National Union of Public Service & Allied Workers and Others v National Lotteries Board (CCT 75/13) [2014] ZACC 10 (10 April 2014)

Principle:

Dismissal for participating in lawful conduct under the LRA, constitutes an automatically unfair dismissal under section 187(1)(d) of the Act. A trade union has a right to determine its own strategies and tactics in dealing with an employer. It is not for a court to dictate this. If a union adopts a confrontational stance, it is entitled to do so as part of legitimate collective bargaining and this is lawful within the meaning of section 4(2)(a). Employees are entitled to participate in such activity.

Facts:

The employer is the National Lotteries Board, a public body. The union was unhappy with the performance of the employer's CEO and sought information from the employer about his contract, which the employer refused to divulge. The union then referred the dispute about its alleged right to obtain the information to conciliation under the LRA. During conciliation, the union and the employees were given the opportunity to motivate why the CEO's contract should be made public. The union did so in a letter that listed a number of complaints against the CEO - the letter did not demand his dismissal, nor did it contain any threats of a work stoppage. The union's letter was subsequently leaked to the press

When the employer did not respond, employees and shopstewards wrote a petition supporting the union, but went further in 'urging' the dismissal of the CEO and stating that if it was not done by a certain date, they would not work in the same building with him again. Their letter contained a 'vote of no confidence' in the CEO and urged the Lotteries Board 'to ensure that June 30th, 2008 is the last day of his employment'. It stated that 'we are no longer prepared to spend a day with Professor Ram in the same building with him at the helm of this organisation'.

This conduct led to the institution of disciplinary proceedings. Separately, the conciliation was declared a failure and the employer's contention that the union was not entitled to the information was upheld by the commissioner.

An opportunity was given to employees to retract their comments. A notice of a disciplinary enquiry was sent to each of the employees who had signed the petition and who had not retracted. The charges were the following:

  1. insubordination and disrespectful behavior making the continued employment relationship intolerable;
  2. Bringing the name and integrity of the NLB and the CEO into disrepute and making the continued relationship intolerable;
  3. Breaching the general duty to act in good faith, to co-operate with and the refusal to work under the supervision and control of the duly appointed CEO.
At the hearing, the chairperson referred to the definition of 'insubordination' as occurring 'when an employee refuses to accept the authority of his or her employer or of a person in a position of authority over an employee'. The chairperson found that 'by stating that they "were no longer prepared to spend a day with Professor Ram in the same building with him" and that the Board is urged "to ensure that June 30th, 2008 is the last day of his employment", the employees were guilty of insubordination and disrespectful behaviour'. The chairperson also found that by making public their grievances concerning Professor Ram, the employees associated themselves with a campaign clearly designed to bring the Board and its CEO into disrepute. The chairperson found them guilty of the first 2 charges but not the 3rd.

As regards sanction, the chairperson afforded the employees an opportunity to sign an undertaking within a specified time, to (i) dissociate themselves from the letters; (ii) accept their wrongdoing; (iii) apologise to Professor Ram; (iv) use the proper grievance procedures; and (v) to receive a final written warning, valid for 12 months. Of the 38 affected employees, 28 signed the acknowledgement and received final warnings. The 10 remaining employees relied on a written 'collective submission' that was handed to the chairperson. They recorded that 'in the light of your findings on charge 1 and 2 we sincerely apologise insofar as our actions constituted misconduct of insubordination and brought the name of the Board and its CEO into disrepute'.

The chairperson found that this submission did not comply with what had been required, and stated that 'the belated statement of apology proferred in the submissions, qualified as it is, is too little, too late and the question of sanction must necessarily be addressed in the absence of a sincere and timeous apology.

The chairperson imposed the sanction of dismissal on the 10 employees and went on to say that '(t)he fact that the employees in this instance have been offered the opportunity to recant on terms that the majority of their colleagues considered reasonable must weigh against any salutary effect of a warning, and seriously calls into question the prospects of a continued employment relationship on the necessary terms of mutual trust and confidence.'

After unsuccessful conciliation at the CCMA, the matter was referred to the LC. The employees alleged that their dismissal was 'automatically unfair' in terms of s 187(1)(d) of the LRA, in that they were dismissed for participating in lawful union activities, namely supporting their trade union's petition for the removal from office of the CEO.

