In Association of Mineworkers and Construction Union obo Maluleke and Others v Gold Plat Recovery (Pty) Ltd [2024] 10 BLLR 1043 (LC), the Association of Mineworkers and Construction Union (AMCU) alleged that five of its members (the applicants) had been dismissed by Gold Plat Recovery (Pty) Ltd (the company) for joining, and actively recruiting fellow employees to join, AMCU.
Prior to 2016, the workforce of the company had never been unionised. Instead, employees were represented by a workers’ committee elected by the workforce. The workers’ committee proved ineffective and came to be seen by workers as an instrument of management. During 2016, AMCU began recruiting members and within a year had made significant progress. Consequently, AMCU requested organisational rights, which request was refused by the company unless and until AMCU met a 30% threshold.
Following a verification exercise, it transpired that AMCU had a membership of only 23% of the workforce. AMCU then intensified its recruitment drive to secure additional members. This created tension and the workforce was allegedly split into two camps of employees – those who wanted AMCU and those who did not. During the recruitment drive, management was approached by three employees alleging that the applicants were threatening and intimidating employees into joining AMCU. In most instances, they reported what had been reported to them by other employees. Based on these allegations, the applicants were summoned to a boardroom and informed that they had been dismissed with immediate effect.
AMCU referred an unfair dismissal dispute to the Commission for Conciliation, Mediation and Arbitration (CCMA) on the applicants’ behalf. AMCU advised the applicants to not inform the CCMA that the reason for their dismissals related to their membership with AMCU, otherwise the dispute would need to be adjudicated by the Labour Court (LC) and many years would lapse before the dispute was heard. When conciliation failed, the dispute was referred to the CCMA for arbitration. Despite AMCU’s advice, two of the applicants revealed that they were dismissed for their union membership and related activities. Although this raised jurisdictional issues, the commissioner paid no heed to it and issued an arbitration award in which he found that the applicants’ dismissals were procedurally and substantively fair.
AMCU took the arbitration award on review. The LC held that the CCMA lacked jurisdiction to determine the dispute and set aside the award. AMCU then referred the dispute to the LC for adjudication. In this regard, AMCU claimed that the applicants’ dismissals were automatically unfair in terms of s 187(1)(d) of the Labour Relations Act 66 of 1995 (the LRA), and they were in breach of the applicants’ right to freedom of association encompassed in s 5 of the LRA.
The LC reiterated that the LRA grants all employees the right to join a trade union, subject to the constitution of that union, and grants all union members the right to participate in the lawful activities of that union. The LRA further prohibits discrimination against employees for exercising these rights. Section 187(1)(d) of the LRA provides that if the reason for a dismissal is because the employee exercised a right conferred by the LRA, the dismissal is automatically unfair. The question to be determined by the LC was accordingly whether the applicants joining, and recruiting for, AMCU was the main reason for their dismissals.
The court noted that some of AMCU’s witnesses had performed poorly, as they were illiterate and felt intimidated by the courtroom environment. Despite certain inconsistencies and bearing in mind that the dispute arose eight years ago, the applicants were credible and reliable witnesses. The court found that it was highly improbable that the applicants’ intimidated other employees to join AMCU as the company had claimed.
By contrast, the company only led one witness who had no first-hand knowledge of the material facts. With most of his evidence being inadmissible, there was very little value that remained. Notwithstanding this, the witness acknowledged that management was worried and fearful about AMCU. In this context, it was understandable why management did not convene a proper disciplinary hearing and why the allegations were accepted without interrogation. An adverse inference also had to be drawn by the fact that the company failed to call as witnesses any of the managers who had been directly involved in the events leading up to the dismissals.
The court found that the evidence overwhelming indicated that –
The evidence clearly demonstrated that the company’s motive was to dismiss the applicants for joining and recruiting for AMCU, with the aim of deterring the workforce from joining the union. In the circumstances, the court held that the main reason for the applicants’ dismissals was the fact that they had joined, and actively recruited members for, AMCU and, accordingly, their dismissals were automatically unfair.
