SACCAWU obo Gasa and Others v Melbro Wholesale (Pty) Ltd (JS175/21) [2021] ZALCJHB 380 (20 October 2021)

THE LABOUR COURT OF SOUTH AFRICA, JOHANNESBURG

Not Reportable

Case no: JS 175/21

In the matter between:

SACCAWU obo MPHENI GASA & 47 OTHERS Applicant

and

MELBRO WHOLESALE (PTY) LTD Respondent

Heard: 15 October 2021.

Delivered: 20 October 2021 (through email)

Summary: An opposed condonation application – explanation although not full but reasonable and acceptable. Prospects of success reasonably exist – interest of justice allowing the granting of condonation. Held: (1) The condonation application is granted. Held: (2) No order as to costs.

JUDGMENT

MOSHOANA, J

Introduction

[1] About 48 members of the South African Commercial and Catering Allied Workers Union (SACCAWU) were dismissed for reasons that they participated in an unprotected strike. Aggrieved by the dismissal, SACCAWU referred a dispute to the Commission for Conciliation, Mediation and Arbitration (CCMA) and alleged an unfair dismissal of its members. The CCMA failed to resolve the dispute through conciliation. The conciliating commissioner directed the matter to arbitration for resolution. The dispute was so referred to arbitration. On 9 July 2020, the CCMA in a written ruling declined jurisdiction.

[2] On or about 8 March 2021, the dispute was referred to this Court for adjudication. At this time, the referral was lying outside the prescribed time period. Around 15 April 2021, the present application was launched seeking condonation for the late referral of the dispute for adjudication. The respondent duly opposes the application.

Background facts

[3] The 48 members were employed as warehouse assistants. Their duties entailed to dispatch stock that was picked and packed to retail

stores. On 10 March 2020, the Assistant General Manager and Assistant Warehouse Manager were summoned to the place where the members

worked. In the presence of a SACCAWU shopsteward, the members demanded management to issue them with dismissal notices as it was

the intention of management to dismiss them as part of the performance management process. They indicated that their dismissal

was imminent because the respondent continued with the performance management process while a dispute relating to it was pending at the CCMA.

[4] After a toing and froing between management and union officials as well as various ultimatums to return to work, at or around 09h22 on 10 March 2020, the members resumed their picking duties. Later on when management reviewed their records, it turned out that on the day in question, the members failed to reach their daily targets. They were R923 495.81 behind the production target for the day.

[5] On 11 March 2020, the members were issued with a notice to attend a collective disciplinary hearing in order to answer to the allegations

that they participated in an illegal/unprotected strike between 07h30 and 9h30 on 10 March 2020. The disciplinary hearing was scheduled to take place on 17 March 2020. On the day, all members arrived and management requested to search them before they could proceed to the hearing room. The members refused to be searched. They all left and the disciplinary hearing proceeded in their absence. On 18 March 2020, after being found guilty as charged, the members were dismissed. As indicated above they were aggrieved by their dismissal.

Evaluation

[6] A trite and cardinal principle is that condonation is not there for a mere asking[1]. An applicant must provide a reasonable and an acceptable explanation and must demonstrate reasonable prospects of success.

Explanation for the delay

[7] It is apparent that the conciliating commissioner directed the parties to a “wrong dispute resolution forum”. The veritable

question is could SACCAWU have known that they were misled by the conciliating commissioner? In the Court’s view, it cannot be said that they were misled. When regard is had to the referral form, SACCAWU on behalf of its members alleged that the members were dismissed for misconduct. The referring party ticked a box of misconduct on the referring form. In terms of section 191 (5) (i) of the LRA, the Commission must arbitrate the dispute at the request of the employee if the employee has alleged that the reason for dismissal is related to the employee’s conduct.

