SATAWU obo Rune v Bosasa Security (Pty) Ltd (C 527/06) [2013] ZALCCT 11 (13 May 2013)

Principle:

  1. Once it has been established that the employees' participation in the strike was the "main" or "dominant", or "proximate", or "most likely" cause of their dismissal, their dismissal is automatically unfair.
  2. An award of compensation in cases of automatically unfair dismissal is not akin to damages or mere pecuniary loss. It goes further - it is also designed to send a clear message to all employers, who may be tempted to dismiss employees for any of the prohibited reasons, that such conduct is totally unacceptable and would be met with severe disapproval by this court.
Facts:

SATAWU (the South African Transport and Allied Workers' Union) was one of a number of trade unions that took part in a nationwide protected strike over a wage dispute in the security industry in May 2006. The respondent, Bosasa Security, was an employer in that industry. SATAWU had claimed organisational rights in terms of section 21 of the LRA for its members employed at Bosasa, which had been rejected by the Company. Shortly thereafter the nationwide protected strike throughout the security sector commenced. During the strike, Bosasa sent sms messages to employees who had been absent from work for 3 consecutive shifts, calling upon them to appear at a disciplinary hearing at a specified time and place.

The employees, who were participating in the protected national strike at the time, did not report for the hearings, and the Company proceeded with the hearings in their absence. The manager who chaired the hearings gave evidence that the Company's disciplinary code provides for a hearing in cases where an employee has been absent without permission for three consecutive shifts; and that the code recommends dismissal for such absence. He dismissed all of the employees in absentia. After the strike had been resolved the employees reported for duty, to be told that they had been dismissed but could appeal against their dismissals. They refused, the union having advised them that an appeal was unnecessary, as their dismissal was unfair due to them participating in a protected strike.

The union then lodged a dispute with the CCMA. When the dispute was not resolved at conciliation, it was referred to the Labour Court as an alleged automatically unfair dismissal. The company contended that the employees' participation in the protected strike was not the reason for their dismissal - they were dismissed for being absent from duty without permission; and that if they had exercised their right to appeal and explained that they were participating in a protected strike, they would have been reinstated. It was up to the individual employees to come and explain why they were absent, and they had not done so.

The Labour Court was not sympathetic to the employer's arguments. It ruled that the employees were not obliged to utilise the company's appeal procedure as the dismissals were unfair from the outset. The Court then looked at the true reason for their dismissal, and found that but for the strike, they would have had no reason to stay away from work. The Court concluded that their dismissals were clearly due to their participation in the protected strike, and were automatically unfair.

The employees did not seek reinstatement and were each awarded 15 months' remuneration as compensation. The Court stated that compensation for automatically unfair dismissals should be more than that awarded for dismissals found to be procedurally or substantively unfair. The Court said an award of compensation in cases of automatically unfair dismissal is not akin to damages or mere pecuniary loss. It goes further - it is also designed to send a clear message to all employers, who may be tempted to dismiss employees for any of the prohibited reasons, that such conduct is totally unacceptable and would be met with severe disapproval by the court.

Extract from the judgment:

[18]   It is so that the formal reason for dismissal was "absence without permission for three consecutive shifts". But the reason for that absence was the applicants' participation in a protected strike. The respondent knew full well that there was a national protected strike. It also knew that SATAWU was one of the prominent trade unions participating in the strike; and SATAWU pertinently brought it to the company's attention that the applicants had joined the union. The real or underlying reason for the dismissal was undoubtedly their participation in the protected strike.

.....................................

[20]   Mr Campanella argued strongly that the company did not have a malicious motive in dismissing the applicants. But, as Froneman DJP made clear in the passage cited above, that is not the end of the enquiry. The most probable inference is that the applicants were dismissed because they were participating in the strike. The dismissal would not have occurred if they had not participated in the strike. But for the strike, they would have had no reason to stay away from work. And once it has been established that their participation in the strike was the "main" or "dominant", or "proximate", or "most likely" cause of the dismissal, there can be no doubt that the dismissal was automatically unfair, as it falls foul of s 187(1)(a).

