National Union of Metalworkers of South Africa obo Members v PM Manufacturing CC (JS146/20) [2024] ZALCJHB 474 (26 November 2024)

FLYNOTES: LABOUR – Dismissal – Unprotected strike – Because bonuses not being paid – Company’s financial situation explained – Three written ultimatums and verbal ultimatums during day – Employees refusing to sign final written warnings – Abandoned machines which were running unattended at great financial expense – Urgent orders that needed to be loaded into trucks and delivered to clients – Dismissal of employees was procedurally and substantively fair – Labour Relations Act 66 of 1995, s 68(5).

IN THE LABOUR COURT OF SOUTH AFRICA, JOHANNESBURG

Not Reportable

Case No: JS 146/20

In the matter between:

NATIONAL UNION OF METALWORKERS OF SOUTH AFRICA obo MEMBERS Applicants and PM MANUFACTURING CC Respondent

Delivered: This judgment was handed down electronically by circulation to the parties' legal representatives by email and publication on the Labour Court’s website. The date for hand-down is deemed to be on 26 November 2024

JUDGMENT

TLHOTLHALEMAJE, J

Introduction and background:

[1] In their Statement of Claim, the individual applicants as represented by NUMSA, seek an order that their dismissals by the respondent on account of their participation in an unprotected strike action to be declared procedurally and substantively unfair. Their claim is opposed by the respondent.

[2] The respondent is in the plastic injection and blow moulding industry. It manufactures products such as car battery cases, cables, cable connectors for mines, street lights, agricultural bottles, children scooters and water meters. It runs a continuous 24-hour operation per day arising from the necessity to ensure the continuous running of moulding machines, failing which a disruption may cause extensive losses in production.

[3] In accordance with the parties’ signed pre-trial minute, the common cause facts are as follows;

3.1 On or about 7 November 2019, the respondent informed NUMSA of its dire financial position and inability to pay bonuses on 15 December 2019. Its turnover had dropped by R10 million between 2018 and 2019.

3.2 The respondent held a consultation meeting with the employees and shop stewards on 11 November 2019 and advised them that the payment of full bonuses was not going to be possible. At that meeting, the employees and the shop stewards clearly aggrieved, threatened to embark on a strike action.

3.3 NUMSA officials, who were not present in the meeting of 11 November 2019, were advised on 12 November 2019 of the employees’

threats and were requested to intervene. On 18 November 2019, the employees carried out their threats and embarked on an unprotected

strike, with no attempt being made to comply with the provisions of Chapter IV of the Labour Relations Act[1] (LRA).

3.4 The respondent had issued three written ultimatums and verbal ultimatums during the day, which the employees had all ignored despite being afforded time to reflect on their conduct.

3.5 The first ultimatum was issued at 12h10 and the second on 12h40. The respondent sent correspondence to NUMSA informing it on the same day at about 13h05 that a final ultimatum was to be issued at 13h40, which was indeed issued. The employees failed to heed the final ultimatum.

3.6 A NUMSA official, Mr Jerry Makhubela (Makhubela) arrived at the respondent’s premises at about 16h30 on 18 November 2019 after the final ultimatum was issued to address the employees. When the on-going strike could not be resolved, the Respondent had on 19 November 2019, issued what it termed ‘Comprehensive final written warning in the alternative to termination based on repudiation’.

3.7 The notices invited the employees to either accept that they had repudiated their contracts and as an alternative to termination, they could sign the comprehensive final written warning acknowledging the repudiation of their contracts of employment.

3.8 In the notice, the employees were advised that if they wished to re-establish the employment relationship, they must sign the warnings and acknowledge that further transgressions within 12 months could lead to their dismissal. In the alternative, the employees could reject the comprehensive warning, with the consequences being that their contracts of employment would be terminated.

3.9 As of 20 November 2019, the individual applicants (16 of them) had refused to sign the warnings and were subsequently dismissed. Eight (8) other employees had accepted the final written warning as an alternative and returned to work.

[4] The issues in dispute are whether the respondent had been operating on short-time since September 2017; whether despite the demand of bonuses, the employees had also complained about short time; whether the respondent had consulted with NUMSA over application of short-time and withdrawal of bonuses; whether the strike was in response to unjustified conduct by the respondent; whether the strike was resolved by NUMSA as at 19 November 2019 and had advised the respondent accordingly; the fairness of the dismissals; whether the respondent allowed sufficient time for consultations; and whether the employees’ conduct constituted a breach of employment contract.

