Case Number: PSES 07/2000 0673 NW
Province: North West
Applicant: SAOU obo ITS MEMBERS
Respondent: Department of Education
Issue: Unfair Dismissal - Constructive Dismissal
Award Date: 23 October 2000
Arbitrator: MAHOMED JAJBHAY
EDUCATION LABOUR RELATIONS COUNCIL
CASE NUMBER : PSES 07/2000 0673 NW
In the arbitration between:
SAOU obo ITS MEMBERS APPLICANT
DEPARTMENT OF EDUCATION NORTH WEST REGION RESPONDENT
1 . HEARING AND REPRESENTATION
The present matter concerned a dispute between the Suid-Afrikaanse Onderwysunie (“SAOU”) and the Department of Education: North West Province (“the Employer”). The SAOU was acting at al material times on behalf of its 17 members. The SAOU was represented during the proceedings by Adv Prinsloo and the Employer was represented by Mr P N Mokotedi. I wish to express my gratitude to the representatives of the respective parties for the able and competent manner in which this particular dispute was dealt with. Their approach and attitude facilitated my task in what culminated to be rather serious and important issues to be determined.
2 . ISSUE TO BE DECIDED
2.1 It was agreed between the parties that the bundle of documents presented to me at the arbitration would constitute the evidence. As I understood the agreement, it was further agreed that insofar as the status of the documents were concerned, save where specific objections were lodged to the admissibility of the documents, all the documents that were included in the bundle were what they were purported to be. It was further agreed that the parties would not require oral evidence.
2.2 On 16 March 2000, the SAOU acting on behalf of its members communicated the following letter to the Education Labour Relations Council :
“DECLARATION OF DISPUTE BETWEEN THE NWDE :
SAOU (NORTH WEST): MEMBERS ON LEAVE : 24
Herewith the Union declares a dispute on behalf of 14 members who applied for leave on 24 August 1999, and from whose salaries were deducted a day’s pay for leave without pay. The names of the affected members are included in the document accompanying this dispute.
The dispute emanates from NWDE’s failure or refusal to consider in a fair manner leave applications of the SAOU (North West) members, or to acknowledge the discretion of NWDE officials to grant leave in cases where the discretionary competence lies in the hands of such officials. The Union therefore declares the dispute in terms of the dispute resolution mechanisms of council as contemplated in ELRC Resolution 7 of 1997, and more specifically the following paragraphs of the said Resolution:
1. Paragraph 1.2 (b), namely the application of collective agreement as contemplated in Section 24(2) of the LRA; and/or
2. Paragraph 1.2(d), namely the unilateral change to terms and conditions of employment as contemplated in Section 64(4) of the LRA; and/or
3. Paragraph 1.2 (h), namely unfair labour practices, as contemplated in schedule 7, items 2 (1) of the LRA”
2.3 The matter was referred to conciliation. All attempts to resolve this matter through the conciliatory mechanisms proved unsuccessful. The matter was thereafter referred to arbitration.
2.4 In terms of the material that purported to be the evidence before me, the facts are largely common cause. The respective representatives of the parties hereto, conceded to this fact. The facts can be summarised as follows :
2.4.1 The parties hereto were engaged in negotiations and consultations around issues which included mutual interest issues.
2.4.2 The parties were unable to resolve their disputes through the conciliatory mechanisms that were in place.
2.4.3 As a result, a certificate was issued.
2.4.4 The SAOU on behalf of its members informed the Employer of its intention to engage in a protected strike.
2.4.5 In consequence of the process set out hereinbefore, the SAOU informed the employer that its members would be engaging in protected industrial action on 24 August 1999.
2.4.6 However, the members were not particularly comfortable in engaging in industrial action, albeit that the industrial action was protected. The individual members of the SAOU sought the advice of the Union, and the advice forthcoming was as follows :
“Lede van SAOU: doen aansoek vir DPS - verlof ten einde ‘n spesiale ledevergadering op dieselfde dag by te woon.
Die Minister vir die Staatsdiens en Administrasie het aangedui dat werknemers van die Staat wat deelneem aan stakings blootgestel is aan die “no work no pay” beginsels”.
2.5 Pursuant to the advice received by the individual members, they completed the teachers application for leave form, and the nature of leave applied for was generally framed as “DPS: SAOU vergaderings, UPM - participation in Union activities.”
2.6 The number of days for which leave was applied was 1 day and that was 24 August 1999.
2.7 In all of the applications, the principal at the respective schools consented to the applications.
2.8 After a few months, the employer commenced deducting one day’s salary from the members who were absent on 24 August 1999.
2.9 The issue in this matter is essentially whether the employer was correct in having deducted the one day’s salary in the circumstances of the present case. An additional issue was whether the employer was obliged to consult with the members or its Union in having made such deductions.
