South African Clothing & Textile Workers Union (SACTWU) and Others v Nutrichem (Pty) Ltd (JS731/19) [2022] ZALCJHB 362 (30 November 2022)

IN THE LABOUR COURT OF SOUTH AFRICA, JOHANNESBURG

Not Reportable

Case no: JS731/19

In the matter between:

SOUTH AFRICAN CLOTHING & TEXTILE

WORKERS UNION (SACTWU) First

Applicant

ABEL MAHLABA AND OTHERS

Second to Further Applicants

and

NUTRICHEM (PTY) LTD Respondent

Heard: 10 October 2022 to 14 October 2022

Delivered: 30 November 2022

(This judgment was handed down electronically by circulation to the parties’ representatives, by email. The date on which the judgment is delivered is deemed 30 November 2022).

Automatically unfair dismissal in terms of Section 187(1)(d)(i) of the Labour Relations Act 66 of 1995 – Union members dismissed as a result of their union membership reinstatement with backpay ordered as primary remedy

JUDGMENT

SWARTZ AJ

Introduction

[1] This is an action brought by the applicant, the Southern African Clothing & Textile Workers Union (SACTWU) on behalf of 18 of its members[1] who were employed in three different departments by the respondent, Nutrichem (Pty) Ltd (Nutrichem). The 18 members of SACTWU (members) were dismissed on 31 May 2019.

[2] The issue before this Court is whether the dismissals of the members were automatically unfair in terms of sections 187(1)(d) and 187(1)(f) of the Labour Relations Act[2] (LRA) because they were dismissed for joining SACTWU, alternatively, if their dismissals were substantively unfair.

[3] Nutrichem contends that the dismissals had nothing to do with the members joining SACTWU and that the retrenchments were fair, based on the business’ operational reasons.

[4] During the section 189 process and on 18 April 2019, a compromise was reached between Nutrichem and SACTWU whereby the members would work short-time, being a 3-day working week from 22 April 2019 until 30 September 2019. If Nutrichem’s sales had not increased by 15% by 30 September 2019 then the members would be retrenched.

[5] On 20 May 2019, the shop stewards wrote a letter to one of the directors of Nutrichem, Mr Swart (Swart). Swart, Nutrichem’s labour consultant, Mr Botha (Botha) and Nutrichem’s attorneys interpreted this letter as a cancellation of the 3-day working week and proceeded to dismiss the members on that basis.

[6] SACTWU disputes this interpretation of the 20 May 2019 letter. SACTWU’s evidence was that this letter was written to bring to Nutrichem’s attention that it was aware that other employees were not working short-time and that new employees had been employed to attend to the members’ work. This, the members regarded as unfair and discriminatory. The interpretation of the 20 May 2019 letter is in dispute.

[7] Based on the 20 May 2019 letter, Nutrichem issued and distributed dismissal letters to the members at a meeting on 31 May 2019.

[8] The trial commenced on 10 October 2022 and concluded on 14 October 2022.

Factual background

[9] Nutrichem is a manufacturer and seller of chemicals and fertilizers to the farming sector. It is situated at Plot 88, Tweefontein, Bapsfontein.

[10] The members worked in three departments, being the general workers, the leaf and sample collectors and the production/product mixers.

[11] The members worked Mondays to Thursdays from 07:30 am until 17:00 pm and from 07:30 am until 15:00 pm on Fridays. The members worked overtime and/or on Saturdays occasionally.

[12] A list of what the members earned at the time of their dismissal was provided in the consolidated bundle.[3] After Swart’s evidence, it was clear and common cause that the members’ employment fell within the farming sector and the minimum wage for that sector at the time of their dismissal was R20.00 per hour. This curiously is not stated in Nutrichem’s

closing argument.

[13] The chronology of this matter is important. The material timeframes and events given through the evidence of the parties’ witnesses and supported by the documents contained in the consolidated bundle are common cause and are as follows:

13.1 25 September 2018 Illegal strike;

13.2 25 September 2018 Nutrichem increased the members’ salaries;

13.3 26 September 2019 Members join SACTWU;

13.4 9 October 2019

Nutrichem acknowledges SACTWU’s request to meet and suggest dates;

13.5 14 November 2019 SACTWU requests a meeting to elect shop stewards. Nutrichem responds that SACTWU is welcome to meet them;

13.6 1 January 2019

The National Minimum Wage Act[4] (Minimum Wage Act) came into effect;

13.7 January / February 2019 Shop stewards approached Nutrichem requesting members’ salaries be in accordance with the Minimum Wage Act;

13.8 5 March 2019

Senzo Myeni (Myeni) SACTWU organiser emails Nutrichem requesting a meeting with an agenda;

13.9 6 March 2019

Nutrichem informs Myeni that its labour consultants will contact him for legal documents before a meeting can be arranged. Myeni responds that such a request is a “surprise”. Labour consultants emailed Myeni asking for the union’s registration certificate and other information;

13.10 11 March 2019

Myeni emails Nutrichem inter alia for a meeting;

13.11 25 March 2019

Myeni sends the requested documents to Nutrichem. The heading of the email is “Request for section 21 meeting” and sends a letter;

13.12 29 March 2019

Myeni emails Nutrichem that it has come to his attention that

Nutrichem intends to embark on a section 189 process and requests that SACTWU is involved in the process and request 10 April 2019

being the same day SACTWU and Nutrichem planned to meet about the section 21 representation. Nutrichem responds that SACTWU is welcome to join the members’ section 189 meeting on 1 April 2019;

13.13 April 2019

Capital improvement to bathrooms almost complete costing Nutrichem R45 000.00;

13.14 1 April 2019

Myeni sends an email to Nutrichem requesting a postponement of the members’ section 189;

13.15 1 April 2019

Meeting with members and Nutrichem. Myeni is not present. Nutrichem described this meeting as an “information sharing”

process;

13.16 2 April 2019

Nutrichem sends Myeni the agenda for section 189(3) meeting to be held on 3 April 2019;

13.17 3 April 2019

Second section 189(3) meeting. Myeni is in attendance at this meeting and suggests inter alia short-time as an option other than

retrenchment;

13.18 5 April 2019

Proposed date of retrenchment as contained in 3 April 2019 agenda;

13.19 12 April 2019

Third section 189(3) meeting;

13.20 16 April 2019

Nutrichem sends Myeni the 12 April 2019 minutes of the third section 189(3) meeting;

13.21 18 April 2019

Fourth section 189(3) meeting. 3-day workday (short-time) is accepted to start the following week. Members are to work Monday to Wednesday until 30 September 2019. If gross sales do not grow by at least 15% before 30 September 2019 members will be retrenched on 31 October 2019. Myeni was not at this meeting union representative at this meeting was Cornelius Kodisane (Cornelius);

13.22 29 April 2019

Nutrichem sends letter to Myeni complaining about members behaviour and stating that such behaviour will lead to 3-day working week not being feasible and proposed dates for parties to meet on this issue;

13.23 2 May 2019 Nutrichem follows up with Myeni that he has not responded to the 29 April 2019 letter and again asks for confirmation that the parties meet the following week. Nutrichem

contacts Cornelius and a meeting was scheduled for 10 May 2019 at 10:00 am. Later that afternoon, Nutrichem cancels the 10 May 2019 meeting as members are not available and proposes alternative dates to SACTWU;

13.24 3 May 2019 Nutrichem sets meeting down for 15 May 2019 and notifies SACTWU;

13.25 20 May 2019 Abel Mahlaba and Sydney Pasiya (shop stewards) write a letter to Hennie Swart (one of Nutrichem’s director). The interpretation of this letter (the 20 May letter) is in dispute and will be analysed below;

13.26 21 May 2022 DeWet Oosthuizen attorneys send the 20 May letter to SACTWU to be discussed at the 21 May 2019 meeting;

13.27 22 May 2019 Nutrichem sends letter to employees confirming that they had discussions with Myeni on 21 May 2019 and that the parties will meet on 31 May 2019;

13.28 31 May 2019 Nutrichem sends a letter to employees that the meeting on 31 May 2019 will be held at 11:00 am. Meeting is held and employees receive termination letters. Termination of employment with effect from 31 May 2019;

13.29 1 June 2019 Subcontract Agreement entered into between

Nutrichem and Magnificent Electrical;

13.30 11 June 2019

Dispute referred to Commission for Conciliation, Mediation and Arbitration (CCMA);

13.31 15 July 2019 CCMA certificate of Outcome, referred to Labour Court; and

13.32 20 September 2019 Statement of Claim issued.

