Case Number: PSES NAR000021 KZN
Applicant: SOUTH AFRICAN DEMOCRATIC TEACHERS UNION
Respondent: DEPARTMENT OF EDUCATION
Issue: Unfair Dismissal - Constructive Dismissal
Award Date: 1 May 2000
Arbitrator: DHAYA PILLAY
EDUCATION LABOUR RELATIONS COUNCIL
CASE NUMBER : PSES NAR000021 KZN
In the arbitration between:
KWAZULU NATAL DEPARTMENT OF EDUCATION RESPONDENT
1 . ARRANGEMENTS
.1 Attorney Anton Roskam represented the Applicant. Advocate Vas Soni represented the Respondent. The arbitration reconvened to proceed on the merits on 4 October 1999 and continued for three days on 7, 8 and 9 February 2000 at 8th floor, Board Room, Truro House, Victoria Embankment.
.2 I have the benefit of Heads of Argument from both the parties. However, Mr Soni took the unusual step of filing a Reply to the Applicant’s Reply and dealt with matters that should properly have been dealt with in the Department’s initial Heads of Argument. Nevertheless, I will have regard to all the submissions before me.
2 . TERMS OF REFERENCE
.1 The standard terms of reference contained in Annexure B to Resolution 7 of the ELRC set out below applied:
“The terms of reference of the arbitrator shall be to arbitrate any dispute referred to him/her and to award whatever remedy he/she considers fair and/or appropriate in order to settle the dispute.”
.2 My further terms of reference are specified as follows:
NO PAGES 2 AND 3 INCLUDED
3 ..1 Although the Department referred somewhat euphemistically to NATU’s action as a meeting, in the case of both SADTU and NATU there could be no dispute that the actions of their members, whether by marching or by attending a meeting, involved a concerted withholding or withdrawal of labour during working hours. The evidence regarding the demonstration by APEK members is less lucid. The impact of all three actions varied in intensity and scale.
.2 Only SADTU members had deductions made from their salaries in September 1998 for their actions on the 5 but not for 4 and 6 of February 1998. None of the members of the other trade unions had deductions made against their salaries for their actions during this period.
.3 Predictably the impact of SADTU’s strike was most intense as it had the largest membership. Prior to the strike in February 1998, SADTU members had embarked on an unprotected strike on 25 July 1997 in support of wage demands, a protected strike on 6 and 7 August 1997 and protected protest action on 19 August 1997 against certain provisions of the new Basic Conditions of Employment Bill.
.4 The practice of the Department had changed once Dr Javis took office as Superintendent General from Dr Shabalala. Whereas it was always the policy of the Department to apply the “no work no pay” rule during industrial action, it was implemented only after Dr Javis took office.
.5 Despite having threatened to implement the “no work, no pay” rule in the past, this was the first time that the Department had elected to do so. In subsequent strikes in June and October 1998 by all three trade unions the Department made deductions from all the members.
.6 SADTU conceded that the Department had a right to apply the “no work, no pay” rule. However, it challenged the way it applied the rule in the circumstances.
.7 Due to problems related to logistics, resources and the unwillingness of union members who held management positions at schools to co-operate with the Department by providing information about the attendance of educators, it was not possible for the Department to ascertain precisely which educators went on strike.
.8 The strikes led to disruption of schools which invoked public and parent outrage. This was manifested in several letters and telephone calls to the Department and to the newspapers.
.9 Based on advice received at a workshop from a labour lawyer who also happened to be an attorney in the firm representing SADTU, the Department decided to implement a collective approach.
.10 The Department gave no notice of its intention to apply the “no work no pay rule” prior to each of the actions by the three unions. However, after the SADTU action and before making the deduction the Department issued Circular HRM 15 of 1998 on 25 March 1998.
.11 The circular referred to SADTU’s call for mass action for 5 February 1998 and the consequent interruption of schooling. It gave notice that “the principle of no work no pay shall (sic) apply to all members of SADTU for the day in question and the deductions will accordingly be automatically made from the salaries of all the members.”
.12 The circular also invited individual members of SADTU who could establish that they were not at work for any legitimate reasons, such as authorised leave, to furnish full particulars to have their salaries reinstated. Applications for reinstatement of their salary deductions for 5 February 1998 had to be made in the form of a sworn “model affidavit” which was attached to the circular.
.13 Furthermore, principals were asked to provide the Superintendent (Management) with the names of educators, other than SADTU members, who had also absented themselves on 5 February 1998.
.14 Dr Jarvis testified that members who were at work were to have been given the opportunity to write to the Department to motivate why the deduction should not have been made. However, Circular HRM 15 contains no such directive to principals. Presumably a directive of this kind would have had to be in writing in order that it could be distributed to the more than 5 900 schools in the province. No evidence other than the oral testimony of the Department’s witnesses was available on this issue. Whether as an oral directive it was taken seriously or applied consistently is doubtful. The Department itself obviously did not consider it important enough to put it in writing.
.15 The omission is substantial and not a mere formality. It manifests a mind set which seeks to have deductions made because of membership of SADTU and not because members were on strike.
.16 No distinction was made between SADTU members who went on strike on 5 February 1998 and those who did not do so. The only distinction that was made was in favour of those educators who were absent for “any legitimate reason” and the rest of the membership who, it was presumed, were on strike. The basis for the deductions was therefore membership of SADTU. This is also clear from the language of Circular HRM 15 cited above.
.17 After the deductions which ranged between R 150,00 to R 200,00 per educator were made, SADTU instructed its attorneys to inquire about them from the Department. In its first letter to the Department, SADTU’s attorneys requested the following information:
.1 Precisely why have these monies have been deducted from each of our clients members?
.2 On what legal basis in common law or statute, does the Kwa-Zulu Natal Department of Education & Culture (“the department”) rely upon for these deductions?
.3 Were only SADTU members’ salaries deducted? If so, on what basis are SADTU members singled out?
.4 Precisely how were these deductions calculated?
.5 Are these deductions “once-off deductions” or will there be further deductions?
