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IN THE CONSTITUTIONAL COURT OF SOUTH AFRICA (HELD AT BRAAMFONTEIN)

Case no CCT131/15

JA44/2013 JS359-11 J2173-10 JA55-10

J1633-10 GPRFBC12878

In the matter between:

Transport and Allied Workers Union of South Africa obo MW Ngedle and 93 others

Applicant

aand

Unitrans Fuel and Chemical (Pty) Ltd Respondent

APPLICANT’S HEADS OF ARGUMENT (Application for leave to appeal and appeal)

1 INTRODUCTION

1.1 This is an application for leave to appeal against the

unanimous decision of the full bench of the Labour

Appeal Court in a mass dismissal dispute that was

handed down on 24 June 2015 (“the 2015 LAC

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decision”)i. The mass dismissal took place on 2

November 2010 pursuant to a strikeii In terms of

practice directive paragraph 7 the merits on appeal will

also be addressed.

1.2 For ease of reference Applicant will be referred to as

“TAWUSA” and Respondent will be referred to as

“Unitrans”.

1.3 TAWUSA brings this application in its own right and on

behalf of 93 TAWUSA members whose particulars

appear from a schedule attached marked “FA-01”iii to

the founding affidavit in the application for leave to

appeal (“the workers”).iv

1.4 TAWUSA claims that the dismissals of the workers were

automatically unfair, alternatively unfairv and seeks

reinstatement, alternatively compensation for the

workers.vi

2 CHRONOLOGY OF MATERIAL FACTS

2.1 It is common cause that at all times material to this

dispute the parties were bound by the Constitution of

the National Bargaining Council for the Road Freight

Industry (“the Bargaining Council”) and the Main

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Collective Agreement for the Road Freight Industry (“the

Main . Agreement”)vii

.

2.2 It is common cause that Unitrans conducts the business

of haulage of petroleum and gas page 342 paragraph

4; page 407 paragraph 8.

2.3 It is common cause that at all times material to this

dispute Unitrans unilaterally imposed wage rates in

excess of Bargaining Council standards that differed

from haulage contract to haulage contract within the

bargaining unit. This practice gave rise to arbitrary wage

discrepancies amongst Unitrans employees who

perform the same work but on different contracts.

2.4 It is common cause that a five - year contract between

Unitrans and the Shell Petroleum Company of South

Africa (“the Shell contract”) was terminated in February

2009viii

.

2.5 It is common cause that 31 of the 110 Shell contract

employees remained in Unitrans's employ after the

termination of the Shell contractix. It is common cause

that all but 7 former shell contract employees signed

new employment contracts with Unitrans in terms of

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which their remuneration was reduced.x The 7

employees referred to in this paragraph will henceforth

be referred to as "the Shell-7"

2.6 It is common cause that various disputes between

Unitrans and the workers as represented by TAWUSA,

including those that gave rise to the strike, were referred

for conciliation and that a certificate of nonresolution

was issued under case number GPRFBC12878.xi.

2.7 It is common cause that TAWUSA issued a strike notice

on 6 August, 2010xii

. [|009|]

2.8 The strike demands were defined as follows in the strike

notice: “2.1 Wage discrepancies 2.2 Wage cut 2.3

Coupling — R500 - pw 2.4 Unilateral change of the

administration of the fund from the Bargaining Council

to your in-house fund”xiii

[|006|]

2.9 It is common cause that Unitrans brought an urgent

application in the Labour Court on 11 August, 2010

under case number J1633-10 and obtained an interim

interdict on that day (“the August interdict”). In terms of

the interim order TAWUSA and the workers were

restrained from promoting, encouraging, supporting,

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participating in or otherwise furthering any strike in

support of the First Respondent’s strike notice dated 6

August 2010;”xiv

. [|007|]

2.10 It is common cause that on 3 September 2010 after

answering and replying affidavits had been filed, the

Labour Court discharged the interim order that was

granted in the August interdictxv

and furnished reasons

for that judgement on 8 September 2010xvi

.

2.11 It is common cause that on 10 September, 2010

TAWUSA uplifted its suspension of the strike and gave

notice that the strike was due to have commenced on

16 September 2010xvii

.

2.12 It is common cause that TAWUSA's demands are listed

as follows in the strike notice referred to at the

preceding paragraphxviii

: “2.1 Wage discrepancies -

there must be no wage discrepancy between

employees who perform work, but on different contract

2.2 Wage cut - former shell contract employees must

earn what they used to earn under Shell contract plus

annual increases 2.3 Coupling — R500.00 pw 2.4

Unilateral change of the administration of the fund from

the Bargaining Council to your in house fund - the

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process be reversed to accommodate Tawusa fund not

Councilfund.”

2.13 It is common cause that the Labour Court granted leave

to appeal to the Labour Appeal Court on 15 September,

2010xix

. It is common cause that the strike was further

suspended pending the outcome of the appeal.

2.14 It is common cause that the Labour Appeal Court

confirm that a strike may proceed on the wage cut and

wage discrepancy demands in a judgement dated 23

September 2010 under case number JA55-10.xx

2.15 It is common cause that TAWUSA notified Unitrans in a

letter dated 26 October 2010 that the suspension of the

strike would be uplifted on 28 October, 2010 in the

event of the parties failing to resolve disputes pertaining

to the following issues by that timexxi

: “1. Wage

discrepancies 2. Wage cut” [|008|]

2.16 It is common cause that Unitrans approached the

Labour Court under case number J2173-10 for urgent

relief on 26 October, 2010 in which it inter - alia sought

an order in the following terms (“the October

interdict”)xxii

: “2 Declaring that the intended strike

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action called by the respondent is unlawful. 3

Interdicting the respondent from embarking on a strike

in respect of the demands contained in the strike notice

dated 26 October 2010.”

2.17 It is common cause that TAWUSA did not deliver an

answering affidavit in the October interdictxxiii

.

2.18 It is common cause that the Labour Court made the

following order in the October interdictxxiv

: “2 The

intended strike action called by the respondent is

unlawful. 3 The respondent is interdicted from

embarking on a strike in respect of the demands

contained in the strike notice dated 26 October 2010.”

[|010|]

2.19 It is common cause that TAWUSA issued the following

strike notice on 27 October, 2011xxv

: “2. We confirm

that our members will proceed with the strike on the

basis of the very same demands, as were during Labour

Appeal Court Judgment, and as contained in annexure

"C" to the founding affidavit of your urgent application

being as follows: (i) Wage discrepancies — there must

be no wage discrepancy between employees who

perform work, but on different contract. (ii) Wage cut -

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Former Shell contract employees must earn what they

used to earn under Shell contract plus annual

increases.” [|003|]

2.20 It is common cause that the strike commenced at 14:30

on 28 October 2010.

2.21 It is common cause that Unitrans's attorneys of record

issued a letter on 29 October 2010 alleging, inter alia,

that the strike was not protected and that disciplinary

action would be taken against TAWUSA's members,

which could result in dismissalxxvi

.

2.22 It is common cause that TAWUSA issued a letter dated

30 October 2011 in which TAWUSA expressed the view

that the strike was protected by virtue of the judgement

of the Labour Appeal Court and that Unitrans was not

entitled to have issued ultimatums to employees who

were on strikexxvii

.

2.23 It is common cause that Unitrans issued a series of

ultimatums to employees who were on strikexxviii

.

2.24 The employee parties averred that "TAWUSA explained

that the demands remained the LAC demands. The

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parties were merely engaged in negotiations and did not

introduce new demands"xxix

. [|004|]

2.25 Mr Wellington Ngedle (“Mr Ngedle”) testified for

TAWUSA and the workers in the Labour Court that the

purpose of the strike was to eradicate wage

discrepancies and to procure payment of remuneration

that was originally paid to the Shell-7.

2.26 Mr Ngedle maintained in cross-examination in the

Labour Court that employees who were on strike did not

demand a pay increase, but an adjustment.

2.27 It is common cause that the parties held a series of

meetings prior to and during the strike. Mr Ngedle

testified under cross-examination in the Labour Court

that TAWUSA and the workers demanded in those

meetings to "sort out" the wage discrepancies and the

wage cut in respect of the Shell-7.

2.28 Mr Ngedle testified in the Labour Court under cross-

examination that the second paragraph of one of the

ultimatums issued during the strike was factually

incorrect insofar as it suggested that the employee

parties’ wage discrepancy demand had shifted to a

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demand for a wage increase. In this regard Mr Ngedle

testified that the demand was always for wage

adjustments and that this was in accordance with the

ruling of the Labour Appeal Court.xxx

2.29 Mr Ngedle testified in the Labour Court that Unitrans

made no suggestions on how the strike would have

been resolved. Mr Ngedle testified that the parties

conducted a further meeting on 1 November 2011 at

which meeting Appellant suggested a compromise in

terms of which some wages would have been raised

and others would have been reduced so that everyone

would have met at R 38.00 per hour so as to achieve

wage parity. Mr Ngedle conceded in further cross -

examination that Unitrans said that this proposal would

have cost more money. In this regard Mr Ngedle

testified that if that was indeed the case, it was for

Unitrans to rectify the problem that it was responsible

for and that this was in accordance with the judgement

of the Labour Appeal Court.

2.30 Mr Badenhorst who testified on behalf of Unitrans in the

Labour Court acknowledged that the meeting referred to

at the preceding paragraph took place,xxxi

although

there were no minutes of this meeting, and had a vague

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recollection of a proposal that wage parity could be

achieved by fixing all wages at R 38.00 per hourxxxii

2.31 It is common cause that the employee parties initially

demanded that wage parity should be achieved by

increasing the wages of the lowest paid employees to

the highest paid rates. However, this position changed

as stated at paragraphs 310.35 – 10.36 above.

2.32 It follows that the employee parties never demanded an

increase for all during the course of the strike. [|005|]

2.33 It appears from the evidence of Mr Badenhorst that the

strike demand to rectify the wage reduction of the Shell-

7 rendered the strike lawful on Unitrans’s own

versionxxxiii

. The aforementioned passage ends with the

words “Absolutely, as far as we were concerned, there

was nothing else that could lead to a protected strike”.

[|011|]

2.34 It follows that on Unitrans’s own version, the strike was

protected until the time when the final ultimatum was

issued in terms of which it was announced that the

remuneration of the Shell-7 would have been

rectified.xxxiv

[|012|]

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2.35 It was the evidence of Mr Badenhorst that the final

ultimatum was issued on one November 2010 at

14:05xxxv

. [|013|]

2.36 It is common cause that Unitrans capitulated on the

wage cut demand in respect of the Shell-7 in the final

ultimatum that was issued on 1 November 2011xxxvi

.

[|014|]

2.37 It is common cause that the workers were summarily

dismissed at around 8:00 on 2 November 2011 on

account of participation in strike actionxxxvii

. [|015|]

2.38 TAWUSA and the workers challenged the dismissals in

proceedings before the Labour Court under case

number JS359-11 and the matter was heard during

August and October 2012xxxviii

.

2.39 In a judgement dated 13 December 2012xxxix

the Labour

Court dismissed the application referred to at the

preceding paragraph with costs. This judgement shall

henceforth be referred to as “the final Labour Court

judgement”.

2.40 The employee parties took the final Labour Court

judgement on appeal to the Labour Appeal Court under

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case number JA44/2013. The appeal hearing took

place on 12 May 2013, and the appeal was dismissed in

a judgement dated 24 June 2015. It is against this

judgement that leave to appeal to the Constitutional

Court is sought.

