South African Clothing & Textile Workers Union (SACTWU) and Another v Yarntex (Pty) Ltd t/a Bertrand Group (P175/09) [2010] ZALC 64; (2010) 31 ILJ 2986 (LC) (29 April 2010)

IN THE LABOUR COURT OF SOUTH AFRICA

HELD AT PORT ELIZABETH

CASE NO. P175/09

In the matter between:

SOUTH AFRICAN CLOTHING

AND TEXTILES WORKERS UNION

(SACTWU) First Applicant

N.S. MAVAMA & OTHERS Second to Further Applicants

and

YARNTEX (PTY) LTD t/a BERTRAND GROUP Respondent

______________________________________________________________________

JUDGMENT

BHOOLA J :

INTRODUCTION

[1] The applicants seek an order declaring the dismissal of the second to further applicants on 22 September 2008 following strike action to be automatically unfair as contemplated in section 187(1)(a) read together with section 67(4) of the Labour Relations Act No 66 of 1995 (“the LRA”). In the alternative, the applicants seek an order that their dismissals were substantively and procedurally unfair in terms of

section 188(1).

[2] The matter was heard from 26 to 29 January 2010 and the court requested written submissions from the parties. Respondent’s attorneys filed written heads on 29 January 2010 when oral submissions were heard at the end of the trial, and applicants’ attorneys delivered their written heads of argument on 5 February 2010. Thereafter respondent’s attorneys filed answering heads. These were received by the court on 17 February 2010. I am indebted to both Mr Wade and Ms Ralehoko for their comprehensive submissions, on which I have drawn extensively in preparing this judgment.

MATERIAL BACKGROUND FACTS

[3] The first applicant is the Southern African Clothing and Textile Workers Union (“SACTWU”), a trade union registered in terms of the LRA.

[4] The second and further applicants (“the individual applicants”) were employed by the respondent until their dismissal on 22 September 2008 for taking part in an unprotected strike (“the September strike”). They were at all relevant times members of SACTWU, which was recognised as the sole bargaining agent in the workplace.

[5] The respondent is Yarntex (Pty) Ltd trading as the Bertrand Group (“Bertrand”), and conducting business in the textile

industry as a manufacturer of worsted or hand knitted yarn.

[6] In February and July 2008, SACTWU members engaged in an unprotected strike, following which they were issued with written warnings.

Following the September strike they were dismissed for engaging in unprotected strike action.

[7] Bertrand is a member of the National Association of Worsted Textile Manufacturers’ (“NAWTM”), which together with SACTWU and other parties are founding parties to the National Textile Bargaining Council for the industry (" the NTBC"), formed in 2003 from an amalgamation of former bargaining councils. The constitution of the NTBC (“the Constitution”),

defines its registered scope in respect of the bargaining levels involved in this dispute. In summary they are as follows:

(a) Sub-sector level: Wool & Mohair and Worsted Products sub-sector.

(b) Section level: Wool & Mohair section and Worsted section.

(c) Sub-section level: The Worsted section consists of the Spinners sub-section and the Verticals sub-section. All employers in the Worsted section are

represented by the NAWTM in the NTBC.

(d) Plant level: Bertrand and Derlon (Pty) Ltd formed part of the Spinners sub-section. Hextex and SA Fine (Pty) Ltd fell under the Verticals sub-section.

[8] On 25 June 2003 the parties to the NTBC concluded a transitional agreement to regulate certain aspects arising from the amalgamation

of former bargaining councils. This is dealt with further below.

[9] Historically, in terms of previous collective agreements concluded at the Worsted section, employers based in non-metropolitan areas were required to pay only 80% of the prescribed minimum wage (“the gazetted rate”), in order to assist them to remain competitive. Bertrand and Derlon were considered to be non-metropolitan employers. SACTWU then sought to change this arrangement in the 2008/9 wage negotiations.

[10] In the 2007/2008 collective agreement for the Worsted section, Bertrand and Derlon agreed to pay 80% of the gazetted rates. However, Derlon had been granted an exemption by the Independent Exemptions Board established by the Bargaining Council for the Worsted Textile Manufacturing Industry in September 2004, in consequence of which it was not required to pay the increase until 2009.

[11] In May 2008 SACTWU formulated its proposals for the 2008/9 substantive wage negotiations to the NAWTM, demanding a 9.5% wage increase for its members in the Worsted section. The Spinners sub-section offered to pay a 9.5% increase on 80% of the gazetted rates. The gazetted rates for the Spinners sub-section had apparently been determined by wage rates previously paid by Union Spinning Mills, which had ceased trading sometime in 2003/4.

[12] Negotiations in respect of the 2008/2009 year continued over wages and terms and conditions of employment and agreement was reached in the Wool and Mohair section. Negotiations in the Worsted section (involving Bertrand) deadlocked.

[13] Following three rounds of wage negotiations, as required by the Constitution, agreement on wages and terms and conditions of employment in respect of the Verticals sub-section was reached and a collective agreement

concluded. No final collective agreement was concluded in the Spinners sub-section, although a draft agreement was signed by Derlon

in July 2008. The draft agreement set out the understanding of SACTWU about the process as follows: “The Worsted sector (sic) agreement is in the process of being finalised by the parties. This agreement will contain the improvements to conditions of employment for the entire Worsted sector (sic) as well as the new minimum wage rates for 2008/2009”.

[14] However SACTWU then informed Bertrand that it had been “mandated not to conclude an agreement that would cover the Bertrand Group”. Its undated letter stated that :

“We hereby withdraw the submitted and still unsigned draft agreement by the company and confirm that the negotiations remain unresolved. In order to conclude these negotiations we re-propose that the increase of the total labour cost of 9.5% be calculated and applied on the gazetted rate of the Spinners schedule as set out in the Worsted sub-sector gazette annexure to the NTBC main agreement to constitute a new minimum”.