Parties’ submissions

SACTWU’s submissions

[14] Myeni was the only witness called by the SACTWU.

[15] The illegal strike on 25 September 2018 was as a result of Nutrichem not implementing the minimum wage for some of the members. Such demand was made in anticipation of the minimum wage coming into effect from 1 January 2019. The members joined SACTWU the day after the strike as they felt they were being exploited. By March 2019, SACTWU represented 80% of the employees but SACTWU was not sure as the information from the employees was inaccurate. This is why Myeni informed Nutrichem on 25 March 2019 that SACTWU represented 50% of the employees.

[16] According to the schedule for January 2018[5], 11 out of 25 employees were being paid R15.00 per hour. In September 2018[6], just before the strike, 6 employees were being paid R15.00 an hour.

[17] Nutrichem was aware that SACTWU was requesting organisational rights in terms of section 21 of the LRA. This matter was referred to the CCMA. Correspondence directly between Myeni and Nutrichem went as far back as 5 March 2019. On 25 March 2019, Myeni sent Nutrichem all the SACTWU documentation it had requested. However, despite the aforementioned, SACTWU was not informed that Nutrichem was embarking on a section 189 process and was not invited to the first section 189 meeting scheduled for 1 April 2019.

[18] Myeni further testified that he felt that Nutrichem was reluctant for a union to be involved with its employees as there was resistance to meeting with the union. SACTWU never received the member’s union contributions from Nutrichem.

[19] Myeni was unavailable for the first meeting on 1 April 2019 and requested that this meeting be postponed to 10 April 2019. On 29 March 2019, Nutrichem did invite SACTWU to the 1 April 2019 meeting but this was only done after Myeni emailed Nutrichem on 29 March 2019 that it had come to his attention through the members that Nutrichem was embarking on a section 189 process. Nutrichem should have informed Myeni of this process on their own accord and should have agreed on mutually acceptable dates before unilaterally scheduling the first section 189 meeting for 1 April 2019. Such conduct by Nutrichem showed that it was trying to exclude SACTWU from this process and further indicated a hostile attitude towards SACTWU.

[20] Myeni was not able to attend the 1 April 2019 meeting. The agenda given for the 1 April 2019 meeting indicated that Nutrichem had 37 employees which included the employees on the Rietfontein farm which were not union members.

[21] The 1 April 2019 agenda as well as the minutes for all the other section 189 meetings expressly identified the union by stating that “[t]he Union members however still demands additional salary increases.” and “[t]he Union members also demanded capital improvements to the bathrooms and toilets…” These statements were under the heading “ALTERNATIVES CONSIDERED BY THE EMPLOYER”. These were not alternatives and the insertion of these statements indicated that Nutrichem had an issue with the SACTWU.

[22] All 18 members that were dismissed were employees in the departments that were identified for retrenchments, that being the general workers, the leaf and sample collectors and the production/product mixers.

[23] In all the minutes of the various meetings, Nutrichem indicated that 12 employees would be retrenched. On 31 May 2019, all 18 members were retrenched which was another indication that Nutrichem targeted only the union members.

[24] During the 3 April 2019 section 189 meeting, Myeni was present. Myeni testified that Nutrichem split the employees into two groups. One for union members and one for non-union members. This split also occurred at the 1 April 2019 meeting. Myeni testified that the split did not sit well with the members as they felt they were being targeted.

[25] Myeni disputed that the split was at the insistence of the union despite what the minutes of 3 April 2019 stated. Nutrichem refused to disclosed their full financial statements and the summary provided by it was inadequate to decipher if Nutrichem indeed was under financial stress to justify the proposed retrenchments. Nutrichem also never disclosed its order books.

[26] At the 12 April 2019 meeting, Nutrichem warned SACTWU that they were not allowed to interfere with Nutrichem management and demand that it sells its assets. The representatives of Nutrichem, namely Swart and Botha acted in a hostile manner towards the union, for instance, by having armed security at some of the section 189 meetings.

[27] On 12 April 2019, Myeni stated that Nutrichem representatives were undermining and used hostile language towards him and the members. The minutes do not reflect the tone and the manner in which the Nutrichem representatives addressed him and the members. Nutrichem displayed a hostile attitude towards the members.

[28] Nutrichem was hostile towards the union because of the salary increase demand and the capital improvement (bathroom) demand. Further, on arrival at the 3 April 2019 meeting, Nutrichem was not happy for Myeni to first meet with the members.

[29] Myeni disputed that Nutrichem was in financial distress and that the retrenchments were justified. Nor did Myeni agree that the work at Nutrichem had decreased. Myeni accepted that there was a drought that impacted Nutrichem’s business but stated that nevertheless there was a lot of work to be done.

[30] Myeni denied that neither he nor the members were shouting or acting aggressively at any of the section 189 meetings.

[31] Chris Liebenberg (Liebenberg) was not a union member and he was not affected by the retrenchment process as he had opted for a voluntary retrenchment. However, it is uncertain as one of Nutrichem’s documents states that Liebenberg resigned[7]. Samuel Sewape (Sewape) was a union member and he was not dismissed but Sewape later resigned from the union.

[32] During cross-examination, Myeni stated that Sewape, during the section 189 meetings, was in the non-union member group and disputed that Sewape was a union member when the members were dismissed.

[33] On 18 April 2019, a compromise was reached on short-time and a 3-day working week was to be implemented the following week. The agreement was that the members would work short-time until 30 September 2019 and if Nutrichem had not improved its sales by 15% by the end of September 2019, then the members would be retrenched.

[34] After the short-time agreement was implemented, the members complained to Myeni that not all the employees had been put on short-time and that the employees that were not members were working full weeks. However, the members’ main gripe was that there were “new faces” on the Nutrichem premises that were attending to their work.

[35] As Myeni was not available when the abovementioned issues arose, he instructed the two shop stewards, Abel Mahlaba and Sydney Pasiya, to write to Nutrichem and alert them to these issues. He did not see this letter before it was sent to Nutrichem. The shop stewards wrote such a letter on 20 May 2019. The purpose of the letter was to demand more hours to work and not to cancel the short-time agreement.

[36] After the 20 May 2019 letter was sent, it was forwarded to Myeni and Botha contacted him in order to meet to discuss the contents and the issues that had been raised in this letter. At the time Myeni was in Port Elizabeth. This letter upset Nutrichem. The meeting for such a discussion was scheduled for 31 May 2019.

[37] When Botha discussed the 20 May 2019 letter with him, Botha did not raise Nutrichem’s interpretation that the short-time agreement had been cancelled. Myeni understood that the meeting on 31 May 2019 was to discuss the contents of the letter to resolve any issues and move forward.

