Calgan Lounge (Pty) Ltd v National Union of Furniture and Allied Workers Union of South Africa (NUFAWSA) and Others (J2648/18) [2018] ZALCJHB 334 (9 October 2018)

Principle:

The deliberate and specific design of the LRA is to designate the task of dealing with workplace disputes and grievances to trade unions. There is no place in this structure for the involvement of political parties.

Facts:

Representatives from the EFF arrived at the employer's premises, without any prior notification. A meeting with several employees was held during lunch time, in the street outside the employer's premises. This meeting resulted in a letter from the EFF to the employer. The letter, written on an EFF letterhead, recorded that the EFF had been 'mandated' by the employees to intervene and that a memorandum containing a 'barrage' of demands and grievances would be presented later.

The employer addressed this issue directly with all its employees, placing a notice on the company notice boards, urging employees to follow the prescribed procedures and approach the relevant institutions established by the LRA, should they have difficulties. The employer's workplace was in fact organized, with NUFAWASA being the recognized and majority representative trade union, and with whom the employer had an established collective bargaining relationship.

The 9 page memorandum which was subsequently presented was typed on an EFF letterhead and accused the employer of exploiting and victimizing the employees, and subjecting them to 'appalling and unethical' working conditions. It claimed the EFF would 'unashamedly' take up the plight of the employees. The memorandum then recorded a number of actual demands, including an issue about resolving the wage gap / living wage and equal pay for equal work, permanent positions, 'discontinuation' of the relationship with the union, compliance with the BCEA, reimbursement of money deducted from employees' salaries, reinstatement of employees that had been dismissed, development of skills programs, and terminating exploitative and unjust policies. The employer was given 7 days by the EFF to comply, with a warning that defiance of the memorandum would result in intensifying mass protest action.

The employer instructed its attorneys to respond to this memorandum. In the response it was specifically stated that the EFF was not a registered trade union and lacked the necessary legal status and entitlement to engage with the employer on workplace related issues. The attention of the EFF was also drawn to the fact that there was a majority, recognized trade union, with whom workplace disputes were effectively resolved.

What followed was an unprotected strike with damage to company property and intimidation. The employees' refusal to work persisted, which caused the employer to apply for an interdict in the Labour Court. The employer cited the union, the employees, the EFF and 2 named EFF representatives as the respondents in the application. When the case was heard, 2 EFF representatives addressed the Court but did not file any Court papers. They indicated that no matter what, the employees would continue to refuse to resume their duties irrespective of what the Court might order. They were warned by the Court that their failure to comply with its orders would result in contempt of court with severe penalties.

The LC granted an interim interdict, calling upon the respondents to show cause why a final order should not be granted declaring the strike action to be an unprotected strike, interdicting the EFF representatives and the employees from continuing to participate in the strike and from obstructing the employer's business, and interdicting the EFF and its representatives from unlawfully interfering with the employment relationship between the employer and its employees. The employer also sought a costs order against the respondents.

On the return date, the LC confirmed the interdict, even though employees had by then been dismissed. The LC was very clear about the intervention of political parties. It confirmed that the deliberate and specific design of the LRA is to designate the task of dealing with workplace disputes and grievances to trade unions. There is no place in this structure for the involvement of political parties. What the EFF did in this case was to undermine orderly collective bargaining and dispute resolution, which are cornerstones of the LRA. As an employer, the applicant was entitled to expect it employees to comply with the LRA when seeking to resolve any disputes they might have with the employer.

Extract from the judgment:

(Snyman AJ)

[37]   When regard is had to the demands themselves, there are all the kind of demands that simply cannot legitimately form the subject matter of protected strike action. All of the demands relate to issues that are capable of being determined and/or resolved by way of adjudication or arbitration, either in terms of the LRA, or in terms of a number of other available employment statutes. Also, some of the demands are simply unlawful. It is trite that to simply demand the removal of a member of management without proper cause and fair process is an unlawful demand, and certainly to demand from an employer to simply in effect expel a majority recognized trade union flies in the face of the right of freedom of association and chapter III of the LRA. This kind of demand relating to the first respondent can only be seen as anti-union activity which is expressly prohibited by the LRA.

[38]   Because the strike action is clearly unprotected, and as stated above still persists, the applicant has demonstrated a clear right to the relief sought, insofar as it concerns the work stoppage / strike itself.

[39]   This then only leaves the issue of the unlawful conduct of the employees, the EFF, the employees, Mashala and Matshevha, which is part of the relief afforded to the applicant in the Rule Nisi. I am equally satisfied that the applicant has demonstrated a clear right to the relief sought in this regard. Where it comes to the conduct of employees when committing acts of intimidation, obstruction and blockading of premises, and damage to company property, the situation is not controversial because this Court has made it clear that such conduct is simply not acceptable and has no place in our employment law dispensation.