.6 When was it decided by your department to make these deductions?
.7 Who precisely made the decision to make these deductions?
.8 Why was our client and each of its affected members not informed of these deductions prior to them being made?”
.18 The Department responded evasively as follows by telefax dated 17 September 1998:
“However, for this department to conduct the relevant investigations, in order to answer the question posed by your good selves, the following information is needed:
1] Names of your client’s members;
2] Their personal numbers or salary reference numbers;
3] their identity numbers;
4] Names of their schools;
5] Their pay point numbers;
6] If possible, copies of their salary advice’s, highlighting the deduction queried;
7] Names of those schools, where it is alleged, that only SADTU members have had salary deducted.”
.19 Surprised by the response SADTU pressed the Department for detailed answers which the Department eventually provided. In a letter dated 13 October 1998 SADTU’s Attorneys posed the following question:
“We are instructed that members of the Natal African Teachers Union (NATU) participated in a march at about the same time as the SADTU march on 5 February 1998. We are further instructed that NATU marched during working time. Did the department deduct from the salaries of the members of NATU who participated in the NATU march? If not, you are requested to explain the reason for not having applied the principal of no work no pay to NATU members?”
.20 In reply the Department stated:
“It is the policy of the department to make deductions from salaries of individual employees for non attendance in all cases where such absences are reported.”
As mentioned above, it was common cause that deductions were not made from members of NATU, despite it being well known to the Department that their members were not at work on 30 March 1998.
.21 After a further exchange of correspondence between the legal representatives, the matter was referred for mediation and immediately thereafter for arbitration in December 1998. (For detailed developments in the proceedings since then see Mediator/Arbitrator’s reports dated 2 December 1998, 4 January, 10 February 1999 (two reports) and the Arbitrator’s Rulings dated 22 April and 28 April 1999 on the duty to begin, the ruling dated 22 July 1999 on jurisdiction and an application to join NATU and Apek and finally, the ruling on an application for the recusal of the Arbitrator dated 1 November 1999.)
.22 In the report dated 2 December 1997, it was recorded as common cause that APEK, SADTU and NATU had embarked on industrial action in December 1997, 5 February 1998 and 30 March 1998 respectively and that APEK had demonstrated in December 1997 at various points during school hours. The minutes of that meeting was confirmed at the mediation on 29 December 1998.
.23 Although Mrs Lapping objected to the report of 2 December 1998 because she believed that APEK had not demonstrated during working hours, the concession was not withdrawn or corrected at the school mediation. The dissension within the ranks of the Department’s representatives on this issue was obvious. Messrs McGladerry and Naidoo who had made the concession on the basis of information received from Mrs Lapping did not support her request that the minutes be amended.
.24 Once the arbitration began on 9 February 1999 the Department indicated that the concessions were made in error as APEK en masse did not embark on industrial action as a smaller number of individuals members did so. Furthermore, it was not conceded that it was done during working hours.
.25 It had also been recorded as common cause at paragraph A6 in the report of 2 December 1997 that no deductions had been made against the salaries of members of APEK and NATU for the industrial action in December and March respectively. The Department sought to qualify this concession at the arbitration on 9 February by stating that the matter had not been finalised as yet and was still under consideration at a very high level.
.26 The Department pleaded at paragraph B8 of its Reply to the Amended Statement of Case dated 5 March 1999 that:
“No final decision has yet been taken by the employer regarding the possible deduction of wages/salaries from members of other Unions who embarked upon possibly unlawful industrial action in December 1997 and March 1998.”
.27 Mrs Lapping stated under cross examination that she was not aware of the contents of paragraph B8. As the legal officer in charge of the case within the Department and for giving instructions to the Department’s external representatives, it is highly unlikely that Mrs Lapping would not have read the Department’s Reply earlier.
.28 However, paragraph B8 of the Department’s Reply is similar to paragraph A6 of the 2 December report. Mrs Lapping must therefore have been aware that no decision had been taken in respect of APEK and NATU as the matter was still under consideration. A significant difference between B8 and A6, is that B8 which followed A6, acknowledged the possibility of the actions of APEK and NATU members being unlawful.
.29 Mrs Lapping’s stance had always been that the actions of APEK did not warrant any deductions being made against its members. The acknowledgement in B8 was inconsistent with this stance. Furthermore, if her evidence about the APEK incident was so clear and certain, there would have been no purpose in delaying the matter to consider making the deductions, unless her evidence was now being questioned by the Department itself.
.30 Realising that paragraph B8 of the Department’s Reply was inconsistent with her testimony, Mrs Lapping submitted that the pleading was incorrect as the Department had never given consideration to making deductions from APEK members as their action in December had taken place outside working hours.
.31 If the pleading was incorrect then the amendment to paragraph A6 of the report of 2 December 1998, which was proposed when Mrs Lapping and the State Attorney, Mr Mackenzie represented the Department, remains unexplained. If Mrs Lapping was sure of her evidence there was no reason to delay the decision in respect of APEK. If, after a year later, the Department had never given consideration to making deductions against APEK members, the suggestion that it might still do so in future can hardly be taken seriously.
.32 The facts before me about the APEK incident are however, vague and contradictory. The quality of Mrs Lapping’s evidence as the sole source of information for both parties on this issue, is surprisingly unsatisfactory.
.33 Mrs Lapping testified that she happened to be in Truro House when the APEK incident occurred. From the foyer of the building she saw that some twenty people had gathered outside the building in the afternoon. Surprisingly, she did nothing to record details of the demonstration such as the time, the number of educators, the names of educators and the duration of the demonstration at any stage. Nor was any effort made to investigate the demonstration beyond inquiring from the district official, Mr Corbishley, about disruption in schools as a result of the demonstration.
.34 When she testified at the arbitration Mrs Lapping initially denied any knowledge of industrial action by APEK in December 1997. She recalled an incident when APEK members congregated outside Truro House although she could not recall when that had occurred. Eventually, she conceded under cross-examination that it could have been in December.