[38] At the 31 May 2019 meeting there were armed security guards present just like there had been during the section 189 meetings. The security guards’ presence was used as an intimidation tactic by Nutrichem and was not conducive to fostering constructive or meaningful discussions.

[39] The 31 May 2019 meeting lasted five minutes and Myeni was not afforded an opportunity to explain what the 20 May 2019 letter was trying to convey. As Myeni was trying to explain, termination of employment letters were handed out to all 18 members. Myeni and the members were shocked. The termination letters were already prepared. They were not expecting this at all. They were expecting to discuss with Nutrichem why there were new faces working at the Nutrichem premises when the members’ working week had been shortened.

[40] Under cross-examination, Myeni testified that he was not given an opportunity to discuss the issue of the “new faces” and that the dismissal letters were just handed out to the members. Nutrichem would not engage with SACTWU and informed Myeni that they will meet at the CCMA. Myeni emphasised during cross-examination that there was no cancellation of the short-time agreement from the members.

[41] During cross-examination, a version was put to Myeni that the 20 May 2019 letter by the shop stewards had cancelled the short-time agreement and hence retrenchment was the only option that Nutrichem had. A new version was put to Myeni that Abel Mahlaba during the 31 May 2019 meeting had also verbally cancelled the short-time agreement. Myeni disputed this. This version was objected to by Mr Daniels, SACTWU’s attorney.

[42] Myeni disputed that the 20 May 2019 letter had cancelled the short-time agreement and stated that that was Nutrichem’s interpretation.

[43] On 1 June 2019, Nutrichem signed a subcontract with Magnificent Electrical to provide labour to Nutrichem that the members were providing prior to their termination.

[44] In conclusion, Myeni stated that he did not believe that there was a need to retrench the employees and the real reason of the retrenchment was to get rid of the members and replace them with the Magnificent Electrical employees.

[45] Over and above the evidence of Myeni as detailed above (which will not be repeated), the following material points (amongst others) from SACTWU’s closing argument were made:

45.1 The probabilities favour that Nutrichem separated union and non-union members during the section 189 meetings;

45.2 The representatives of Nutrichem acted in a hostile manner towards the members for the reasons listed throughout Nutrichem’s heads of argument;

45.3 The number of employees included those from Rietfontein. These employees were not retrenched as they were not union members;

45.4 Nutrichem was not on the verge of bankruptcy and financially, having regard to inter alia Nutrichem’s financials, graphs and Grobler’s evidence, there was no need to retrench the members;

45.6 The legal principles relating to expert evidence highlight Grobler’s failure in this regard. The evaluation of evidence where there are disputes of facts favours SACTWU’s versions;

45.7 The dismissals were premeditated as the termination letters were ready and handed out at the 31 May 2019 meeting;

45.8 Swart contradicted himself. Swart’s evidence was evasive and his testimony was not credible. Botha and Swart’s evidence contradicted each other’s; and

45.9 There was no substantive fairness to the members’ dismissals. The evidence favours the probability that the members were dismissed for being union members which is automatically unfair. Reinstatement is the primary remedy and should be ordered.

Nutrichem’s submissions

[46] Nutrichem called three witnesses. Swart, Mr Grobler (Grobler) being an expert witness as Nutrichem’s accountant and Botha, Nutrichem’s labour consultant.

[47] Swart testified he was the founding member of Nutrichem, its CEO and head of the technical product formulation and marketing. On 25 September 2018, when the illegal strike happened he was in KwaZulu-Natal with his wife, the other director of Nutrichem, Mrs Theresa Swart (Mrs Swart) to watch his son play ruby. The employees at that stage were demanding a wage increase. It was difficult to calculate and for Mrs Swart to do the pastel workings as she too was away. Swart told David Mafalhane (Mafalhane) Nutrichem’s General Manager before he passed away in March 2021, that the increases would be implemented on his and Mrs Swart’s return.

[48] The employees were threatening to burn down property on the Nutrichem premises and the police were called but informed Nutrichem that they could not assist. The salary increases were then implemented on 25 September 2018.

[49] Nutrichem had no issue with SACTWU’s presence at Nutrichem and in November 2018, two shop stewards were elected. Union fees were collected on a monthly basis and paid in a lump sum over to SACTWU. Swart disputed that SACTWU referred a recognition dispute to the CCMA.

[50] On 1 April 2019, Myeni sent an email at 09:02 am seeking a postponement of the 1 April 2019 meeting. However, this email was sent after 09:00 am and the meeting had already commenced.

[51] Swart testified about the drought and the negative impact it had on the farming industry. He also testified about the weak rand exchange to the dollar and how in the financial year September 2018 to August 2019 Nutrichem was financially stressed.

[52] Myeni split the meetings between the employees that were members of the union and non-union members. Myeni was sent a copy of the minutes for all the meetings and no objections of the recordal of these minutes was ever made by Myeni.

[53] A summary and an abstract of Nutrichem’s financials were given to SACTWU. The detailed audited financials that are sent to SARS were not ready at the time the section 189 meetings.

[54] Twelve employees were originally identified from the three departments to be retrenched but this number was not finalised. Liebenberg took voluntary retrenchment (with no incentive). Although one of Nutrichem’s document states that Liebenberg resigned, this is incorrect and a typo. Liebenberg was not a union member and he was identified for retrenchment. Sewape was a union member at the time of the retrenchments and he was not dismissed. Sewape then resigned as a union member (but not formally) and is now General Manager of Nutrichem since Mafalhane passed away. Liebenberg and Sewape are indicators that Nutrichem did not target union members for dismissal.

[55] At the 1 April 2019 section 189 meeting, the members agreed to a split between members and non-union members. In fact, Myeni suggested the split. Nowhere in the minutes under Myeni’s comments is it noted that the members objected to such a split. The minutes were always sent to SACTWU and Myeni. If anything was incorrectly recorded therein, Myeni never brought this to Nutrichem’s attention.

[56] No employees were retrenched on 5 April 2019 as originally planned as Nutrichem embraced SACTWU’s involvement and prolonged the process. Nutrichem complied with the members’ demand to improve the bathrooms and spent R45 000.00 in doing so. Swarts testified under cross-examination that if the bathrooms were not renovated the members threatened to go on strike.

[57] Nutrichem also compromised on the short-time in that Nutrichem proposed a 2-day working week and SACTWU proposed a 4-day working week. A compromise was reached on a 3-day working week. This is an indication that Nutrichem was not hostile towards SACTWU and at all times was willing to engage with the union.

[58] The “new faces” that Myeni referred to (information which was given to him by the members) is hearsay evidence and in any event these “new faces” were electrical workers doing electrical work for Nutrichem and had nothing to do with the scope of the members’ work.

[59] There was an ongoing drought and the farmers were not ordering as much fertilizer as in previous years. The rand dollar exchanged had worsened and the members still insisted on an increase of their salaries.

[60] Nutrichem did not have an order book, only quotes and when those quotes were accepted they became orders.

[61] The employees that worked on Rietfontein were not Nutrichem employees, they were Forum SA employees, being a different entity to Nutrichem and therefore not part of the retrenchment process.

[62] Swart testified that the members over and above their salaries were getting an additional R1 000.00 per month in accommodation, maize meal, water and electricity. Accordingly, the few members that were earning below the minimum wage were in reality not because of the additional benefits meant that they were earning over the minimum wage.

[63] On 18 April 2019, a short-time agreement between Nutrichem and SACTWU was agreed to. This agreement was to be implemented the following week. This agreement did not affect key staff such as drivers and management and only affected the employees in the three departments of the general workers, leaf and sample collectors and the production/product mixers. These employees all happened to be union members, save for Liebenberg. The union members were not targeted but it happened to all those who worked in these departments.