[8] The forms completed by SACCAWU were for con-arb within the contemplation of section 191 (5A) of the LRA. It is not apparent from the papers before me that the respondent had objected to the immediate commencement of arbitration. Nevertheless, the relevant issue is whether there was a request for arbitration. There is no dispute that such a request for arbitration was made. In summarizing the facts, the referring party stated that the dispute is about unfair dismissal related to alleged participation in an unprotected strike. In terms of item 6 (1) of schedule 8 of the LRA, participating in a strike that does not comply with the provisions of chapter IV is misconduct. Clearly, participation in an unprotected strike action is an act related to conduct. In terms of section 191 (5) (a) (i) once the Commission is requested by the employee to arbitrate, it is legally obligated to arbitrate. The legislature employed the phrase “must arbitrate”.

[9] In light of the above, the Commission is not, in my considered view, bereft of jurisdiction over the dispute. During oral submission, I enquired from Mr Dockrat appearing on behalf of SACCAWU whether the ruling is part of the papers before me, to which he replied in the negative[2]. It is common cause that the jurisdictional ruling was not taken on review. It being an administrative action, it factually exists with consequences until set aside by a Court with competent jurisdiction.

[10] It behooves this Court to clarify this issue of jurisdiction for the sake of posterity. Firstly, jurisdictional rulings are made for convenience and are not binding on this Court. Proper reading of section 191 (5) (b) reveals that an employee faced with a reason that he or she participated in a strike action that does not comply as a reason of dismissal has an option to refer the dispute to the Labour Court for adjudication. Ordinarily, an employer faced with an unprotected strike action and wish to dismiss for that reason has two courses open to it. It may follow the process outlined in item 6 (2) of schedule 8 and thereafter dismiss. Alternatively, it may follow the process contemplated in item 4 of schedule 8. On the facts of this case, the respondent opted for item 4 process. The dismissal of the members followed after the members failed, even when given a fair opportunity to do so on the respondent’s version, to answer to the allegations of misconduct. Granted, the misconduct was categorized as one of participation in an unprotected strike action. However, it cannot be said that dismissing an employee for that is not equivalent to dismissing an employee for reasons related to conduct. By definition, the word ‘conduct’ grammatically means the manner in which a person behaves, especially in a particular place or situation. Therefore, when an employee participates in an unprotected strike action, that employee conducts himself or herself in a particular way. The word ‘participate’ grammatically means as a verb to take part in an action. The word ‘conduct’ as a transitive verb means to direct or take part.

[11] In my view, item 4 process requires the employer to notify the employee of the allegations and the employee must be allowed an opportunity to state a case in response to the allegations. This is exactly what occurred in this instance. I venture to say that where an employer opts for item 4 process, in a participation in an unprotected strike situation, the dismissal that follows thereafter is a dismissal for reasons related to the employee’s conduct. Such dismissals falls squarely within the jurisdiction of the Commission in my view, since they relate to an employee’s conduct. However, where an employer opts for item 6 (2) process, the dismissal that ensues thereafter is one which an employee may opt to request adjudication by the Labour Court. The obvious reasons for that seem to flow from the fact that, in terms of section 68 (1) (a) of the LRA, the Labour Court is endowed with exclusive jurisdiction to grant an interdict or order to restrain. On 10 March 2020, one of the options available to the respondent was to seek an order restraining the members to continue with the unprotected strike action. Once an order is granted, the employees are restrained from continuing with the strike. Should they persist to strike in the face of a court order, two things may happen. They may be held in contempt or the employer may dismiss them in accordance with items 6 (2) or 4.

[12] The conclusion I reach on this point is that although this Court is not seized with an application seeking to review the jurisdictional

ruling, doubt is expressed that the CCMA was bereft of jurisdiction on the present dispute, which flow from a conduct of the members. On the facts exposed thus far, it is apparent that the true reason for the dismissal of the members is their failure to reach the target – an independent act of misconduct. Instead of placing those allegations of failure to reach target, the respondent simply remembered to do what item 4 prescribes. It must be stated that if the steps contemplated in item 6 (2) were not extendable; the respondent could dispense with them and simply dismiss the members because they according to the allegations already participated in a strike that does not comply – an act of misconduct.