.35 According to Dr Javis the demonstration took place at 14h00. Although Dr Javis’s evidence about the time was hearsay as it was based on reports he had received, that he received such a report is not hearsay and is therefore admissible.
.36 Mrs Lapping’s evidence was that it occurred sometime after 12h00. She did not know what time educators came off duty. Nor could she say whether the demonstrators were educators from high schools or primary schools. Under cross-examination, Mrs Lapping conceded that the working day for high school educators ended between 12h30 and 15h00 and for primary school educators the closing time would have been before or about 12h00. She also conceded that in most high schools educators were not allowed to leave the workplace until after 14h30. It is highly probable therefore, that the demonstration would have been partly during school hours and would therefore have amounted to a strike.
.37 In the amplification of its Reply, the Department pleaded thus:
“As regards the “strike” by APEK, the Department places on record the following:
.1 In December 1997, some 20 APEK members held a demonstration in front of Truro House, the Department’s office in Durban.
b. The demonstration commenced sometime after noon.”
.38 The pleading is inconsistent with the concession recorded at paragraph A3 of the report of 2 December 1998 in regard to both the time and place(s) of the demonstration. Furthermore, the Department sought in the pleading to temper the industrial action by putting the word “strike” within quotation marks.
.39 The making and withdrawing of concessions, the contradiction between the pleadings and the evidence and the inconsistencies in the evidence of the eyewitness, Mrs Lapping herself renders the Department’s version about the APEK demonstration highly suspicious and unreliable. At best, Mrs Lapping can be described as evasive. The conduct of the Department’s officials becomes all the more suspicious on perusing the initial exchange of correspondence between the parties. The Department was clearly avoiding the issue of deductions against NATU.
.40 SADTU’s complaint in this arbitration is that the uneven manner in which the Department applied the principle of “no work no pay” resulted in it:
[a] discriminating against SADTU members by virtue of their membership of SADTU thereby infringing section 5(1) read with section 4(1)(b) of the LRA;
[b] prejudicing SADTU members by virtue of their past, present or anticipated membership of SADTU and for exercising their right to join and belong to a trade union of their choice, thereby infringing the provisions of Section 5(2)(c)(i) and (vi);
[c] advantaging non-SADTU members in exchange for not being members of SADTU thereby infringing the provisions of section 5(3) of the LRA.
.41 The Department’s reasons for making the deduction against SADTU members and not the members of NATU and APEK were outlined fully for the first time when Dr Javis testified. These reasons are summarised as follows:-
[a] SADTU had been on strike on three occasions in 1997 and had been warned that their members would not be paid for days not worked.
[b] There was public pressure on the Department to make the deductions.
[c] Following a workshop the Department had only just realised that it could adopt a “blanket approach” in making the deductions.
[d] The Department had sufficient information about the incident of 5 February 1998.
[e] Deductions were not made for other days on which SADTU members had been on strike in order not to be overly punitive;
[f] The deductions were to serve as a deterrent to discourage further strikes;
[g] As the Premier of the Province was to address the NATU meeting, the absence of NATU members on 30 March 1998 were treated on the same footing as SADTU meetings which were addressed by Professor Bengu, the former National Minister of Education. There was political involvement in the NATU incident.
[h] NATU had called of the strike. However, because it was unable to communicate this to its members timeously. They only returned to work on 31 March 1998. The actions of NATU members on 30 March was not part of a current sequence of strikes but merely a once off meeting.
[i] The APEK incident was not regarded as a stay-away or strike. It was not a major incident.
.42 A further reason which was pleaded was that the SADTU strikes had a serious disruptive effect on education. Related to this reason was the number of strikes involved, although there was some difference in opinion between Dr Javis and Mrs Lapping about whether this was a criterion.
.43 The specifics of some of these criteria will now be examined before considering their general effect later.
.44 It was submitted for SADTU that the effect of applying the number of strikes as a criterion was that active trade unions were prone to be penalised more than those that were inactive. Furthermore, a new member of an active union was likely to be saddled by the history of that trade union even though that educator was not a member at the time when previous strikes took place. If a member held dual membership with an active and an inactive union, such member could be penalised through membership of the active and not the inactive union, even if the strike was about the same issue. So the argument went.
.45 Such would be the effect if the Department applied the rule as it is entitled to do every time educators went on strike. It is to be expected therefore that active unions will be hit by the “no work no pay” rule more frequently than inactive unions. The countervailing tool to resist strikes is the “no work no pay” rule which the Department should be able to use unimpeded.
.46 The reasons why educators would join, not join or resign from the trade union are varied. Obviously the application of the rule more frequently to one union than to others could deter membership. But the countervailing consideration is the benefits that an active union is likely to generate. Although Mr Gwabaza was aware of dissatisfaction of members with the deductions, there is no evidence that any educator refused to join SADTU or resigned from it because of the deductions. On the contrary, membership of SADTU grew since the February 1998 strike.
.47 The number and frequency of strikes can be valid criterion if it is supported by predetermined or agreed criteria. However, the manner in which the Department applied this criterion was haphazard and arbitrary in the circumstances. The threshold of the number of previous strikes before the “no work no pay’ rule could be invoked, was not made known to SADTU before the strike. The period over which the calculation of the number of strikes should be made was not specified. Why the computation was restricted to strike from 1997 onwards also not explained. Nor was the computation for the nest time the rule was to be invoked clear.
.48 There is always pressure on government departments to deliver the better service. However, when the pressure intensifies departments run the risk of committing procedural and administrative mistakes if they adopt a knee-jerk reaction. Whatever the pressure from the public was, the Department could not be absolved thereby from complying with its statutory and labor relations obligations. Why it was criterion applicable to SADTU and not NATU is not explained.
.49 However, public pressure can also be valid criterion if it is predetermined and if it is supported by clear and certain guidelines for application.
.50 The objective of applying the principle of “no work no pay” in a manner that is progressively punitive and as a deterrent to industrial action is reasonable and valid. For Dr Jarvis, I have no doubt that these were compelling objectives when he decided to make a deduction against SADTU. However, the manner in which these objectives were to be achieved is the concern of this arbitration. In other words, did the means justify the ends?
