In the matter NUMSA v CBI Electric African Cables the Labour Appeal Court dealt with the question of whether the failure to consult with the trade union prior to dismissing employees who participated in an unprotected strike would render the dismissals procedurally unfair. It found that it did and awarded 12 months' compensation to those employees notwithstanding the fact that the Labour Appeal Court accepted that the dismissal of the employees was substantively fair.
Briefly the facts were that CBI Electric African Cables wished to introduce a continuous operation at its plant which required that a new shift system be introduced. The employees were not happy with this and in May 2007 they embarked upon an unprotected strike. The employer obtained an interdict from the Labour Court and an agreement was reached with the union that the shift system be implemented. One month later, issues arose with the employees in respect of their payslips and the pay they received for the month of June. The employees did not receive their pay slips timeously and they were short-paid in respect of certain amounts. The day shift employees took issue with their pay slips and went on strike during their shift and did not return. The night shift employees whose shift was to commence at 6 o'clock in the evening abandoned their work stations at 10 pm and also did not return to work prior to the end of their shift.
The employer had issued an ultimatum to the employees on the day shift instructing them to return to work at the commencement of the next day shift, being the 6 o'clock shift the next morning and to the night shift employees when they reported to work warning them that if they went out on strike they would be subjected to discipline and possibly dismissed. The human resource manager also attempted to contact the trade union official who was out of the office and he sent the official a fax together with a copy of the ultimatum. The ultimatums were issued to the night shift employees at the commencement of their shift at 6 o'clock in the evening.
The employer's view was that the unprotected strike action was linked to the unhappiness over the shift system and that this was therefore a continuation of the misconduct committed in May 2007. The employees argued that the strike only related to their unhappiness regarding their pay and their pay slips and that this was not related to the obligation to work the new shift system.
The court found on the facts that the dispute did relate to the pay slips only and not the previous dispute over the shift system. However, the court found that the means that the employees employed did not justify the end that they sought. The court found that abandoning their work stations and leaving the respondent's premises was not conduct which in all the circumstances of the case could be said to have been a reasonable means by which to respond to the employer's failure to comply with its contractual obligations. Other less disruptive and non-belligerent ways to resolve the issue were available to the employees. The court went on to hold that the employees' conduct was deliberate and calculated, that it undermined the process of collective bargaining as a tool to resolve industrial disputes, and that there was no attempt at all on the part of the employees to comply with the provisions of the Act regarding the handling of grievances. The court therefore rejected the employees' contention that they were justified in leaving their shift early.
However, the court found that the employer had not followed a proper procedure in issuing the ultimatum. The court confirmed that it was incumbent upon the employer to engage with the union before issuing the ultimatum. This, the employer failed to do. The court referred to item 6(2) of the Code which makes it clear that prior to dismissal, the employer should, at the earliest opportunity, contact a trade union official to discuss the course of action it intends to adopt. This, the court held, was necessary for two reasons. Firstly, it afforded the union an opportunity to persuade the strikers to resume work, and secondly, it provided a safeguard against possible rash action by the employer. In the event that the employer decides to issue an ultimatum, which should meet the requirements of the Code, the employer must ensure that it allows the employees sufficient time to reflect on the ultimatum and respond thereto.
It was common cause that a meeting with the union was held after the ultimatum had been issued. However, the evidence was clear that the employer had already taken the decision to dismiss the employees prior to that meeting. It was also clear that no amount of persuasion by the union that the strike had nothing to do with the introduction of the new shift system but with the later incorrect pay slips would have convinced the respondent to change its preconceived stance regarding what the underlying issue in dispute was. The court found that there was a duty on the respondent to afford the affected employees an opportunity to be heard before a decision to dismiss them was taken. The employer's failure to do so rendered its decision to dismiss the affected employees, procedurally unfair.
The learning to be taken from this decision is that employers must be very careful about when an ultimatum is issued and must seek to involve any union prior to the issuing of any ultimatum. Only once the union has been involved and the union has been afforded an opportunity to address its members, should the employer either issue an ultimatum or act upon the failure of employees to adhere to such an ultimatum.