National Automobile and Allied Workers' Union (Now Known as National Union of Metalworkers of South Africa) v Borg-Warner SA (Pty) Ltd

• Jurisdiction: South Africa
• Judgment Date: 30 March 1994
• Citation: 1994 (3) SA 15 (A)

National Automobile and Allied Workers' Union (Now Known as National Union of Metalworkers of South Africa) v Borg-Warner SA (Pty) Ltd
1994 (3) SA 15 (A)

1994 (3) SA p15

Citation	1994 (3) SA 15 (A)
Case No	726/91
Court	Appellate Division
Judge	Joubert JA, Nestadt JA and Van den Heever JA
Heard	November 15, 1993
Judgment	March 30, 1994

Flynote : Sleutelwoorde

Labour law — Labour Relations Act 28 of 1956 — Industrial court — C Jurisdiction of — Proceedings for determination in terms of s 46(9)(c) of Act (prior to amendment of Act in 1988) — Dispute between employer and trade union concerning breach of agreement for rehiring of dismissed and retrenched workers — Relationship envisaged by Act between 'employer' and 'employee' not one that terminated as it would at common law — Legislature D having in mind that parties to employment relationship would remain 'employee' and 'employer', as defined in s 1 of Act, beyond time when relationship would have terminated under common law — Former employees of employer referred to in agreement in question falling under definition of 'employee' in Act — No doubt therefore that industrial court had labour E dispute before it — Agreement between parties the result of collective bargaining and par excellence a labour practice — Industrial court accordingly having jurisdiction.

Labour law — Labour Relations Act 28 of 1956 — Unfair labour practice — What constitutes — Agreement between employer and trade union for rehiring F of dismissed and retrenched workers — Provision therein that 'balance of 57 dismissed (workers) together with employees previously retrenched . . . will be considered for re-employment as and when the need arises' — Proviso thereto that, 'where skills are required which the aforesaid don't have, the company shall have the right to employ outside persons having G the necessary skills' — Dispute between employer and trade union arising out of breach of provision by employer employing outside persons when persons contemplated by agreement available — Contention that employer obliged to do no more than 'consider' such persons for re-employment rejected, as proviso by necessary implication limiting employer's right at H common law to select its employees at will — Inference unavoidable that, where required skills were available amongst persons contemplated in agreement, employer's right to employ outside persons excluded — Employer's conduct falling squarely within para (a)(i) of definition of 'unfair labour practice' in s 1 of Act prior to its amendment in 1988. I

Headnote : Kopnota

In terms of an agreement entered into on 14 January 1986 between the appellant trade union and the respondent, an employer, the respondent agreed to rehire 164 members of the appellant who had been dismissed as a result of an illegal strike some 10 weeks earlier. The agreement went on to provide for the date when the appellant's members were to commence work, the administrative arrangements for their re-employment and in what J jobs they were to be re-employed. Clause 5 of the

