied by the Respondent, nor is it denied that these tenders were refused.

In response to the Union’s letter of 5 December 2006, the Respondent proposed a meeting on 14 December 2006. The Union expressed its willingness to meet on 14 December 2006 but recording its concern regarding the lockout. In a letter dated 6 December 2006, the Union states that members “are prepared to tender their labour and report to work on 7 December 2006.”

On 8 December 2006, an organisation referred to as “Labour SEESA” addressed a letter to the Union on the Respondent’s behalf. The letter states:

Re lockout

Your letter dated 6 December 2006 refers.

Your members were locked out due to their persistent failures to meet the deadlines outlined in the ultimatums from the employer. Your members’ actions amounts to an unprotected strike as indicated in sections 64 and 213 of the LRA.

Your members will only return back to work after our meeting on 14 December 2006 and the completion of the disciplinary action instituted against your members.

A meeting between the parties took place on 14 December 2006, but the dispute could not be resolved.

The Applicants were ultimately dismissed on 16 March 2007 and a dispute concerning the fairness of their dismissal has been referred to the bargaining council, where the matter remains pending.

I turn now to the submissions made by the Respondent to the effect that its action constituted a protected lockout, in response to an unprotected strike, and that the Applicants are therefore not entitled to the remuneration that they claim.

A lockout in response to a strike, whether protected or unprotected, is a legitimate exercise of economic power by an employer. The LRA refers to lockouts in these circumstances (often referred to as ‘defensive lockouts’) in two instances. The first, section 64(3)(c), relieves an employer of the procedural preconditions to industrial action established by section 64(1) when “the employer locks out its employees in response to their taking part in a strike that does not conform with

the provisions of this Chapter.” Section 76(1) places limits on replacement labour, and provides, by way of exception to those limitations, that an employer may take persons into employment to perform the work of any employee who is locked out if “the lock out is in response to a strike.”

It is not necessary for me in these proceedings to consider further the nature and extent of the defensive lockout. It is self-evident thought from the sections to which I have referred that once the strike to which the lockout is a response is ended by an unconditional return to work, any continuation of the lockout can no longer be a response to a strike. Axiomatically, the purpose of any lockout in those circumstances can no longer relate to the dispute giving rise to the strike, the strike itself, or the conduct of striking employees.

In the present instance, when the Applicants unconditionally tendered their services, as the papers indicate they did on 5 December 2006, any basis that the Respondent may have had to continue a defensive lockout ceased to exist. After the unconditional tender to return to work and the end of the strike, the lockout continued by the Respondent became an offensive lockout, and one with a very different purpose. That purpose can be easily discerned from the notice of lockout. The purpose of the lockout was clearly related to the disciplinary action that the Respondent intended to take against the Applicants, since their exclusion from the workplace was intended to endure until the Applicants’ disciplinary hearings took place, at that stage, 17 January 2007.

The purpose underlying the continued lockout after the Applicants' tender and as recorded in the Respondent’s notice of lockout is not a purpose recognised by the definition of ‘lockout’ contained in section 213 of the LRA. That definition envisages two elements to a lockout– an exclusion of employees from the workplace, with the purpose of compelling them to accept a demand in respect of any matter of mutual interest.

After the Applicants had unconditionally tendered their services on 5 December 2006, any lockout that had been initiated in response to their unprotected strike was continued for a purpose wholly unrelated to that contemplated by the definition. The lockout that continued after 5 December 2006 was in fact nothing more than a stratagem to effect the Applicants’ suspension without pay pending their disciplinary hearings, scheduled to take place after the Christmas break.

It follows that after the Applicants unconditionally tendered their services on 5 December 2006, the Respondent’s action in continuing to exclude them from the workplace was unprotected.

I reiterate that I make no finding as to the existence of any industrial action in which the Applicants may have been engaged, or its nature and extent. I have, for the purposes of this judgment, accepted the Respondent’s version of events during November and December 2006. The Respondent has made much on the papers regarding losses and production occasioned by the Applicants’ industrial action. Assuming again for the sake of argument that this is so, the Respondent was not entitled in law to act as it did.

The Applicants were dismissed on 16 March 2007. They had not been paid since 5 December 2006. Their tender to render their services unconditionally entitled them to the remuneration. The Respondent’s conduct in refusing them work was a breach of the Applicants’ employment contracts and of the BCEA, neither breach being protected by the rights established in Chapter V of the LRA.

I accordingly made the order referred to in paragraph 1 above.

_____

ANDRÉ VAN NIEKERK,

Acting Judge of the Labour Court

Date of hearing: 14 June 2007

Date of judgment: 15 June 2007

Applicants’ Representatives: NUFAWSA

Ref. Mr H A De Klerk

Counsel for the Respondent: Advocate Roeloffs

Attorneys for the Respondent: Attorney F Vogel