.51 The Department compared those meetings convened by NATU and SADTU that were addressed by politicians and came to the conclusion that both unions should be treated alike when they were addressed by politicians. Hence there was no deduction from NATU members for 30 March 1998. Prima facie such an approach appears to fair and evenhanded.
.52 A closer scrutiny of the facts paints a different picture. The comparison was firstly inappropriate as SADTU was not on strike whereas NATU members were, by definition, on strike. If a comparison had in fact been made between meetings of SADTU and NATU where there had been political intervention, then Dr Javis and Mrs Lapping were both vague and unclear about the facts relating to the meetings they had compared. A proper and fair comparison could therefore not have been made. In the absence of substantiated clear and certain facts, the Department’s decision should not be rational. The situation is further complicated by the fact that the decisions to impose the rule against SADTU and not to impose it against NATU were taken at different times and under different circumstances. The decision regarding NATU was taken a year later at a time when these proceedings were pending.
.53 The criterion of the involvement of politicians has no logical connection to the application of the rule. If anything, the Department would be better placed to implement the “no work no pay rule” consistently if politicians were not involved. By retaining it as a criterion, trade unions would be inclined to immunize themselves against the application of the rule by ensuring that there was a politician associated with the industrial action. It will be a matter of time before the stature and seniority of the politician involved becomes relevant to determining the strength of the immunity!
.54 The number of strikers was by inference a criterion that was applied. It was directly connected to the level of disruption which was specifically pleaded as a criterion. Furthermore, one of the reasons for not implementing the rule against APEK members was that they were a small group. The application of this criterion has the effect that larger unions will be penalized whereas smaller unions may strike with impunity. Such an approach could seriously undermine collective bargaining. However, the Department conceded at the hearing that the number of strikes was not a consideration. That may be so. However, it was a factor taken into account in not applying the rule against APEK.
.55 It was submitted for SADTU that the disruptive effect of strikes was also not valid criterion because it operates in effect to penalize large and effective unions. Furthermore, the purpose of a strike is precisely to disrupt the employer’s operations. The better a union is at doing its job by disrupting services, the greater the prospect of it being penalized. So the argument went.
.56 As mentioned above, the rule is the weapon given by the stature to an employer to ward off or discourage strikes, disruptive or otherwise. But, the Department provided no guidelines as to how this relative concept would be applied. More particularly, it gave no indications as to what the threshold of disruption should be for invoking the application of the rule. Its application also appears to be inconsistent in that it was not applied to 6 February when the strike was heeded in greater numbers that on 5 February 1998.
.57 The reasons for not applying the rule to members of NATU are questionable. As mentioned above, the factual basis for distinguishing between NATU and SADTU had not been clearly established. Secondly, there was no logical connection between the involvement of politicians and the application of the rule. Thirdly, the members had absented themselves from the workplace without authorization and with the intention of going on strike. The meeting that was held did much more than simply inform the members to return to work the next day. It had all the hallmarks of a protest rally which was not inconsistent with strike activity. This is evident from the documents supplied by the Department namely, NATU’s media release and written address delivery by Musa Shezi, the President of NATU.
.58 The officials of the Department were either naive to ignore the undisputed fact that NATU had held a protest rally on 30 March 1998 or biased in favor of not applying the rule against NATU by preferring to underplay the facts. The possibility that the Department was cowed by the politicians into “authorizing” the stay away of 30 March 1998, can also not be excluded. The Department found itself in the invidious position of having to cloak its decision not to implement the “no work no pay rule” with legitimacy.
.59 The difficulties in relation to the APEK incident were scrutinized above. The question then arises as to why Mrs Lapping, the legal officer for the Department, would want to cloak the conduct of APEK members with legitimacy. Perhaps it was to justify the Department’s stance ex post facto that no deductions were ever contemplated in respect of APEK members. Perhaps the answer also lies in the growing realization that the Department had to justify its decision not to deduct from APEK members.
.60 However, whatever the details of APEK demonstration might be, the most telling aspect of the Department’s case is its failure to investigate the APEK demonstration and to apply its mind timeously or at all about whether the ‘no work no pay” rule should be applied against APEK members. Furthermore, the Department’s reaction to the APEK and NATU incidents was delayed for more than a year and appears to have arisen only because SADTU instituted these proceedings. There was no explanation for the delay. When the Department eventually took the decision in respect of NATU it had no better information than that which was available at the time when the decision in respect of SADTU members were taken. The actions of all three unions were not carefully considered, compared and weighed against each other and against objectively determined criteria before the decisions were taken to act against SADTU and not against the others.
.61 It is quite extraordinary that as regards a matter of such importance to the Department to the trade unions involved and to the public no written submissions was made to the Head of the Department by its advisors as to whether and ho the “no work no pay” rule should be applied.
.62 The Department denied that the manner in which it made the deductions amounted to an infringement of the right of SADTU’s members to freedom of association because:
[a] the Department had taken reasonable steps to ascertain which SADTU members ought not to have had deductions made against their salaries;
[b] it was reasonable for the Department to infer that schools were closed on 5 February 1998on account of SADTU’s call to industrial action;
[c] the Department was motivated by the unlawful industrial action by SADTU and its members and not by the membership of SADTU itself in deciding to make the deductions which it was entitled to do from members who it reasonably believed had stayed away from work unlawfully;
[d] the Department was fair in distinguishing between the three Unions as SADTU had gone on strike on several times with severe disruption to schooling;
[e] NATU had gone on strike only once and a limited number of about twenty APEK members were involved in the demonstration;
[f] SADTU members also went out on strike again in 1998 after 5 February 1998.
In essence the Department’s defense was one of fair distinction.
.63 The department pleaded that if the defense of fair distinction was not sustained then in the interests of education and as a matter of public policy the proper approach would be to order that the Department either deducts from all the strikers or does not deduct from any strikers. Such an award will be beyond my terms of reference for reasons outlined in the ruling on the application for the joinder of APEK and NATU.