[64] On 29 April 2019, Nutrichem sent a letter[8] to SACTWU complaining that the members were refusing to execute orders and that this behaviour is unacceptable and demanded that such behaviour stop, failing which the 3-day work week would not be feasible. Nutrichem then requested a meeting with SACTWU. SACTWU never responded to Nutrichem’s requests. The letter of the shop stewards dated 20 May 2019 was not from SACTWU. This resulted in a deadlock between the union and Nutrichem.

[65] The 20 May 2019 letter did not refer to “new faces” and paragraph 4 of this letter threatened strike/protest action and in Swart, Botha and Nutrichem’s attorney’s opinion, this letter, specifically paragraph 4 thereof, cancelled the short-time agreement. Swart, further testified that “new faces” were not mentioned at the 31 May 2019 meeting at all. The 31 May 2019 meeting lasted approximately one hour and issues were discussed and the main aim was to clarify this letter but the agreement was cancelled. It was clear that the union cancelled the 3-day work agreement leaving Nutrichem with no alternative but to retrench the members. Swart also stated that security was present at all the meetings.

[66] Swart testified that after the 31 May 2019 meeting, the trust relationship between the members and Nutrichem had been broken. He also stated that there are no jobs available now and the members’ previous jobs have been taken by seasonal workers.

[67] On 1 June 2019, Nutrichem concluded a subcontact agreement with Magnificent Electrical. Swart drafted this contract in an hour which he downloaded from the internet. Nutrichem’s financial department discovered that Magnificent Electrical was not registered but it thereafter registered as a company. Magnificent Electrical paid its employees UIF and salaries, Nutrichem paid the invoices rendered to it by Magnificent Electrical and Nutrichem did not know how much Magnificent Electrical was paying its employees.

[68] Nutrichem’s liabilities were substantially higher in 2019 and the Hennie en Theresa Swart Famillie trust had loaned R11 229 758 to Nutrichem in 2019 in order to save the company. From the article “Engineering News” it shows that Omnia, a chemicals and fertiliser company, reported a full-year loss due to inter alia the volatile currency and droughts. The whole farming industry was in financial stress including Nutrichem. Swart went through Nutrichem’s financials to highlight the losses Nutrichem had made in 2019 compared to 2018. Swart justified the need to retrench based on Nutrichem’s financials.

[69] Swart emphasised that in 2019 there was not enough work for 18 employees.

[70] Grobler was called as Nutrichem’s expert witness. He is a professional accountant and is SAICA registered. He has over 20 years’ accounting experience. Nutrichem is one of his 40 to 50 clients. Nutrichem has been his client for 12 years. He testified to the financial health of Nutrichem in 2019 and compared the profits to that of 2018. He concluded that Nutrichem’s profits had significantly decreased in 2019. Sales in 2019 had significantly decreased from 2018.

[71] Grobler also testified that the money loaned from the Hennie en Theresa Swart Famillie trust was used to purchase a property for R10 800 000.00 which property was later sold for the same amount.

[72] Botha, Nutrichem’s labour consultant, had been involved throughout the retrenchment process. Botha has over 300 clients and he was referred to Nutrichem through Swart’s brother around 2018 or 2019.

[73] Botha testified that he was unaware of Myeni’s email on 1 April 2019 requesting a postponement. When he spoke to Myeni about the 20 May 2019 letter, Myeni informed him that he did not know about it but that they should meet to discuss the contents. They set up the meeting for 31 May 2019. Botha could not recall the details of 31 May 2019 meeting.

[74] Over and above the evidence of Nutrichem’s witnesses as detailed above (which will not be repeated), the following material points (amongst others) in Nutrichem’s closing argument were made:

74.1 A large portion of Myeni’s evidence about what the members experienced and said constitutes hearsay and accordingly should not be considered by this Court;

74.2 Myeni’s evidence was at times evasive and he contradicted himself. Accordingly, his evidence should not be accepted;

74.3 Nutrichem was always engaging and welcoming towards SACTWU. The fact that a short-time agreement was reached between the parties is testament to this. There was no hostility by Nutrichem towards SACTWU nor its members;

74.4 Botha testified that Myeni stated on the phone to him that he was unaware of the 20 May 2019 letter that the shop stewards had sent to Nutrichem. Swart and Botha both testified to this version and this version should be accepted for the various reasons listed in Nutrichem’s closing argument;

74.5 The shop stewards acted on a frolic of their own in cancelling the short-time agreement in their letter dated 20 May 2019;

74.6 Nutrichem had proved through the evidence of Grobler and Swart as well as the documentary evidence that there was a legitimate

financial need to retrench the members;

74.7 The increase from 12 to 18 members to be retrenched is of no consequence as it was communicated to the members that all the members in each department will be retrenched should the sales not improve. The number of retrenchments was never definite;

74.8 The members were not targeted for retrenchment, Sewape and Liebenberg not being dismissed was evidence of this. There was no dismissals based on union membership. The dismissals were substantively fair; and

74.9 SACTWU has failed to discharge its onus to prove that the members’ dismissals were automatically unfair. The dismissals were substantively fair.

Analysis of evidence

[75] This Court has considered all the stated contradictions and discrepancies of the various witnesses as detailed in the parties’ closing/heads of arguments and the resultant applicability of the law of evidence to these issues.

[76] SACTWU’s main claim is premised on sections 187(1)(d) and 187(1)(f) of the LRA.

[77] Section 187(1)(d) provides:

‘(1) A dismissal is automatically unfair if the employer, in dismissing the employee, acts contrary to section 5 or, if the reason for the dismissal is –

…

(d) that the employee took action, or indicated an intention to take action, against the employer by –

(i) exercising any right conferred by this Act; or

(ii) participating in any proceedings in terms of this Act…’

[78] It is SACTWU’s case that the members exercised their right to join a union and were then punished for exercising such a right by being targeted for retrenchment.

[79] Section 187(1)(f) provides:

‘(f) that the employer unfairly discriminated against an employee, directly or indirectly, on any arbitrary ground, including, but not limited to race, gender, sex, ethnic or social origin, colour, sexual orientation, age, disability, religion, conscience, belief, political opinion, culture, language, marital status or family responsibility…’

[80] SACTWU has not made out a case for a claim under section 187(1)(f) of the LRA. It has not pleaded any of the discrimination grounds listed under this section nor does it rely on section 6(1) of the Employment Equity Act[9].

[81] Accordingly, this Court is limited only to SACTWU’s claim in terms of section 187(1)(d) and its alternative claims that Nutrichem had no fair reason to dismiss the members and that it failed to comply with section 189(7).

[82] The onus is thus on SACTWU to prove that its members were automatically unfairly dismissed. The Labour Appeal Court (LAC) in Kroukam v SA Airlink (Pty) Ltd[10] held as follows:

‘In my view, s 187 imposes an evidential burden upon the employee to produce evidence which is sufficient to raise a credible possibility

that an automatically unfair dismissal has taken place. It then behoves the employer to prove to the contrary, that is to produce

evidence to show that the reason for the dismissal did not fall within the circumstance envisaged in s 187 for constituting an

automatically unfair dismissal.’ (Own emphasis)

[83] In respect of substantial fairness pertaining to retrenchments, the LAC in the matter of BMD Knitting Mills (Pty) Ltd v SACTWU[11], held that:

‘…The word “fair” introduces a comparator, that is a reason which must be fair to both parties affected by the decision. The starting point is whether there is a commercial rationale for the decision. But, rather than take such justification at face value, a court is entitled to examine whether the particular decision has been taken in a manner which is also fair to the affected party, namely the employees to be retrenched. To this extent the court is entitled to enquire as to whether a reasonable basis exists on which the decision, including the proposed manner, to dismiss for operational requirements is predicated. Viewed accordingly, the test becomes less deferential and the court is entitled to examine the content of the reasons given by the employer, albeit that the enquiry is not directed to whether the reason offered is the one which would have been chosen by the court. Fairness, not correctness is the mandated test.’

