Vanchem Vanadium Products (Pty) Ltd v National Union of Metalworkers of South Africa and Another (J2184/14) [2014] ZALCJHB 474 (2 December 2014)

REPUBLIC OF SOUTH AFRICA

THE LABOUR COURT OF SOUTH AFRICA, JOHANNESBURG

JUDGMENT

Not Reportable

Case no: J 2184/14

VANCHEM VANADIUM PRODUCTS (PTY) LTD..............................................................Applicant

and

NATIONAL UNION OF METALWORKERS OF

SOUTH AFRICA..........................................................................................................First Respondent

THE EMPLOYEES WHOSE NAMES ARE LISTED

IN ANNEXURE “A” ATTACHED TO THE NOTICE

OF MOTION........................................................................................Second to Further Respondents

Heard: 4 November 2014

Delivered: 2 December 2014

TLHOTLHALEMAJE, AJ

Introduction:

[1] This dispute initially came before this court on 10 September 2014 when the Applicant sought a rule nisi calling upon the Respondents to show cause why a final order should not be granted in terms of which inter alia;

1.1 The demands made by the respondents in a letter dated 18 July 2014 are declared to be unfair, unreasonable, irrational and unlawful and/or illegitimate;

1.2 Declaring that any strike which the Second to Further Respondent may consider embarking on or actually embark on in support of the demands to be unprotected and unlawful as contemplated in section 68 of the LRA;

1.3 Declaring any collective action which the Second to Further Respondents consider embarking on or actually embark on in support of the demands to be a collective and deliberate breach and repudiation of other contracts of employment and their conditions of employment;

1.4 Interdicting and restraining the First to Further Respondents from participating in the strike or collective action referred to as above; and

1.5 Interdicting and restraining the First to Further participating in any conduct and or misconduct in furtherance of any strike action in support of the demands.

[2] The matter was postponed to 4 November 2014 to allow the parties to file further pleadings. An interim order was further granted in terms of which the conciliation proceedings before the Metal and Engineering Bargaining Council (MEIBC) were postponed, pending the determination of the present dispute.

[3] Given the manner in which the parties had agreed to deal with this application, including its postponement on 10 September 2014, the question of urgency is no longer relevant. To the extent that the Court is satisfied that sufficient material is placed before it for a final determination to be made, and notwithstanding the fact that the applicant had initially sought a rule nisi, the court proposes to dispose of the application as enjoined by the provisions of Rules 7 and 9 of its Rules.

Background:

[4] The Applicant is in the business of manufacturing of vanadium products. Its operations are based in Ferrobank, eMalahleni. It has 421 employees, of which 302 are members of NUMSA. Three employees, namely Messrs Kekana, Sello and Modishana were employed at the Applicant’s Chemical Plant where stainless steel ducting is kept. They were dismissed following an investigation and disciplinary proceedings related to their alleged involvement in the theft of steel ducting. The dismissed employees thereafter referred the dismissal disputes to the MEIBC.

[5] The events leading to the dismissal arises from a report received by the Applicant’s Security Manager, Mr Loubser, to the effect that two units of stainless steel ducting owned by the Applicant and valued at about R650 000.00 went missing from the Chemical Plant at the Applicant’s premises. The applicant’s security is provided by a company called Thornburn Security Solutions Inland (Pty) Ltd (Thornburn). One of the security guards employed by Thornburn, Mr Mohlala, had following upon investigations, allegedly conceded that on 9 March 2013, he was approached by Kekana and Modishane and offered an amount of R100.00 to be complicit in the theft of steel ducting by not conducting a search on a vehicle exiting the company premises with the stolen consignment.

[6] The Applicant’s contention is that the three employees were interviewed and subsequently charged on 18 June 2013 with the theft of steel and fraudulent clocking practices. The employees had allegedly pleaded guilty to clocking fraud charges. Modishane and Sello were found guilty of theft and dismissed on 5 August 2013, whilst Kekana was dismissed for fraudulent clocking practices.