[13] An important aspect that relates to the prospects of success is that the respondent allowed the members to return to work and only considered acting against them the following day purely, it would seem, because of the revelations of the failure to meet daily target. On the available facts, the members downed tools for effectively under two hours of the day shift. Assuming that these members were to work an 8-hour shift, they had the remainder of about 6 hours to meet the target. On their version, they met the target. These conclusions that the true reason for dismissal is something else are fortified by the following testimony tendered by the Group Human Resources Manager, Mr Munro.

“11.22 In total, the applicants were R923, 495.81 behind the production target for the day. The time lost (assumed to be under two hours[3]) could not be recouped and the respondent’s weekly targets were also not met. The practical result of this is that the respondent’s

retail stores did not receive stock that they needed on time, resulting in loss of sales.”[4]

[14] The above discussion drove this Court to a conclusion that the interests of justice allows this Court to grant condonation. Returning to the explanation for the delay, it is apparent that SACCAWU lays the blame on the doorstep of its officials. Put differently, SACCAWU as a party to the referral for adjudication relies on its own negligence to explain the delay. This Court in Moloantoa v CCMA and another[5] when dealing with a condonation application had the following to say:

“13 I need to point out that trade unions are not necessarily representatives in the normative sense. In terms of section 200 (1) of the LRA, a registered trade union may act in the following capacities in a dispute which any of its members is a party…To my mind the authority of Salojee…did not have trade unions in mind when it stated the limit beyond which a litigant can escape the consequences of an attorney’s lack of diligence.

14 Therefore, I take a view that NUMSA as a party to the dispute involving Moloantoa and Eskom cannot be treated the same way as a legal representative in this instance. NUMSA was obliged by its constitutional arrangements to assist Moloantoa. That being the case, there was no obligation on the part of Moloantoa to have made follow ups like in a situation of an attorney and client. Therefore an explanation by trade union members that they looked upon their trade union to assist them should not be rejected lightly on the simple basis of lack of follow up as it is the case in an attorney and client situation.”

[15] Based on the above observation, this Court cannot lightly reject the explanation that after being told by Tshidino, the union official,

that everything was in order, they waited for further advices from the trade union. It was, in the Court’s view, reasonable for the members to wait and look upon their trade union. Although Tshidino appears to have been negligent, he was not the members’

chosen representative per se. They chose to be members of SACCAWU and it had a constitutional obligation to assist them when faced with dismissal issues.

[16] In the absence of Tshidino, the remaining officials are not in a better position to account fully for the delay. The members themselves are equally not in the position to fully account for the delay. This is not a matter of a supine party. SACCAWU timeously requested

arbitration. The Commission declined jurisdiction. Clearly, the respondent knew since then that the members and or SACCAWU are

unhappy with the fairness of the dismissal. Were this Court to exercise its discretion against granting condonation, the respondent

would gain an unfair advantage. It must be so that the delay is excessive. However, there is no demonstrable prejudice to be suffered

by the respondent if condonation is granted. Holmes JA in Melane v Santam Insurance Co Ltd[6] made it plain that exercise of discretion involves consideration of all the facts and fairness to both parties. Although the explanation

tendered by the applicant is not full, due to the absence of Tshidino, it remains reasonable. On the available facts, the members

possess reasonable prospects of success. I briefly consider the prospects below.

Prospects of success.

[17] With regard to prospects of success, Holmes JA laid the following rule:

“Discursiveness should be discouraged in canvasing prospects of success in the affidavits.”