[5] Against the issues in dispute, the Court was required to determine whether the dismissal of the individual applicants was procedurally and substantively fair. As relief, and if it were found that their dismissals were unfair, the individual applicants sought retrospective reinstatement or compensation as alternative remedy.

The legal framework in unprotected strike action and evaluation:

[6] Section 68(5) of the Labour Relations Act[2] (LRA) provides inter alia that 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. It further provides that in determining whether the dismissal is fair, the Code of Good Practice Dismissal in Schedule 8 must be taken into account.

[7] Item 6 of the Code provides that;

‘(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 this Act;

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

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

(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.’

[8] Item 7 provides:

‘Any person who is determining whether a dismissal for misconduct is unfair should consider-

(a) Whether or not the employee contravened a rule or standard regulating conduct in, or of relevance to, the workplace; and

(b) If a rule or standard was contravened, whether or not-

(i) the rule was a valid or reasonable rule or standard;

(ii) the employee was aware, or could reasonably be expected to have been aware, of the rule or standard;

(iii) the rule or standard has been consistently applied by the employer; and

(iv) dismissal was an appropriate sanction for the contravention of the rule or standard.’

The evidence and evaluation of the issues in dispute:

(a) Substantive fairness

(i) Disputes surrounding the implementation of short-time.

[9] The disputes surrounding whether the respondent had been operating on short-time since September 2017; whether despite the demand of bonuses, the employees had also complained about short time; whether the respondent had consulted with NUMSA over application of short-time and withdrawal of bonuses, are all intertwined and will be dealt with simultaneously.

[10] In regard to these issues, the evidence of Mr JM Venter (Venter), who is the respondent’s Production Planner since February 1997, was that business had not over the years been consistently doing well, as customer orders, which the respondent was dependent on were not coming in. This was because most of its previous customers had decided to commence building their own articles, especially in the battery business.

[11] When the orders came down, the respondent had introduced short-time over a five-day week. In some instances, short-time would be over a four-week or three-week system just to keep the business going and to preserve the employees’ jobs. These changes took place according to the volume of orders received, as the respondent’s business did not require of it to have stocks of customer products.

[12] According to Venter, the practice of short-time started as far back as 27 November 2008 and the employees were accordingly notified. The employees were thus required to work less days even if the machines had to be operated continuously for 24 hours. At times, and where orders increased, employees would be required to work overtime and even on Saturdays.

[13] Venter testified that the company was previously a family-owned business which the respondent had bought as a going concern. The previous owner’s financial director, Ms Monika Holtzhausen (Holtzhausen) was also responsible for Human Resources matters. Venter referred to copies of her notices from 2008 into 2019 to the employees, informing them that short time was to be implemented due to less work orders and material shortages. The notices were issued on 16 March 2016; 11 April 2016; 2 October 2017; 5 February and 26 September 2019 and were placed on notice boards.

[14] Venter contended that upon the issuing of the notices, the employees were clearly unhappy, but at no stage did they or NUMSA complain about the implementation of short-notice, or refer a dispute to a bargaining council, or embark on a strike. The notices were also sent to NUMSA’s officials including, Makhubela, who according to Venter, had at one stage acknowledged receipt of the notices and directed Holtzhausen to discuss the matter with the shop stewards as he was not immediately available for meetings.

[15] Holtzhausen had since moved to Portugal after the sale of the business to the respondent in December 2022. She had deposed to an affidavit following an agreement between the parties on the manner in which her evidence was to be presented in Court. She had also filed an affidavit in reply to Makhubela’s response to her evidence.

[16] She was the respondent’s Managing Director for over 40 years since 1989 until the family-owned business was sold and has no further interest in the business. She had confirmed Venter’s testimony regarding the nature of the respondent’s business and how it had over the years progressively lost clients resulting in losses in income.

[17] Regarding short time, she confirmed that it was initially implemented in 2008 for reasons Venter had already explained. She further confirmed that it was implemented following consultations with employees and NUMSA, and the main objective was to reduce costs of labour and electricity, with the aim of the sustainability of the respondent and avoidance of mass layoffs. Upon consultations, agreements were always reached and notices to that effect were always placed on notice boards. Thus, short-time had continued into 2019.

[18] The evidence of Makhubela, who is NUMSA’s Local Organiser was to confirm that the respondent had been operating on short-time for over ten years as at the time of the strike. He had further confirmed that Holtzhausen had communicated with him over the application of short-time as far back as May 2015.