[15] The Spinners sub-section (i.e. Derlon and Bertrand) met with SACTWU on 22 July 2008 in an endeavour to settle the dispute. SACTWU tabled its demand for a 100% increase on the gazetted rates. In its letter of 22 July following the meeting SACTWU records that “after we have motivated our demand the management was very angry with the union claiming we are negotiating in bad faith in that all these years the rates for Bertrand has been paid (sic) less than the gazetted rates. And therefore the management rejected our proposal which means now, we do not have the agreement and therefore the union will declare a dispute on an urgent basis against the company”.

[16] At the time there was an unprotected strike at Bertrand which had commenced on 17 July 2008. This followed a previous unprotected

strike following a dispute concerning shift patterns in February 2008, as a result of which employees were issued with written

warnings for misconduct. On 22 July 2008 a “final ultimatum” was issued to employees and copied to SACTWU. It stated that it was Bertrand’s "...intention to have serious regard to dismissing your members should they not resume duties at their normal starting time on 24 July 2008. The ultimatum was complied with and the individual applicants issued with final written warnings for participating in unprotected strike action. The warnings specifically recorded that unprotected strike action is "extremely serious misconduct” and that “..if you within the next twelve months again participate in any form of similar misconduct you can expect your dismissal to be the result”. Although this was the subject matter of correspondence between the parties, at no stage did either the individual applicants or SACTWU seek to challenge their final written warnings in terms of section 188 of the LRA. It is common cause that although SACTWU resisted the imposition of final written warnings, it proposed that "[a] general notice should be issued to employees advising that unprotected strike action will not be tolerated and that employees

could expect to be dismissed if they again participated in unprotected industrial action". In August the individual applicants were again reminded that they had been issued with final written warnings (and, in some cases, second final written warnings). This was communicated to them with their wage packets on 7 August 2008.

[17] On 25 July 2008 SACTWU advised Bertrand that since the wage negotiations of 22 July had deadlocked it was formally in dispute “against the company” and would process the dispute in accordance with the Constitution.

[18] Responding to earlier threats of an interdict should there be a further unprotected strike, SACTWU’s attorneys, Cheadle Thompson and Haysom (“CTH”) in correspondence dated 31 July 2008 confirmed SACTWU’s undertaking " ...to only take strike action in accordance with the provisions of the Labour Relations Act'.

Were the ultimata fair ?

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

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

Other factors relevant to substantive fairness

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

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

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

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

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

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

Conclusion

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

Procedural unfairness

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

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

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

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

Although the applicants concede that they were afforded an opportunity to make representations prior to the decision to dismiss being taken, they submitted that the time afforded to make such representations was inadequate. Ms Ralehoko submitted that given that the ultimatum to the morning shift required representations by 10h30, it would have been unreasonable and impractical to expect SACTWU to be in a position to take instructions

from the approximately 278 members and submit timeous representations. It was also possible that not all the individual applicants were present at the time. The applicants contend that despite the fact that it was common cause that no representations were made prior to the dismissals, nor were appeals lodged thereafter, subsequent to the dismissals SACTWU did seek a meeting to explore resolution of the matter, but Bertrand refused its request. The incontrovertible fact is that Bertrand was simply not willing to engage SACTWU.

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

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

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

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

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

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

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

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

" The facts show that management held meetings with the delegation of the striking workers and NUMSA, separately, to try to end the strike. At these meetings, management warned that the strike was illegal and that those participating in it faced possible

dismissal. Management resorted to the closure of its plant in an attempt to get the workers to return to work. It required workers

returning to the plant to resume their duties or face dismissal. This too did not work. The agreement between NUMSA and management to end the strike did not succeed in getting the applicants back to work. Nor did the warning that those workers who did not return to work on 31 January would face disciplinary action which would include dismissal. An ultimatum calling upon the workers to return to work on 3 February 2000 and warning that failure to return to work would result in dismissal did not succeed in getting the applicants to return to work either."

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

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

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

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

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

had already made a decision not to return to work.

[92] In addition, the applicants also at no stage after their dismissals sought to advance any reasons as to why those dismissals ought not to stand. It was also common cause that they

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

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

Costs

[94] The parties were ad idem that costs should follow the result in the main action.

They addressed me on the issue of the wasted costs occasioned by the postponement of the trial on 30 November 2009 following the

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

Order

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

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

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

(3) The applicants are to pay the wasted costs occasioned by the postponement of the trial on 30 November 2009.

(4) The respondent is to pay the wasted costs occasioned by the postponement of the matter to attend to finalisation of the pre-trial minute on 26 January 2010.

(5) The applicants are to pay the respondent’s costs in the main matter.

________________

Bhoola J

Judge of the Labour Court of South Africa

29 April 2010

Appearance:

For the respondent: Adv R B Wade instructed by Kirchmanns Inc

For the applicants: Mrs. Tapiwa Ralehoko instructed by Cheadle Thompson & Haysom Inc.

1 It was common cause that this was the period 2003 to 2006.

2 Grogan : Collective Labour Law, Juta, 2007, page 227. See also NUMSA v GM Vincent Metal Section (Pty) Ltd 19 99 (4) SA 304 (SCA) para 21

3 The applicants’ contention that the ultimatum was issued at about 09h00 is incorrect. It is likely to have been issued between 10h00 and 10h30 as appears from the analysis of Xola’s evidence.

4 Supra.

5 Supra at [96].

6 The question has often been raised whether employees in such circumstances are dismissed for the illegal strike or for failure to comply with the ultimatum. This was not in issue here however, and in Modise Zondo JP made the point that the distinction was in itself artificial.

7 At para [15].

8 Supra at para [9].

4