3 LEAVE TO APPEAL TO THE CONSTITUTIONAL COURTxl

3.1 It is apparent from the contents of these heads of

argument that TAWUSA has raised substantial points of

constitutional law pertaining to the right to engage in

collective bargaining, the right to strike and the right to

be protected against unfair labour practices conferred

under section 23 of the Constitution and has strong

prospects of successxli

3.2 The gist of the employee parties’ submissions pertaining

to constitutional law was presented in the court a quo

although that court made no reference to those

arguments in the 2015 LAC judgement.

3.3 This dispute raises the question as to whether or not the

conduct of Unitrans is inconsistent with the Constitution.

In this regard it is emphasised that Unitrans refused to

negotiate actual wages unilaterally imposed in excess of

Bargaining Council rates, unilaterally reduced the

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wages of the shell seven and dismissed the workers

within the context of a strike.xlii

3.4 The court a quo’s interpretation of the Main Agreement

does not promote the spirit, purport and objects of the

Bill of Rights as is required under section 39 (2) of the

Constitution as it justifies a system in terms of which

actual wages can never be negotiated either at central

or at plant levels.xliii

3.5 The erroneous reasoning of the Labour Appeal Court

gave rise to an untenable outcome of the matter from a

constitutional perspective.xliv

3.6 This is a matter that includes issues involving the

interpretation, protection or enforcement of the

Constitution.xlv

3.7 It follows from the foregoing that this appeal relates to a

constitutional matter and to issues connected with the

2015 LAC judgement on a constitutional matter.xlvi

3.8 TAWUSA has exhausted all other avenues of appealxlvii

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3.9 TAWUSA did not apply for leave or special leave to

appeal to any other court against the 2010 LAC decision

and does not intend to do so in future.xlviii

3.10 The judgement in the matter of Air Chefs (Pty) Ltd v SA

Transport & Allied Workers Union & others (2014) 35

ILJ 3088 (LC) (“the Air Chefs case”) underscores the

need for this court to grant leave to appeal so as to

settle the tension between collective bargaining at

central level and at plant level in cases where collective-

bargaining on certain issues appears to be impossible

at both levels.

3.11 It is in the interests of justice that leave to appeal to the

Constitutional Court be granted.xlix

4 DIRECTIVE 8 (A): RES JUDICATAl

4.1 In the matter of BMW (SA) (Pty) Ltd v Van der Walt

(2000) 21 ILJ 113 (LAC) the Labour Appeal Court found

that an employee may be subjected to a second in-

house disciplinary enquiry for the same misconduct. In

coming to this conclusion the majority (Zondo AJP, as

he then was, dissenting) held that “… it is unnecessary

to ask oneself whether the principles of autrefois acquit

or res iudicata ought to be imported into labour law.

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They are public policy rules” and further that “ In labour

law fairness and fairness alone is the yardstick”.li It is

submitted that this judgement is not authority for the

proposition that the res judicata principle does not apply

in casu.

4.2 There is a striking similarity between the facts that came

before the Labour Appeal Court in the matter of Fidelity

Guards Holdings (Pty) Ltd v Professional Transport

workers Union & Others (1999) 20 ILJ 82 (LAC) (“The

Fidelity Guards Case”) and the present matter. In the

Fidelity Guards Case an employer party sought to

interdict a strike for the second time after a previous

attempt to do so had failed in the Labour and Labour

Appeal Court’slii On appeal in the second attempt to

interdict the strike the Labour appeal court upheld a

plea of res judicata and dismissed the application to

interdict the strike on that basis.

4.3 The requirements for the exceptio rei judicatae are that

a prior final judgment had been given in proceedings

involving (a) the same persons; (b) based on the same

relief claimed; and (c) involving the same subject-matter

or cause of action.liii

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4.4 “The cause of action is the same whenever the same

matter is in A issue … An issue is a matter of fact or

question of law in dispute between two or more parties

which a court is B called upon by the parties to

determine and pronounce upon in its judgment, and is

relevant to the relief sought:”liv

4.5 Section 213 of the LRA95 provides that “'issue in

dispute', in relation to a strike or lock-out, means the

demand, the grievance, or the dispute that forms the

subject matter of the strike or lock-out” and a dispute

includes “an alleged dispute”.

4.6 It is apparent from the statement of claim and both pre-

trial conference minutes that the employee parties inter-

alia relied on the exceptio rei judicataelv and the facts of

this matter show that all requirements were met.

4.7 The conclusion of the 2010 LAC judgement appears at

paragraph 25 of the judgement which reads as follows:

"[25] In the circumstances I am of the view that the First

Respondent's demands that the appellant implement a

system of wage parity for the drivers irrespective of

which contract they service and that there be no

reduction in salary without there being an agreement to

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that effect are demands which fall outside the ambit of

clause 50 (1) and (3) of the main collective agreement

and as such the First Respondent is not prohibited in

terms of s 65(1)(a) and (3) (a) (i) of the LRA from calling

upon its members to strike in respect of these

demands.”lvi

[|002|]

4.8 The issue as regards the wage discrepancy demand

was whether or not a demand that Unitrans must

“implement a system of wage parity for the drivers

irrespective of which contract they service” would

sustain a protected strike. This issue was determined in

TAWUSA’s favour in the 2010 LAC judgement.

4.9 The issue as regards the wage cut demand was

whether or not a demand “that there be no reduction in

salary without there being an agreement to that effect "

would sustain a protected strike. This issue was

determined in TAWUSA's favour in the 2010 LAC

judgement.

4.10 It is common cause that the strike that was the subject

of the 2010 LAC judgement was suspended pending

litigation between the parties and attempts at settlement

until 28 October 2010 when the strike commenced.

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4.11 It is apparent from the contents of paragraphs [|008|]

and [|003|] that the strike notices dated 26 and 27

October 2010 reiterated the demands that came before

the Labour Appeal Court in the 2010 LAC judgement.

4.12 It is apparent from the contents of paragraphs [|004|] –

[|005|] above that the essence of the dispute that came

before the Labour Appeal Court in the 2010 LAC

judgement remained unaltered throughout the strike.

4.13 The fact that shop stewards and union officials

expressed the view that wage parity ought to have been

achieved by fixing all wages on the higher rates paid on

more lucrative contracts or by fixing all wages at a

specified hourly rate did not alter the nature of the wage

discrepancy dispute as determined in the 2010 LAC

judgement.

4.14 The recognition of the exceptio rei judicatae requires

“careful scrutiny. Each case will depend on its own facts

and any extension of the defence will be on a case-by-

case basis… relevant considerations will include

questions of equity and fairness, not only to the parties

themselves but also to others ...."lvii

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4.15 The exceptio rei judicatae is underpinned by policy

considerations aimed at preventing “mutually

contradictory decisions due to the same action being

aired more than once in different judicial

proceedings:”lviii

This is of particular importance in the

context of a strike where workers must be left in no

doubt as to the status of a strike, particularly because of

the consequences of an unprotected strike which may

include dismissal and claims for damages.lix

4.16 It is apparent from the approach in the THE Fidelity

Guards Caselx that the factual matrix of the strike should

not be over-analysed in a quest to redefine the

underlying issue in dispute pursuant to litigation on the

status of a strike.

4.17 In casu Unitrans sought to sidestep the exceptio rei

judicatae relied upon by TAWUSA and the workers by

showing that demands that would have resulted in wage

increases for some employees were articulated by shop

stewards and union officials during strike negotiations.

On this basis it was found by the court a quo that the

strike had slipped from the protection afforded by the

2010 LAC judgement.

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4.18 The “true” or “real issue” in the dispute that gave rise to

the dismissal of the workers must be determined and

compared with the issue in dispute in the 2010 LAC

judgement so as to determine whether or not those

issues became res judicata. “In conducting that enquiry

a court looks at the substance of the dispute and not at

the form in which it is presented”.lxi

In casu this process

must also be tempered by the policy considerations that

underpin the exceptio rei judicatae.

4.19 The focus of the court a quo on an analysis of the strike

demands was not in pace with the constitutional right to

strike as it now stands and lost sight of the policy that

underpin the exceptio rei judicatae that requires of the

court to determine the broader issue in dispute which

does not only include the demand but also “the

grievance, or the dispute that forms the subject matter

of the strike or lock-out;”lxii

4.20 The Labour Relations Act 28 of 1956 (“the LRA56”)

defined a strike inter-alia with reference to the nature of

the underlying demandlxiii

4.21 The LRA95 that was enacted to give effect to section 23

of the constitution, which inter-alia includes the right to

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strike contains a new strike definition that no longer

describe a strike with reference to demands. The focus

has now shifted to the purpose for which work does not

proceed as per usual.lxiv

4.22 The purpose of all demands and suggestions articulated

during the course of the strike concerning the wage

discrepancy dispute was always to achieve wage parity

as is apparent from the contents of paragraphs [|004|] –

[|005|] above.

4.23 It follows from the foregoing that it will be fair and

equitable for the court to exercise its discretion in

TAWUSA’s favour and find that the following became

res judicata as between the parties:

4.23.1 The “wage cut” demand and the “wage

discrepancies demand” would sustain a

protected strike.

4.23.2 The demands pertaining to “coupling” and

Provident fund Administration would not

sustain a protected strike.

4.24 In the result the strike was protected and the dismissals

were automatically unfair.

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5 DIRECTIVE 8 (B):lxv

8 (C)lxvi

AND 8 (D)lxvii

STARE DECISIS ET NON QUIETA MOVERE

5.1 Labour Appeal Court judgements are binding upon the

Labour Court under the LRA95lxviii

and common lawlxix

5.2 In terms of the common law principle of stare decisis

Labour Appeal Court judgements which were not

delivered per incuriam are binding upon the Labour

Court.lxx

5.3 It is clear from the first LAC judgement that applicable

legislation and collective agreements were duly

considered and that consequently the judgement was

not pronounced per incuriam.

5.4 “… a lower court) I is bound by previous judgments in

respect of specific legal principles or the application of

legal principles to similar or comparable factual

situations”lxxi

5.5 It follows that the second Labour Appeal Court

judgement was binding on both Basson J and Bhoola J.

5.6 “… it may be useful to keep the essential meaning of

and the reasons behind the doctrine of precedent in

mind. Often expressed in the Latin maxim stare decisis

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et non quieta movere (to stand by decisions and not to

disturb settled matters), it means that in the interests of

D certainty, equality before the law and the satisfaction

of legitimate expectations, a court is bound by the

previous decisions of a higher court and by its own

previous decisions in similar matters.”lxxii

5.7 The Labour Appeal Court may only depart from its

previous decisions if convinced that those decisions are

clearly wrong.lxxiii

5.8 The court a quo did not address the question as to

whether or not the first Labour Appeal Court judgement

was wrong and was consequently not entitled to have

departed from it. However, the conclusion of the court a

quo is tantamount to a judgement on appeal that

overturned the conclusion of the 2010 LAC judgement.

5.9 The judgement in the the Air Chefs case at paragraphs

18 - 19 on pages 3095 - 3096 was not correct insofar as

it might have come to a different conclusion on how the

law should be applied and is in conflict with the 2010

LAC judgement. The Air Chefs case is also

distinguishable on the facts as it was concerned with a

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job grading dispute under collective-bargaining

agreements of another Bargaining Council.