[19] The applicants also led the evidence of Ms Paulina Tshabalala, who was employed as a Machine Operator and was in the respondent’s employ for 22 years. Pertinent to the issue in dispute was her evidence that at times the employees were required to work short time ranging between three and four days. When asked how long employees had worked short time, her response was that it was for a ‘long time’, and that during the implementation of short time, at no stage did the respondent not pay employees bonuses

at the end of the year.

[20] Against the above evidence, it is not clear on what basis the applicants sought to dispute the respondent’s version that short-time had been implemented since 2008 and further in 2016, 2017 and as late as September 2019. Makhubela’s response to Holtzhausen’s averments was to acknowledge that short-time had been implemented for the past ten years but had contended that the employees had always complained about the implementation.

[21] The cross-examination of Venter and responses to Holtzhausen’s averments did not challenge the time periods during which short-time was implemented. What can however be discerned from the applicants’ case is that their main contention was that even if short-time was implemented, at no stage did the respondent fail to pay them bonuses. This is a separate issue from the one raised as being in dispute.

[22] Accordingly, it is found that there is no merit in the applicants’ contentions that short-time had not been implemented as of September 2017, particularly in the light of the notices in that regard issued to the employees which Venter and Holtzhausen had referred to, and which notices were not challenged nor disputed.

[23] Whilst it was expected that the employees would have been aggrieved with the implementation of short-time as it affected their pay, what can however not be disputed was that at no stage during the implementation of short-time, did the employees refer any dispute to the MEIBC. There is a difference between expressing disgruntlement about the implementation of short-time and pursuing a formal dispute in that regard. For all intents and purposes, the Court will accept that from when short-time was implemented in 2008, the employees as well as NUMSA were consulted and informed.

(ii) Whether the strike was in response to unjustified conduct by the respondent

[24] The unprotected nature of the strike cannot seriously be disputed by the applicants. It was submitted on their behalf that the strike was nonetheless not premeditated, and the employees had reported for duty as normal and had started performing their duties, until they were called to a meeting with Holtzhausen in the change room. It was contended that after the meeting, they had waited for a union official and that at no stage did they leave the premises.

[25] It is not clear from the applicants’ contention especially through the evidence of Ms Tshabalala, whether it is their case that they did not embark on an unprotected strike or not. The evidence of Tshabalala for all intents and purposes was at odds with the common cause facts as set out in the pre-trial minute. In this regard against the agreed facts, she denied knowledge of the

meeting of 11 November 2019, or that the strike took place, or even that the ultimatums were issued. Regarding the final written warnings issued, her version vacillated between not having understood what the warnings were and/or that Makhubela had explained the contents thereof to the employees.

[26] This debate however as to whether there was a strike is superfluous in the light of the common cause fact that the employees had embarked on such a strike. Be that as it may, Section 213 of the LRA defines a strike as a:

‘…partial or complete concerted refusal to work, or the retardation or obstruction of work, by persons who are or have been employed by the same employer or by different employers, for the purpose of remedying a grievance or resolving a dispute in respect of any matter of mutual interest between employer and employee, and 10 every reference to 'work' in this definition includes overtime work, whether it is voluntary or compulsory.’

[27] There can be no doubt that the conduct of the applicants met all four requirements of a strike as clarified in Transport and Allied Workers Union of SA on behalf of Ngedle and others v Unitrans Fuel & Chemical Co (Pty) Ltd[3]. This is so in that they had abandoned their workstations and the machines after having summoned Holtzhausen to the change room and at no stage did they go back to work thereafter as they had insisted on the payment of bonuses.

[28] The notice to employees that bonuses would not be paid at the end of the year was what triggered the strike. In contending that the unprotected strike was in response to unjustified conduct on the part of the respondents, the applicants’ case was that since 2015, they had continued to receive bonuses despite the implementation of short-time, and that it was only in November 2019 that they were informed that bonuses would not be paid on 15 December 2019. It was further submitted on their behalf that the failure by the respondent to pay the bonuses provoked them into unprotected strike action and that they had legitimate ‘anger and concerns’, in view of having worked short-time over inexplicable long periods. Another factor relied on was that the respondent failed to consult with NUMSA about short time.

[29] In regard to year-end bonuses, Holtzhausen had averred that the respondent always made attempts to pay employees leave enhancement pay (LEP). This was until 2019 when the respondent’s business was struggling financially due to a lack of orders. Prior to a decision being taken not to pay the bonusses on 15 December 2019, notices were sent to NUMSA on 7 November 2019, and the respondent had also applied to the Metal and Engineering Industries Bargaining Council (MEIBC) for exemption to pay LEP.