.64 Whether a ruling can be revised or not depends on whether it is final and therefore appealable, or interim and therefore not appealable. It is final then the adjudicator is functus officio. (MARSAY v DILLEY 1992 (3) SA 944 (A); SCHMIDT PLAN HIRE (PTY) LTD v PEDRELLI 1990 (1) SA 398(D). However, even where an adjudicator is vested with continuous authority to entertain an application for varying an order, a fresh order must be made based on fresh facts. (SPARKS v SPARKS 1998 (4) SA 714 (W)). If there are fresh facts, it nevertheless remains within the discretion of the adjudicator to revisit an interim ruling.
.65 A ruling on jurisdiction is a preliminary ruling. (PORTNET v WHITCHER & OTHERS (1999) 20 ILJ 1924 (LC)). However, there are no new facts material to the issue of jurisdiction that has arisen since my ruling. In any event, there is no need to revisit the issue.
.66 SADTU was emphatic that its complaint was not about unfair discrimination which fell within the ambit of item 2(1)(a) of Schedule 7 of the LRA. It delivered an Amended Statement of Claim precisely to remove its claim based on Item 2(1)(a) of Schedule7. Whether the dispute is one of discrimination in terms of Item 2(1)(a) of Schedule7 or section 5(1) of the LRA was considered in the ruling on jurisdiction. The ruling was made at the time on the basis, inter alia, of the terms of reference. SADTU, as applicant determined the terms of reference. If, as it alleged, the dispute related to an infringement of the right to freedom of association then it is common cause that, as a matter of law, the dispute has to be arbitrated. However, if it now transpires that, as matter of fact, there was no infringement of the right to freedom of association, the claim must be dismissed. There is no reason to revisit my ruling on jurisdiction which, in the circumstances, may amount to an irregularity. Mr Soni’s invitation to reconsider the issue of jurisdiction is therefore declined.
.67 The issue of onus has also been decided in the ruling on the duty to begin.
.68 I turn to the relevant laws before considering their application to the facts of this case.
4 . THE LAWS APPLIED
.1 Item 2(1)(a) of Schedule 7 of the LRA must be interpreted consistently with section 9 of the Constitution of the Republic of South Africa Act No. 108 of 1996 (“the Constitution”).
.2 Item 2 (1)(a) of Schedule 7 defines unfair labour practice as:
“The unfair discrimination, either directly or indirectly, against an employee, on an arbitrary ground including, but not limited to race, gender, sex, ethnic or social origin, colour, sexual orientation, age, disability, religion, conscience, belief, political opinion, culture, language marital status or family responsibility.”
.3 Section 9(3), (4) and (5) of the Constitution provides :
3] The state may not unfairly discriminate directly or indirectly against anyone on one or more grounds, including race, gender, sex, pregnancy, marital status, ethnic or social origin, colour, sexual orientation, age, disability, religion, conscience, belief, culture, language and birth.
4] No person may unfairly discriminate directly or indirectly against anyone on one or more grounds in terms of subsection (3). National legislation must be enacted to prevent or prohibit unfair discrimination.
5] Discrimination on one or more of the grounds listed in subsection (3) is unfair unless it is established that the discrimination is fair.”
.1 Item 2 (1)(a) has to be applied consistently with the Constitution. The consonance of the two provisions is heightened by the fact that the employer is the state in this case.
.2 Membership of an organisation is not one of the listed grounds in either the Constitution or Item (2)(1)(a). It could arguably be an unlisted ground of discrimination. However, the right to form, join and be a member of an organisation is the essence of the right to freedom of association, which is specifically entrenched as a right in section 18 of the Constitution. Moreover, the labour relations rights in section 23(1) and (2) of the Constitution, which re-enforce the freedom of association rights, provide as follows :
“23 Labour relations
a] Everyone has the right to fair labour practices.
b] Every worker has the right -
i.] to form and join a trade union;
ii.] to participate in the activities and programmes of a trade union; and
.1 Section 1(a) and (b) of the LRA directs that effect should be given to the Bill of Rights and the obligations incurred by South Africa as a member state of the International Labour Organisation (ILO). South Africa ratified Convention 87 (Freedom of Association and the Protection of the right to Organise) and Convention 98 (Right to Organise and Collective Bargaining Convention, 1948) on 19 June and 19 February 1996 respectively.
.2 Article 1 of Convention 98 relating to the application of the principles of the right to organise and bargain collectively provides as follows:
“1.] Workers shall enjoy adequate protection against acts of anti-union discrimination in respect of their employment.
2.] Such protection shall apply more particularly in respect of acts calculated to -
a.] make the employment of a worker subject to the condition that he shall not join a union or shall relinquish trade union membership;
b.] cause the dismissal of or otherwise prejudice a worker by reason of union membership or because of participation in union activities outside working hours or, with the consent of the employer within working hours.”
.3 The case studies of the ILO’s Freedom of Association Committee on Favouritism or Discrimination in respect of Particular Organisations as summarised in the Digest of Decisions and Principles of the Freedom of Association Committee of the Governing Body of the ILO fourth (revised) edition ILO, Geneva 1996 are apposite to this case and are cited in full.
“FAVOURITISM OR DISCRIMINATION IN RESPECT OF PARTICULAR ORGANISATIONS
P303 Considering the limited functions which, in one case were by law open to certain categories of trade unions, the Committee felt that the distinction made between trade unions under the national legislation could have the indirect consequence of restricting the freedom of workers to belong to the organisations of their choosing. As a general rule, when a government can grant an advantage to one particular organisation or withdraw the advantage from one organisation in favour of another, there is a risk, even if such is not the government’s intention, that one trade union will be placed at an unfair advantage or disadvantage in relation to the others, which would thereby constitute an act of discrimination. More precisely, by placing one organisation at an advantage or at a disadvantage in relation to the others, a government may either directly or indirectly influence the choice of workers regarding the organisation to which they intend to belong, since they will undeniably want to belong to the union best able to serve them, even if their natural preference would have led them to join another organisation for occupational, religious, political or other reasons. The freedom of parties to choose is a right expressly laid down in Convention No. 87.