6 DIRECTIVE 8 (G): AFROX PRINCIPLElxxiv

6.1 It is common cause that all participants in the strike

were subjected to wage discrepancies that arose from

the Unitrans system of wage disparity premised on the

difference in income derived from different haulage

contracts. However, it was only the Shell 7 whose

wages had been unilaterally reduced, which reduction

gave rise to the wage cut dispute.

6.2 In terms of the Afrox principle the strike would not have

been rendered unprotected or transformed into a

secondary strike by virtue of the participation of

TAWUSA members employed by Unitrans who were not

directly affected by the wage cut dispute.lxxv

6.3 The Afrox principle was subsequently endorsed by the

Labour Appeal Court and extended to non-bargaining

unit employees employed by the same employer.lxxvi

6.4 In Early Bird Farm (Pty) Ltd v Food & Allied Workers

Union & others (2004) 25 ILJ 2135 (LAC) the Labour

Appeal Court concluded at paragraph 48 on page 2154

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that in a case where employees who were not directly

affected by a dispute participated in a protected strike in

terms of the Afrox principle it was strictly speaking not

required of the court to examine whether or not other

demands made by those employees were good or bad

as the Afrox principle demand rendered the strike

protected.

6.5 In this vein the Labour Court found in National Union of

Metalworkers of SA & others v Edelweiss Glass &

Aluminium (Pty) Ltd (2010) 31 ILJ 139 (LC)lxxvii

that

demands and proposals aimed at resolving deadlocked

during the course of a strike may be much broader than

those referred for conciliation. This applied in cases

where the original dispute was not abandoned and

where the original dispute was not used as a deliberate

stratagem to strike over other issues.

6.6 It follows from the foregoing that in casu the strike

remain protected until Unitrans capitulated on the wage

cut demand even if it is found that the wage discrepancy

demand and proposals as articulated in strike

settlement negotiations rendered the strike on the wage

discrepancy dispute unprotected. This is also in

accordance with the understanding of Unitrans at the

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time as is apparent from the contents of paragraphs

[|011|] – [|012|] above.

7 DIRECTIVE 8 (F): UNFAIR DISMISSAL IN TERMS OF SECTION 188 OF THE LRA95

lxxviii

7.1 It is apparent from the pleadings in the pre-trial

conference minute that TAWUSA and the workers

averred in an alternative claim that the dismissals of the

workers were ordinarily unfair in terms of section 188 of

the LRA95.lxxix

7.2 In this regard it was contended that the dismissals were

both procedurally and substantively unfairlxxx

. In support

of this averment it was contended that:lxxxi

Disciplinary

enquiries were not conductedlxxxii

and that dismissal

was inappropriatelxxxiii

considering the seriousness of

the statutory contravention, attempts by the workers to

comply with the LRA95, unjustified conduct by Unitrans

that precipitated the strike in response and the bona fide

belief of the workers that the strike was protected.

7.3 TAWUSA and the workers also averred that Unitrans

did not engage TAWUSA in discussions concerning its

intention to dismiss the workerslxxxiv

, that there was

insufficient time to consider the ultimatums and that the

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requirements of the LRA95 and the code of good

practice on dismissal were not followed.lxxxv

7.4 The workers showed remarkable restraint in their quest

to comply with the provisions of the LRA95 and

postponed the strike through a series of suspensions

from early September until the end of October 2010.

7.5 It is apparent from the contents of paragraphs [|009|],

[|006|] & [|007|] and [|008|] above that the demands

that came before the Labour Court in the August

interdict as per the strike notice of 6 August 2010 and

ultimately before the Labour Appeal Court in the 2010

LAC judgement were exactly the same as those that

came before the Labour Court in the 2010 October

interdict as per the strike notice of 26 October 2010.

7.6 It follows from the foregoing that in terms of the res

judicata and stare decisis principles that the order in

the October interdict restraining the workers from taking

strike action “in respect of the demands contained in the

strike notice dated 26 October 2010” referred to at

paragraph [|010|] above, was not competent. This order

gave rise to much confusion amongst the workers and a

firm belief that the order in the October interdict was in

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conflict with the order of the 2010 Labour Court

judgement and clearly wrong for that reason.

7.7 The confusion that arose from the October interdict was

compounded by the following remarks of the presiding

judge: "Let me just for argument sake just make this

clear. I accept if it is the same demand, the same

demand that was the subject of litigation for the Labour

Court, I accept you can strike about that, …"lxxxvi

.

7.8 Mr Ngedle testified in the Labour Court that he held the

belief that the strike was protected in view of the

judgement of the Labour Appeal Court. Mr Ngedle

testified that in the circumstances Unitrans was never

able to persuade him that the strike was unprotected,

notwithstanding the ultimatums and meetings.

7.9 It is apparent from the contents of paragraphs [|011|] –

[|012|], [|013|], [|014|] and [|015|] above that the

dismissals were effected less than 24 hours after the

strike had, on Unitrans’s own version, become unlawful.

7.10 Even if the dismissals are not found to have been

automatically unfair then it could not have been

expected of the workers to have reasoned as did the

Page 30 of 48

court a quo so as to confine the otherwise clear wording

of paragraph 25 of the 2010 LAC judgement to the

Shell-7 wage cut demand. The difficulties in this regard

are compounded by the fact that the workers had, but a

few hours at their disposal to have come to this

conclusion in the atmosphere of a strike.

8 DIRECTIVE 8 (E): COURT A QUO’S FAILURE TO CONSIDER ORDINARY UNFAIR DISMISSAL

lxxxvii

8.1 TAWUSA does not know why this issue was not

addressed in the judgement of the court a quo.

8.2 An appeal was noted against the whole of the final

Labour Court judgement that was inter-alia premised on

the grounds that the court in the final Labour Court

judgement erred in the following respects:

8.2.1 “In having found that Respondent "was left

with no reasonable alternative other than to

dismiss" (Judgement 58).”lxxxviii

8.2.2 “In having found that the dismissals were

therefore justified (Judgement 61)”lxxxix

8.2.3 “In having dismissed Applicants’ claims”xc

Page 31 of 48

8.3 it was also argued in the alternative in Appellant’s main

heads of argument on appeal and at paragraph 14 of

Appellants’ additional submissions that the dismissals

were ordinarily unfair in terms of section 188 of the LRA

95 .xci

8.4 In having failed to have addressed the question as to

whether or not the dismissal of the workers was also

unfair in terms of section 188 of the LRA95 above the

court a quo misconceived its function in the following

respects:

8.4.1 It was required of the court a quo to have

determined whether or not a mass dismissal

was automatically unfair in terms of section

187 of the LRA95, alternatively whether or

not that mass dismissal was unfair in terms of

section 188 of the LRA95.

8.4.2 It follows that it was required of the court a

quo to have determined whether or not

UNITRANS had breached appellant’s rights

to fair labour practices in terms of section 23

(1) of the constitution as crystallised in the

provisions of the LRA95.

Page 32 of 48

8.4.3 In having narrowed its enquiry the court a

quo breached Applicant’s right under section

33 of the constitution to have the dispute that

Applicant had placed before the judiciary

finally decided.

9 THE RIGHT TO STRIKE FOR WAGE PARITY

9.1 Notwithstanding the clear and unambiguous language

used in the final conclusion of the 2010 LAC judgement,

quoted at paragraph [|002|] above, the court a quo

found as follows: “The crisp question for determination

was whether, in terms of the Labour Appeal Court’s

judgment to which I have made reference, appellants

had been prohibited from striking in respect of those

demands relating to wage discrepancies. This issue

thus requires a careful engagement with the judgment

of the Labour Appeal Court.”xcii

9.2 The court a quo found that the 2010 LAC judgement

“was founded on a central proposition, namely that all

negotiations in relation to wages and substantive issues

are required to be conducted at the Bargaining Council.

Neither party may resort to industrial action concerning

these defined issues”. Substantive issues are regarded

Page 33 of 48

as “all issues involving costs and affecting the wage

packets of employees”xciii

.

9.3 The court a quo was misdirected in having made this

finding. It is apparent from the contents of paragraphs

17 – 19 of the 2010 LAC judgement that the central

proposition that underlies the judgement is that

unilateral action in breach of employment contracts and

collective agreements may be addressed through

protected strike action. In this regard the following must

be noted:

9.3.1 Wage rates provided for in the main

agreement are binding upon the parties in

terms of section 23 of the LRA95.

9.3.2 Mr Badenhorst testified that actual wages

and not minimum rates are determined by the

main agreement.

9.3.3 There is no essential difference between

breaching the main agreement by unilaterally

reducing wage rates and breaching the main

agreement by unilaterally raising wage rates.

Page 34 of 48

9.3.4 Unitrans practice to introduce wage disparity

amongst workers on various contracts by

increasing wage rates in breach of the Main

Agreement gave rise to the wage

discrepancy dispute and is in conflict with the

ubuntu principle.xciv

9.4 The court a quo then proceeded to summarise the facts

of the matter pertaining to the unilateral reduction of the

Shell-7 wagesxcv

and concluded that the wage

discrepancy dispute was confined to the Shell-7xcvi

.

However, the court a quo was misdirected in this regard

as the conclusion that the wage discrepancy demand

was confined to the Shell-7 only, disregards the facts of

this matter that came before the Labour Appeal Court in

the 2010 hearing.xcvii

9.5 The approach adopted by the court a quo merely

compounds the wage discrepancy dispute because it

would reinstate the higher Shell contract wage rates

which were not received by most other employees.

9.6 It is in this context that the court a quo ought to have

measured the conduct of the parties and the scope of

the Main Agreement against the provisions of section 23

Page 35 of 48

of the Constitution so as to harmonise the unambiguous

conclusion in the 2010 LAC judgement with the Main

Agreement prohibition on plant level bargaining.

9.7 A proper interpretation of the provisions of the Main

Agreement so as to give effect to the Constitution does

not prohibit strike action to procure wage parity across

all Unitrans’ haulage contracts.

9.8 In terms of the Main Agreement the “wage cut” and

“wage discrepancies” disputes are disputes that cannot

be resolved through collective-bargaining under the

auspices of the Bargaining Council.

9.9 The parties to the Bargaining Council are comprised of

an employers’ organisation and trade unionsxcviii

. This

means that employers are not Bargaining Council

members as individual entities.xcix

9.10 It is apparent from the first page of the Main Agreement

that the Road Freight Employers' Association is the only

employer party to the Main Agreement.

9.11 It is apparent from the evidence of Mr Badenhorst that

the issues that gave rise to the strike pertain only to

employees in Unitrans’ employ and are of no

Page 36 of 48

consequence to other employees employed elsewhere

in the road freight industryc

9.12 It follows from the foregoing that the “wage cut” and

“wage discrepancies” disputes do not lie between

parties to the Bargaining Councilci and may therefore

not become the subject of collective-bargaining at

central level under the auspices of the Bargaining

Council.

9.13 In terms of clause 48 of the Main Agreement the

Bargaining Council "shall annually negotiate substantive

issues, excluding definitions and procedural issues,

affecting all employees..."

9.14 The expression "all employees" in clause 48 of the Main

Agreement refers to all employees in the road freight

industry in respect of whom "minimum wages are

prescribed" in terms of the Main Agreementcii

.

