Chemical, Energy, Paper, Printing, Wood and Allied Workers’ Union and Others v CTP Ltd and Another (LC) (unreported case no JS215/10, 19-12-2012) (Myburgh AJ)
By Moksha Naidoo
This case highlighted the following issues –
Background
In this matter various employees had been dismissed from four divisions of the first and second respondents: CTP Web and CTP Packaging (divisions of the first respondent) and CTP Gravure and Thuthuka Packaging (divisions of the second respondent). Both divisions were owned by the first respondent.
In December 2008 the first applicant union, on behalf of its members working at CTP Stationery (another division of the first respondent), made several demands, including –
In pursuit of these demands, the union’s members working at CTP Stationery went on what both CTP Stationery and the union thought was a protected strike once a certificate of non-resolution was issued.
A few weeks into the strike, the union issued a secondary strike notice to the four divisions indicating that its members working at the respective divisions would embark on a strike in pursuit of its demands.
As the union termed the intended strike a secondary strike, it did not refer a separate dispute for conciliation as this is not a procedural requirement when embarking on a secondary strike. Once the secondary strike commenced, the employees in all four divisions were dismissed for essentially the same reason – all divisions held that the employees had a direct and substantial interest in the demands of employees at CTP Stationery and, as a result, the strike was not a secondary strike and was unprotected. (It is trite that employees engaged in a secondary strike do so in support of employees engaged in a primary strike and, as such, they must not have a direct or substantial interest in the demands of the primary strikers.)
The union referred an automatically unfair dismissal, alternatively a substantively and procedurally unfair dismissal, dispute to the Labour Court.
The Labour Court
Significant to one of the issues was a pre-trial minute signed by the parties in which it was recorded that the dismissed employees were employed by the first respondent.
At court the first respondent persisted with its argument advanced at the time of dismissal. It also argued that the bargaining council demand concerned a refusal to bargain and an advisory award first needed to be issued before a strike in pursuit of this specific demand is deemed protected. The absence of an advisory award in this case meant the strike was unprotected. The first respondent further sought to withdraw its earlier admission that it employed all dismissed employees, and introduce the allegation that the second respondent was in fact the employer of those working at CTP Gravure and Thuthuka Packaging.
In terms of whether or not the dismissed employees had embarked on a primary or a secondary strike, the court noted that employees who embark on a strike in support of co-employees actually embark on a primary and not a secondary strike. In the case at hand, the fact that the dismissed employees worked for the same employer as those who went on strike at CTP Stationery (the first respondent) meant that the dismissed employees were engaged in a primary and not a secondary strike, irrespective of the union deeming it a secondary strike.
Following this conclusion, the auxiliary issue was whether or not the strike was unprotected on the basis that the dismissed employees did not obtain a certificate of non-resolution indicating that they could join the primary strike. The court referred to the Constitutional Court decision of SATAWU and Others v Moloto and Another NNO (2012) 6 SA 249 (CC), in which the majority found that a strike notice by the majority union covered all employees including non-union members who could, as a result, join the strike action without having to separately refer their own dispute for conciliation.
The court in the current matter similarly found that it was not a requirement that the dismissed employees refer a separate dispute for conciliation before their strike was labelled protected. Once the union served its primary strike notice to CTP Stationery indicating its members’ intention of going on strike, employees in the four divisions could join the strike on the basis that the initial strike notice would have been extended to include them.
The first respondent further argued that the strike was unprotected on the basis that there was no advisory award with specific reference to the bargaining council demand.
The court held that in terms of s 64(2) of the Labour Relations Act 66 of 1995 (LRA), a refusal to bargain includes a refusal to establish a bargaining council and therefore an advisory award needs to be issued by the conciliating commissioner before a strike in pursuit of this demand is deemed protected.
Thus, according to the court, in the absence of an advisory award, the strike by the dismissed employees was unprotected only insofar as it related to the bargaining council demand.
In finding the strike by the dismissed employees technically unprotected for reasons relating to the bargaining council demand only, the court ruled that the dismissal was not automatically unfair.
Was the dismissal substantively unfair?
Finding support in the decision of National Union of Mineworkers obo Employees v Commission for Conciliation, Mediation and Arbitration and Others [2012] 1 BLLR 22 (LAC), as well as considering the Code of Good Practice: Dismissal in sch 8 to the LRA (item 6.1), the court held that the mere fact that a strike is unprotected does not, in itself, justify dismissal.
On whether or not the dismissal was substantively unfair, the court held:
‘Although the strike herein was not in response to any unjustified conduct by the first respondent, it is clear that the contravention of the LRA by the individual applicants was on the lower end of the continuum of seriousness and that substantial attempts were made to comply with the LRA. This is so for three main reasons: Firstly, the contravention (ie, the failure to obtain an advisory arbitration award) was of a procedural nature only, with the strike not being hit by any of the substantive limitations in section 65; secondly, there was a high degree of compliance with the provisions of section 64, in the form of a referral to conciliation, an attempt at conciliation, and the giving of 48 hours’ notice of the strike; and, thirdly, the failure to obtain an advisory arbitration award related to only one of the strike demands, with the strike being otherwise protected. The aforesaid considerations operate so as to establish that the misconduct of the individual applicants was not particularly serious. (Judged in its overall context, it may well be described as a technical contravention of the LRA.)’
Concluding dismissal too harsh a sanction and that the dismissals were substantively unfair, the court ordered the surviving employees to be retrospectively reinstated with effect from 1 June 2010 without any loss of benefits, and that the income each applicant earned from the time of his dismissal to the date of reinstatement (being 9 January 2013) be subtracted. The first respondent was further ordered to pay the union 12 months’ salary for each employee who was deceased at the time of the order.
Note: Unreported cases at date of publication may have subsequently been reported.
Moksha Naidoo BA (Wits) LLB (UKZN) is an advocate at the Johannesburg Bar.
This article was first published in De Rebus in 2013 (March) DR 47.
