Performing Arts Council of the Transvaal v Paper Printing Wood and Allied Workers Union and Others

• Jurisdiction: South Africa

Performing Arts Council of the Transvaal v Paper Printing Wood and Allied Workers Union and Others
1994 (2) SA 204 (A)

1994 (2) SA p204

Citation	1994 (2) SA 204 (A)
Case No	722/92m 16/93, 121/93
Court	Appellate Division
Judge	Corbett CJ, Van Heerden JA, Goldstone JA, Nicholas AJA and Kriegler AJA
Heard	November 15, 1993
Judgment	December 1, 1993

Flynote : Sleutelwoorde

Labour law — Labour Relations Act 28 of 1956 — Unfair labour practice — Employees, dissatisfied with delay in finalising negotiations between C employer and trade union for stop-order facilities, engaging in wildcat strike — Employer dismissing employees after expiry of 40-minute ultimatum — Industrial court declaring dismissal an unfair labour practice — Labour Appeal Court upholding decision — On further appeal, Court holding that issue was whether, on facts, it was unfair to have dismissed without D reasonable ultimatum — Reasonable ultimatum, in circumstances, would have allowed sufficient time for employer to find out what had gone wrong and for employees to cool down and seek advice from trade union — Employer's ultimatum clearly insufficient to achieve such objectives — Dismissal thus an unfair labour practice.

E Labour law — Labour Relations Act 28 of 1956 — Unfair dismissal — Appropriate relief — Correct approach is to give due consideration to conduct of parties and, in light thereof, to decide upon appropriate relief — Issue whether reinstatement appropriate to be judged as at time when matter before industrial court — If at such time reinstatement F appropriate, unjust and illogical to allow delays caused by appeals to render reinstatement inappropriate.

Labour law — Labour Relations Act 28 of 1956 — Labour Appeal Court — Appeal to Appellate Division — Appeal in terms of s 17C(1)(a) from decision or order of Labour Appeal Court 'except a decision on a question G of fact' — Appeal to be decided on facts found by Labour Appeal Court — Appellate Division also entitled to have regard to additional facts appearing from record of industrial court proceedings insofar as such facts not inconsistent with those found by Labour Appeal Court.

Headnote : Kopnota

H In terms of s 17(C)(1)(a) of the Labour Relations Act 28 of 1956 an appeal to the Appellate Division lies against a decision or order of the Labour Appeal Court, 'except a decision on a question of fact'. The appeal thus has to be decided on the facts found by the Labour Appeal Court. In addition, the Appellate Division is entitled to have regard to additional facts which appear from the record of the industrial court proceedings insofar as they are not inconsistent with facts found by the Labour Appeal Court. (At 214E-F/G.)

I The first respondent trade union and the appellant had negotiated for some months about a number of issues, including the payment by stop order of dues by union members employed by the appellant at the State Theatre in Pretoria. By 25 September 1990 the matter had not yet been settled. During the lunch hour that day the employees at the State Theatre (the individual respondents) engaged in a 'wildcat' strike. The representative who had conducted the negotiations on the union's behalf was discovered to be out of town that day. The appellant's representative ordered the employees, J through the shop stewards, to return to work immediately. The employees

1994 (2) SA p205

A refused to do so. The appellant's legal representative, one D, then met with the shop stewards, who advised him that the apparent cause of the strike was the appellant's failure to provide employees with stop-order facilities. He explained to them why such facilities had not yet been granted and advised them that the work stoppage constituted an illegal strike. Upon the shop stewards' pointing out to him that the employees were refusing to return to work, D decided to address the employees who were gathered outside the building. He reiterated what he had told the B shop stewards and at approximately 14:20 requested them to return to work by 14:30. The appellant's chief director authorised D to dismiss the employees in the event of an absolute refusal to return to work. At approximately 15:00 D again requested the employees to return to work. Upon their repeated refusals to do so, he advised them of their summary dismissal. Some of the employees thereupon reported the events to their union office. One of the union officials immediately telephoned the appellant's representative and informed him that the employees were C prepared to return to work. This and further offers made later that day and on the following day were rejected.