P304 By according favourable or unfavourable treatment to a given organisation as compared with others, a government may be able to influence the choice of workers as to the organisation which they intend to join. In addition, a government which deliberately acts in this manner violates the principle laid down in Convention No. 87 that the public authorities shall refrain from any interference which would restrict the rights provided for in the Convention or impeded their lawful exercise; more indirectly, it would also violate the principle that the law of the land shall not be such as to impair, nor shall it be so applied as to impair, the guarantees provided for in the Convention. It would seem desirable that if a government wishes to make certain facilities available to trade union organisations, these organisations should enjoy equal treatment in this respect.
P305 In a case in which there was at the very least a close working relationship between a trade union and the labour and other authorities, the Committee emphasized the importance it attaches to the resolution of 1952 concerning the independence of the trade union movement and urged the government to refrain from showing favouritism towards, or discriminating against, any given trade union and requested it to adopt a neutral attitude in its dealings with all workers’ and employers’ organisations, so that they are all placed on an equal footing.
P306 On more than one occasion, the Committee has examined cases in which allegations were made that the public authorities had, by their attitude, favoured or discriminated against one or more trade union organisations:
[a] pressure exerted on workers by means of public statements by the authorities;
[b] unequal distribution of subsidies among unions or the granting to one union, rather than to the others, of premises for holding is meetings or carrying on its activities;
[c] refusal to recognise the leaders of certain organisations in the performance of their legitimate activities.
Discrimination by such methods, or by others, may be an informal way of influencing the trade union membership of workers. They are, therefore, sometimes difficult to prove. The fact, nevertheless, remains that any discrimination of this kind jeopardizes the right of workers set out in Convention No. 87, Article 2, to establish and join organisations of their own choosing.
P307 Both the government authorities and the employees should refrain from any discrimination between trade union organisations, especially as regards recognition of their leaders who seek to perform legitimate trade union activities.
P308 Generally, the fact that a government is able to offer the use of premises to a particular organisation, or to evict a given organisation from premises which it has been occupying in order to offer them to another organisation, may, even if this is not intended, lead ti to the favourable treatment of a particular trade union as compared with others, and thereby constitute an act of discrimination.” (My underlining).
.4 The general point must be made that collective bargaining in the public sector is inherently political. Decisions reached through collective bargaining affect not only the direct participants but also the taxpayers and the beneficiaries of important public services. Alliances between particular trade unions and political parties exist and are very much part of the South African reality. (ABOOD & OTHERS v DETROIT BOARD OF EDUCATION (1995) 4 LCD 183 (USA)). At the same time the public service is compelled constitutionally to be impartial (section 195 of the Constitution). Section 197(3) also provides that:
“No employee of the public service may be favoured or prejudiced only because that person supports a particular political party or cause.”
.5 The Department, as with any public employer, has to be particularly vigilant in managing the tension between these countervailing forces. This is especially so in a discrimination dispute where the intention not to discriminate is immaterial.
.6 As discussed in my ruling on jurisdiction, the facts could make out a case for discrimination in terms of item 2(1)(a) of Schedule 7 as well as in terms of section 5(1) of the LRA. SADTU has elected to frame its case strictly within the ambit of section 5(1). It made its election abundantly clear by amending its statement of claim and by referring the dispute to arbitration.
.7 The election has important consequences for determining an appropriate defence to the claim. An approach to a defence against a complaint of an infringement of chapter two can be gleaned from section 10 of the LRA relating to the burden of proof. The defence to a complaint of unfair discrimination in terms of item 2(1)(a) of Schedule 7 can be extracted from the jurisprudence developed by the Constitutional and Labour Courts (e.g. from cases such as PRETORIA CITY COUNCIL v WALKER 1998 (2) SA (CC); PRINSLOO v VAN DER LINE AND ANOTHER 1997 (3) SA 1012 (CC); PRESIDENT OF THE REPUBLIC OF SOUTH AFRICA AND ANOTHER v HUGO 1997 (4) SA 1 (CC); HARKSEN v LANE NO AND OTHERS 1998 (1) SA 300 (CC); PORT ELIZABETH MUNICIPALITY v RUDMAN AND ANOTHER 1999 (1) SA 665 (SE); LEONARD DINGLER EMPLOYEE REPRESENTATIVE COUNCIL v LEONARD DINGLER (PTY) LTD & OTHERS (1998) 19 ILJ 285 (LC); ASSOCIATION OF PROFESSIONAL TEACHERS & ANOTHER v MINISTER OF EDUCATION & OTHERS (1995) 16 ILJ 1048 (IC); GEORGE v WESTERN CAPE EDUCATION DEPARTMENT & ANOTHER (1995) 16 ILJ 1529 (IC); See also The Labour Court’s First Discrimination Case (1998) 19 ILJ 709)
.8 As illustrated above, the Constitution distinguishes between listed and unlisted grounds of discrimination. The approach to determining discrimination, whether it is on one or more of the listed, unlisted or arbitrary grounds, whether it is supported by a rational purpose and whether it is unfair would be similar for section 9 and for item 2(1)(b) of Schedule 7.
.9 Section 5(1) of the LRA provides:
“No person may discriminate against an employee for exercising any right conferred by this act.”
.10 Most constitutional and legislative instruments which outlaw discrimination have left the pejorative connotation of the word “discrimination” to speak unaided. (Introducing the right to equality in the Interim Constitution by Catherine Albertyn and Janel Kentridge SAJHR 149 @ 160-1). The Constitution has adopted the word “unfair” to clarify that only malign differentiation is outlawed. The learned authors anticipated the difficulties that this may cause in interpreting legislation that do not adopt the term “unfair discrimination”.