[30] In further correspondence to NUMSA on 7 November 2019, an invitation was extended to it to attend a meeting to be held with employees on 11 November 2019 to discuss the non-payment of bonuses. NUMSA officials failed to attend the meeting.

[31] In the absence of NUMSA officials, Holtzhausen had explained to the employees the financial difficulties leading to the decision not to pay the bonuses and the respondent’s attempt to obtain an exemption from the MEIBC to pay the LEP. She further made

an undertaking to pay bonuses or at least 50% thereof should orders and revenue improve.

[32] At the meeting, the employees were represented by one of the shop stewards, Mr Thomas Mukwevho (Mukwevho), who is since deceased. According to Holtzhausen, Mukwevho had adopted an aggressive stance during the meeting, stating that the employees ‘wanted all or nothing’, and in the process threatened strike action if employees did not receive full bonusses. This was despite her suggestion that employees

continue to work short-time and payment of bonusses be made on a staggered basis depending on improved revenue.

[33] On 12 November 2019, Holtzhausen had provided written feedback to NUMSA about what transpired at the meeting, the threat of a strike made by employees, and the consequences should employees embark on an illegal strike. She averred that she received no response from NUMSA to her correspondence.

[34] The respondent’s contention was that the applicants had not established a right or entitlement to an annual bonus especially since bonuses have always been discretionary and subject to its financial position. To this end, it was submitted that there was no merit in the contention that the applicants could have been made angry by the failure to pay the bonuses. This was further so in that the individual applicants and NUMSA were made aware some six weeks before 15 December 2019 that the respondent was financially

unable to pay the bonuses and had made every endeavour to secure orders. In this regard, it was contended that the strike action was not spontaneous but was premeditated.

[35] To succeed with the defence that the respondent’s conduct was unjustifiable, the applicants were required to establish that the conduct complained of was so egregious or inexcusable, or that they were treated unfairly or unlawfully, making the failure to comply with the applicable procedures under section 64 of the LRA excusable. In other words, the applicants were required to further demonstrate that their decision to embark on an unprotected strike was spontaneous in reaction to the respondent’s provocative conduct. Equally so, the applicants were required to establish that given the conduct of the respondent, they had no alternative remedy to their concerns that bonuses would not be paid.

[36] Against the facts and background leading to the respondent’s decision not to pay the bonuses, clearly it cannot be said that there was any provocative conduct on the part of the respondent. This was so in that the issue of short-time was nothing new as at the time of the strike, having been implemented intermittently since 2008. NUMSA cannot seriously dispute that it was not consulted over the matter.

[37] The applicants in the light of the common cause facts, cannot have disputed the respondent’s parlous financial position as of November 2019. NUMSA was further invited on 7 November 2019, to attend a meeting scheduled on 11 November 2019 where the issue of non-payment of bonuses was to be discussed. At the time, short time had been implemented since September 2019.

[38] I further did not understand the applicants’ case to be that they were entitled to bonus payments. Makhubela had further conceded that at the time, there was no main agreement that was applicable or extended to plastic industry. In respect of the LEP, the respondent had in the light of its financial position, already sought exemption from the MEIBC, which application NUMSA and the employees were made aware of. A further alternative remedy, which Makhubela had conceded was available, was for NUMSA to approach the MEIBC for a compliance order, to the extent that it believed that the employees were entitled to a bonus.

[39] The Court accepts that the employees and NUMSA were informed six weeks in advance that bonuses would not be paid on 15 December 2019, and compelling reasons were proffered in that regard. Furthermore, and on the uncontested evidence of Holtzhausen, undertakings were made that all endeavours were to be made to improve orders, and that payments even a portion thereof may be made should the respondent’s finances improve. In these circumstances, and where the employees’ stance in the meeting of 11 November 2019 was combative, and further since the strike in question was embarked upon a week after that meeting, one cannot seriously allege that the respondent’s conduct was provocative.

[40] It is apparent that as of 11 November 2019, the employees who were clearly aggrieved with the news that bonuses would not be paid, had at the time made threats to embark on a strike. In my view, making threats and not carrying them out immediately cannot be equated with spontaneity. NUMSA was advised on 12 November 2019 of the employees’ threats to strike and did not intervene. The employees had between 11 and 18 November 2019 time to reflect on their threats and on the course of action they sought to take. There can be no substance in Makhubela’s contention in response to Holtzhausen’s averments, that the employees were given short notice of the non-payment of bonuses.