9.15 It follows that substantive issues not "affecting all

employees" in the road freight industry in respect of

whom minimum wages are determined in the Main

Agreement, are not subject to annual negotiations under

the auspices of the Bargaining Council. The “wage cut”

Page 37 of 48

and “wage discrepancies” disputes affect only Unitrans

employees and are not issues affecting all employees in

the road freight industry and are therefore not subject to

annual wage negotiations under the auspices of the

Bargaining Council.

9.16 It was indeed Mr Badenhorst's evidence that Unitrans's

own actual wage rates paid on its haulage contracts,

insofar as they are in excess of Bargaining Council

minimums, could never be negotiated at central level

under the auspices of the Bargaining Councilciii

. This

accords with the provisions of the Main Agreement.civ

9.17 Mr Badenhorst testified that all wage components in

excess of Bargaining Council minimum proportional

increases were determined by Unitrans and that this

was not negotiable at plant level or at Bargaining

Council levelcv

. Mr Badenhorst testified that Unitrans

unilaterally determined actual wages paid on each of its

haulage contractscvi

.

9.18 Mr Badenhorst testified that actual wages for work of

the same kind differed from contract to contract as

same depended on the labour cost component that

Unitrans was able to negotiate under each contractcvii

.

Page 38 of 48

Mr Badenhorst explained that Unitrans rates were

higher than Bargaining Council rates in order to retain

skilled employees.cviii

9.19 The circumstances explained at the preceding

paragraph gave rise to the “wage discrepancy” dispute.

9.20 Unitrans has through its conduct created an island of

privilege whence it may determine actual remuneration

of its own accord, unfettered by the constraints of

collective-bargaining. This is reminiscent of the pre-

constitutional past.

9.21 Unitrans’s refusal to negotiate actual remuneration at

plant level smacks of arrogance and is in conflict with

the purpose of the Labour Relations Act 66 of 1995

(“the LRA95”) as stated in section 1 of that act, and

seeks to deny TAWUSA’s constitutional right to

collective bargaining.

9.22 It is against the backdrop of the foregoing facts and

considerations that the prohibition on plant level

bargaining in terms of the collective agreements of the

Bargaining Council must be interpreted.

Page 39 of 48

9.23 The Main Agreement prohibition on plant level

bargaining reads as follows:cix

“50. LEVELS OF BARGAINING IN THE

INDUSTRY

(1) The forum for the negotiation and conclusion of

substantive agreements on wages, benefits and

other conditions of employment between

employers and employers' organisations on the

one hand and trade unions on the other hand, shall

be the Council.

(3) No trade union or employers' organisation shall

attempt to induce or compel, or be induced or

compelled by, any natural or juristic person or

organisation, by any form of strike or lockout, to

negotiate the issues referred to in subclause (1)

above at any level other than the Council.”

9.24 The Main Agreement defines “substantive issues” as “all

issues involving costs and affecting the wage packets of

employees."

9.25 “It is also an accepted interpretative principle in our

constitutional jurisprudence that if there is more than

Page 40 of 48

one interpretation of a statutory provision that is

constitutionally compliant, the interpretation that best

conforms with the spirit, purport and objects of the Bill of

Rights should be preferred”.cx

9.26 “The right to strike is protected as a fundamental right in

the Constitution without any express limitation”.cxi

9.27 “Constitutional rights conferred without express

limitation should not be cut down by reading implicit

limitations into them and when legislative provisions

limit or intrude upon those rights they should be

interpreted in a manner least restrictive of the right if the

text is reasonably capable of bearing that meaning”.cxii

9.28 In order to give effect to TAWUSA’s constitutional right

to engage in collective bargaining and to give effect to

the constitutional right of the workers to strike, the

words “wages, benefits and other conditions of

employment” as they appear in clause 50 (1) of the

Main Agreement must be interpreted so as to exclude

those “wages, benefits and other conditions of

employment” that cannot be negotiated at central level

in terms of the Main Agreement.

Page 41 of 48

9.29 It is a necessary consequence of the aforesaid

interpretation of the Main Agreement that the strike that

gave rise to the mass dismissal would have been

protected.

9.30 Workers who may not through their union participate in

collective bargaining over their actual remuneration and

who may not strike in disputes over their actual

remuneration are relegated to the ranks of undignified

coerced workers. This falls foul of what was said by the

Constitutional Court in the matter of National Union of

Metalworkers of SA & Others v Bader Bop (Pty) Ltd &

Another (2003) 24 ILJ 305 (CC) at paragraph 13 on

pages 316 – 317:

9.31 The right to strike is an integral part of collective

bargaining.cxiii

9.32 A substantial portion of the judgement of the court a quo

seeks to demonstrate that the plane grammatical

meaning of the conclusion in the 2010 LAC judgement

as it appears at paragraph 25 of the judgement, should

be curtailed to a finding that the wage discrepancy

dispute was limited to a dispute over the remuneration

of the Shell-7.

Page 42 of 48

9.33 The right to strike should not become entrammelled by

interpretations of restrictive measures that would spawn

uncertainty concerning the exercise of the right to

strike.cxiv

9.34 The court a quo erred in having failed to have

interpreted clause 50 (1) of the Main Agreement so as

to allow strike action to address wage discrepancies

arising from actual wages unilaterally imposed by

Unitrans outside of the framework of collective

bargaining under the auspices of the Bargaining

Council.

10 APPEAL

10.1 In having erred as stated above the full bench of the Labour

Appeal Court did not exercise their discretion judicially

and/or was influenced by wrong principles and/or was

misdirected and/or was clearly wrong and/or reached

decisions which could not reasonably have been made by a

court properly directing itself to all the relevant facts and

principles.cxv

10.2 The appeal ought to be upheld.

11 CONDONATION

Page 43 of 48

11.1 The 2015 LAC judgement was critical of the employee

parties’ application for condonation for the late filing of

the record on appeal and pointed out that there was no

explanation for a delay of more than one yearcxvi

11.2 It is not disputed that the workers were unaware of the

delaycxvii

, that the circumstances were not such that

they ought to have suspected the delaycxviii

and only

became aware of it when the matter was argued in the

court a quo.cxix

The workers did not cause the delay.cxx

11.3 The merits of this matter are so strong that this court

would be inclined to exercise its discretion in favour of

the employee parties and grant condonation

notwithstanding the scant explanation for the delay in

filing the record on appeal.

12 CONCLUSION

12.1 The late delivery of the record on appeal in the court a

quo ought to be condoned.

12.2 Leave to appeal ought to be granted with costs.

12.3 The appeal ought to be upheld with costs on a finding

that the dismissal of the workers were automatically

Page 44 of 48

unfair, alternatively unfair which entitles them to

reinstatement and compensation.

……………………. Masango Attorneys

Applicant's Attorneys Friday, 6 November 2015

Office 414 Fourth Floor

Elephant House 107 Albertina Sisulu Road

Johannesburg, 2001 Tel: (011) 333 2084

FJWilke Francois Wilke

Applicant's Counsel Friday, 06 November 2015

Tel: (011) 646 4294

i DR Harms Civil Procedure in the Superior Courts (“HRM”): paragraph D19.1 CC Rule 19 (1) (a). ii Record page 40 paragraph 3.1 & page 43 paragraph 5.3.13.

iii Record pages 46 – 48

ivIt is common cause that the workers were members of TAWUSA. Record page 40

paragraphs 2.1 & 2.3; page 41 paragraph 5.1. v Record page 3 paragraph 7.

vi Record page 35 paragraph 6.

vii Record page 41 paragraphs 5.1 – 5.2.

viii Record page 343 paragraph 7; page 408 paragraph 9.3.

ix Record pages 343 – 344 paragraph 10; page 408 paragraph 9.3.

x Record page 344 paragraphs 11 - - 12; page 408 paragraphs 9.3 - - 10; Record page 344

paragraphs 11 – 12; page 408 paragraphs 9.3 - - 10. xi Record page 31 paragraph 3.2 – 3.3; pages 351 – 352 paragraph 33; page 396; page 423

paragraph 27. xii

Record page 3 paragraph 10; page 23 paragraph 36; page 357 paragraph 50; pages 404 – 405. xiii

Record page 405. xiv

Record page 338 paragraph 2.1. xv

Record page 487 paragraph 1. xvi

Record pages 487 – 492. xvii

Record page 502. xviii

Record page 503. xix

Record page 508 paragraph 1. xx

Record pages 877 – 878. The judgement of the Labour Appeal Court under case number JA55-10 was reported as Unitrans Fuel & Chemical (Pty) Ltd v Transport & Allied Workers Union of SA & Another (2010) 31 ILJ 2854 (LAC. xxi

Record page 4 paragraph 17; page 24 paragraph 42; page 570. xxii

Record pages 550 – 551 paragraphs 2 - - 3. xxiii

Record page 5 paragraph 18; page 24 paragraph 43; page 584 lines 13 – 17. xxiv

Record page 613 paragraphs 2 & 3. xxv

Record page 5 paragraph 21; page 24 paragraph 44; page 582. xxvi

Record page 5 paragraph 22; page 24 paragraph 44; pages 693 – 694.

Page 45 of 48

xxvii

Record page 6 paragraph 23; page 24 paragraph 45; page 695 paragraphs 1 & 5. xxviii

Record page 6 paragraph 24; page 24 paragraph 46; pages 699 – 700; page 701; pages 704 – 705 & pages 707 – 708. xxix

Record page 4 paragraph 16; see also record page 5 paragraph 21. xxx

Record page 304 lines 4 – 19. xxxi

Record page 287 lines 1 – 3. xxxii

Record page 287 line 19 – page 288 line 23. xxxiii

Record page 197 line 3 – page 198 line 7. xxxiv

Record page 707 lines 29 – 32. xxxv

Record page 201 lines 13 – 23. xxxvi

Record pages 707 – 708. xxxvii

Record page 710. xxxviii

Record page 839 line 14. xxxix

Record pages 839 – 865. xl HRM: paragraph d 19.1 cc rule 19 (three) (b).

xli HRM: paragraph C6.11.

xlii HRM: paragraph D1.5; sections 172(1)(a) and 167(4)(a) of the Constitution.

xliii HRM: paragraph D1.5.

xliv HRM: paragraph C1.26.

xlv C96: section 167 (7); HRM: paragraph D1.2 (7) A.

xlvi C96: paragraph 167 (3) (b) (i); HRM: paragraph D1.2; HRM paragraph D1.8; HRM:

paragraph D20.1 CC Rule 20. xlvii

HRM D1.6. xlviii

HRM: paragraph D19.1 CC Rule 19 (3) (d). xlix

C96: section 167 (6) (b); HRM: paragraph D1.2 (6). l Directions of 16 September 2015 paragraph 8 (a) Whether there are any issues between the parties which became res judicata after the judgment of the Labour Appeal Court by Waglay DJP in case no JA55/2010 and, if so, which;. li paragraph 12 on page 118.

lii The Fidelity Guards Case at paragraphs 1 – two on pages 83 – 84.

liii Fidelity Guards Holdings (Pty) Ltd v Professional Transport Workers Union & Others (1999)

