NUMSA & Others v Edelweiss Glass & Aluminium (Pty) Ltd (Labour Court JS795/03, 5
June 2009 per Todd AJ) involved an application by the union (NUMSA) on behalf of its
members (‘the employees’) that they had been unfairly dismissed for participating in strike
action.
After the employer had proved unwilling to grant all of the
organizational rights which NUMSA sought, NUMSA
referred a dispute to the CCMA. Several letters were
thereafter exchanged between the parties in which
NUMSA sought organisational rights, as well as making
demands in respect of sick leave, overtime, a 13th
cheque, etc. While the employer was willing to resolve the
organisational rights dispute, it was reluctant to conclude
an agreement on terms and conditions of employment.
As an outcome of the first attempt at conciliation NUMSA
sent the employer a consolidated list of demands, dealing
with organisational rights as well demands relating to
conditions of employment.
After the employer had proved unwilling to grant all of the
organisational rights which NUMSA sought, NUMSA
referred a dispute to the CCMA. Several letters were
thereafter exchanged between the parties in which
NUMSA sought organisational rights, as well as making
demands in respect of sick leave, overtime, a 13th
cheque etc. While the employer was willing to resolve the
organisational rights dispute, it was reluctant to conclude
an agreement on terms and conditions of employment.
As an outcome of the first attempt at conciliation NUMSA
sent the employer a consolidated list of demands, dealing
with organisational rights as well demands relating to
conditions of employment.
On the day the strike commenced the shop stewards informed the employer, “don’t worry
about the organisational rights issue, just pay us a 13th cheque.” The employer was of
the opinion that the employees had therefore abandoned their organisational rights issues,
and were now only striking over a substantive issue. The employer thereafter informed the
employees that the strike was unlawful from that point onwards and the shop stewards
were suspended and dismissed. On 18 August 2003 the employer issued ultimatums to the
striking employees calling upon them to return to work. Later the same morning a final
ultimatum was issued which stated that “Employees persisting in the unprotected strike
may be dismissed as a group due to the fact that it would not be advisable to have
disciplinary hearings for all striking employees as a result of the urgency of this matter
and the amount of employees involved.” After failing to return to work, the employees were
dismissed.
The court held that an important procedural requirement that had to be complied with if a
strike was to be protected in terms of the LRA, was that the issue in dispute must have
been referred to a council or the CCMA. In determining whether or not an issue in dispute
had been referred as such, the court had a duty to ascertain the true nature of the dispute
between the parties.
To this extent the court had to look at the substance of the dispute and not merely the
form in which it was presented. Although as a general proposition the issue in dispute over
which a strike could be called had to be the issue that had been referred to the CCMA,
this was not a rule “to be applied in the literal sense”. Parties might readily modify or
develop their demands in the course of a collective bargaining dispute, whether during or
after the conciliation process. That did not however mean that a trade union could call a
strike ostensibly in support of one demand when the true demand was one over which no
strike was permissible.
As to procedural fairness, fairness required that a hearing had to be held before
ultimatums were issued. This requirement might be satisfied where an employer engaged
with the trade union to discuss the course of action the employer intended to adopt prior
to the issuing of an ultimatum. In addition, fairness might also require that a further
hearing was held (whether before or after workers had been dismissed) in order to
ascertain whether the employees complied with or attempted to comply with the ultimatum.
The course of action the employer adopted in the present matter was premised on its view
that the employees were precluded from pressing a demand for a 13th cheque and if they
did, the strike then became unprotected. The court held that none of these views were
correct, and as such the strike had been protected for the reasons to follow. The evidence
did not support the employer’s contention that the employees had abandoned their
organisational rights demand. Even if the employer was correct that the demand for a
13th cheque could not have been pressed during the strike, the strike itself was not
rendered unprotected merely by reason of the employees articulating this demand.
However, according to the court the employees were indeed entitled to press a demand for
a 13th cheque in the present circumstances. In this matter the demand over a 13th cheque
had in fact already been the subject of negotiations between the parties. It would be
unrealistic in the context of a strike to insist that in any engagement between the parties
to try and resolve the strike the parties were limited to pressing only those demands that
were specifically formulated in the run-up to the strike. As the strike was protected the
dismissal of the employees was automatically unfair. As far as procedure was concerned,
the failure to engage the union prior to issuing the ultimatums, the unreasonably short
period provided to the employees to react to the ultimatums and the failure of the
employer to provide a realistic opportunity to NUMSA or the employees to make
representations either prior to or following the termination rendered the dismissal
procedurally unfair as well.
As to relief the court held that most of the dismissed employees had since their dismissal
secured alternative employment. The employees however indicated that they sought
reinstatement. In the result, the employer was ordered to reinstate the employees
retrospectively, subject to the proviso that those who indicated that they would rather
accept compensation were entitled to 24 months’ remuneration, with costs.
September 2009