[41] The individual applicants chose to embark on an unprotected strike action even after Holtzhausen had on various occasions reiterated why the bonuses could not be paid. Despite her explanations the employees having discussed the matter decided to embark on unprotected strike and refused to go back to their workstations from 09h45. Under the circumstances, even if there was cause for the employees to be aggrieved, one cannot speak of conduct on the part of the respondent, that can be classified as egregious, unlawful or unfair to cause them not to have followed proper procedures in venting out their grievances over the non-payment of bonuses.

[42] As stated in NUMSA obo Maseko and 47 Others v AMT Africa Recruitment (PTY) Limited[4], mere unhappiness or disappointment about non-payment of benefits does not constitute provocation. Clearly the strike was premeditated given the timing of the threats, the strike action itself, and the date on which the bonuses were not to be paid. To emphasise the premediated nature of the strike, it was further not in dispute that all the employees, including those that were meant to be on the afternoon and evening shifts had all congregated in the change room on 18 November 2019 and decided to embark on their strike action. If the strike was not planned, the question is why would other employees that are not on duty be at the premises, unless the intention was to act in unison in pursuing the strike. Under the circumstances, there is no basis for any finding to be made that the unprotected strike resulted from any unjustified conduct on the part of the respondent.

(iii) Whether the strike was resolved by NUMSA as at 19 November 2019 and the respondent was advised accordingly:

[43] The issue arises from the events of 18 November 2019 when Makhubela arrived at the respondent’s premises. Holtzhausen’s testimony was that upon the employees having embarked on the unprotected strike action, she had contacted NUMSA’s offices seeking intervention and when there was no such intervention, she contacted the employer’s association (Plastic Converters

Association of SA) seeking advice, flowing from which ultimatums were issued as already indicated.

[44] Holtzhausen’s version was that when the strike commenced, she had sent correspondence to NUMSA and followed that up with communication with Mr Marteen Hargovan, a union employee. Makhubela did not dispute the written communication, but however contended that Holtzhausen had communicated with the wrong person and in the incorrect union offices.

[45] Makhubela’s contention was however that after Holtzhausen had contacted him about the strike he had asked to speak to the shop stewards. He did not dispute that the employees had refused to speak to him as averred by Holtzhausen. He ultimately arrived at the premises at about 16h30, and after the three ultimatums had already been issued, including the final one which the employees had ignored.

[46] Makhubela testified that upon his arrival and having seen Holtzhausen, he then addressed the employees who had complained about short-time and non-payment of the bonus. After discussions the employees agreed that they would cease the strike whilst he discussed the matter with management. Makhubela testified that he subsequently had a meeting with Holtzhausen and gave her feedback that the employees would return to work. Upon that feedback, Holtzhausen told him that due to operational requirements related to how machines operated, there was no need for the employees to return to their workstations at that time of the day, and that they should

come back on 20 November 2019.

[47] Makhubela’s contention was that there was an agreement with Holtzhausen that the employees would go back to work and that she was going to call him the following day on 19 November 2019. Holtzhausen however did not call him the following day. On 20 November 2019 he went to the respondent’s premises, and only learnt that the employees had been dismissed as some of them were standing outside the gates. He further learnt that employees were not to be allowed into the premises unless they signed their final written warnings.

[48] Holtzhausen’s testimony regarding the events of 18 November 2019 was that after he spoke to Makhubela, she had then agreed to discontinue operations as it did not make sense to keep machines running when it was not clear that the employees would return to work. This was also to allow Makhubela to convince the employees to return to work after he had begged her not to dismiss them. She contended that she had informed Makhubela on 18 November 2019 that management may consider issuing final written warnings should the employees continue with their duties and not disrupt operations. At that time the respondent had formed a view that those employees who refused to return to work may be dismissed, and on the advice of the PCASA, the respondent held the view that the refusal to

tender service constituted a repudiation of employment contracts, entitling the respondent to dismiss them.

[49] Holtzhausen confirmed that it was agreed that the employees had to report for work on 20 November 2019, and that Makhubela would attend at the premises at 08h00 to accompany them to the workplace but had nonetheless failed to do so. The respondent also resolved to offer the employees one last opportunity and offered them an alternative to dismissal by way of a final written warning. If they accepted the warning and returned to work, they would not be dismissed. That offer was made in a notice styled; ‘Comprehensive Final Written Warning in the Alternative to a termination based on Repudiation’, which was issued to the employees on the advice of the PCASA, and was also emailed to Makhubela on 19 November 2019, who was asked to discuss the notice with the employees.