20 ILJ 82 (LAC) at page 85 A. liv

Fidelity Guards Holdings (Pty) Ltd v Professional Transport Workers Union & Other S (1999) 20 ILJ 82 (LAC) at page 86 A; National Union of Mineworkers v Wanli Stone Belfast (Pty) Ltd (2015) 36 ILJ 1261 (LAC) at page 1268 C – H. lv Record page 3 paragraph 12 – page 4 paragraph 13.2; page 4 paragraphs 16 – 17; page 5

paragraph 21; page 6 paragraph 23; page 7 paragraph 32.3; page 31 paragraphs 3.8 – 3.8.2; page 34 paragraphs 4.4 & 4.6; page 35 paragraph 4.8.3; page 42 paragraphs 5.3.6 & 5.3.7; page 43 paragraphs 6.2 – 6.2.2 & 7.1.2. lvi

Record page 877. lvii

National Union of Mineworkers v Wanli Stone Belfast (Pty) Ltd (2015) 36 ILJ 1261 (LAC) at page 1268 G. lviii

Fidelity Guards Holdings (Pty) Ltd v Professional Transport Workers Union & Others (1999) 20 ILJ 82 (LAC) at page 86E. lix

Fidelity Guards Holdings (Pty) Ltd v Professional Transport Workers Union & Others (1999) 20 ILJ 82 (LAC) at page 86 E – 88 A; See also in this regard National Union of Mineworkers v Wanli Stone Belfast (Pty) Ltd (2015) 36 ILJ 1261 (LAC) at paragraph 23 on page 1269. lx Fidelity Guards Holdings (Pty) Ltd V Professional Transport Workers Union & Others (1999)

20 ILJ 82 (LAC) at page 85 C - G. lxi

Coin Security Group (Pty) Ltd v Adams & others (2000) 21 ILJ 924 (LAC) at paragraph 16 on page 930. lxii

LRA95 section 213 definition of issue in dispute. See also in this regard Adams & others v Coin Security Group (Pty) Ltd (1999) 20 ILJ 1192 (LC) at paragraph 58 on page 209. lxiii

Labour Relations Act 28 of 1956 section 1 “strike' means any one or more of the following acts or omissions by any body or number of persons who are or have been employed either by the same employer or by different employers- (a) the refusal or failure by them to continue

Page 46 of 48

to work (whether the discontinuance is complete or partial) or to resume their work or to accept re-employment or to comply with the terms of conditions of employment applicable to them, or the retardation by them of the progress of work, or the obstruction by them of work; or (b) the breach or termination by them of their contracts of employment, if- (i) that refusal, failure, retardation, obstruction, breach or termination is in pursuance of any combination, agreement or understanding between them, whether expressed or not; and (ii) the purpose of that refusal, failure, retardation, obstruction, breach or termination is to induce or compel any person by whom they or any other persons are or have been employed- (aa) to agree to or to comply with any demands or proposals concerning terms and conditions of employment or other matters made by or on behalf of them or any of them or any other persons who are or have been employed; or (bb) to refrain from giving effect to any intention to change terms or conditions of employment, or, if such a change has been made, to restore the terms or conditions to those which existed before the change was made; or (cc) to employ or to suspend or terminate the employment of any person;”. lxiv

Labour relations act 66 of 1995 section 213: “'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 is voluntary or compulsory;”. lxv

Directions of 16 September 2015 paragraph 8 (b) The extent, if any, to which Basson J was bound by the Labour Appeal Court's judgment per Waglay DJP under case no JA55/2010 in making the order she made on 26 October 2010 under case no J2173/2010;. lxvi

Directions of 16 September 2015 paragraph 8 (c) The extent, if any, to which Bhoola J was bound by the Labour Appeal Courts's judgment per Waglay DJP under case no JA55/2010 in deciding whether the strike was protected;. lxvii

Directions of 16 September 2015 paragraph 8 (d) To what extent the Labour Appeal Court per Davis JA was obliged to give effect to the Labour Appeal Court's judgment per Waglay DJP under case no 3A55/20 10 when the Labour Appeal Court, per Davis JA, made the decision sought to be appealed against;. lxviii

Section 182 of the LRA 95. lxix

Bargaining Council for the Clothing Industry (Natal) v Confederation of Employers of SA & Others (1998) 19 ILJ 1458 (LC) at paragraph 11 on page 1463 where it was held that section 182 of the LRA 95 is a restatement of common law and that consequently the stare decisis rule applies. lxx

Bargaining Council for the Clothing Industry (Natal) v Confederation of Employers of SA & Others (1998) 19 ILJ 1458 (LC) at paragraphs 11 – 12 on page 1463. lxxi

Chizunza v MTN (Pty) Ltd & others (2008) 29 ILJ 2919 (LC) at paragraph 7 on page 2923. lxxii

Gcaba v Minister for Safety & Security & others 2010 (1) SA 238 (CC); (2010) 31 ILJ 296 (CC) at paragraph 58 on page 315. lxxiii

Toyota SA Motors (Pty) Ltd v Radebe & others (2000) 21 ILJ 340 (LAC) at paragraph 46 on page 353 and paragraph 50 on page 354; Deelkraal Gold Mining Co Ltd v National Union of Mineworkers & others (1994) 15 ILJ 573 (LAC) at page 581A – B. lxxiv

Directions of 16 September 2015 paragraph 8 (g): Whether the principle captured in Afrox Ltd v SA Chemical Workers Union & Others (1997) 18 ILJ 399 (LC) and approved and followed in cases such as Chemical Workers Industrial Union v Plascon Decorative (Inland) (Ply) Ltd (1999) 20 ILJ 321 (LAC) and Early Bird Farm (Pty) Ltd v Food and Allied Workers Union & Others (2004) 25 1LJ 2135 (LAC) is applicable and, if so, how. lxxv

Afrox Ltd v SA Chemical Workers Union & others (1) (1997) 18 ILJ 399 (LC) at page 403 H – 404 C; 404 G – 405 E. lxxvi

Chemical Workers Industrial Union v Plascon Decorative (Inland) (Pty) Ltd (1999) 20 ILJ 321 (LAC) at paragraph 23 on page 328 and paragraphs 27 & 29 – 30 on page 329; Early Bird Farm (Pty) Ltd v Food & Allied Workers Union & others (2004) 25 ILJ 2135 (LAC) at paragraphs 46 – 47 on page 2154.

Page 47 of 48

lxxvii

National Union of Metalworkers of SA & others v Edelweiss Glass & Aluminium (Pty) Ltd (2010) 31 ILJ 139 (LC) at paragraphs 61 & 66 on page 155 & paragraphs 70 – 72 on page 156. lxxviii

Directions of 16 September 2015 paragraph 8 (f): Whether it is part of the applicants' case that, even if the strike was unprotected, that the dismissals were, nevertheless, unfair, and, if so, the grounds for that contention;. lxxix

Record page 3 paragraph 7 & page 9 paragraph 6. lxxx

Record page 3 paragraph 9; Record page 35 paragraph 5. lxxxi

Record pages 8 – 9 paragraphs 33 – 33.6. lxxxii

Record page 34 paragraph 4.7.2. lxxxiii

Record page 35 paragraph 4.8.1. lxxxiv

Record page 34 paragraph 4.7.1. lxxxv

Record page 35 paragraph 4.8.2. lxxxvi

Record page 600 lines 23 - 25. lxxxvii

Directions of 16 September 2015 paragraph 8 (e): Why the Labour Appeal Court per Davis JA did not consider and decide whether, even if the strike was unprotected, the dismissal was unfair by reason of one or more of the factors provided for in item 6 of Schedule 8 to the Labour Relations Act, 1995 and whether it should have done so;. lxxxviii

Record page 755 paragraph 3.32; page 756 paragraph 3.37. lxxxix

Record page 756 paragraph 3.38. xc

Record page 3.41 on page 756. xci

Record page 988 paragraph 14. xcii

Record page 832 paragraph [19]. xciii

Record page 834 paragraph [22]. xciv

Barkhuizen v Napier 2007 (5) SA 323 (CC) at paragraph 51 on page 339: “Notions of fairness, justice and equity, and reasonableness cannot be separated from public policy. Public policy takes into account the necessity to do simple justice between individuals. 33 Public policy is informed by the concept of ubuntu. It would be contrary to public policy to enforce a E time-limitation clause that does not afford the person bound by it an adequate and fair opportunity to seek judicial redress.”; “I [71] Had the case been properly pleaded, a number of interlinking constitutional values would inform a development of the common law. Indeed, it is highly desirable and in fact necessary to infuse the law of contract with constitutional values, including values of ubuntu, which inspire much of our constitutional compact. On a number of occasions in the past this court has had regard to the meaning and content of the J concept of ubuntu. It emphasises the communal nature of society and (p277) 'carries in it the ideas of humaneness, social justice and fairness' 17 and A envelopes 'the key values of group solidarity, compassion, respect, human dignity, conformity to basic norms and collective unity'. 18. QWP at paragraph [71] on page [+276+] . xcv

Record page 834 paragraph [24]. xcvi

Record page 835 paragraph [25]; page 837 paragraphs [32] & [33]. xcvii

It is clearly apparent from paragraph 8 of the judgement in the August interdict that appears at record pages 535 – 536 that it was understood that the wage discrepancies demand was not confined to the Shell-7. This was not challenged on appeal as is apparent from the notice of appeal at record pages 559 – 562 read with the application for leave to appeal at record pages 538 – 546.

xcvii.

xcviii Main Agreement first page.

xcix Record page 781 paragraph 3.14.1.

c Record page 253 lines 3 – 14.

ci Record page 781 paragraph 3.14.3.

cii Main Agreement clause 1 (2).

ciii Record page 246 lines 1 – 17.

civ At one stage Mr Badenhorst suggested that it would theoretically be possible to negotiate a

fixed rate per job category under the auspices of the Bargaining Council for all employees in respect of whom the Main Agreement is applicable. However, Mr Badenhorst conceded that this would have been impractical and has not been done in the past in respect of any job category. This evidence was mere conjecture and in conflict with the main agreement.

Page 48 of 48

cv

Record page 252. line 12 – page 253. line 13. cvi

Record page 245 line 17 – page 246. line 17. cvii

Record page 243 line 10 – page 245. line 16. cviii

Record page 163 lines 16 – 21. cix

Record page 481. cx

SATAWU, Dumisani Jama and 44 Others v Lebogang Michael Moloto N. O. and Jerry Sekete Koka N.O. at paragraph 72. cxi

Record page 779. paragraph 3.12.2; SATAWU, Dumisani Jama and 44 Others v Lebogang Michael Moloto N. O. and Jerry Sekete Koka N.O. at paragraph 62 Case number CCT 128/11. cxii

SATAWU, Dumisani Jama and 44 Others v Lebogang Michael Moloto N. O. and Jerry Sekete Koka N.O. at paragraph 44 Case number CCT 128/11. cxiii

National Union of Metalworkers of SA & Others v Bader Bop (Pty) Ltd & Another (2003) 24 ILJ 305 (CC) at paragraph 13 on pages 316 - - 317 and South African Transport and Allied Workers Union SATAWU, Dumisani Jama and 62 Others v Lebogang Michael Moloto N. O. and Jerry Sekete Koka N.O. at paragraph 62 Case number CCT 128/11. cxiv

South African Transport and Allied Workers Union SATAWU, Dumisani Jama and 62 Others v Lebogang Michael Moloto N. O. and Jerry Sekete Koka N.O. at paragraph 85. cxv

National Coalition for Gay and Lesbian Equality and Others v Minister of Home Affairs and Others 2000 (2) SA 1 (CC) at paragraph 11 on page 14. cxvi

Record page 829 paragraph 7. cxvii

Record page 792 paragraph 11.2. cxviii

Record page 792 paragraph 11.5; Record page 792 paragraph 11.6. cxix

Record page 792 paragraph 11.3. cxx

Record page 792 paragraph 11.4.