2.10 It is trite that the provisions of the Labour Relations Act 66 of 1995 as amended (“the Act”) must be read in a constitutional context. Provisions in this respect are clear.
Business South Africa v Congress of South African Trade Unions and Another (1997) 5 BLLR 511 (LAC)
Johnson & Johnson (Pty) Limited v Chemical Workers Industrial Union (1999) 20 ILJ 29 (LAC)
2.11 In terms of the Constitution of the Republic of South Africa, every person has a fundamental right to fair labour practices (Section 23 (1)(a)). In the context of the present matter, the expression is given to this in the Act by ensuring that :
2.11.1 everyone has the right to fair labour practices;
2.11.2 every worker has a right -
126.96.36.199 to form and join a trade union;
188.8.131.52 to participate in the activities and programme of a trade union; and
184.108.40.206 to strike.
2.12 The provisions of the Government Gazette dated 13 November 1995 and numbered 16814, and in particular item 54(1) sets out the following special leave for urgent private affairs;
“With the approval of the employer, special leave for urgent private affairs may be granted to an educator employed at a school to attend to private affairs”.
2.13 Thereafter item 54(2) sets out the following :
“Special leave for urgent private affairs shall be on full
pay if the educator has the necessary vacation leave to his or her credit and shall be deducted from such leave credit or shall be without pay if the educator no longer has any vacation leave to his or her credit”.
2.14 In this particular instance, the educators applied for special leave on 24 August 1999. According to the Employer’s representative, a communication was issued to persons, including principals and heads of institutions, where the approach of the Employer was set out. There was some dispute as to whether the principals at the relevant schools received the circular. However, for the reasons that I set out hereinafter, this particular dispute is of no real importance in the conclusion that I have reached. On 3 November 1999, the Deputy Director General issued a departmental circular No 17 of 1999 where the following was set out :
“Please note that this Department does not regard leave taken on the above dates for strike purposes and Union activities as regular and therefore announces that reduction regarding leave without will (sic) be implemented. All schools should submit the completed documents to the Department of Education via their circuit offices for attention Mr E P Visagie by 12 November 1999".
2.15 The important facts emanating from the circular purportedly circulated on 23 August 1999 indicates that:
2.15.1 There were previous circulars from the Department circulated where the principle of “no work no pay” was emphasised and strictly applied.
2.15.2 There were neither any guidelines, nor policies in existence on 24 August 1999, with regard to how the “no work no pay” deductions should be effected. It appeared that this was the first occasion where Union members who were on protected industrial action furnished the Department i.e. the Employer with leave forms for special leave for urgent private affairs.
2.16 A “strike” is defined in Section 213 of the Act as :
“The partial or complete refusal to work, or the retardation or obstruction of work, by persons who are or have been employed by the same employer or by different employers, for the purposes of remedying a grievance or resolving a dispute in respect of any matter of mutual interest between employer and employee”.
2.17 In this matter, it was common cause that the employees were on strike, which strike was protected in terms of the Act. The most notable feature of the definition of strike in the Act is its wide terms. It comprises three elements:
2.17.1 The non-performance of work;
2.17.2 By employees;
2.17.3 For the purpose stated.
2.18 That purpose is to remedy a grievance or resolve a dispute “in respect of any matter of mutual interest between employer and employee”.
Chemical Workers Industrial Union v Plascon Decorative (Inland) (Pty) Limited (1999) 20 ILJ 321 (LAC)
2.19 The Constitutional Court has itself emphasised the general importance of the right to strike :
“Collective bargaining is based on the recognition of the fact that employers enjoy greater social and economic power than individual workers. Workers therefore need to act in concert to provide them collectively with sufficient power to bargain effectively with employers. Workers enjoy collective power primarily through the mechanisms of strike action”.
(In re : Certification of the Constitution of the Republic of South Africa (1996) 17 ILJ 821 CC)
2.20 Section 64 (1) of the Act confers the right to strike only on employees, as defined. It is clear that only employees are defined, or registered trade unions acting on their behalf, can set in motion the various procedures prescribed in sub-section (1), which must be followed if the strikers are to enjoy protection under the Act. Only employees as defined can refuse to work.
2.21 The purpose of a strike action is to enable workers to bring pressure to bear on their employers by the withdrawal of their labour in order to induce them to comply with some work-related demand. To facilitate the achievement of this purpose, the Act has limited the employer’s common law right to terminate on the basis of what would otherwise be breach of contract, the legislature has created the concept of a protected strike.