[50] Makhubela’s response to Holtzhausen’s correspondence with a copy of the final warning attached on 19 November 2019 was that there was an agreement that due to operational requirements, employees would return to work on 20 November 2019 and that the respondent was to call NUMSA on 08h00 on 19 November 2019 to confirm the date and time of their parties’ next meeting. He

had proposed that the parties could meet on 20 or 21 November for further discussions. He had however conceded under cross examination

that the employees did not sign the final written warnings as they held the view that they did nothing wrong. On 20 November 2019 and after discussing the warning with the employees, he had referred the matter to the union’s legal department for advice.

[51] Makhubela’s version that the strike was resolved is not probable given his evidence. He had confirmed under cross-examination that despite his agreement with the employees to cease the strike action, they did not go back to work, including those employees that were supposed to commence the afternoon shift.

[52] It appears to be common cause that on 18 November 2019, Holtzhausen had agreed that the employees would return to work by 20 November 2019. This however does not imply that the employees had in essence agreed to return to work in that on Makhubela’s version the issue was still to be discussed with management.

[53] Thus, in circumstances where Makhubela held the view that the strike was resolved but the employees had not agreed to go back to work, this cannot constitute an agreement either with the employees or with the respondent. Even if Makhubela held the view that the employees would go back to work on 20 November 2019, what is further apparent is that it was still within the respondent’s

discretion to take disciplinary measures against them in the light of their misconduct. Makhubela had denied that Holtzhausen had spoken to him about the employees being disciplined but conceded that he had implored Holtzhausen not to dismiss them.

[54] Upon the employees having been issued with final written warnings which they were required to sign, they had on 20 November 2019 at about 08h00 gathered at the respondent’s main entrance after the respondent took a decision not to allow them into the premises until they had accepted the final written warnings whilst on strike, and Makhubela had not at that stage arrived at the

premises. Out of fear of intimidation and damage to property, the respondent had instructed its security personnel at the main entrance not to let in the employees unless the strike was resolved, which meant that the employees were required to sign the final warnings and return to work.

[55] Even if on Makhubela’s version the employees held the view that they had done nothing wrong to deserve the final written warning, the fact that they took a stand not to sign the warning despite available remedies in challenging those warnings, meant that they were not prepared to go back to work and end the strike. This was even moreso given Holtzhausen’s uncontested version that when he attempted to hand over the copies of the final written warning to the employees at the gate to sign and return to work, they had refused to accept them and as led by Mukwevho and told her that they would not return to work. Against these considerations,

there is no substance in Makhubela’s version that the strike was resolved as of 19 November 2019 or that there was an agreement

that the employees would return to work. As of 20 November 2019, the employees’ stance was to continue with the strike.

(iv) The seriousness of the contravention:

[56] The seriousness of the contravention of the provisions of section 64 of the LRA cannot seriously be disputed. As already indicated, the issue of short-time and non-payment of bonuses was discussed with employees, and they had time to reflect on their cause of action between 11 and 18 November 2019 in view of the non-payment of bonuses to take place in December 2019. No attempts were made whatsoever to comply with the provisions of section 64 of the LRA, or to utilise any other dispute resolution processes under the LRA to resolve their grievances. I have already indicated that the strike was premeditated and not in response to any unjustified conduct on the part of the respondent.

[57] The seriousness of misconduct ought also to be assessed against the fact that once they had reported for duty, excluding those that were not meant to be on the morning shift, they had then abandoned the machines which were running unattended at great financial expense to the respondent. They were further aware at the time that there were urgent orders that needed to be loaded into trucks and delivered to clients, and yet abandoned their duties which were carried out by Holtzhausen and other personnel.

[58] The applicants can also not seriously contend that the decision to dismiss them was made hastily and with mala fides. Three ultimatums were issued to them which they had ignored together with verbal pleas from Holtzhausen that they should go back to work whilst attempts were to be made to ensure that some form of bonus was paid. Other than the ultimatums, the employees after Makhubela had

pleaded on their behalf, were given a lifeline with the final written warnings. Other employees had signed the warnings and returned to work, whilst the individual applicants had persisted with their unreasonable posture and continued with the strike. Even at that stage when a proper reflection of their position and a show of contrition would have been appropriate, the individual applicants

remained unmoved by the gravity of their situation. Against all the considerations, I fail to appreciate how it can seriously be said that the dismissal of the employees arising from their unprotected strike action was substantively unfair.