[21]   Mr Sifuba was correct when he said in cross-examination that it was unnecessary to appeal. If both parties had been more co-operative, it may well be that this court would not have had to deal with this dispute seven years after the fact. The fact remains, though, that the dismissals were unfair ab initio; the onus was not on the trade union or its members to appeal against those dismissals.............

[22]   In the case before me, it is clear that the real or proximate cause for the applicants' absence from work, and thus for their dismissal, was their participation in the national protected strike. Once that has been established, their dismissals were automatically unfair. They did not commit misconduct by staying away from work whilst participating in a protected strike.

[23]   Having decided that the dismissals were automatically unfair, I have to decide on the appropriate compensation. None of the applicants desires reinstatement..................... .....................................

[26]   In CEPPWAWU v Glass & Aluminium 2000 cc the Labour Appeal Court considered the factors to be taken into account when awarding compensation in cases of automatically unfair dismissal. Nicholson JA commented:

"[49]   In considering whether or not to award compensation in such a case, the court must consider that not to award any compensation at all where reinstatement is also not awarded may give rise to the perception that dismissal for such a reason is being condoned. This may encourage other employers to do the same. It must also take into account the fact that such a dismissal is viewed as the most egregious under the Act. Accordingly there must be a punitive element in the consideration of compensation.

[50] Once the court has decided to exercise its discretion in favour of awarding compensation and it seeks to determine the amount of compensation, it must bear in mind that:

  1. it may not award compensation exceeding the equivalent of 24 months' remuneration;
  2. the amount of compensation it awards is required to be 'just and equitable in all the circumstances';
  3. the amount of compensation that is awarded to an employee whose dismissal is unfair because there is no fair reason to dismiss cannot be less, but can be higher, than the amount that would be awarded to the same employee if he was in precisely the same circumstances but his dismissal was only unfair because the employer has not followed a fair procedure;
  4. the highest amount of compensation that can be awarded to an employee under s 194 is provided for a dismissal that has been found to be automatically unfair (ie subsection (3));
  5. an amount of compensation purporting to be awarded under subsection (3) to an employee whose dismissal has been found to be automatically unfair would not meet the requirement of subsection (3) of being 'just and equitable in all the circumstances' if it is lower than the amount that would be awarded to the same employee if his dismissal was not automatically unfair but was unfair either, because the employer did not follow a fair procedure, or, because the employer failed to prove the existence of a fair reason to dismiss;
  6. ordinarily the amount of compensation that an employee whose dismissal has been found to be automatically unfair would be awarded would be higher than the amount that would be awarded to an employee whose dismissal is only unfair because the employer did not follow a fair procedure or than the amount that would be awarded to an employee whose dismissal is unfair because the employer has failed to prove the existence of a fair reason to dismiss;
  7. the amount of compensation that is awarded to an employee whose dismissal has been found to be automatically unfair must reflect an appreciation of the fact that, save in exceptional circumstances, such employee would be the most deserving of an order of reinstatement with full retrospective effect to the date of dismissal so as to place the employee in the same position he would have been in had he not been dismissed, but also to penalize the employer for dismissing the employee for a prohibited reason."
(27)   In that case, the dismissed employee had been out of work for more than 24 months. In the case before me, all of the applicants found new jobs at better compensation - albeit due, in some cases, to the successful strike for higher wages - within six months. But an award of compensation in cases of automatically unfair dismissal is not akin to damages or mere pecuniary loss. It goes further - it contains an element of a solatium, and it is also designed, as the Labour Appeal Court said in CEPPWAWU v Glass & Aluminium, "to send a clear message to all employers, who may be tempted to dismiss employees for any of the prohibited reasons, that such conduct is totally unacceptable and would be met with severe disapproval by this court."

(28)   Taking these factors into account, I consider the award of 15 months' compensation initially awarded by the late Nel AJ on a default basis to be just and equitable.