[84] In the matter of CWIU and others v Algorax (Pty) Ltd[12], the LAC held that:

‘[69] The question whether the dismissal was fair or not must be answered by the court. The court must not defer to the employer for the purpose of answering that question. In other words it cannot say that the employer thinks it is fair, and therefore, it is or should be fair.

[70] Furthermore, the court should not hesitate to deal with an issue which requires no special expertise, skills or knowledge that it does not have but simply requires common sense or logic...’

[85] From the evidence of Swart and Grobler, I accept that Nutrichem was under financial stress in 2019. Under the heading “Reasons for proposed possible retrenchment” of Nutrichem’s agenda for the 1 April 2019 meeting, it is stated inter alia that “South Africa is experiencing severe drought conditions the last 3 years which has great financial impact on our clients – the farmers. The agricultural sector is under great financial constraints”.

[86] From Nutrichem’s sales graphs and as traversed with Swart during cross-examination, the comparison between the graphs showed the total sales between September 2017 to August 2018 and September 2018 to August 2019. The sales for March 2018 and March 2019 were similar and the sales in April 2019 were higher than in April 2018. Although overall sales did decrease in 2019, the sale decrease was not dramatic with sales in June 2018 and August 2018 being similar to sales in June 2019 and August 2019.

[87] The question is, if the drought had already persisted for over 3 years when the retrenchment process started and having regard to the comparisons of the sales graphs of 2018 and 2019, why was Nutrichem embarking on the retrenchments process commencing on 1 April 2019 being 7 months into its financial year?

[88] The chronology of this matter is material and instructive. Myeni sent through the requested union documents to Nutrichem on 25 March 2019. Four days later, Myeni is informed by the members that Nutrichem will be embarking on a section 189 process. Three days later the first section 189 meeting is convened on 1 April 2019. The chronology of this matter favours SACTAWU’s version that its members were being targeted for retrenchment as a result of their association and membership with SACTAWU.

[89] Having accepted that the majority of Myeni’s evidence was hearsay, however having considered the documentary evidence, together with Nutrichem’s witnesses’ evidence as well as the probabilities highlighted by the chronology of this matter, the following factors further favour SACTWU’s version. These factors being inter alia:

89.1 Swart testified that Mafalhane told him that the members demanded new bathrooms and in order to appease the members, Nutrichem spent R45 000.00 on this capital improvement. In the agenda for the 1 April 2019 meeting as well as the minutes of the 3 April 2019 meeting this demand is expressly stated under the heading “Alternatives considered by the Employer”. It is curious that these capital improvements were put under this heading. During cross-examination of Swart, Mr Daniels stated that this was done in order to convey to the members that the retrenchments were a consequence of being a union members. Swart denied this version. I find SACTWU’s version in this regard probable as the capital improvements had nothing to do with the retrenchment process and the insertion of this issue is misplaced save for the likelihood of SACTWU’s version in this regard;

89.2 Likewise in the agenda for the 1 April 2019 meeting as well as the minutes of the 3 April 2019 meeting, it is expressly stated that the union members still demanded additional salary increases. The same version by SACTWU as to the reason for this insertion was put to Swart who again denied this version. In this regard again, I find that that the insertion of such demands in these documents were misplaced and SACTWU’s version in this regard is probable;

89.3 Myeni testified that the Nutrichem representatives undermined and were hostile towards SACTWU and its members. This is also recorded in the 12 April 2019 minutes[13]. Botha, also on 12 April 2022, warns the “employees to watch their language”[14] and “warns the Union that they are not allowed to interfere with the management of the business and for example to tell him to sell assets.”[15] Myeni also testified that there was security present on 12 April 2019 and on 31 May 2019. Both Swart and Botha confirmed that there was security at most of these meetings. The above favours the probability that there were hostilities between the parties. Such hostilities support SACTWU’s version that its members were targeted for retrenchment;

89.4 Throughout the section 189 process, Nutrichem identified that only 12 employees would be retrenched albeit this number was not final. However, during cross-examination on 13 October 2022, Swart testified that after he received the 20 May 2019 letter, the number increased from 12 to 18 employees. As all 18 employees that were dismissed were union members, this too favours SACTWU’s version that only its members were targeted for retrenchment and ultimately dismissal;

89.5 Seasonal work alternatives were not offered to the members by Nutrichem. Throughout Swart’s evidence he emphasised that Nutrichem’s business required seasonal workers yet this option under alternatives to retrenchment was never given to the members which favours the version that Nutrichem did not want the members of the union to continue employment with it;

89.6 As far back as 5 March 2019, Nutrichem was contacted by SACTWU and correspondence between SACTWU and Nutrichem was exchanged throughout March 2019 yet, SACTWU was not invited to 1 April section 189 meeting and was only invited after Myeni sent an email on 29 March 2019. No organisational agreement was ever signed between the parties; and

89.7 Despite Swart’s evidence that the Rietfontein workers were employed by another entity being Forum SA, there seems at times to have been a conflation of the work done by the Nutrichem and the Rietfontein workers. The Rietfontein workers were included in the section 189 meetings. Botha’s evidence indicated that he regarded the Rietfontein workers as Nutrichem employees. The minutes of these meetings reflect that these employees were included in the process. None of these employees were retrenched and none of these employees were union members.

[90] There was a dispute of fact as to which party initiated the splitting between union and non-union members during the section 189 meetings.

[91] As evident from the 1 April 2019 agenda and 3 April 2019 minute, Nutrichem noted that “[t]he Union members however still demand additional salary increases”. It was common cause (as testified by Swart during cross-examination) that the minimum wage for the employees in the farming sector was R20.00 per hour. This version differed from the R18 per hour rate put to Myeni during cross-examination which tried to prove that Nutrichem was paying minimum wage at the time of dismissal. Swart’s testimony in this regard also differs from Nutrichem’s pleaded version in its amended response to the applicant’s statement of claim where in paragraph 6 it is stated “[w]hile this paragraph is admitted, the respondent pleads that during January 2019 it increased the wages of its employees further to a minimum of R160,00 per day for all its workers”.

[92] Swart’s testimony during cross-examination that the minimum wage for the farming sector is actually R20.00 per hour equates to R180.00 per day based on the hours the members worked. Based on Nutrichem’s own document, the salaries of 11 employees/members (3 June – 14 June 2019)[16] were paid at a rate of R160.00 per day. These employees were being paid below minimum wage at the time of their dismissal.

[93] Swart justified paying 11 out of 18 members[17] below minimum wage because over and above these member’s salaries, Nutrichem contributed approximately R1 000.00 per month for these members’ lodging, maize, water and electricity. This then, according to Swart, brought these members’ salaries above the minimum wage.

[94] The definition of “wage” in terms of section 1 of the Basic Conditions of Employment Act[18] means the amount of money paid or payable to an employee in respect of ordinary hours of work or, if they are shorter, the hours an employee ordinarily works in a day or week.

[95] Accordingly, Swart’s justification for paying 11 out of 18 members below minimum wage before their dismissal cannot be justified as the additional benefits the members received does not fall within the definition of wage.