[7] Following the referral of the dispute for arbitration, Kekana was reinstated on 26 July 2014. The award in that respect is the subject of review proceedings in this court. The dispute in respect of Modishane and Sello is still pending before the MEIBC. The application before the court follows upon events flowing from the postponement of arbitration proceedings in respect of the Modishane’s dismissal dispute. It is common cause that that after several postponements of those proceedings, a Mr. Magolego, an official of NUMSA representing Modishane at the arbitration proceedings, had addressed a letter to the Applicant demanding that Loubser, Mohlala and Thornburn be ‘removed’ from the Applicant with immediate effect. The basis for the demand was that Loubser had entered into a ‘corrupt arrangement’ with Mohlala, in terms of which the latter was promised immunity in return for his testimony at the arbitration proceedings; and furthermore, that the Applicant could not continue with its relationship with Thornburn in the light of that ‘corrupt arrangement’ between Mohlala and Loubser. The demand was further that Loubser should be disciplined.

[8] NUMSA further demanded that a forensic investigation be initiated. It is common cause that the applicant required further details from NUMSA about the alleged ‘corrupt relationship’ prior to the initiation of such an investigation. These details were required to enable the applicant to give the forensic investigators a proper scope to investigate the allegations. NUMSA refused to provide further details to the applicant and advised that discussions regarding witnesses could be held after the forensic investigators had recommended charges against Loubser, his discipline and the termination of the Thornburn contract. NUMSA further demanded that a ‘Commissioner’ from Tokiso Dispute Resolution be appointed to chair a pre-dismissal hearing for Loubser.

[9] A stalemate essentially occurred between the parties, resulting in NUMSA referring a mutual interest dispute to the MEIBC in respect of the removal of Thornburn and the disciplining of Loubser. It is the applicant’s submission that the referral does not amount to a genuine and bona fide dispute of mutual interest but is in fact an unlawful and unreasonable demand which the respondents are not entitled to strike over. NUMSA however contends that it is entitled to strike over the issue, as its demands are reasonable.

The legal framework:

[10] It is common cause that the demand surrounding the removal of Mohlala from the Applicant has since fallen away as Thornburn had removed him from the Applicant’s site. The Applicant contended that the demand to remove Thornburn as a service provider and the dismissal of Loubser required it to act unlawfully in breach of the Labour Relations Act, the Basic Conditions of Employment Act, and the common law. It further contended that the demands were made in bad faith, and are purely a subterfuge by NUMSA to pursue an ulterior, unlawful motive to reinstate Sello, and to ensure that neither Mohlala nor Loubser gave testimony in the arbitration proceedings involving Modishana and Sello.

[11] The respondents’ contention on the other hand is that the demands have their genesis in the revelation made by Loubser that he had an agreement with Mohlala that no action would be taken against the latter in return for his testimony at the arbitration proceedings.

[12] A strike is defined in section 213 of the LRA as:

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

[13] “Issue in dispute” in relation to a strike or lockout is defined in section 213 of the LRA as meaning the “demand, the grievance, or the dispute that forms the subject matter of the strike or lockout”. It is common cause that NUMSA has made a demand for the purposes of embarking on strike action.

[14] The phrase ‘matter of mutual interest’ is not defined in the LRA. It is trite that the right to strike being a fundamental right in the Constitution will always be protected[1]. Generally, the court is compelled to look at the substance of a dispute rather than the form in which it was presented to determine

whether it concerns a matter of mutual interest over which the employees can embark on strike action. The Constitutional Court in NUMSA v Bader Bop[2] emphasised this approach by stating that:

“It is the duty of a court to ascertain the true nature of the dispute between the parties. In ascertaining the real dispute a court must look at the substance of the dispute and not at the form in which it is presented. The label given to a dispute by a party is not necessarily conclusive. The true nature of the dispute must be distilled from the history of the dispute, as reflected in the communications between the parties and between the parties and the Commission for Conciliation, Mediation and Arbitration (CCMA), before and after referral of such dispute. These would include referral documents, the certificate of outcome and all relevant

communications.”