The Labour Court dismissed the union's argument that the employees' dismissal was automatically unfair as a result of their association with the union's legitimate activities. The Court found that the union's activities were not legitimate activities under the LRA, and that the employees had unequivocally declared that they personally accepted the consequences of their conduct. The alternative claim of unfair dismissal was also dismissed on the basis that there were existing grievance procedures that were not pursued. The dismissed employees were given a fair opportunity to retract their support for the petition at the disciplinary hearing but failed to do so. The LC accordingly held that the sanction of dismissal was justified.

The Labour Court and the Labour Appeal Court refused leave to appeal, but the Supreme Court of Appeal granted special leave to appeal to it. The SCA held that the reason for the employees' dismissal was not the petitioning itself (ie the union activity), but the communication of the offensive material contained in the petition. Correctly construed the employees were not dismissed for petitioning, but for their acts of insubordination manifested in the content of the petition. It also upheld, as procedurally and substantively fair, the sanction of dismissal.

The Constitutional Court's majority decision found that the union's letter listing a number of complaints against the CEO, legitimately raised concerns on behalf of its members. Further, it did not interpret the employees' petition to mean that they were demanding that the employer dismiss the CEO unfairly or that they would necessarily strike unlawfully if the CEO was not removed by a specified date. Rather, the Court regarded these as legitimate proposals in the context of collective bargaining, with the intention of resolving a dispute. As a result, the Court regarded the dismissal of employees for this conduct as constituting an automatically unfair dismissal under section 187(1)(d)(i) and (ii) of the LRA.

The effect of the Constitutional Court's decision was to declare the dismissals automatically unfair and to order the reinstatement of the employees retrospectively to their date of dismissal, almost 6 years previously.

Extract from the judgment:

ZONDO J (Moseneke ACJ, Jafta J, Madlanga J, Mhlantla AJ and Nkabinde J concurring):

[193]   A trade union has a right to determine its own strategies and tactics in dealing with an employer concerning grievances, or complaints, disputes of right or disputes of interests, and, generally, on how to handle consultations, negotiations, discussions and collective bargaining with an employer. It is not for a court to dictate to a trade union how to handle its discussions or negotiations with an employer or what tactics and strategies it should use and at what stage it should use them in its dealings with an employer.

[194]   It is the union's prerogative to decide how to handle those matters. Sometimes it may deem it fit to handle these matters "gently". Sometimes it may decide to handle these matters in a confrontational way. Sometimes it can decide to resort to industrial action and sometimes it may decide to take the route of negotiation without any threat of industrial action. The same can be said of an employer or an employers' organisation as well. Provided that a trade union does not act unlawfully, it may adopt a confrontational stance. There is nothing unlawful in adopting a confrontational stance per se where it does not involve any physical harm to any person or damage to property. This does not mean that a trade union is free to say whatever it pleases. There are limits to that right but, on the facts of this case, those limits were not exceeded and there is no need to define them with any precision.

[195]   To the extent that it can be said that the union adopted a confrontational stance in its dealings with the respondent, it was entitled to do so. That was part of legitimate collective bargaining. It was a lawful activity within the meaning of that phrase in section 4(2)(a). The applicant employees were entitled to participate in that activity in terms of section 4(2)(a) of the LRA. Their dismissal for taking part in that activity was a dismissal for exercising their right and constitutes an automatically unfair dismissal. The union was also entitled to be supported by its members. The employees were also entitled to give their union support for the stance it took. It was also participation in the conciliation proceedings. Accordingly, the respondent had no right to take disciplinary action against the union members just because their union had adopted a confrontational stance in its dealings with it. A dismissal of employees for that conduct falls under section 187(1)(d)(i) and (ii) and is automatically unfair.

The main judgment

[196]   The main judgment concludes that the chairperson's finding that the employees were guilty of the first two charges was justified. It then goes on to determine whether they were dismissed for associating themselves with a lawful activity of the union in which case their dismissal would be automatically unfair. It accepts that what the employees supported was union activity but finds that the activity was not lawful. A reading of the judgment suggests that, if it had found that the union activity was lawful, it would have held that the dismissal of the employees for associating themselves with that activity infringed their right under section 4(2)(a) of the LRA and would have been automatically unfair.

[197]   The main judgment says that the meaning of the word "lawful" in section 4(2)(a) of the LRA is "lawfulness under the Act". It says: "It is not an enquiry into criminal illegality or civil wrongfulness." I have already dealt above with the interpretation of section 4(2)(a).