[18] The respondent takes a view that the only basis to challenge the fairness of the dismissal is premised on the non-compliance with item 6 (2) of schedule 8. This cannot be correct. The applicant also raise a challenge on the appropriateness of dismissal as a sanction. Item 6 (1) of schedule 8 provides that participation in a strike is misconduct, which like any other act of misconduct, it does not always deserve dismissal. Item 7 (b) (iv) of schedule 8 requires consideration of whether dismissal was an appropriate sanction for the contravention. The applicant alleges that there was no economic harm caused by the members’ work stoppage. Clearly, this goes to the appropriateness of the sanction. It is apparent that the respondent takes a view that targets were not met on that day and the members allege that they were met on that day. On the facts, the strike action lasted for under two hours. This is a factor in the consideration of the appropriateness of the sanction of dismissal. One other fact is to consider whether or not the strike was in response to unjustified conduct of the employer. On the applicant’s version, which is not seriously disputed, the respondent was cancelling overtime, issuing disciplinary warnings pertaining to poor performance, disciplining employees selectively, and practicing nepotism. On the face of it, such conduct is unjustified.

[19] In S v Smith[7], the following was laid down with regard to prospects of success.

“What the test of reasonable prospects of success postulates is a dispassionate decision, based on the facts and the law, that a court of appeal could reasonably arrive at a conclusion…” More is required to be established than that there is a mere possibility of success, that the case is arguable on appeal or that the case cannot be categorized as hopeless. There must, in other words, be a sound, rational basis for the conclusion that there are prospects of success on appeal.”

[20] On consideration of the law and the facts of this case, without being influenced by strong emotions, so as to be rational and impartial,

this Court takes a view that the applicant possesses reasonable prospects of success. The prospects of success is the most important

factor in the assessment to enable a judicious exercise of discretion. Its presence compensates the lack of full explanation referred to earlier. Another factor that may creep in is whether the members were on strike or not. By definition, a strike requires a demand. It is apparent in this matter that the demand was one of being dismissed. In other words, to have averted the strike, the respondent needed to dismiss the members. That seem illogical of course. During argument, the respondent’s counsel suggested that the true demand was for the respondent to stop the performance management process.

The interests of justice.

[21] In Radebe v Hough[8], Davis AJA stated the following:

“I am satisfied, on what has been put before us in any form which we should consider, that, having regard to all the factors involved, it is more in accordance with justice to grant leave rather than to refuse it.”

[22] Davis AJA stated the above after being urged to follow Thompson v Stofberg[9] that suggested that where the order will be academic to grant leave would be academic. Recently the Constitutional Court in Grootboom v NPA[10], Zondo J, as he then was, stated the following:

“In this Court the test for determining whether condonation should be granted or refused is the interest of justice…”

[23] Bosielo AJ in the majority judgment accepted that the standard for consideration of an application for condonation is the interest of justice. However, he said that the concept of the interest of justice is so elastic that it is incapable of precise definition, but it includes (a) nature of the relief sought; (b) the extent and cause of the delay; (c) the effect of the delay on the administration of justice and the parties involved; (d) the reasonableness of the explanation; (e) the importance of the issues; and (f) the prospects

of success.

[24] In casu; having had regard to all the circumstances of this case, it is in the interests of justice to grant condonation. Therefore, the conclusion to reach is that the late referral of the dispute for adjudication ought to be condoned in terms of section 191 (11) (b) of the LRA.

[25] In the results, I make the following order:

Order

1. The late referral of the dispute for adjudication is hereby condoned.

2. There is no order as to costs.

Graham Nasious Moshoana

Judge of the Labour Court of South Africa

Appearances:

For the Applicant: Mr Y Dockrat of Dockrat Inc Attorneys, Sandton.

For the Respondent: Ms S Moreland

Instructed by: Guy

& Associates, Cape Town.

[1] See: Makusa v CCMA and Others (2016) 37 ILJ 163 (LC)

[2] The ruling was annexed to the statement of claim though.

[3] Additions by Court.

[4] Answering Affidavit. This in response to the allegation by the members that target of the day was reached.

[5] (JR1281/19) [2021] ZALC 10 (31 May 2021).

[6] 1962 (4) SA 531 (AD).

[7] 2012 (1) SACR 567 (SCA) para 7.

[8] 1948 (3) SA 855 (AD)

[9] 1934 AD 527.

[10] [2014] 35 ILJ 121 (CC).