[15] Recently, the Labour Appeal Court in Pikitup (Soc) Limited v SAMWU and Others[3] approached the concept of ‘mutual interest’ in the following terms:

“The phrase mutual interest seeks to limit the issues that may form the subject matter of a strike. It can therefore not be without boundary. The matter should not be too far removed from the employment relationship so that it can properly be said that it does not concern the employment relationship. Matters that are purely socio-economic or political would generally not be matters of mutual interest. If employees were to be allowed to strike over any political or socio-economic issues, uncertainty will reign and the employer will in most cases be confronted with a situation over which he/she has no control or influence. Many disputes however have, at bottom, political and/or socio-economic issues. The facts of each matter will determine whether such issue is one of mutual interests”

[16] As it was also correctly pointed on behalf of the respondents in reference to City Of Johannesburg Metropolitan Municipality v SAMWU & Others[4], one of the primary considerations in matters of this nature is to determine the issue giving rise to the proposed withdrawal of labour. The dispute as referred by NUMSA to the MEIBC is classified as a mutual interest dispute. In the referral[5], NUMSA characterised the dispute as; “The employer is failing to discipline Mr. Maurits Loubser and again failed to take action against Thornburn and its employee” In respect of the outcome it seeks, it was stated in the referral form that; “Employer to apply DC consistency, PNG employer of Thornburn and terminate contract of Thornburn”(Sic).

[17] The dispute properly considered is purely a demand that Loubser be subjected to a disciplinary enquiry and that the service contract with Thornburn be terminated. The issue is whether these demands pertain to matters of mutual interest to justify a certificate of outcome being issued in order to enable NUMSA members to embark on strike action.

[18] Whether the issues that led to the demands being made are not removed from the employment relationship requires a close assessment of the events leading to those demands. Following the dismissal of the three individuals, it was common cause that the dismissal disputes have either been dealt with by the MEIBC or are still pending. Mohlala has since been taken out of the equation and no employment relationship exists between him and the Applicant for the purposes of the sustainability of demands made. To the extent

that Mohlala may have been involved in ‘corrupt’ dealings with Loubser, that remains an issue between him and his employer, Thornburn. That issue in my view is far removed from the employment relationship, and has since been rendered moot by the removal of Mohlala from the Applicant’s site.

The demand in respect of Loubser:

[19] The issue whether Mohlala had entered into a ‘corrupt’ arrangement with Loubser, insofar as there is an agreement between the two that the former will not be disciplined in exchange for his testimony at arbitration proceedings under the auspices of the MEIBC is neither here nor there. Firstly, as already indicated, any form of misconduct on the part of Mohlala is to be dealt with by Thornburn. Secondly, even if Mohlala were to testify at the arbitration proceedings involving the dismissed employees, at the end of those arbitration proceedings, what would be of importance is the probative value to be attached to his testimony. Since the dismissal dispute is properly before the MEIBC, there is nothing in law that prevents the Applicant through Loubser from approaching Mohlala as a witness to testify on its behalf, and make any legitimate dealings with him in that regard.

[20] The issue however remains whether the demand for the removal of Loubser is reasonable and lawful. It cannot be doubted that clearly, the demand is related to the employment relationship as it involves Loubser as an employee of the Applicant. However, inasmuch as NUMSA has a constitutional right to embark on a strike action, Loubser as an employee of the Applicant also has the constitutional right to fair labour practice under section 23 (1), and the right not to be unfairly dismissed or subjected to unfair labour practices under section 185 of the LRA. The right of NUMSA to embark on strike action as it seeks, and the protective rights that Loubser is entitled to under both the Constitution and the LRA are on equal footing.