IN THE CONSTITUTIONAL COURT OF SOUTH AFRICA

(HELD AT BRAAMFONTEIN)

CASE NO: CCT131/15

JA44/2013

JS359-11

J2173-10

JA55-10

J1633-10

GPRFBC12878

In the matter between:

TRANSPORT AND ALLIED WORKERS UNION

OF SOUTH AFRICA obo MW NGEDLE AND

93 OTHERS Applicants

and

UNITRANS FUEL AND CHEMICAL (PTY) LIMITED Respondent

RESPONDENT’S WRITTEN ARGUMENT IN THE APPLICATION FOR

LEAVE TO APPEAL

2

Contents

THE MERITS OF THE APPLICANT’S CASE ........................................................... 3

THE ISSUES ................................................................................................................. 4

LEGAL ISSUES ............................................................................................................ 5

SERIOUSNESS OF THE EMPLOYEES’ CONTRAVENTION OF THE LRA ......... 6

ATTEMPT MADE TO COMPLY WITH THE ACT ................................................. 18

UNJUSTIFIED CONDUCT BY THE EMPLOYER .................................................. 19

SUBMISSIONS ........................................................................................................... 20

OTHER CONSIDERATIONS IN TERMS OF SECTION 167(3) ............................. 22

DIRECTIONS DATED 16 SEPTEMBER 2015 ......................................................... 24

Issue 8(a) – Issues Which May Have Become Res Judicata ....................................... 24

Issues (b) – (d) ............................................................................................................. 26

Issue (e) – Failure to Consider Item 6 of Schedule 8 ................................................... 27

Issue (f) – Unprotected Dismissal ................................................................................ 27

Issue (g) – Dismissal During a Protected Strike .......................................................... 28

CONCLUSION ............................................................................................................ 29

3

1. The respondent opposes the application for leave to appeal. It is

submitted that the matter does not raise an arguable point of law of

general public importance which ought to be considered by the

Constitutional Court in terms of section 167(3)(b)(ii) of the Constitution.1

2. It is also submitted that the case does not raise a constitutional matter

(section 167(3)(b)(i) of the Constitution).

3. It is intended in these heads of argument to deal first with the prospects

of success of the applicant (i.e. the merits of the appeal) and then with

the questions of whether the applicant has met the further requirements

for the Court to exercise its jurisdiction in terms of section 167(3).

THE MERITS OF THE APPLICANT’S CASE

4. The first applicant is a trade union which brought a claim against the

respondent on behalf of approximately 93 employees dismissed by the

respondent for participating in a six day strike from 28 October 2010 to 2

November 2010.

5. The applicants contended that the dismissal of the employees was

automatically unfair, alternatively, procedurally and substantively unfair.

In a judgment dated 13 December 2012 the Labour Court dismissed the

applicants’ claim with costs.

1 See Paulsen and Another v Slip Knot Investments 777 (Pty) Limited 2015 (3) SA 479 (CC) at para

[12] ff

4

6. The applicants appealed against the judgment to the Labour Appeal

Court. In a judgment dated 24 June 2015 that appeal was dismissed.

The applicants now seek relief from the Constitutional Court.

THE ISSUES

7. The applicants articulated their contentions in the pre-trial minute of 30

August 2011 to the following:

7.1. Procedural issues:

7.1.1. It is alleged that the respondent did not conduct

hearings before the dismissals;

7.1.2. It is alleged that no discussions were held with the

first applicant prior to the dismissals.2

7.2. Substantive issues:

7.2.1. Whether the strike action related to those issues

“permitted” for strike action by the Labour Appeal

Court in case number JA55/10;

7.2.2. Whether the dismissal was effected in accordance

with the Code of Good Practice on Dismissals;3

2 Minute of the pre-trial conference, Vol 1, p34 para 4.7

3 Item 6, Schedule 8 of the Labour Relations Act, 66 of 1995 (“the LRA”)

5

7.2.3. Whether the dismissal was the appropriate sanction

for the alleged misconduct.4

8. The respondent contended that the dismissals arose following

participation by the individual applicants in an unlawful and unprotected

strike. It alleged that the conduct of the employees amounted to

misconduct. This misconduct persisted for a considerable period (six

days) and there was no reasonable prospect of the dispute being

resolved through negotiation. The company contended that it had no

reasonable alternative but to dismiss the employees, which it did only

after the delivery of four separate ultimatums and invitations to the first

applicant and striking employees to address the company’s

management on why they should not be dismissed.

LEGAL ISSUES

9. Employees who participate in an unprotected strike may be dismissed

fairly. This is recognised by section 68(5) of the Labour Relations Act

1995 (“the LRA”) which states:

“(5) Participation in a strike that does not comply with the

provisions of the Chapter, or conduct in contemplation or

in furtherance of that strike, may constitute a fair reason

for dismissal. In determining whether or not the dismissal

is fair, the Code of Good Practice: Dismissal in Schedule

8 must be taken into account.”

4 Pre-trial Minute, Vol 1 p35 para 4.8

6

10. In determining whether employees who participated in an unprotected

strike should be dismissed, a number of considerations form part of the

decision. Item 6(1) of the Code of Good Practice provides as follows:

“(1) Participation in a strike that does not comply with the

provisions of Chapter IV is misconduct. However, like any

other act of misconduct, it does not always deserve

dismissal. The substantive fairness of the dismissals in

these circumstances must be determined in the light of

the facts of the case, including –

(a) The seriousness of the contravention of this Act;

(b) Attempts made to comply with this Act; and

(c) Whether or not the strike was in response to

unjustified conduct by the employer.”

SERIOUSNESS OF THE EMPLOYEES’ CONTRAVENTION OF THE LRA

11. It was common cause that the first applicant and employees embarked

upon the strike in pursuant of two demands. Precisely what those

demands were is central to the determination of whether the strike was

protected, or whether it contravened the provisions of section 65 of the

LRA.

12. When the employees initially gave notice of the strike, they relied on four

grounds:

12.1. A wage cut;

12.2. Wage discrepancies;

7

12.3. A coupling allowance of R500,00 per week; and

12.4. A demand in relation to the transfer of the Provident Fund.

13. The respondent attempted to interdict the strike on the basis that all four

demands were unlawful. It was unsuccessful in the Labour Court, but on

appeal, the respondent maintained that the first three demands fell foul

of the provisions of clauses 50(1) and (3) of the Main Agreement of the

Bargaining Council having jurisdiction over the parties – the National

Bargaining Council for the Road Freight Industry. Clause 50(1) of the

Main Agreement provided that the forum for negotiation and conclusion

of substantive agreements and wages, benefits and other conditions of

employment was the Bargaining Council. Clause 50(3) provided that no

Trade Union or employers’ organisation could compel its negotiating

partner by way of a strike or lockout to negotiate issues at any level

other than the Council.

14. The Labour Appeal Court (per Waglay DJP) accepted that the demand

for a coupling allowance of R500,00 per week was a demand for an

increase in wages, it was a cost to the company, and therefore fell foul of

clauses 50(1) and (3).5 He held that the demand in relation to a wage cut

was not in fact a demand for wages, but a demand in respect of seven

employees to restore the terms and conditions of employment that

5 Waglay DJP said the following in relation to the “coupling” demand – “This demand in my view is

clearly an issue which falls within the ambit of clause 50(1) and (3) as it is an issue that it is connected

and related to substantive issues because it involves costs and affects the employees’ wage packets”.

First LAC Judgment, Vol 11, p18, para 23 (emphasis supplied)

8

applied to them prior to the termination of the Shell Contract. It was a

dispute about a unilateral change to terms and conditions of

employment.6

15. The third dispute, relating to wage discrepancies, was determined by the

Labour Appeal Court not to fall foul of clause 50(1) of the Main

Agreement. It reasoned that the claim for wage parity was not a demand

for an amount of money and acceptance thereof therefore would not

constitute the conclusion of a substantive agreement on wages, benefits

and other conditions of employment.7

16. The effect of the judgment was to find that the two demands relating to

“wage cut” (i.e. the reduction in the wages of the Shell 7) and to “wage

discrepancy” (i.e. the demand for the respondent to adjust wages to

arrive at a uniform level of remuneration) were issues in respect of which

the first applicant and its members could strike.

17. The alleged unilateral reduction in the wages of the Shell 7 was disputed

by the company. It argued that even if there had been a reduction in

wages, the change in the wages, if it was a breach of contract, had been

acquiesced in by the employees and that the dispute could no longer be

one about a unilateral change to terms and conditions of employment.

The applicants could not therefore strike on the issue. However, by the

end of the strike – and in order to resolve the issue finally – the

6 The seven employees became known in the later litigation as the “Shell 7”.

7 First LAC Judgment, Vol 11, p874 para 19-21

9

respondent abandoned its defence to the claim and conceded to the

demand of the employees. The issue accordingly fell away as a dispute

between the parties, leaving only the dispute concerning “wage

discrepancy”.

18. The Labour Appeal Court had made it clear that it accepted that the

“wage discrepancy” demand was one for wage parity. The LAC appears

to have accepted that conceptually a demand for wage parity is not

necessarily a demand for increased wages. Wage parity could notionally

be achieved by adjusting wages so that no employee received an

increase. In such an event, it would be almost inevitable that if no

employee was to receive a wage increase, those employees on higher

wages would have to have their wages reduced in order to achieve

parity.

19. It therefore became of considerable importance to the respondent to

establish the precise nature of the first applicant’s demand in relation to

wage parity. If the first applicant was prepared to accept either a

reduction in wages or a wage freeze until such time as those employees

on a lower wage caught up, the first applicant’s demand would not

offend against clauses 50(1) and 50(3) of the Main Agreement.

20. However, if the first applicant’s demand was that the wages of the lower

paid employees be increased so as to achieve parity with those paid a

higher amount, this would in effect be a demand for an increase in

10

wages. If the company acceded to the demand it would mean an

increase in the company’s wage bill for a substantive increase in wages.

21. Subsequent to the judgment, the respondent and the first applicant met

on 21 and 25 August 2012. On both occasions the first applicant was

pertinently asked to identify precisely what their demands were. In

respect of the “wage cut” issue the first applicant indicated that it sought

that all employees whose wages had changed since February 2009

should have their wages restored, regardless of whether there had been

a unilateral change to their conditions of employment or not. In respect

of the “wage discrepancy” demand, the first applicant stated that it

demanded that the wages of those on a lower level be brought up to the

wages of those on the highest level.8

22. The respondent considered that both of these demands were now

different to those which had been made before and had gone beyond

the demands which the Labour Appeal Court had said were permissible.

This view was shared by the Labour Court in a second urgent application

brought by the respondent. The Court issued an order interdicting the

strike based on the demands as articulated on 21 and 25 October.

8 The Minutes of those meetings record that the question of what the precise Union demand was, was

posed four times and “the standing answer was that all employees who are on a lower rate in any

category including the administrators should be paid at the highest rate in the company” (see Minutes,

25 October 2010, Vol 8, p580, lines 1, 12-15

The Minutes also record that later in the meeting the Union “reiterated” that the lower paid employees’

rates of pay “should be raised to equal with those who are paid on the highest rate” (ibid, p580 lines 32-

33).