[40]   But it is where it comes to the involvement of the EFF and its two representatives, Mashala and Matshevha, there are several issues that need to be addressed. There can be no doubt, on the evidence, that these respondents were directly involved in, if not the instigators of, all the events that followed giving rise to this matter. All the correspondence to the applicant were written on EFF letterheads, and it was made clear that it was the EFF that was championing the cause of the employees, so to speak. Fortunately, and in this case, the applicant was sufficiently prudent in actually joining these parties as respondents to the proceedings, and seeking relief against them directly.

[41]   The first question that must be asked is what was the EFF doing getting involved in workplace issues in the first place, especially considering that the applicant's workplace is organized with the first respondent as majority representative and recognized trade union? The simple answer has to be that the EFF has no business in doing so. It is not a registered trade union. The deliberate and specific design of the LRA is to designate the task of dealing with workplace disputes and grievances to employers' organisations, trade unions and workplace forums. There is no place in this structure for the involvement of political parties. In fact, it is my view that the practicing of any form of politics, be it under the guise of protecting employee rights or other socio-economic aspirations, in the workplace, is an untenable proposition. The workplace should be free of these kind of influences...................

[42]   What is clear from the memorandum of grievances submitted by the EFF to the applicant, is that it reads more like a political manifesto than a genuine grievance designed to resolve workplace grievances and disputes. It even takes issue with the legitimacy of the LRA as a regulatory measure. The approach adopted by the EFF is that the Constitution entitles the EFF to conduct itself as it did in this case. It is sadly mistaken in this respect. It is by now trite law that direct reliance on the Constitution is not permissible where there is a specific stature regulating the constitutional right. In this case, the rights under section 23 of the Constitution are regulated by the LRA and other related employment law statutes, and it is incumbent and prescribed that all the provisions of these statutes must be complied with in pursuit of these rights. The Constitution thus lends no support for the EFF to have become involved in this matter in the first place.

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

[43]   Trade unions must be registered under the LRA, for good reason. It ensures that such institutions fulfil the duties as prescribed by the LRA, and gives effect to its primary objectives. Registration places trade unions under a number of regulatory provisions and placed them trade under the supervision of the Registrar of Labour. The penalty for non-compliance could be deregistration in the case of serious contravention. It also places such institutions under the supervision of this Court. By seeking to assume this role which is reserved for trade unions under the LRA, the EFF in effect bypasses all these regulatory provisions that trade unions must comply with. This can never be what the legislature had intended when seeking to regulate the rights under section 23 of the Constitution by way of the LRA...

[44]   What the EFF did in this case was to undermine orderly collective bargaining and dispute resolution, which are cornerstones of the LRA. As an employer, the applicant is entitled to expect it employees to comply with these objectives of the LRA when seeking to resolve any disputes they may have with the applicant as employer. And for the EFF to simply negate all of this based on some misguided view of what the Constitution allows it to do, is simply unacceptable, and cannot be permitted. The applicant specifically, in writing, warned the EFF that this course of action was not permitted in law, but still the EFF pressed on nonetheless. In this regards, it can be hardly better said than the following dictum in Gcaba v Minister for Safety and Security and Others:

'However, another principle or policy consideration is that the Constitution recognizes the need for specificity and specialisation in a modern and complex society under the rule of law. Therefore, a wide range of rights and the respective areas of law in which they apply are explicitly recognized in the Constitution. Different kinds of relationships between citizens and the state and citizens amongst each other are dealt with in different provisions. The legislature is sometimes specifically mandated to create detailed legislation for a particular area, like equality, 84 just administrative action (PAJA) and labour relations (LRA). Once a set of carefully crafted rules and structures has been created for the effective and speedy resolution of disputes and protection of rights in a particular area of law, it is preferable to use that particular system. This was emphasized in Chirwa by both Skweyiya J and Ngcobo J. ...'

[45]   If it is true that the employees lost their jobs with the applicant because of all of this, as suggested by Mr Tawana, then this can be laid squarely at the door of the EFF. It sent the employees down a path they should never have been on, and involved itself in matters that did not concern it. The EFF is not entitled to organize employees in the workplace in matters concerning the employment relationship. If it wants to do so, it must register as a trade union, and comply with the LRA.

[46]   Finally, as and was evident throughout this matter, the EFF has not given up. It made this clear in its correspondence with the applicant in any event. I am satisfied that without the granting of final relief, the EFF will simply continue with its current course of action. The applicant has therefore also made out a clear right to the relief sought as against the EFF, and its two representatives, Mashala and Matshevha.

[47]   In sum, the applicant has made out a proper case for final relief, where it comes to the issue of a clear right. The applicant is entitled to expect and require its employees to comply with the LRA, insofar as they may have disputes or grievances against the applicant, which the employees did not do, and have no intention of doing. The applicant is equally entitled to expect the EFF not be become involved in matters that do not concern it, and in respect of which it simply has no place in becoming involved in.