.11 This is precisely the difficulty that arises in interpreting section 5(1). However, section 5(1) poses less of a problem than might otherwise be the case because, firstly, the section affords a protection. Secondly, the protection is for exercising a right. On close scrutiny of the section and the protection it seeks to afford, it becomes abundantly clear that the word “discriminate” in the context of section 5(1) can only embody a pejorative connotation. Furthermore, it means that any differentiation, malign of benign, which erodes that protection or prejudices an employee for exercising a right, will be unlawful. To interpret “discrimination” to mean “differentiate favourably” will be nonsensical in the context. For the purposes of section 5(1), once the discrimination is proved, the infringement would be established. The protection is therefore absolute.
.12 That is not to suggest that the right to freedom of association is absolute and cannot be limited. Section 36 of the Constitution permits such limitation. The ILO recognizes, for instance, that the right or freedom to strike, which is inferred from the right to freedom of association, can be prohibited in certain public and essential services. (Freedom of Association : Digest of Decisions (supra) at paragraph 531-534) Canadian case law also accepts that the right can be limited. (LAVIGNE v ONTARIO PUBLIC SERVICE EMPLOYEES Union (1995) 4 LCD 188 (CAN))
.13 The demarcation between equality or the protection against unfair discrimination on the one hand and freedom of association on the other hand is recognised by the Constitution. The distinction if perpetuated in the LRA.
.14 Once discrimination is established on any one of the listed or unlisted grounds, the defence it attracts is to establish whether the discrimination was fair.
.15 The defence which an infringement of the right to freedom of association attracts, is that the conduct did not infringe any provision of chapter two of the LRA. Applied to section 5(1) it means, in the context of this case, either that the conduct did not discriminate against employees for exercising any right conferred by the LRA; or that the conduct discriminated against employees because they were not lawfully exercising any right conferred by the LRA.
.16 SADTU did not rely on the right to strike as the right to be protected in terms of section 5(1) as the strike of 5 February was unprotected. It relied on section 4(1)(b) of the LRA, that is the right to join and be a member of a trade union.
.17 The Department’s instruction to education management was to apply the principle “no work no pay” to “all members of SADTU for the day in question and deductions will accordingly be made automatically from the salaries of all members”. (sic) As stated above, the Department’s criterion for making the deduction was therefore membership of SADTU.
.18 As it is common cause that the Department differentiated between SADTU on the one hand and NATU and APEK on the other had, the infringement of Section 5(1) has been established. The Department’s defence of fair differentiation is inapposite and wholly misdirected.
.19 The making of deductions against an employee’s salary is per se prejudicial. It is common cause that the Department made the deductions. It is also clear that the basis for the deductions was membership of SADTU. Circular HRM 15 gave no direction to make deductions from SADTU members who were on strike. SADTU members have therefore been prejudiced because of their membership of SADTU. This clearly is a violation of Article 1 of Convention 98 of the ILO concerning the application of the principles of the right to organise and bargain collectively.
.20 The Department might not have intended to discriminate or to cause prejudice because of union membership but to penalise SADTU members for striking unlawfully. However, as mentioned above, the intention not to discriminate or to cause prejudice is not relevant.
.21 The principle of “no work no pay” can be invoked only if the jurisdictional prerequisite namely, that the employee participated in industrial action, exists. Unless the jurisdictional prerequisite has been established the right cannot be exercised. It was common cause that deductions had been made from some members who had not been on strike. The deduction from every member who was not on strike was therefore wrongful and unlawful as the right to make such deduction had never accrued in respect of that member. Whether an employee was on strike or not must, like any other civil issue, be determined on a balance of probabilities. I am not required to pronounce upon the validity of the collective approach adopted by the Department in this case to determine which employees were on strike.
.22 If the Department had implemented the “no work no pay” rule consistently and against every employee who participated in industrial action, irrespective of union membership, it cannot be impugned. As an employer right, the Department could choose when to exercise it and when not to exercise it, provided that in making a choice, it did not infringe the right of others. If the Department applied the rule in this fashion it also had no obligation to bargain with the trade unions. This is so even though the Department had never exercised the right before. Thus if the Department had made deductions from the members of all three unions, SADTU cannot complain about an infringement of its members rights to freedom of association.
.23 Dr Javis as head of the Department however, preferred to exercise a discretion and to apply the rule flexibly rather than rigidly. Such an approach can be as complex as it may be commendable. If the department had selected an objective, certain and clear criterion such as a cut off date from which all strikers would be met with deductions, and applied it to all unions, the Department can also not be impugned. This would be so even if it decided retrospectively to exercise the right, unless there are circumstances which criteria are subjective and relative thereby warranting the exercise of a discretion to determine whether they have been met or not, how and against whom they should be applied, then the rules of natural justice are invoked.
.24 The issue of criteria arises only because the Department chose to exercise a discretion in applying the “no work no pay” rule. The exercise of the discretion resulted in the strict application of the rule being attenuated. Generally, there is no reason why the Department cannot attenuate its rights if it so wishes. However, the compliant in this case is that it did so in a manner that infringed the right of SADTU members to freedom of association.
.25 The criteria applied were selective, relative, imprecise, uncertain and unclear. By considering such criteria the Department thereby established new terms on the basis of which the conduct of all the unions were to be judged. Unlike fixing a cut off date, the criteria selected by the Department are relative and complex, involving unavoidably the exercise of a subjective discretion by the Head of the Department. There should therefore have been notice of these new terms or criteria prior to the strikes so that SADTU’s members could have adjusted their conduct accordingly or make representations about how the discretion should be exercised in relation to its members.
.26 However, notice to SADTU of the criteria either prior to the strike or the deductions being made, would not have been possible because, it would appear, that the criteria were developed by the Department after the events, as the dispute unfolded and to ensure that SADTU met the criteria in order to sustain its defence.
.27 For instance, the criterion of political involvement was not pleaded and was raised only when Dr Javis testified. The probabilities are that it was not a consideration when the decision was taken to make the deductions or when the pleadings were drafted. It is likely that the Department had not even contemplated docking the pay for NATU and APEK members until SADTU pertinently raised the issue in these proceedings. The decision not to deduct from NATU and APEK had not been taken until a year later in 1999 when the Department delivered its Reply to the Amended Statement of Case and long after these proceedings were instituted.