11

23. Following the Court Order, the attorneys for the respondent, Glyn

Marais, wrote to the first applicant on 28 October 2010 making it clear

that the demands in respect of which the employees were entitled to

strike were limited to the seven ex-Shell Contract drivers and a demand

about “weighted average wages”. No strike in respect of a wage

increase was permissible.9

24. Notwithstanding this, at a meeting between the first applicant’s

representatives and the respondent’s management on the afternoon of

28 October 2010, the company indicated that the only basis upon which

an adjustment could take place which did not increase costs was that

certain employees would have to take a wage cut. However, the Minutes

(the correctness of which was never disputed) record –

“It is the Union stance that all employees should be paid all at a

higher rate, and no employees’ wages has to be reduced or cut”

(emphasis supplied).10

25. At a further meeting on 29 October 2010 the same issues were

discussed again. In the course of the meeting, the first applicant’s

General Secretary, Zach Mankge, arrived and was briefed by the shop

stewards. The Minutes of that meeting record that the first applicant’s

representatives then made the following statements:

25.1. “It is illegal that the company reduce employees’ rates without

any reasons”;11

9 Glyn Marais letter, 28 October 2010, Vol 682, line 29-36

10 Minutes, 28 October 2010, Vol 9, p685, lines 12-13

12

25.2. “In essence, there should not be any reduction on rates”;12

25.3. “In wage discrepancies, e.g. 20-40 [everyone should be paid

equally].”13

26. Mr Nico Badenhorst testified that the first applicant was adamant at this

meeting that there should be no reduction in wages, but the wages

should be equal for all employees on the same contracts. The

respondent’s representatives pointed out that it would be impossible to

achieve wage parity which did not have an additional cost to the

company without employees taking a cut in wages. An increase in cost

was inevitable to fulfil the demand.14

27. On the same date, the respondent’s attorneys again wrote to the first

applicant warning that on the basis of the demands articulated on 29

October the strike would be illegal and the right to dismiss employees

who embarked on the illegal and unprotected strike was reserved.15

28. Nevertheless, the strike began on the afternoon of 28 October 2010.

29. The respondent then issued four ultimatums. The first two were issued

on 29 October, one in the morning and one in the afternoon. Both

ultimatums pointed out that the demands being made by the employees

11

Minutes, 29 October 2010, Vol 9, p689, line 4 12

Minutes, 29 October 2010 Vol 9, p689, line 4 13

Minutes, 29 October 2010, Vol 9, p689 line 5 14

Badenhorst, Vol 3, pp176-187 15

Letter, Glyn Marais, 29 October 2010, Vol 9, p693-694

13

were the same as those which the Labour Court had determined on 27

October 2010 to be unlawful. The third and fourth ultimatums were

issued on the following Monday, 1 November 2010. The fourth ultimatum

was headed “Final Ultimatum”. These ultimatums were also sent to the

first applicant.

30. In the Final Ultimatum, the respondent unequivocally acceded to the first

applicant’s demand in respect of the seven ex-Shell employees. The

company indicated that any strike which continued in respect of that

demand would be unlawful (since there was no longer a dispute on this

issue). In all the ultimatums the respondent reiterated that the first

applicant’s demand in respect of wage discrepancies or wage parity was

a demand for an increase in wages. This, the company explained, made

the demand one concerning substantive issues and one which must be

negotiated at centralised bargaining level only, and could not be

negotiated directly with the company.

31. During the cross-examination of Badenhorst it was put to him that a

further meeting was held between the first applicant and the company’s

representatives on 1 November. It was put that at that meeting the

demand was to put all drivers on a wage of R38,00. Badenhorst

responded saying that the R38,00 proposal “rings a bell” and stated that

he pointed out to the first applicant that the proposal was still for an

increase and meant an on-cost to the company and an effect on the

wage packages and must, therefore, be one which should be made at

14

the Bargaining Council.16 The single first applicant witness, Mr

Wellington Ngedli, agreed that a demand of a minimum of R38,00 was

indeed made at the 1 November meeting. In cross-examination he

conceded that this demand would involve a further cost to the company,

but the company deserved it as it had created the inequality in the first

place.17 It could be said at this point that the first applicant’s case

collapsed.

32. Badenhorst testified that the concept of single-tier centralised sectorial

bargaining was one decided upon between the employers and the first

applicant in 1996. The policy decision in this regard was taken to the

then Minister of Labour, Mr Tito Mboweni, who approved it. The principle

of a single forum for bargaining substantive issues was accordingly

introduced into the Bargaining Council’s constitution and was included

as a term in each main agreement reached thereafter.

33. Badenhorst also pointed out that the Bargaining Council was able to

negotiate on minimums and actual wage increases.18 It was also able to

(and did) negotiate on wage parity. The policy concerning the level of

bargaining was supported by the main Unions to give primacy and

effectiveness to centralised bargaining and to remove the prospect of

second-tier or plant level bargaining on substantive issues.19 He made

the point that the first applicant official, Mr Madolo, had been aware of

16

Badenhorst, Vol 4, p286 line 12 to p288 line 23 17

Ngedle, Vol 4 p309 line 14 to p310 line 6 18

Badenhorst, Vol 3, p136 lines 1-7 19

Badenhorst, Vol 3 p134 line 3 to p135 line 25

15

the policy, having been engaged in the discussions concerning the topic

in 1995 and 1996. This was not denied by the first applicant.20 Mr

Madolo, although present during the hearing in this matter, did not

testify.

34. Accordingly, in respect of the seriousness of the contravention of the

LRA, the following factors must be taken into account:

34.1. The first applicant was a party to and understood the rationale of

bargaining at sectorial level on substantive issues i.e. wages,

terms and conditions of employment and issues which were a

cost to the company and affected the employees’ wage packets.

34.2. Following the decision of the Labour Appeal Court, both the

company and the first applicant were quite clearly aware that the

employees could not make a demand in relation to wages which

had any cost implications for the company.21

34.3. After the judgment by the Labour Appeal Court, the first

applicant made demands which were for increases and

resolutely failed to agree to any wage cuts in order to achieve

parity. This required the company to go to Court to obtain a

20

Badenhorst, Vol 3 p184 lines 3-15 21

Badenhorst testified that he regarded it as impossible for any demand for wage parity to be one

which was not a demand in respect of substantive issues in the sense that it concerned conditions of

employment, affected employees’ pay packets and had cost implications. It is submitted that although

Badenhorst is correct, it is unnecessary in these proceedings for a Court to make a finding in this

regard. The evidence is clear that at all material times, up to and including 1 November 2010, the

Union’s demands were for an increase which had an effect on increasing the cost to the company.

16

second interdict against a strike on the basis of the “increased”

demands i.e. the demands which went beyond the Shell 7 and

which required the company to pay additional wages or costs to

achieve wage parity.

34.4. Notwithstanding the Labour Appeal Court judgment, and the

interdict of the Labour Court, the first applicant persisted in its

demands which were for an effective increase in wages. All the

evidence points to this – the Minutes of the meetings in October,

the evidence concerning the meeting on 1 November 2010 and

the fact that the assertions that the first applicant wished to have

an increase contained in each of the ultimatums went

unanswered.

34.5. The argument that the first applicant’s demand was simply for

parity and nothing else is disingenuous. The first applicant was

not articulating a principle in relation to wage parity, it was

making a real demand that wage parity be achieved by

increasing wages of the lower paid employees. At no stage did it

envisage that any employee receive a wage reduction in order to

achieve parity. The means or method by which the parity was to

be obtained was identified by the first applicant: parity should be

obtained by way of a wage increase. This was clearly expressed

in the meeting of 1 November 2010 where the demand was that

17

drivers have their wages increased to a base of R38,00 an

hour.22

34.6. It is submitted that there was an element of deviousness in the

way that the first applicant went about making the demand. The

first applicant insisted that the demand was for an “adjustment”

but, when pressed, it emerged each time that the demand was

actually for an increase or which would have the effect of further

costs for the company. The first applicant’s representatives were

simply parroting the words used by the LAC.23

34.7. The company made endeavours to establish precisely what the

demand was. The central demand clearly was for an increase in

wages. The issue of the seven Shell workers was conceded and

it therefore fell away as an issue in the strike. The central reason

why the strike commenced and continued, despite the

ultimatums, was the demand for a wage increase.

34.8. The strike lasted approximately six days. Badenhorst testified

that it cost the employer over R3 million.

34.9. The first applicant was intransigent in respect of its demand in

wage parity. Badenhorst was clearly correct when he said that

22

The point can be made by posing the question: if the company had conceded to “wage parity” but

declined to increase any employee’s wages, would that have put an end to the strike? Clearly not: the

employees were striking to raise the wages of the lower paid employees to a higher level, to be the

same as the higher paid employees. 23

LAC Judgment, Vol 11 p874 para [20]

18

there was no realistic prospect of terminating the strike action

short of dismissing the employees, given their adamant position.

35. It is accordingly submitted that the contravention of the LRA was serious.

The respondent had to sustain a six day strike and attendant losses

because the first applicant pursued a demand for a wage increase which

it knew could not be made at plant level.

ATTEMPT MADE TO COMPLY WITH THE ACT

36. The compliance of the first applicant with the procedural formalities

relating to strike action (at section 64 of the LRA) is not an issue.

However, the first applicant failed to recognise the terms of a collective

agreement (the Bargaining Council Main Agreement) and accordingly

made itself guilty of an infringement of the provisions of section 65.

37. Item 6 of the Code of Good Practice: Dismissal requires an employer to

contact a Trade Union official to discuss the course of action it intends to

adopt at the earliest opportunity. It requires an employer to issue an

ultimatum in clear and unambiguous terms. The employees should be

allowed sufficient time to reflect on the ultimatum and respond to it,

either by complying with it or rejecting it. It is submitted that the

respondent complied with each of these requirements. The ultimatums

were clear and unambiguous.24 They informed striking workers of the

company’s position in relation to the strike and their demands. The

24

Examples of the ultimatums may be found at Vol 9, p704-705 and 707-708

19

ultimatums required the striking workers to return to work and clearly

explained the consequences if they failed to do so. The final ultimatum

clearly informed the striking workers that if they failed to comply, they ran

the risk of dismissal.

38. The ultimatums also called upon the employees to make representations

as to why their strike was protected and why they should not be

dismissed. The employer complied with the requirements of audi alteram

partem. It indicated to the employees what steps it might take if the

ultimatum was not complied with. It called for representations as to why

the consequence of non-compliance with the ultimatum should not be

dismissal. These requests were sent not only to the employees but also

to the first applicant. Accordingly, the requirements of procedural

fairness were fully met.

UNJUSTIFIED CONDUCT BY THE EMPLOYER

39. It is submitted that there was no unjustified conduct by the respondent in

this case. On the contrary, the employer showed remarkable

forbearance, not only in its repeated meetings with the first applicant but

in issuing four ultimatums and waiting a period of approximately six days

before resorting to termination.

20

SUBMISSIONS

40. It is respectfully submitted that the dismissal of the striking workers

arose as a direct consequence of the insistence by the first applicant and

its members that they negotiate substantive issues relating to wage

discrepancies at company level. Such an approach was simply

impermissible as it was a breach of clauses 50(1) and (3) of the

Bargaining Council Main Agreement.