(b) Procedural fairness:

[59] It was correctly submitted on behalf of the applicants that procedural fairness of a dismissal in such instances requires that there should be contact with the employees’ union; that ultimatums should be issued and where appropriate, a hearing should be held.

[60] In this case, three ultimatums were issued to the employees of which NUMSA was made aware of. As Holtzhausen and Venter were attempting to hand over the ultimatums to the employees, the uncontested evidence was that Mukwevho confiscated the copies from them. She and Venter nonetheless explained the contents of the three ultimatums as issued over time, imploring the employees to consider the consequences of their actions and to also contact NUMSA. The employees however refused to return to their workstations, insisting

that the bonus be paid. It is not clear on what basis in the light of the three ultimatums having been issued, the individual applicants

can seriously contend that they did not know their contents, nor what was required of them after Holtzhausen had explained the ultimatums even after Mukwevho had confiscated them from her and Venter.

[61] In Mndebele and others v Xstrata SA (Pty) Ltd t/a Xstrata Alloys (Rustenburg Plant)[5], it was held that;

‘The purpose of an ultimatum is not to elicit any information or explanations from the employees but to give them an 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 ultimatum must be issued with the sole purpose of enticing the employees to return to work and should in clear terms warn the employees of the folly of their conduct and that should they not desist from their conduct they face dismissal. Because an ultimatum is akin to a final warning, the purpose of which is to provide for a cooling-off period before a final decision to dismiss is taken, the audi rule must be observed both before an ultimatum is issued and after it has expired. In each instance, the hearing may be collective in nature and need not be formal.’[6]

[62] In AMCU obo Rantho and Others v SAMANCOR Western Chrome Mines[7], the Labour Appeal Court (LAC) reiterated that the object of an ultimatum is to give striking employees the opportunity to reconsider their action, and that the ultimatum must therefore be clear and unambiguous and give the employees sufficient time to reflect. The LAC added[8] that where illegally striking employees obey an ultimatum and return to work within the stipulated time, the employer will not be entitled to dismiss them as to hold otherwise would render the purpose of an ultimatum nugatory. It was further held that an ultimatum by the employer was a waiver of the right to dismiss for the period of its duration. Thus, if the employees refuse to return to work, the waiver implicit in the ultimatum will lapse, but that if they comply with the ultimatum, the employer is ordinarily precluded from dismissing them for the act of striking, but not necessarily for other misconduct committed during the strike.

[63] In this case, the Court accepts that three ultimatums were issued to the individual applicants which they had ignored. Even if it might be argued that the time periods (of about 30 minutes) in between the issuing of the ultimatums may have not been sufficient, there can further be no dispute that NUMSA was made aware of them, and at no stage did it intervene until long after the time for compliance with the final ultimatum was issued. In any event, the individual applicants cannot complain of not being afforded time to reflect on their conduct, in view of the common cause fact as recorded in the pre-trial minute that they were indeed afforded such time but had nonetheless defied all verbal and three written ultimatums[9].

[64] Makhubela’s contentions that NUMSA was not properly made aware of the ultimatums does not assist the applicants’ case in that once correspondence was sent to NUMSA’s offices, surely someone in that office ought to have taken the responsibility

to ensure that the unprotected strike action was urgently attended to by the official responsible. As things turned out, despite even on his own version being informed at about 14h00 by his office that there was an unprotected strike at the respondent, Makhubela

nonetheless took his time and only attended at the premises after 16h00.

[65] The arguments surrounding the short duration within which the various ultimatums were issued also becomes insignificant when regard is had to the events after Makhubela intervened and after the final written warnings were issued and which the employees were required to sign. This view is held on the basis that I did not understand the applicant’s case to be that they were dismissed for disobeying the ultimatums, and it has been concluded that they did not cease the strike. When the deadline of the final ultimatum had passed, and at the time that Makhubela arrived at the premises, the individual applicants had not yet been dismissed. Despite their unreasonable stance, the respondent had considered Makhubela’s pleas that the employees should not be dismissed. The respondent rather than dismissing them, and further in the light of the misconduct in question, and its prerogative to take disciplinary action, had elected to issue them with the final written warnings, on the proviso that they should return to work. As it was correctly pointed out on behalf of the respondent, this was a further opportunity for the employees to re-consider their stance.