[21] Upon Magolego having addressed correspondence to the Applicant in terms of which the demands were made, the Applicant had responded, advising NUMSA that it intended to investigate the allegations made in its correspondence, and that further details and the names of individuals involved regarding the allegations. NUMSA’s response was that despite seeking an investigation, it would only furnish further details and names of individuals involved once investigators had been appointed. In argument, it was submitted that the request for an appointment of investigators, which would recommend charges against Loubser, and the appointment of a Panelist from TOKISO to conduct a pre-dismissal hearing for Loubser, was effectively a reasonable response, and not of persons who were willing to go on strike whatever the situation was.

[22] In my view, the respondents’ contention cannot be sustained for the simple reason that despite its alleged willingness to cooperate with the investigations, it seeks to do so on its own terms, and furthermore, it pre-empts the findings of those investigations. This cannot be a demand that can be construed to be made in good faith. It is not merely a demand that an investigation be conducted into the conduct of Loubser. It goes further than that. In effect, the demand clearly overlooks Loubser’s rights as enshrined in the Constitution and the LRA and calls for his removal.

[23] The issue of a strike over a demand calling for the dismissal of an employee has decisively been dealt with by the Labour Appeal Court in Ceramic Industries Ltd t/a Betta Sanitaryware & another v NCBAWU & others[6] where it was held that such a strike would ordinarily be unprotected. In TSI Holdings[7] the Labour Appeal Court held that the purpose of a refusal to work 'cannot be conduct that would constitute a violation of the right not to be dismissed unfairly provided for in s185 read with s188 of the Act'. This principle was supported by the Constitutional Court in National Union Of Public Service And Allied Workers Union obo Mani & Others v National Lotteries Board[8].

[24] In this case, investigations into the alleged conduct of Loubser have not taken their course. The Applicant has shown a willingness to investigate any wrong doing on the part of Loubser. NUMSA however not only seeks an investigation into the conduct of Loubser, but also pre-empts that investigation by calling for it to recommend disciplinary measures against him, leading ultimately to his dismissal. Investigations have not been conducted into the conduct of Loubser, and the arbitration proceedings before the MEIBC are still pending. It is therefore not known what the nature of Mohlala’s evidence would be for a determination to be made that such evidence could have been obtained by nefarious means. A simple demand therefore that Loubser be dismissed without any due process being followed cannot be reasonable or lawful.

[25] Furthermore, since the issue in dispute that gave rise to the proposed withdrawal of labour is in any event before the arbitration proceedings, a strike cannot be protected in this regard. This view was further confirmed in Coin Security Group (Pty) Ltd v Adams & others[9] where the court held that strikes are prohibited where issues can be referred to arbitration or adjudication. In this case, the

arbitration process which in effect gave rise to the alleged grievance is still pending.

The demand in respect of Thornburn:

[26] The basis for the demand to terminate the service relationship between the Applicant and Thornburn was that the latter allowed a security officer, Mohlala to continue in its employ and further allowed Mohlala to make corrupt deals with the employees of the Applicant. In the same vein that NUMSA wants Loubser to be removed following an investigation into his conduct, it also pre-empts that such investigations would lead to the termination of the contract between Thornburn and the Applicant.

[27] The relationship between Thornburn and the Applicant is clearly far removed from the employment relationship between NUMSA and the Applicant. Thornburn has since removed Mohlala from the Applicant, and the demand for a further investigation into Thornburn resulting in the termination of its contract is clearly unlawful, moreso since the dispute giving rise to the proposed withdrawal, being Mohlala, is no longer part of the equation.

[28] As correctly pointed out in the Applicant’s heads of argument, industrial action for the purposes of requiring or compelling an employer to perform an unlawful act or to trample over the rights of others cannot be countenanced[10]. This Court has repeatedly refused to sanction industrial action where the demands by employees on the employer goes beyond the mere employment relationship, or are unlawful, or made in bad faith. In this case, the respondents have not laid a basis for the demand that Thornburn’s contract should be terminated. In effect, that demand far goes beyond the employment relationship and has lost significance and meaning with the removal of Mohlala. NUMSA’s demand also losses sight of the fact that there is a commercial agreement that exists between Thornburn and the Applicant, which agreement cannot simply be terminated on NUMSA’s say-so. This demand falls outside the category of demands that can be supported by a strike as defined in section 213 of the LRA, and clearly does not qualify as a matter of mutual interest.