Turning to the appropriate remedy, the applicants had sought reinstatement, yet the company argued that it was not reasonably practicable as it would result in retrenchments. The court did not accept this as no evidence was presented to the effect that the employment relationship had been rendered intolerable nor that it would be impracticable to reinstate the applicants. There was no reason to deny the applicants the primary remedy of reinstatement. However, given that AMCU had erred by initially referring the matter for arbitration, reinstatement was made effective from the date the dispute was referred to the LC.
The LC ordered the company to reinstate the applicants and to pay them backpay from the date of the referral of the dispute to the court.
In Mabaso v Discovery Life (LC) (unreported case no J1155/20, 2-8-2024) (Prinsloo J), Mr Mabaso (the employee) was employed by Discovery Life (the company) as a Team Leader. The company initiated a retrenchment process in terms of s 189 of the Labour Relations Act 66 of 1995 (LRA) and the employee was among the potentially affected employees. The affected employees were afforded an opportunity to take a voluntary severance package which provided for a gratuity payment to be made by the company in full and final settlement of all claims. While the employee was given a voluntary severance agreement, he did not sign the agreement at the time.
A month later, the employee signed the voluntary severance agreement. The employee, however, signed the agreement on the same day he admitted to conducting an elaborate fraud against the company and to stealing around £500 000 (approximately R 11 million) from the company. In terms of the voluntary severance agreement, the company was to pay certain amounts to the employee. When payment was not made, the employee approached the Labour Court (LC) to seek to make the voluntary severance agreement an order of court.
The company opposed the employee’s application and contended that it was defective and ill-conceived because –
The company’s defence in this regard was that the employee had failed to disclose material facts at the time when the agreement was entered into, which facts would have caused the company to not conclude the agreement. The company had entered into the agreement after it was induced to do so by a material misrepresentation and it subsequently elected to resile from the agreement, which thus rendered the agreement invalid and unenforceable.
In considering the matter, the LC noted that s 158(1)(c) of the LRA empowers the court to make any arbitration award or settlement agreement an order of court. Section 158(1A) of the LRA defines a settlement agreement as a written agreement in settlement of a dispute that the party has the right to refer to arbitration or to the LC. The Labour Appeal Court has reiterated that s 158(1)(c) of the LRA must be read with, and is subject to, s 158(1A) of the LRA.
Properly interpreted, the LC may only make settlement agreements which comply with the criteria in s 158(1A) orders of court. In this regard, for a settlement agreement to be made an order of court, it must meet the following requirements –
Accordingly, in deciding whether to make a settlement agreement an order of court, it would first have to be established whether the settlement agreement satisfies the criteria in s 158(1A) of the LRA. If it does not, the court does not have a discretion and cannot make the agreement an order of court. If it does, the court nevertheless would have to consider the relevant facts and circumstances and exercise its discretion to decide whether to make the agreement an order of court.
Applying these legal principles to the present matter, the first question before the LC was whether the voluntary severance agreement signed by the employee met the criteria for a settlement agreement in s 158(1A) of the LRA.
In this regard, the court noted that the agreement was in writing, and it sought to terminate the employee’s services by way of a voluntary retrenchment. The court then canvassed the aspect regarding the existence of a dispute with the employee during his argument, and he submitted that the dispute was the fact that the company had not paid him in accordance with the terms of the agreement. However, this is not the kind of dispute contemplated in s 158(1A) of the LRA. The agreement was not an agreement in settlement of a dispute that the employee had the right to refer to arbitration or to the LC as there was no dispute prior to the conclusion of the agreement.
The court found that a voluntary agreed termination of an employment contract does not constitute a dismissal unless the employee can demonstrate that he was forced to enter into the agreement, which was not the employee’s case. In the absence of a dismissal or any other cause of action in terms of the LRA, there was no dispute that the employee had the right to refer to arbitration or to the LC.
In the circumstances, the court was not satisfied that the agreement complied with the criteria for a settlement agreement as set out in s 158(1A) of the LRA. Consequently, the court did not have a discretion and could not make the voluntary severance agreement an order of court.
The employee’s application was dismissed with no order as to costs.
Nadine Mather BA LLB (cum laude) (Rhodes) is a legal practitioner at Bowmans in Johannesburg.
This article was first published in De Rebus in 2024 (December) DR 55.