Food and General Workers Union and Others v Minister of Safety and Security and Others (1999) 20 ILJ 1258 (LAC)
2.22 Once protection is secured by compliance with the Act, the employer is precluded from dismissing the striker for the act of striking per se: (Section 67(4)). The Act further provides that participation in a protected strike does not constitute a delict or a breach of contract: (Section 67(2)). In order to equalise the balance of power, the employer’s common law right to withhold payment of remuneration for the duration of the strike is confirmed : (Section 67(3)).
2.23 Section 67(3) of the Act sets out the following :
“Despite ss (2), an employer is not obliged to remunerate an employee for services that the employee does not render during a protected strike or a protected lock-out, however -
2.24 In the Labour Relations Act of 1995 a Comprehensive Guide 2nd Edition Du Toit et al state the following on pages 213 and 214 :
“Since participation in a strike is deemed not to constitute a breach of contract, the obligations under the employment contract subsists and in the absence of any further qualification, an employer would be obliged to continue paying his employees during a strike. To avoid this anomaly, and maintain the common law principle of mutually of obligations, the Act provides expressly that an employer is not obliged to remunerate an employee for services that the employee does not render during a protected strike. The employer’s obligation to remunerate is therefore suspended during a strike or lock-out”. (emphasis added)
2.25 With respect, I agree with this proposition. In the present matter, the parties articulated their intention to engage in protected industrial action. However, on the advice of its Union, the parties thereafter decided to apply for the leave hereinbefore referred to. Clearly this was an afterthought. In any event, it is inherent within the concept of a strike that there will be an exercise of the power play. By clothing their intentions in a different form, the employees did not derogate from their primary intention, and that we to engage in protected industrial action. In response to this, the Employer’s rights in terms of Section 67(3) of the Act is then triggered. The intention of the educators acting on the instructions of its Union, can be gathered from the notice that was given to the Employer. The material intention was to engage in protected industrial action. The application for special leave for urgent private affairs is simply anomalous in the light of the present circumstances. In addition to what I have said earlier, it cannot be heard to say that the educators were on private affairs during the 24 August 1999. It is abundantly clear that on this particular day, they were engaged in protected industrial action. This in my opinion does not constitute “private affairs”. It must be remembered that in the present circumstances neither the Union nor the members manifested their intention to suspend or terminate the industrial action.
2.26 Adv Prinsloo argued that in having made the deductions as the Employer did in the present circumstances, the Employer should have consulted around the deductions with the employees or its representative trade union. In my view, and in particular the facts of the present circumstances did not warrant a consultation with regard to the deductions that the Employer in fact made. Although there were no clear policies or guidelines in respect of the deductions, it was common cause that the principle of “no work no pay” was applied within the Department for some time. This was within the particular knowledge of all the parties concerned. It is important that the parties to this dispute refer the matter relating to the insufficiency of the guidelines and the policies regarding this particular issue to the Council where the matter can be ventilated and an agreement be subsequently reached. In making its determination as to whether the deductions ought to have been made in the light of the present circumstances, the Employer must be seen to be utilising its powers reasonably and exercising them in a fair manner. These justice which dictate that persons who are affected by the Employer’s action should be afforded a fair and unbiased hearing before the decision to act is taken. This is further fortified in schedule 8 to the Act. Having stated the above, in my view, the Employer did not act unreasonably or unlawfully in making the deductions as it has made. Here, the underlying reason of the Employer in making the deductions must be taken into account. These reasons include the consistent application of the “no work no pay” policy which was known to the Applicants at all material times. There may well be circumstances where employees who engaged in industrial action will have to be consulted in the event of a deduction being made to their salaries. The present matter does not constitute such a case. The employees as well as its representative Trade Union were at all material times aware of the Employer’s policy on this issue. This is fortified in the opinion formulated by the Union in its document headed “Nuus in die branding 18/99 dated 17 August 1999". Under the heading “no work no pay” en “moontlike verlofreëlings” this particular issue is canvassed and identified. In these circumstances, Adv Prinsloo’s argument cannot hold any water.
2.27 In the light of all of the above circumstances, my determination is that the application by the SAOU on behalf of its individual members for the repayment of money deducted from their salary is dismissed.
Date : 23 October 2000
EDUCATION LABOUR RELATIONS COUNCIL
CASE NUMBER PSES 07/2000 0673 NW
APPLICANT SAOU obo ITS MEMBERS
RESPONDENT DEPARTMENT OF EDUCATION
NATURE SALARY DEDUCTION
ARBITRATOR MAHOMED JAJBHAY
DATE OF ARBITRATION
APPLICANT ADV PRINSLOO
RESPONDENT MR P N MOKOTEDI
My determination is that the application by the SAOU on behalf of its individual members for the repayment of money deducted from their salary is dismissed
DATE OF AWARD 23 OCTOBER 2000