41. Clumsy efforts were made by the first applicant to cast the demands as

an “adjustment”. However, on each occasion it became clear that the

first applicant’s demands were in respect of substantive wage issues and

in particular a demand that involved a cost to the company and affected

the employees’ wage packets. It is submitted that it is hard to justify the

first applicant’s and employees’ adamant conduct. It is a reasonable

inference that the first applicant and its members were motivated by a

desire to establish themselves at the company’s workplace through

successive demands for an increase in wages – a prize that other

Unions could not achieve because of their compliance with the Main

Agreement.

42. It is submitted that the company had little choice in the circumstances

other than to bring this dispute to an end through dismissal.

21

43. In the circumstances, it is submitted that the judgments of the Labour

Court and Labour Appeal Court is correct. The attacks against it made

by the applicants are simply not justified.

44. It was central to the applicants’ arguments at the trial that the first

applicant’s demands and the strike were considered permissible by the

Labour Appeal Court in what the applicants have called the

Unitrans/TAWUSA LAC judgment. However, it is submitted that it could

not be reasonably argued that the Learned Judge misunderstood or

misinterpreted the LAC judgment. In her judgment, the Learned Judge

identifies the reasoning and conclusions of the LAC and (at paragraphs

[41] and [42] of the judgment) describes them as “clear”.

45. Accordingly it is submitted that there can be no reasonable criticism of

the Learned Judge in her finding that the LAC judgment did not open the

way to a strike by the first applicant and its members at the respondent’s

premises.

46. If that is the case, and it must be found that the Learned Judge correctly

understood the First LAC Judgment.

47. It is submitted further that the criticism that the Learned Judge failed to

appreciate the ambit of the constitutional right to strike and the

Constitutional Court judgments which deal with this is similarly

misplaced. It is trite that the right to strike is not an unlimited right.

Further, it is not controversial that the right may be limited by collective

22

agreement (such as the Main Agreement). It is submitted that the

limitation of the right was self-evidently recognised in the judgment of the

Learned Judge and applied to the common cause facts of the present

case. No case was made out that the Main Agreement was

unconstitutional; and none of the parties to that Agreement were cited or

joined in the trial.

48. It is accordingly submitted that the Learned Judge was correct in holding

that the demand and strike were unprotected since it was impermissible

for the strike to engage in strike action on that demand.

49. It is submitted that in respect of the Learned Judge’s findings of the

seriousness of the misconduct and the fact that the respondent had

followed a procedurally appropriate route, there is no reasonable or

serious criticism raised by the applicants. The criticisms, it is submitted,

are either trivial or are not supported by any serious argument.

50. Accordingly, it is submitted that there are no prospects that the

applicants can succeed on appeal and that therefore the application for

leave to appeal should be refused.

OTHER CONSIDERATIONS IN TERMS OF SECTION 167(3)

51. It is submitted that the present case does not concern a “constitutional

matter”.

23

52. The applicants, in their papers before the Labour Court, did not rely upon

the breach of any provision of the Bill of Rights or any contravention of

the Constitution. It was not alleged that any law, agreement, or conduct

was inconsistent with the Constitution. Further, no issues concerning the

status, powers and functions of any organ of State were referred to.

53. It is also submitted that the applicant did not raise the interpretation of

any legislation, nor did it contend for the development of the common

law in order to promote the spirit, purport and objects of the Bill of

Rights.25

54. It is also submitted that the matter is not one of general public

importance which ought to be considered by the Constitutional Court. It

is submitted that none of the issues raised in the matter are:

“Substantial, broad-based, transcending the litigation-interests of

the parties, and bearing upon the public interest”26

55. While the matter is clearly of concern to the company and the first

applicant and its 93 members, it is submitted that the issues in the case

do not transcend their litigation interests. No significant principle of

employment law is engaged. No major matter of public importance is

raised.

25

As to what constitutes a constitutional matter: see S v Boesak 2001 (1) SA 912 (CC) at para 13;

Fredericks and Others v MEC for Education and Training, Eastern Cape and Others (2002) 23 ILJ 81

(CC) at para 10-11 26

SAJ v AOG and Two Others, Supreme Court of Kenya [2013] e KLR, para 31, quoted in Paulsen

and Another v Slip Knot Investments 777 (Pty) Limited (supra) at para 25

24

56. Accordingly, it is submitted that the applicants do not establish a basis

for appeal in terms of section 167(3) of the Constitution. The application

for leave to appeal should, accordingly, be dismissed.

DIRECTIONS DATED 16 SEPTEMBER 2015

57. At paragraph 8 the Chief Justice has requested that written argument

include submissions on seven issues set out at paragraph 8 of the

Directive. Insofar as these issues have not been traversed above, it is

intended to deal with them briefly below.

ISSUE 8(A) – ISSUES WHICH MAY HAVE BECOME RES JUDICATA

58. The first applicant had four issues upon which it sought to strike in 2010.

The Labour Appeal Court determined that in respect of two of the issues,

there could be no lawful strike. The disputes in respect of those issues

were accordingly resolved by the Labour Appeal Court and play no

further role in the present dispute.

59. The issue concerning the Shell 7 similarly plays no significant role in the

dispute. The respondent conceded to the demands in respect of the

Shell 7. The strike nevertheless continued in respect of the wage

discrepancy demand and it was on the basis of the continued strike in

relation to this demand that the dismissals were effected.

25

60. In respect of the wage discrepancy demand, it was the first applicant’s

case in the Labour Appeal Court (before Wagley DJP) that the demand

was not a demand for an amount of money, but required the company to

make an adjustment.27 Insofar as that, in fact, was the case, the parties

were clearly bound by the LAC Judgment.

61. However, in determining the subject matter of a dispute (or demand), the

Court examines the surrounding facts in order to ascertain the real

dispute underlying the demand. The Labour Appeal Court, per

Froneman DJP held:

“The refusal of a demand, or the failure to remedy a grievance,

always needs to be examined in order to ascertain the real

dispute underlying the demand or remedy. The demand or

remedy will always be sought to rectify the real, underlying

dispute. It is the nature of that dispute that determines whether a

strike in relation to it is permissible or not.”28

62. Likewise, a dispute is determined by its substance, and not by the form

in which it is cast.29

63. The true nature of the dispute or demand, as the evidence before the

Labour Court showed, was that it was a demand for money, not a

27

LAC Judgment Vol 11, p874, para 20. “As counsel for the first respondent argued the demand for

wage parity is not a demand for an amount of money but requires of the appellant to adjust wages so as

to arrive at a uniform level of remuneration for employees performing the same work albeit on

different contracts” 28

Ceramic Industries Limited t/a Betta Sanitary Wear and Another v NCBAWU and Others 1997 (18)

ILJ 671 (LAC) 29

Fidelity Guards Holdings (Pty) Limited v PTWU and Others (1998) 19 ILJ 260 (LAC) at 135;

County Fair Foods (a division of Astral Operations Limited) v Hotel Liquor Catering Commercial and

Allied Workers Union and Others (2006) 27 ILJ 348 (LAC) at para 31

26

demand for an adjustment in principle. Wage increases were demanded,

and wage cuts deprecated.

64. Accordingly, on the facts, the demand – the true demand – was for

money; it was not the demand for an adjustment in wages which was the

subject of the LAC case. Since the demand was a different one, the

parties were not bound by the decision of the LAC and, on the facts, the

issue was not res judicata.

ISSUES (B) – (D)

65. The nature of the issue before Basson J is apparent from the transcribed

address of counsel before her. The learned Judge gave an order, but did

not give reasons – probably due to the urgency the matter. It is

submitted that it can be inferred that she accepted the argument

advanced by Mr Kennedy SC, counsel for the respondent.

66. The central argument of Mr Kennedy was that the demand that was now

being made by the first applicant was not the demand which formed the

basis of the decision in the LAC.30

67. Mr Kennedy refers to the LAC judgment and draws the Court’s attention

to why the case before the Labour Court is a different one:

“So the ratio of this judgment [the LAC Judgment] is, if there is

no demand for an actual increase, then it does not forfend of the

30

Address, Vol 8, p587 lines 11-14

27

LRA, it is a protected strike. If it does demand an actual

increase, then the logic of the ratio is then that it would forfend

…So my lady, the simple point is this, the ratio is if there is a

demand for an actual increase, it is not strikable. At the time that

the Labour Appeal Court considered the matter, on those papers

there was no demand for an actual increase in wages. It had to

be referred to as a possible inference, but the Court said ‘well, it

is not the only inference you can draw’, and they gave the

benefit of the doubt as it were, to the Union and said ‘well if

there is no actual demand for an actual increase, it is safe’.

Since then the Union has changed its demand. If the Union had

said nothing more, there would be no negotiations, no meetings,

no correspondence. They just simply said ‘we are now striking

for the demand that we put to you in March’. They would have

been safe because of res judicata, because the Labour Appeal

Court would apply because those facts had not changed…”31

68. Accordingly, it is submitted that neither Basson J, Bhoola J nor Davis JA

were bound by the decision of the LAC given by Wagley DJP.

ISSUE (E) – FAILURE TO CONSIDER ITEM 6 OF SCHEDULE 8

69. It is submitted that the principal debate before the Labour Appeal Court

and upon which Davis AJ was required to decide concerned the issues

in relation to the protectable nature of the strike. Oral argument did not

concern these issues.

ISSUE (F) – UNPROTECTED DISMISSAL

70. The company’s contentions in this regard have been dealt with above.

31

Address, Vol 8, p591 line 10 to p592 line 12

28

ISSUE (G) – DISMISSAL DURING A PROTECTED STRIKE

71. It is submitted that the strike was not protected. The principal established

in the Afrox case is that once a Union has complied with the

requirements of section 64 by referring a dispute to conciliation, it is not

necessary to refer the same dispute again to conciliation when other

members of the same union who were employed by the same employer

wanted to join the strike in respect of the same dispute which was

protected.

72. It is submitted that on the above analysis, the dispute was not protected

by virtue of the fact that the demand which was the subject matter of the

actual strike was not the same demand was had been the basis of the

decision in the LAC.

73. As the LAC had itself indicated, a demand which was for money (an

increase in wages) was not a demand which was legitimate and

protectable, and a strike in support of that demand would be in

contravention of the provisions of section 65(1)(a) of the LRA or section

65(3)(a) of the LRA.

29

CONCLUSION

74. It is accordingly submitted that the application for leave to appeal be

dismissed with costs.

A REDDING SC Chambers 20 November 2015

LIST OF AUTHORITIES

Paulsen and Another v Slip Knot Investments 777 (Pty) Limited 2015 (3) SA

479 (CC)

S v Boesak 2001 (1) SA 912 (CC)

Fredericks and Others v MEC for Education and Training, Eastern Cape and

Others (2002) 23 ILJ 81 (CC)

SAJ v AOG and Two Others, Supreme Court of Kenya [2013] e KLR,

Ceramic Industries Limited t/a Betta Sanitary Wear and Another v NCBAWU

and Others 1997 (18) ILJ 671 (LAC)

Fidelity Guards Holdings (Pty) Limited v PTWU and Others (1998) 19 ILJ 260

(LAC)

County Fair Foods (a division of Astral Operations Limited) v Hotel Liquor

Catering Commercial and Allied Workers Union and Others (2006) 27 ILJ 348

(LAC)

30