[29] In the light of the conclusions reached that the demands made by NUMSA are unlawful, irrational, unreasonable, and not falling within the realm of mutual interests disputes, it follows that the applicant is entitled to the relief it seeks. The only outstanding issue pertains to that of costs. In this regard, it was submitted on behalf of the applicant that the demands were made to achieve an ulterior and unlawful purpose; that the conduct of NUMSA was an abuse of the dispute resolution processes of the LRA, the spirit and object of the LRA, and the constitutional right to strike to achieve ulterior purposes. It was further submitted that no actual dispute exists as the matter was clearly engineered.

[30] Contrary to the respondents’ contention, it is my view that they had not submitted a genuine grievance, which had to be remedied. In fact, this grievance was indeed engineered in that since the arbitration proceedings in respect of the dismissed employees were still pending, any form of misconduct on the part of Mohlala or Loubser would have been properly ventilated at those proceedings. The grievance has no merit in that not only did the respondents pre-empt the findings of any investigations they had called for, they had also in a way, pre-empted the outcome of the arbitration proceedings when there was no basis to do so. As it was pointed out in the respondents’ own written heads of argument, the grievance, if any was precipitated by a concession in the pre-arbitration minutes to the effect that indeed an agreement was reached between Loubser and Mohlala. In the end, that concession was a matter to be properly dealt with at arbitration, and it could not for all intents and purposes, be of such a nature that it could trigger strike action. In the end, the grievance was a mere red-herring. In the light of these conclusions, considerations of law and fairness dictate that a cost order should follow.

Order:

i. The demands made by the Respondents in a letter from the First Respondent dated 18 July 2014 are declared to be unfair, unreasonable, irrational, and unlawful.

ii. Any strike action which the Second to Further Respondents may consider embarking on in support of the demands as described above is declared to be unprotected and unlawful as contemplated in section 68 of the LRA.

iii. The Respondents are therefore interdicted and restrained from participating in any strike or collective action in support of the demands as referred to as above.

iv. The First Respondent is ordered to pay the costs of this application.

__________________

Tlhotlhalemaje, AJ

Acting Judge of the Labour Court of South Africa

APPEARANCES:

For the Applicants: Adv F Venter

Instructed by: Cowan – Harper Attorneys

For the Respondents: X Ngako of Ruth Edmonds Attorneys

[1] See SATAWU & others v Molotho NO & Another 2012 (6) SA 249 (CC); Tsogo Sun Casinos (Pty) Ltd t/a Montecasino v Future of SA Workers Union & others (2012) 33 ILJ 998 (LC)

[2] National Union of Metal Workers of SA and Others v Bader Bop (Pty) Ltd and Another [2002] ZACC 30; 2003 (3) SA 513 (CC) at para [13].

[3] [2014] 3 BLLR 217 (LAC) at para 57

[4] (2009) 30 ILJ 2064 (LC)

[5] Vide p103

[6] [1997] 6 BLLR 697

[7] TSI Holdings (Pty) Ltd and Others v National Union of Metalworkers of SA and Others (2006) 27 ILJ 1483 (LAC)

[8] 2014 (3) SA 544 (CC) at para 60

[9] [2000] 4 BLLR 371. (See also Fidelity Guards Holdings (Pty) Ltd v PTWU & others [1997] 9 BLLR 1124 where the Labour Appeal Court reiterated that strikes cannot follow disputes that are subject to arbitration or are otherwise capable of being adjudicated.

[10] TSI Holdings (Pty) Ltd & others (supra)