[96] It is evident, based on Nutrichem’s document, that for the same period (3 June to 14 June 2019) that (save for one employee) all of the Magnificent Electrical employees were being paid R150.00 per day. These employees were also being paid below minimum wage.

[97] 11 of the members that were dismissed[19] were those members that were earning below minimum wage[20]. It was common cause that the Magnificent Electrical employees were costing Nutrichem less on the salary bill than the members that were dismissed.

[98] Swart testified that as Magnificent Electrical was a subcontractor he could not know that the Magnificent Electrical employees were being paid below minimum wage. Nutrichem’s document evidences that Nutrichem saved R512 650.00 on its salary bill by contracting with Magnificent Electrical[21]. However, despite there being less employees from Magnificent Electrical and despite some of these employees not working some months, I find it improbable that Swart could have reasonably believed that Magnificent Electrical was paying its employees the minimum wage. This is so as such a large saving on Nutrichem’s salary bill was made.

[99] Based on the above, as well as the history of this matter being the strike on 25 September 2018 for minimum wage increases and the constant demands recorded in the 1 April 2019 agenda and 3 April 2019 section 189 meeting that the union members wanted an increase in salary (for minimum wages), it is evident that Nutrichem was averse to paying its labourers the prescribed minimum wage.

[100] It was common cause that on 1 June 2019, Nutrichem and Magnificent Electrical entered into a subcontract to supply labour. It was also common cause that the members received their termination letters and were dismissed at the meeting of 31 May 2019. Swart testified that he first got a quote from Mr Gama (Gama) and then proceeded to draft the subcontact. Given the evidence of Myeni that the termination letters were ready, which seems probable as the letters were handed out at the meeting, Swart first got a quote from Gama (from Magnificent Electrical) and the subcontract was signed the day after the members were dismissed. The probabilities favour the version that the meeting on 31 May 2019 was to dismiss the members rather than discuss the contents of the 20 May 2019 letter. In any event Swart and Botha both testified that they interpreted the 20 May 2019 letter as a cancellation of the short-time agreement which meant then in their minds, they had the right to dismiss the members.

[101] The only material factors that militates against SACTWU’s version that its members were targeted for dismissals as a result of being union members is that Liebenberg and Sewape were not dismissed. Liebenberg not being a union member was identified to be retrenched and Sewape being a union member was not dismissed.

[102] Swart testified that Liebenberg elected to take voluntary retrenchment. During cross-examination Swart stated that Liebenberg was not paid anything extra and received the standard one week for every year worked, together with other statutory monies. Despite the fact that Liebenberg was identified to be retrenched there is no way of knowing if he too would have been dismissed had he not elected for voluntary retrenchment. For this reason, Liebenberg’s position is distinguishable from that of the members.

[103] Swart testified that Sewape is now the General Manager at Nutrichem and resigned from the union during 2019, albeit he has not officially resigned from SACTWU but no union fees are deducted from his salary. From the evidence, Sewape resigned before or shortly after the retrenchment process. The fact that Sewape is now Nutrichem’s General Manager means that unlike the other members at the time, he was not viewed by Nutrichem’s management as a threat. For the above reasons, Sewape’s position is distinguishable from that of the members.

[104] The actual cause of the dismissal was the alleged and disputed cancellation of the short-time agreement. Nutrichem’s version is that paragraph 4 of the 20 May 2019 letter cancelled the short-time agreement. This was Swart and Botha’s interpretation. Myeni testified that there was absolutely no cancellation of the short-time agreement. Myeni testified that the 20 May 2019 letter did not cancel the short-time agreement and was written to alert Nutrichem of what the members’ felt was discriminatory conduct in allowing some employees to work full weeks and having “new faces” working at Nutrichem.

[105] Ms Nell, on behalf of Nutrichem and during the cross-examination of Myeni, sought to introduce a new version that not only did the contents of the 20 May 2019 letter cancel the short-time agreement but that the shop steward Abel Mahlaba verbally cancelled this agreement during the 31 May 2019 meeting. Myeni vehemently disputed this. Furthermore, this version was never pleaded. This Court ruled that such evidence would not be allowed without an amendment to the pleadings. No amendment by Nutrichem was sought.

[106] Not only was this version that Abel Mahlaba verbally cancelled this agreement not pleaded, but the interpretation by Nutrichem that the 20 May 2019 letter cancelled the short-time agreement was not pleaded. In its amended response to the applicant’s statement of claim, Nutrichem states:

‘37.3 The reason for the retrenchment was not the aggressive and unacceptable letter but was due entirely to the respondent’s

operational requirements; and

42.3 The implementation of short time proved ineffective due to the applicant’s dissatisfaction therewith, as expressed in the first applicant’s letter dated 20 May 2019.’

[107] In the pre-trial minute dated 3 July 2020, there is no dispute raised about whether the 20 May 2019 letter cancelled the short-time agreement or not. The only issued raised in dispute in this regard is:

‘63 Whether the contents of the letter written by the shop stewards on 20 May 2019, were wrong and the allegations in the letter were false and contra the agreements reached by the parties and that the conduct of the first applicant is mala fide?;

65 Whether at the meeting on 31 May 2019:

65.1 The company was unwilling to listen to the union’s complaint

about the implementation of short time?

65.2 The company stated that it decided to proceed with the retrenchments

because of the unacceptable letter of complaint from the shop stewards?’

[108] Nutrichem’s pleaded version is that the 20 May 2019 letter conveyed that the members were dissatisfied with the short-time agreement. This is not the same as the version which was testified to by Swart and Botha during the trial, that the members cancelled the short-time agreement.

[109] During the trial, Nutrichem spent a lot of time on proving that it was in financial stress in 2019 and hence the need to retrench the members. This may have been the reason leading up to and justifying the conclusion of the short-time agreement, but it was certainly not the reason for the dismissals. The members were dismissed as a result of Nutrichem’s interpretation of the 20 May 2019 letter.

[110] Having regard to the language used, the ordinary rules of grammar and syntax of the 20 May 2019 letter, and the fact that the word “cancelled” is not used at all in this letter, the cancellation of the short-time agreement is not expressly stated. Both Swart and Botha testified that it was their interpretation of this letter that led Nutrichem to believe that the short-time agreement had been cancelled which justified the dismissals. Botha also testified that when he spoke to Myeni, he set up a meeting to discuss the contents of the letter. This corroborates Myeni’s version.

[111] I have taken into account that a lot of Myeni’s testimony was hearsay evidence such as inter alia some of the members were being paid under minimum wage (which was confirmed by Nutrichem’s documents and Swart’s testimony) and that the member’s saw “new faces” working at Nutrichem. However, as Myeni was present at the 31 May 2019 meeting and had given the evidence referred to above, I find his version that the dismissals were premeditated more probable.

[112] Having regard to Botha’s evidence, I found him to be a disappointing witness. In fact, his testimony cast doubt on Swart’s credibility. For instance, Swart testified that having security present at the meetings was Botha’s idea. Botha denied this. Further Swart also testified that during the various section 189 meetings, organisational rights of the union were discussed. Botha testified that organisational rights were not discussed during these meetings. When Mr Daniels put SACTWU’s version to Botha that the members were targeted for retrenchment and ultimately dismissal, he testified that he cannot confirm and that he was unaware. Botha also testified that all Nutrichem’s employees were to be involved in the retrenchment process which included the Rietfontein employees. This contradicted Swart’s testimony that the Randfontein employees were not Nutrichem’s employees.