[66] Rather than accepting the final written warnings and going back to work, the individual applicants adopted a posture that they had done nothing wrong to deserve that sanction. Tshabalala had reiterated in her testimony that the employees held the view that they had done nothing wrong, and that they had still refused to sign the warning even after Makhubela had explained it to them and its

consequences. Effectively, the individual applicants unlike eight other employees, elected to be dismissed.

[67] The contention that the respondent had framed the dismissal as a repudiation of contracts of employment in the final written warning

and had thus relied on the common law of breach of contract which is impermissible[10], is a red herring, and it was correctly submitted on behalf of the respondent that this was a non-issue. The individual applicants were dismissed for participation in an unprotected strike and after they had refused to return to work upon signing the final written warning. I never understood the respondent’s case to be that the termination was based on any common law grounds.

[68] The individual applicants were afforded sufficient time between 19 and 20 November 2019 to again reflect on their stance and an alternative to dismissal following non-compliance with the ultimatums, and I fail to appreciate how it can be said that they were unfairly prejudiced or that their dismissal can be classified as procedurally fair. Given their collective refusal to accept an

alternative to a dismissal, it can equally be said that the circumstances of this case further allowed the respondent to have dispensed with any formal hearing.

Summary and conclusions:

[69] Regarding the issues in dispute and those to be determined by the Court, it is reiterated that the individual applicants cannot dispute that the respondent had been operating intermittently on short time since 2008, and even if they were aggrieved by it, they had not formally pursued any grievances in respect of the implementation thereof.

[70] Furthermore, the individual applicants upon being informed of the non-payment of bonuses on 11 November 2019, had sufficient time to rationally discuss and consult with NUMSA over the issue. NUMSA was invited for such consultations with the respondent but had failed to attend the specific meeting of 11 November 2019, let alone engage with the respondent even after the latter gave it feedback after its meeting with the individual applicants.

[71] The unprotected strike action which was never at any stage resolved inclusive of as of 20 November 2019, was not in response to any unjustified conduct on the part of the respondent, and on the opposite end, it has been found that the strike was premeditated and planned between 11 and 18 November 2019. In the end, the dismissal of the individual applicant is found to have been substantively and procedurally fair.

[72] I have further had regard to the requirements of law and fairness to the extent that the respondent sought a costs order. Against the facts and background of this dispute, it is deemed appropriate that each party must be burdened with its own costs.

[73] Accordingly, the following order is made;

Order:

1. The dismissal of the individual applicants listed on an annexure attached to the Statement of Claim was procedurally and substantively fair.

2. There is no order as to costs.

Edwin Tlhotlhalemaje

Judge of the Labour Court of South Africa

Appearances:

For the Applicants: Mr. X. Mnyandu, NUMSA Official

For the Respondent: Mr. A. Bakker of Anton Bakker Attorneys.

[1] Act 66 of 1995, as amended.

[2] Act 66 of 1995, as amended.

[3] [2016] ZACC 28; (2016) 37 ILJ 2485 (CC) at para 105, where it was held; ‘…In everyday parlance people call every collective stay-away from work or work stoppage a strike. Under the LRA a strike must have the four elements. These are: (a) a partial or complete concerted refusal to work or retardation or obstruction of work, (b) by persons who are or have been employed by the same employer or by different employers, (c) for the purpose of remedying a grievance or resolving a dispute, (d) in respect of a matter of mutual interest between employer and employee.’

[3] [2016] ZACC 28; (2016) 37 ILJ 2485 (CC) at para 105, where it was held;

‘…In everyday parlance people call every collective stay-away from work or work stoppage a strike. Under the LRA a strike must have the four elements. These are: (a) a partial or complete concerted refusal to work or retardation or obstruction of work, (b) by persons who are or have been employed by the same employer or by different employers, (c) for the purpose of remedying a grievance or resolving a dispute, (d) in respect of a matter of mutual interest between employer and employee.’

[4] [2022] ZALCJHB 267; (2022) 43 ILJ 2792 (LC) at para 39.

[5] (2016) 37 ILJ 2610 (LAC).

[6] At para 27.

[7] [2020] ZALAC 46; (2020) 41 ILJ 2771 (LAC); [2021] 3 BLLR 236 (LAC).

[8] At paras 25 – 27.

[9] Paragraph 12 of the Pre-trial Minute.

[10] See South African Broadcasting Corporation (SOC) Limited v CCMA and Others [2019] ZALCJHB 318; (2020) 41 ILJ 493 (LC) at para 12.