The union and dismissed employees brought unfair labour practice proceedings against the appellant in the industrial court in terms of s 46(9) of the Labour Relations Act. The industrial court declared that the dismissal of the individual respondents had been unfair and had constituted an unfair labour practice, and ordered their reinstatement. D The order for reinstatement, with back-pay, was made retrospective for six months from the date of the order. An appeal to the Labour Appeal Court in terms of s 17(21A)(a) was dismissed. The Labour Appeal Court had found that, despite the illegality of the strike, the ultimatum issued on behalf of the appellant had been unfair because (a) the cause for concern among the employees was that their demand for stop-order facilities had not been finalised; (b) D's ultimatum could have been postponed, or at least extended, until the trade union representative became available and it had E been unreasonable not to have waited for him; (c) the time afforded in terms of the ultimatum, viz ten minutes, which was extended to 40 minutes, had been insufficient to allow the employees to reflect on how to react to it, whereas a more adequate period would probably have resulted in a different decision, as indeed illustrated by the offers to return to work shortly after the dismissals.'Unfair labour practice' in 1990 was defined in s 1 of the Act as 'any act or omission which in an unfair manner infringes or impairs the labour relations between an employer and employee, and shall include . . . (a) the dismissal, by reason of any disciplinary action against one or more employees, without a valid and fair reason and not in compliance with a fair procedure . . .'. In an appeal to the Appellate Division, the Court pointed out that, as conceded by counsel for the appellant, it would have been unfair, without more, summarily to have dismissed the employees, having regard to the following: (1) Most of the employees had worked for the appellant for many years. (2) The cause of their unhappiness related to a matter which was of legitimate concern to them in relation to their employment. (3) They had not acted in a manner threatening to the safety of the appellant's personnel or property. (4) On the face of it the unexpectedness and irrationality of the employees' behaviour (the appellant's representative had testified that the employees' conduct had been unexpected and irrational) should have suggested that something had gone wrong in the communication between the trade union and the employees. That suggestion should have been strengthened by the fact that the trade union had not been associated with the strike. (5) According to the evidence, the employees had been restless and clearly emotional. (6) They had been on strike for barely an hour. (At 215F-215B/C.)

Held (per Goldstone JA; Corbett CJ, Nicholas AJA and Kriegler AJA concurring), that the enquiry was whether, on the facts, it would have been unfair to have dismissed the employees without having given them a reasonable ultimatum. (At 216E/F.) I

Held, further, that a fair ultimatum in the circumstances of this case would have been of sufficient duration to have enabled (a) the appellant to have ascertained, by direct enquiry either from the employees, the shop stewards or a trade union representative, what had gone wrong and had caused the employees to act as they had done and (b) the employees time to cool down, to reflect and take a rational decision with regard to their continued employment, and for that purpose to have sought advice from J their trade union. (At 217B-D.)

1994 (2) SA p206

A Held, further, that the ultimatum given by the appellant had clearly been of too short a duration to have achieved either of the aforegoing objectives: a reasonable ultimatum would not have expired prior to the commencement of work on the following day. (At 217D-E.)

Held, further, having regard to the six factors mentioned above, that there had been a distinct probability that, had a fair ultimatum been given to the employees, the strike would have come to a speedy end: the B evidence had indicated that the trade union had certainly opposed the continuation of the strike and its attitude would, as a probability, have weighed with the employees, at any rate after they had cooled down. (At 217E-F.)

Held, accordingly, that the industrial court and the Labour Appeal Court had correctly decided that, in dismissing the employees, the appellant had committed an unfair labour practice. (At 217I.)

C Held, further, as to whether the order for reinstatement and for six months' back pay had been appropriate relief, that, instead of applying a rule of thumb that, in the absence of special circumstances, an unfair dismissal should have as its consequence an order for reinstatement, the correct approach was to give due consideration to the relevant conduct of the parties and, in the light thereof, to decide upon appropriate relief. (At 219B-C.)

D Held, further, that the question whether or not reinstatement was the appropriate relief had to be judged as at the time when the matter had come before the industrial court: if at that time it had been appropriate, it...