1994 (3) SA p16

A agreement provided as follows: 'The balance of the 57 dismissed members together with employees previously retrenched during 1984/85 will be considered for re-employment as and when the need arises. Provided where skills are required which the aforesaid don't have, the company shall have the right to employ outside persons having the necessary skills.' There were further provisions in the agreement. The mixed group of previously retrenched and recently dismissed employees was referred to in the present proceedings as 'the pool'. In the course of time the respondent B re-employed former employees from the pool but also persons from outside the pool. The employment of the latter resulted in queries and protests and eventually an attempted settlement of the dispute in the relevant industrial council and, in view of the failure of the latter, proceedings, initiated by the appellant, in the industrial court for a determination under s 46(9)(c) of the Labour Relations Act 28 of 1956 (prior to its C amendment in 1988). In its statement of case in the industrial court, the appellant alleged that the respondent had breached, alternatively unfairly implemented, the rehiring agreement and that the respondent's conduct constituted an unfair labour practice 'in that (1) the employees who are beneficiaries of the agreement have had their job security and employment opportunities unfairly affected; (2) labour unrest has been promoted thereby; (3) the relationship between employer and employee has been detrimentally affected'. The appellant sought an order inter alia D compelling specific performance in the future of the undertaking contained in the agreement. In opposing the appellant's case, the respondent admitted engaging persons from outside the pool, but denied that in doing so it had breached the agreement since it '(1) . . . did consider the applicant employees and/or (2) the applicant employees have become employed, reached retirement age, or left the area and no longer qualify for re-employment'. The respondent also challenged the jurisdiction of the industrial court on the ground that the dispute, not being one between E employees and employer, was not a labour dispute, the dispute being based on a contract between the respondent and the appellant relating to persons who had ceased to be employees. The industrial court held that it did have jurisdiction in the matter as 'the Act clearly envisages that relief can be granted . . . to an employee who is no longer employed by his employer'. After hearing evidence from the appellant, the respondent adducing no evidence in the matter, the industrial court ruled against the respondent and directed it to comply with the rehiring agreement. Specific F directions as to how the respondent should comply with the agreement were also given. The respondent appealed to the Labour Appeal Court, which upheld the appeal, holding that the industrial court had had no jurisdiction in the matter in that, under the Act, the relationship between employer and employee came to an end when the contract between them was lawfully terminated; that a dispute between the parties to the contract after its termination was a labour dispute only when the dismissal was the very subject of the dispute; that the present dispute G did not fall within that category; that no employer-employee relationship existed between the respondent and the members of the pool when the rehiring agreement was concluded; that the definitions of 'employer' and 'employee' in s 1 of the Act did not extend to include a prospective employer or an ex-employee; that an act of employment or re-employment was therefore not a labour practice and fell outside the domain of the industrial court; and that the appellant could not take refuge in para (a)(iii) of the definition of 'unfair labour practice' in the Act as there H was no proof of actual 'labour unrest' as envisaged in the definition. In a further appeal,

Held, having regard to the history of industrial/labour legislation in South Africa, that the Labour Relations Act envisaged that a conciliation board might be called upon to try to settle a dispute between an employer and a former employee claiming re-employment and it followed as a necessary corollary that the industrial court would have jurisdiction in matters relating to a refusal to re-employ. (At 25D-E.)

I Held, further, that the relationship envisaged by the Act between 'employer' and 'employee' was therefore clearly not one that terminated as it would at common law. (At 25E/F.)

Held, further, that it was sufficient that the Legislature clearly had in mind that, once a particular employment relationship was established, the parties to it remained 'employee' and 'employer' as defined beyond the point of time at which the relationship would have terminated under the common law: where it included also former employees seeking re-employment J or re-instatement, the Legislature had

1994 (3) SA p17

placed no limitation suggesting when - or why - a former employee no longer fell within the definition; what was clear was that when both parties so agreed, or when equity permitted, the relationship came to an A end. (At 25I-26A.)

Held, further, that, once it was accepted that members of the pool may fall under the definition of 'employee' in the Act, there could be no doubt that the industrial court had a labour dispute before it: the agreement between the parties was the result of collective bargaining between the respondent and the appellant, par excellence a labour practice B - 'action adopted in the labour field'. (At 26B-C.)

Held, accordingly, that the industrial court had had jurisdiction in the matter and that the Court a quo had been wrong in holding the contrary. (At 26D/E.)

Held, further, that the respondent's contention that it was obliged in terms of clause 5 of the agreement to do no more than 'consider' pool members for re-employment as and when the need arose ignored the proviso contained in the clause: the proviso by necessary implication limited the right an employer had at common law to select his employees at will. (At C 26E/E-F/G.)

Held, further, that, while the rule of construction of written instruments, expressio unius est exclusio alterius, had to be applied with caution, were it not applied here, the proviso to clause 5 would have to be deleted entirely: where the respondent expressly reserved in clause 5 the right (which at common law would be completely unrestricted) to employ people outside the pool but undertook to exercise that right only 'where skills are required which the aforesaid don't have', the unavoidable D inference was that, where the required skills were so available, the respondent's right to employ outside...