[198]   The main judgment seems to rest on five propositions. They are that-

  1. a demand by employees that their employer dismiss a co-employee or a manager or CEO is an unlawful demand;
  2. in this case the employees' demand was that the CEO be dismissed;
  3. the employees demanded that his dismissal be without a fair hearing;
  4. the employees threatened to stop work if he was not dismissed and this was an unlawful threat; and
  5. the employees' dismissal could not be automatically unfair because they failed to pursue the disclosure dispute through all processes under the LRA up to finality, including review proceedings.
[199]   As to (a), in my view a proposal or demand for the dismissal of a co-employee or a manager or CEO is not necessarily unlawful. It depends on whether the dismissal will be unfair or not. In this case both the chairperson and the Labour Court dealt with the matter on the basis that they were not going to investigate whether the allegations against the CEO were true or not. We should adopt the same approach. As to (b), the union and the employees did not demand the CEO's dismissal but they strongly recommended his dismissal. As to (c) a reading of the petition reveals that there is no justification for the suggestion that the employees demanded that the CEO's dismissal be without a fair hearing. The respondent could have put the allegations to him to deal with before deciding to dismiss him if there was a fair reason for his dismissal. As to (d), again a reading of the petition reveals that the employees did not threaten to stop working after 30 June if the CEO was still employed as CEO. They refrained from saying what would happen if he was still the CEO after 30 June 2008. I have dealt with (e) earlier.

Judgment of the Supreme Court of Appeal

[200]   In its judgment the Supreme Court of Appeal suggested that the union should have used the mechanisms in section 191 of the LRA to resolve its complaints or grievances. It made this suggestion on the basis that the complaints or grievances were unfair labour practices as defined in the LRA. The part of the definition of "unfair labour practice" the Supreme Court of Appeal quoted is the one referring to-

"unfair act or omission between an employer and an employee involving-

........ . . .(a) unfair conduct by the employer relating to the promotion, demotion, probation (excluding disputes about dismissals for a reason relating to probation) or training of an employee or relating to the provision of benefit to an employee."

[201]   With respect, this suggestion is not correct. Firstly, when regard is had to the definition of "unfair labour practice" in section 186(2) of the LRA, it is clear that most, if not all, of the complaints that the union articulated could not conceivably fall within that definition. Secondly, the effect of the Supreme Court of Appeal's suggestion is that the trade union and the employees were wrong to ask the respondent for a meeting to discuss their concerns or grievances in the workplace and they should have resorted to statutory dispute procedures before requesting a meeting with the respondent. This view presupposes that, if workers have grievances or complaints, they must refer them to statutory mechanisms for resolution without first seeking to resolve them in the workplace with their employer through discussion. In my respectful view, that suggestion does not correctly reflect the legal position. As I understand it, the correct legal position is that one of the principles that underlies the dispute resolution system under the LRA is that, as far as possible, workplace problems must be resolved in the workplace. In other words: workplace solutions for workplace problems.

[202]   In conclusion, the dominant, if not the sole, reason for the dismissal of the employees in the present case is that they engaged in conduct in which the LRA entitled them to engage. In this regard it must be borne in mind that, by way of its attorney's letter of 6 June 2008, the respondent called upon the union and employees to withdraw the petition to avoid the disciplinary charges. This means that, if the union and employees had agreed to withdraw the petition, no disciplinary charges would have been brought against the employees and they would not have been dismissed. This means that what the respondent found most objectionable and what called for the bringing of disciplinary charges against the employees was what they said in the petition. Therefore, it is what the union and employees said in the petition that constitutes the important or real reason for the dismissal of the employees. I have already found that, in saying what they said in the petition, the union and employees were engaging in a lawful activity of the union, were exercising their rights, and were taking part in conciliation proceedings and collective bargaining. Their dismissal for such conduct was contrary to section 5(2)(c) and fell within section 187(1)(d)(i) and (ii). That means that their dismissal was automatically unfair in terms of section 187(1) of the LRA. Once it is accepted that the main or real or dominant reason for dismissal was, or related to, such conduct, there is no room for a conclusion that the dismissal was not automatically unfair but only substantively unfair. In other words to reach the conclusion that the dismissal was only substantively unfair one would have to conclude that the dismissal had nothing or very little to do with legitimate union activities and the conciliation proceedings. In my view, both on the facts and the law that cannot be said.