[113] Botha curiously also could not remember any specifics of the meeting on 31 May 2019 which as a result, failed to corroborate Swart’s recollection of the 31 May 2019 meeting such as whether the meeting lasted 5 minutes or approximately an hour. Botha testified that the meeting may have been a short meeting but he could not recall. This is in stark contrast to Swart’s testimony that the meeting lasted approximately an hour. Botha could also not remember if dismissal letters were handed out at the 31 May 2019 meeting or not but then accepted Mr Daniels’ version that they were.

Conclusion

[114] From the evidence of both parties’ witnesses, the actual reason for the dismissals was Nutrichem’s interpretation of the 20 May 2019 letter cancelling the short-time agreement. Had it not been for this letter, the short-time agreement would have conceivably continued until 30 September 2019 and only then would the need to retrench surface again. This is evident from the contents of the members’ termination letters which refer to the 20 May 2019 letter and Nutrichem’s interpretation of this letter.

[115] Whether there was a real financial need for retrenching the members as at 31 May 2019 is only of importance in that it identified the members who were designated for short-time work.

[116] In terms of section 18 of the Constitution of the Republic of South Africa, 1996 everyone has the right to freedom of association. In terms of section 23 of the Constitution, everyone has the right to fair labour practices, and every worker has the right to form and join a trade union. The right to freedom of association and the right of every worker to form and join a trade union is expressed in section 4 (1) of the LRA, which guarantees every employee the right to join a trade union.

[117] The right to freedom of association of employees is protected by section 5 of the LRA. In terms of section 5 (1) of the LRA, no person may discriminate against an employee for exercising any right conferred in terms of the LRA. Accordingly, an employer may not discriminate against an employee on the basis that he or she is a member of a trade union. The combined effect of section 4 (1) and section 5 (1) of the LRA is that an employee is guaranteed the right to join a trade union and is protected against discrimination by his or her employer as a result of the exercise of this right.

[118] In terms of section 185 of the LRA, every employee has the right not to be unfairly dismissed and/or to be subjected to unfair labour practices. The concept of "unfair dismissal" is central to the LRA and requires that the dismissal of an employee complies with the standards of substantive and procedural fairness. "Substantive fairness" refers to the reason for the dismissal of an employee. A dismissal which is not based on a fair reason, is regarded as an unfair dismissal.

[119] Section 187 of the LRA recognises that certain dismissals are inherently unfair and provides for the concept of an "automatically unfair dismissal". The focus of section 187 is on substantive fairness, i.e. the reason for the dismissal. Section 187 of the LRA provides for a number of instances where the dismissal of an employee is regarded as automatically unfair on the basis of the reason for such dismissal.

[120] In terms of section 187 (1) of the LRA, a dismissal is automatically unfair if the employer, in dismissing the employee acts contrary to section 5 of the LRA. As noted above, section 5 of the LRA guarantees an employee protection against discrimination for exercising his or her rights in terms of the LRA, which includes the right to join a trade union. Accordingly, the dismissal of an employee by his or her employer for exercising his or her right to freedom of association by joining a trade union or participating in the lawful activities of a trade union, constitutes an automatically unfair dismissal.

[121] The effect of section 187 of the LRA and the concept of an automatically unfair dismissal is that the employer is unable to justify or defend the dismissal on the basis that a fair procedure was followed. The reasons for these dismissals are so grossly unfair that no procedure could ever cure the prejudice and unfairness to the employee. The policy behind the concept of an automatically unfair dismissal in terms of section 187 of the LRA is clear when considered in light of the Constitution and the rights envisaged in section 5 of the LRA. These rights are regarded as fundamental and deserve special protection against infringement.

[122] Considering the conspectus of the evidence presented by the parties, the Court finds that the probabilities favour the version that the members were dismissed as a result of joining SACTWU. Accordingly, the members’ dismissals were automatically unfair.

[123] The question of the appropriate relief now arises. Reinstatement is seen as the primary remedy in unfair dismissal cases and it is only subject to a few exclusions where commissioners should deviate from this relief.

[124] Section 193(2) of the LRA, provides for these exclusions:-

‘(2) The Labour Court or the arbitrator must require the employer to re-instate or re-employ the employee unless –

(a) the employee does not wish to be re-instated or re-employed;

(b) the circumstances surrounding the dismissal are such that a continued employment relationship would be intolerable;

(c) it is not reasonably practicable for the employer to re-instate or re-employ the employee; or

(d) the dismissal is unfair only because the employer did not follow a fair procedure.’ (Own emphasis)

[125] The Labour Court “must” require the employer to reinstate or re-employ the employee as a primary remedy when it finds that the dismissal is unfair.[22] “In other words”, as Zondo J held in Adams and others v Coin Security Group (Pty) Ltd[23], “the norm should be to order reinstatement and the denial of that primary relief should occur only as an exception”[24] . The circumstances set out in section 193(2) of the LRA, mandate the arbitrator or the court to engage with the factors stipulated therein and the evidence as to the nature of the relationship between the parties in order to craft an appropriate remedy. [25]

[126] In NUMSA v Henred Fruehauf Trailers (Pty) Ltd[26], it was found that “where an employee is unfairly dismissed he suffers a wrong. Fairness and justice require that such wrong should be redressed… The fullest redress obtainable is provided by the restoration of the status quo ante. It follows that it is incumbent on the court when deciding what remedy is appropriate to consider whether… there is reason to refuse re-instatement”. This decision was followed in NCBAWU and another v MF Woodcraft (Pty) Ltd[27] and reflects the approach that is embodied in section 193(2) of the LRA.

[127] In the applicants’ heads of argument, the members have indicated that they all want to be reinstated, however insofar as an applicant is unwilling to accept reinstatement then such a member will accept compensation equal to 24 months’ wages. Section 193(2)(a) has therefore been dealt with.

[128] Section 193(2)(b) refers to “the circumstances surrounding the dismissal are such that a continued employment relationship would be intolerable”. This issue is not addressed in Nutrichem’s closing arguments. Swart did testify that the trust relationship between the parties has broken down and hence the parties could no longer work together.

[129] In Booi v Amathole District Municipality and others,[28] the Constitutional Court held that –

‘…the language, context and purpose of section 193(2)(b) dictate that the bar of intolerability is a high one. The term “intolerable”

implies a level of unbearability, and must surely require more than the suggestion that the relationship is difficult, fraught or even sour. This high threshold gives effect to the purpose of the reinstatement injunction in section 193(2), which is to protect

substantively unfairly dismissed employees by restoring the employment contract and putting them in the position they would have

been in but for the unfair dismissal.’

[130] Khampepe ADCJ (as she was then) added that –

‘…the employer must provide weighty reasons, accompanied by tangible evidence, to show intolerability…’ [29]

And that –

‘The evidentiary burden to establish intolerability is heightened where the dismissed employee has been exonerated of all charges.’

[30]

[131] Accordingly, Nutrichem has failed to make out a case that “a continued employment relationship would be intolerable”.

[132] Section 193(2)(c) refers to when it is not reasonably practicable for the employer to reinstate or re-employ the employee. Nutrichem does not address this in its closing argument. Swart testified that the business is seasonal and that there are not enough jobs for the members and in any event as Magnificent Electrical employees are now attending to the members jobs.

[133] There was no other evidence before the Court to hold that it is currently not reasonably practical to reinstate the members save from the evidence of Swart. There was no evidence to justify that Nutrichem still needs seasonal workers and the Magnificent Electrical contract is on a month-to-month basis so Nutrichem can reasonably cancel that agreement if reinstatement is ordered.

[134] As this Court has already found that the members dismissals were substantively unfair, accordingly, section 193(2)(d) is not applicable.

[135] Accordingly, and as prescribed by section 193(2), reinstatement must be ordered unless the circumstances stated in section 193(2) (a) to (d) are present. Nutrichem did not sufficiently establish these circumstances at trial and has not even dealt with such circumstances in its closing argument.