.28 The defence of fair differentiation anticipates that a process of objectively weighing, comparing and contrasting between the three unions would have taken place prior to the decisions being made. It also implies that such a process and the ensuing decisions would have taken place about the same time since all three events had already taken place. The Department should then have been in a position to make a decision in relation to all three trade unions simultaneously.
.29 The decisions in respect of all three unions were not taken simultaneously. The Department did not compare and contrast the strikes called by SADTU, NATU and APEK fairly, objectively or at all. This view if fortified by Mrs Lapping’s evidence to the effect that the APEK incident had not even been discussed. Furthermore, the Department relied on incorrect, uncertain and unclear information about political involvement in the NATU and SADTU strikes. The extraordinary and unexplained delay in making a decision as regards NATU and APEK and ultimately deciding not to make any deductions also suggests that such a comparative process had not taken place prior to the Department deciding to dock the salaries of SADTU members. If it had done so it would have been in a position to decide whether to dock the pay of NATU members at the same time as it made its decision in relation to SADTU.
.30 Differentiation between the unions would be fair if it involved a process of gathering the material information, ensuring that it is clear and certain, weighing and evaluating the facts in relation to each union and the events and then identifying a rational basis for distinguishing or not distinguishing the industrial action of each union. If the APEK incident had not been investigated then not all the material facts could have been before Dr Javis.
.31 Although the Department had threatened in the past to implement the “no work no pay” rule, it had not done so before the SADTU strike of 5 February 1998. It did not forewarn SADTU of the criteria it intended to apply in exercising the discretion to implement the rule. Furthermore, NATU and APEK had no deductions made against their members’ salaries when they protested about substantially the same issue around about the same time. SADTU therefore cold not predict that the rule would be implemented and if so how it would be implemented.
.32 By not being forewarned SADTU and its members were not in a position to regulate their conduct in order to avoid any of the criteria being invoked against them. For instance, if they had known in advance that the rule would not be applied if they had stayed away from work to hold a meeting to be addressed by a political figurehead, they might have arranged for such an address and not simply have stayed away from the workplace on 5 February 1998.
.33 The application of the criteria of terms therefore undermined the principles of natural justice and the principle of administrative legality. A term of criterion is only as good as it is clear, certain, consistently applied and well known.
.34 By choosing to exercise the right to make deductions against SADTU members and not against members of other unions it was submitted that the right of SADTU’s members to freedom of association was infringed. The criteria used to select SADTU members for the application of the “no work no pay” rule are also alleged to infringe their right to freedom of association.
.35 Having regard to the cases in which the ILO found that there were infringements of the right to freedom of association, the discretion exercised against SADTU would clearly fall within the ambit of conduct prohibited by the ILO. The criteria when considered cumulatively or individually have the effective of discriminating against SADTU and in favour of NATU and APEK. Some criteria may have been developed specifically to provide the Department with a defence and not necessarily because they are objectively sustainable and universally applicable. In the absence of predetermined of agreed criteria, the Department ran the risk of having the criteria it applied or the way in which it applied them, being declared arbitrary and invalid.
.36 The facts in the case of PRETORIA CITY COUNCIL v WALKER 1998 (2) SA 363 (CC) are apposite to this arbitration. In that case the central issue was whether the use enforcement of debt recovery amounted, in the circumstances, to a breach of the equality provisions in the interim constitution. The evidence was that the Council’s policy was to enforce all debts equality and that the selective enforcement was the result of haphazard and unauthorized decisions taken by individual employees. The Council therefore failed to rebut the Constitutional presumption or unfairness. The criteria for selecting SADTU also have the hallmarks of haphazard decision making.
.37 The approach towards SADTU members on the one hand and APEK and NATU on the other hand was therefore discriminatory and unfair. However, such discrimination falls within the ambit of Section 5 because of the Department’s directive in Circular HRM 15, the decision to deduct from SADTU members and not from the members of the other unions, and the criteria it applied it arriving at that decision. The Department’s application of its criteria for distinguishing between the unions and its directive as per HRM 15 resulted in:
` [a] discrimination against SADTU members by virtue of their membership of SADTU as contemplated in section 5(1) read with section 4(1)(b) of the LRA.
[b] prejudicing SADTU members by making deductions against their remuneration because of their membership of SADTU and for exercising their right to join and belong to a trade union of their choice, thereby infringing section 5(c)(I) and (vi).
[c] advantaging non-SADTU members for not being members of SADTU thereby infringing the provisions of section 5(3).
.38 The appropriate relief is one that reverses the discrimination and the prejudice.
.1 The deductions form the salaries of SADTU members in September 1998 for their absence from work on 5 February 1998 constituted, in the circumstances, an infringement of the right to freedom of association, in particular the right not to be prejudiced for being members of SADTU
.2 The Department is directed to refund such deductions on or before 1 June 2000.
DATED AT DURBAN ON THIS 1 DAY OF MAY 2000.
EDUCATION LABOUR RELATIONS COUNCIL
CASE NUMBER PSES NAR000021 KZN
APPLICANT SOUTH AFRICAN DEMOCRATIC TEACHERS UNION
RESPONDENT DEPARTMENT OF EDUCATION
NATURE SALARIES (NOT PAID)
ARBITRATOR DHAYA PILLAY
DATE OF ARBITRATION 7, 8 & 9 FEBRUARY 2000
APPLICANT ANTON ROSKAM
RESPONDENT ADVOCATE VAS SONI
1 The deductions form the salaries of SADTU members in September 1998 for their absence from work on 5 February 1998 constituted, in the circumstances, an infringement of the right to freedom of association, in particular the right not to be prejudiced for being members of SADTU
2 The Department is directed to refund such deductions on or before 1 June 2000.
DATE OF AWARD 1 MAY 2000