[136] Accordingly, the primary remedy of reinstatement of SACCTWU’s 18 members must be made.

[137] In the judgment of this Court in Themba v Mintroad Sawmills (Pty) Ltd[31], the question of awarding backpay was entirely separate from the concept of reinstatement. In that case, the employee had been reinstated with effect from the date of the award and accordingly the reinstatement was not retrospective. In the course of discussing the relationship between reinstatement and backpay, the court stated, amongst other things that:

‘[22] In my view, the ratio in Equity Aviation[32] is clear. Reinstatement means the restoration of the status quo ante. It is as if the employee was never dismissed. Where reinstatement is awarded, an employer will be in compliance with such an award if the employer, on (or as from) the date of the award having been made, takes the employee back into its service on the same terms and conditions of employment of the employee as existed at the time of dismissal of the employee. Also, and as a necessary consequence, the original starting date of employment of the employee will remain the same and applicable, if such reinstatement is awarded.

[23] When it comes to the issue of the retrospectivity of reinstatement, this is however, in terms of the above ratio in Equity Aviation, a completely different issue. Reinstatement is not necessarily coupled with retrospectivity and is not a sine qua non of it. Retrospectivity of reinstatement is a separate discretion that must be exercised by the arbitrator or judge when deciding to award reinstatement. Retrospectivity, in simple terms, relates to what is commonly known as 'backpay', and constitutes what the arbitrator or judge expects an employer to pay the employee for the time the employee has been languishing without remuneration as a result of the employee's unfair dismissal. In short, reinstatement means taking the employee back on the same terms and conditions of employment as if the dismissal of the employee never occurred, which would apply as from the date of the award of reinstatement and with continuity of employment intact. But the concept of reinstatement does not per se include the issue of backpay. Backpay is a separate issue and determination, albeit coupled with reinstatement.

[27] The discretion as to whether backpay is awarded in the case of reinstatement, and also to what extent it is awarded (being the very issue of retrospectivity of the operation of the reinstatement) is not statutorily prescribed. It is for the arbitrator or judge to decide. Accordingly, and considering the above ratio in Equity Aviation, if a judge or arbitrator just awards reinstatement, and makes no determination on retrospectivity of the operation of reinstatement, reinstatement will only operate from the date of the award going forward. The arbitrator or the judge is in my view required specifically to address the issue of the retrospectivity of reinstatement and determine the extent of the same in making the award.’

[138] This Court is mindful that the members were already paid their severance pay and that the matter was originally set down for trial on 16 August 2021 but the matter was crowded out and therefore the trial could not commence. The applicants launched their claim in September 2019 and had it not been for the unavailability of a Court in August 2021, the matter would have run. This is not Nutrichem’s fault. The members would have been unemployed for just over two years when this matter was originally to be heard. This factor, together with the fact that severance pay has already been paid to the members, result in the interests of justice and fairness limiting the members retrospective backpay to 24 months.

[139] With regards to costs, I am of the view that the applicants have been substantially successful. In my view, the requirements of law and fairness dictate that the respondent pays the applicants’ costs.

[140] In the circumstances it is ordered that:

Order

1. The dismissal of the members on 31 May 2019 is declared to be automatically unfair in terms of s187(1) (d) of the LRA;

2. All 18 members of SACTWU are retrospectively reinstated by Nutrichem from 2 January 2023 on the same terms and conditions prior to the implementation of the short-time agreement on 18 April 2019 together with 24 months backpay on the same terms and conditions prior to the implementation of the short-time agreement on 18 April 2019. For those members that were being paid less than the minimum wage for the farming sector as at 18 April 2019, the backpay must comply with the minimum wage for the farming sector for the years 2020 to 2022[33]. The members backpay must be paid by no later than 2 January 2023.

3. The members that do not want to be reinstated are awarded 24 months’ compensation payable from the date of this order, calculated on the same terms and conditions prior to the implementation of the short-time agreement on 18 April 2019. For those members that were being paid less than the minimum wage for the farming sector as at 18 April 2019, the backpay must comply with the current minimum wage for the farming sector for the years 2020 to 2022. Should any member elect not to be retrospectively reinstated, such a member must convey this decision to Nutrichem within 10 days of the date of this order

being granted, whereafter. Nutrichem must pay such member/s 24 months’ compensation as described above on or before 2 January

2023;

4. The respondent to pay the applicant’s costs; and

5. The Registrar is directed to report Nutrichem and Magnificent Electrical to the Department of Labour.

S Swartz

Acting Judge of the Labour Court of South Africa

Appearances

For the Applicant: Mr Daniels from Cheadle Thompson & Haysom

For the Respondent: Ms Nell

Instructed by: Raymond

Hauptfleisch Attorneys Inc.

[1] The names are set out in annexure A attached to the statement of claim.

[2] Act 66 of 1995, as amended.

[3] Bundle B (BB) p 15.

[4] Act 9 of 2018.

[5] Bundle A (BA) p 51.

[6] BA p 71.

[7] BB p 14.

[8] BA p 112.

[9] Act 55 of 1998. Section 6(1) states that – ‘No person may unfairly discriminate, directly or indirectly, against an employee, in any employment policy or practice, on one or more grounds, including race, gender, sex, pregnancy, marital status, family responsibility, ethnic or social origin, colour, sexual orientation, age, disability, religion, HIV status, conscience, belief, political opinion, culture, language, birth or on any other arbitrary ground.’

[9] Act 55 of 1998. Section 6(1) states that –

‘No person may unfairly discriminate, directly or indirectly, against an employee, in any employment policy or practice, on one or more grounds, including race, gender, sex, pregnancy, marital status, family responsibility, ethnic or social origin, colour, sexual orientation, age, disability, religion, HIV status, conscience, belief, political opinion, culture, language, birth or on any other arbitrary ground.’

[10] 2005) 26 ILJ 2153 (LAC) at para 28.

[11] 2001] 7 BLLR 705 (LAC) at para 19.

[12] 2003] 11 BLLR 1081 (LAC) at paras 69-70.

[13] BA p102 para 2w.

[14] BA p 107 para 5a.

[15] AB p 101 para 2h.

[16] BB p 21.

[17] Although Swart testified that only 6 were being paid below minimum wage.

[18] No. 75 of 1997.

[19] BB p 16.

[20] BB p 21.

[21] BB p 20.

[22] See: Manyaka v Van de Wetering Engineering (Pty) Ltd [1997] 11 BLLR 1458 (LC). See also Maepe v CCMA and others [2008] 8 BLLR 723 (LAC),

[23] 1998] 12 BLLR 1238 (LC).

[24] Ibid at para 88.

[25] See: Boxer Superstores (Pty) Ltd v Zuma [2008] ZALAC 7; [2008] 9 BLLR 823 (LAC) at para 9.

[26] [1994] ZASCA 153; 1995 (4) SA 456 (A) at 462I–463A.

[27] 1997] 1 BLLR 43 (LAC).

[28] 2022] 1 BLLR 1 (CC) at para 40, with reference to Equity Aviation Services (Pty) Ltd v CCMA [2008] 12 BLLR 1129 (CC) at para 36.

[29] Ibid at para 40.

[30] Ibid at para 42.

[31] 2015) 36 ILJ 1355 (LC).

[32] Equity Aviation Services (Pty) Ltd v Commission for Conciliation, Mediation & Arbitration & others [2008] ZACC 16; 2009 (1) SA 390 (CC); (2008) 29 ILJ 2507 (CC).

[33] R23.19 per hour Government Gazette of 9 February 2022.