The Labour Court disallowed the appeal and upheld the judgment of Whitcher J in the Labour Court which meant that the employees were not obliged to work in excess of the six-day week provided for in their contracts of employment.  The refusal of the employees to continue working on Sundays was not based upon any right sourced in the contract and such refusal did not fall within the definition of strike as set out in s 213 of the LRA.

G4S Cash Solutions SA (Pty) Ltd v Motor Transport Workers Union of South Africa (Mtwu) (JA51/15) [2016] ZALAC 22 (26 May 2016) per Davis JA [CJ Musi and R Sutherland JJA concurring]

Excerpts without footnotes

Evaluation

[10]      The judgment of Mlambo JP in [National Union of Mineworkers v CCMA [2012] 1 BLLR 22 (LAC) (NUM)] makes [it] clear that the definition of strike cannot be expanded seamlessly to accommodate a refusal to work within the context of the present dispute.  At paragraph 16 of his judgment, the learned Judge President says:

‘The affected employees refused to engage in their normal employment duty, which was to work on a particular shift.  By refusing to observe the rules of the appellant and to carry out the instructions to continue to work in terms of the contract, they had refused to work.   In this case, the action was concerted, in that a number of employees had participated in a decision to withhold their labour.  As to the third requirement, there was a common purpose in so far as the employees were concerned, being to obtain redress for the third respondent’s decision to withhold payment.’ [Note: Davis JA is reported as having delivered the judgment and Mlambo JP concurred].

[11]      In the present case, the question which must be asked is whether the relevant employees refused to engage in employment pursuant to a duty imposed upon them which was sourced in their contracts of employment.  As noted, clause 6 of the contract of employment provided that the employees shall work a six-day week and that their ordinary hours of work would be 45 hours per week.  The fact that the contract provided, in addition, that overtime might be required could not be construed to mean that, in effect, the relevant employees were obliged to work a seven-day week.  To the extent that there is any doubt, clause 7 clarifies the position: ‘The employee may not unreasonably refuse to work any overtime requested by the company’.  (My emphasis).  The contract of employment made it clear that there was no obligation upon employees to work every Sunday, pursuant to which there was a corresponding right enjoyed by the appellant to demand that the relevant employees would work a seven-day week.

[12]      This conclusion means that when the employees refused to continue to work on Sundays, the refusal was not based upon any right sourced in the contract which was thus legally enjoyed by the appellant.   A refusal to continue to work on Sundays did not fall within the definition of strike as set out in s 213 of the Act.

A tacit agreement?

[13]      Cognisant of this difficulty, Mr Boda submitted that, given the practice by which the individual employees had worked on Sundays, there was a tacit agreement to work on Sundays.  It became the source of the right enjoyed by the appellant.  Hence, the refusal to continue to work on Sundays constituted a dispute of interest regarding the amount of remuneration which the employees demanded in order to continue to fulfil their obligations sourced in the tacit agreement.

[14]      Courts are generally slow to import a tacit term into a contract.  See Alfred McAlpine & Son (Pty) Ltd v Transvaal Provincial Administration 1974 (3) SA 506 (A) at 532.  More recently Brand JA in City of Cape Town (CMC Administration) v Bourbon – Leftley NNO and Another 2006 (3) SA 488 (SCA) (City of Cape Town) at para 19-20 said:

‘As stated in these cases, a tacit term is based on an inference of what both parties must or would necessarily have agreed to, but which, for some reason or other, remained unexpressed.  Like all other inferences, acceptance of the proposed tacit term is entirely dependent on the facts.   But, as also appears from the cases referred to, a tacit term is not easily inferred by the courts.   The reason for this reluctance is closely linked to the postulate that the courts can neither make contracts for people nor supplement their agreements merely because it appears reasonable or convenient to do so (see e.g.  Alfred McAlpine & Son (Pty) Ltd v Transvaal Provincial Administration 1974 (3) SA 506 (A) at 532H).  It follows that a term cannot be inferred because it would, on the application of the well-known” officious bystander” test, have been unreasonable of one of the parties not to agree to it upon the bystander’s suggestion.  Nor can it be inferred because it would be convenient and might therefore very well have been incorporated in the contract if the parties had thought about it at the time.    A proposed tacit term can only be imported into a contract if the court is satisfied that the parties would necessarily have agreed upon such a term if it had been suggested to them at the time (see e.g.  Alfred McAlpine (supra) at 532H – 533B and Consol Ltd t/a Consol Glass (supra) at para [50].  If the inference is that the response by one of the parties to the bystander’s question might have been that he would fist like to discuss and consider the suggested term, the importation of the term would not be justified.

In deciding whether the suggested term can be inferred, the court will have regard primarily to the express terms of the contract and to the surrounding circumstances under which it was entered into.   It has also been recognised in some cases, however, that the subsequent conduct of the parties can be indicative of the presence or absence or of the proposed tacit term.’

[15]      In the present case, the version offered by the appellant was that, for the past 11 years, employees had worked on Sundays, albeit that the practice was never recorded in writing nor was it incorporated in the terms of the respondents’ contracts of employment.  The practice, to the extent that it was sought to be transformed into a tacit agreement, appears to be in direct contradiction to the express terms of clauses 6 and  7 of the individual contracts of employment.  Further to the extent that there was a tacit term, it would have to include the amount of the remuneration required to be paid by the appellant for the work so done on the relevant Sundays.  As Brand JA made clear in the City of Cape Town case, supra that the tacit term must cover the full extent of the inferred agreement.  It appears that, until 2015, the rate of remuneration had been increased on an annual basis.  The fact that the appellant had refused to increase the rate in May 2015 indicates that, even if a tacit term could be inferred that the respondents were required to work on Sundays at the requisite rate of remuneration, the tacit term had been breached by the unilateral act of the appellant.  The better approach, however, is that there was no tacit agreement proved by appellant which was sufficient to justify the case made by the appellant.

The applicability of the collective agreement

[16]      Although not pursued in oral argument, appellant contended in its written heads of argument that the court a quo had erred in relying on the provisions of the collective agreement for its conclusion that the respondents were not obliged to work in excess of six days.  For this reason, appellant contended that, as the dispute turned on the interpretation and application of a collective agreement, s24 of the Act was applicable; hence the court a quo was not clothed with the necessary jurisdiction to hear the dispute.

[17]      The relevance of s24 of the Act to disputes of this kind has been luminously resolved by this Court in Hospera SA obo Tshambi v Department of Health, KwaZulu-Natal [2016] ZALAC 10.  In his judgment, Sutherland JA held at para 16 that, when dealing with a dispute, an arbitrator is required:

To determine the true dispute between the parties.  To that end, it is necessary to establish the relevant facts and construe the category of dispute correctly.  An arbitrator must make an objective finding about what is the dispute to be determined.’

[18]      What is required of a court in this case is, on the basis of the objective facts, to determine the true nature of the dispute between the parties.  The dispute was set out in the founding affidavit of respondents.  In terms of their contracts of employment, they contend that third to further respondents were not obliged to work a seven-day week.  That the court a quo sought to refer to the provisions of the collective agreement in order to clarify the meaning of the relevant clauses in the individual contracts of employment did not convert the dispute between the parties from one sourced in the individual contracts to one based upon the collective agreement.  Thus s24 of the LRA is not applicable to the present case.

Conclusion

[19]      In my view, there is no justifiable basis to conclude that the dispute between the parties was one of interest which would have triggered off a different dispute resolution mechanism from recourse to the Labour Court  which  is empowered to deal with disputes of right.  Further, appellant did not prove, on the probabilities, that there was a tacit agreement sufficient to justify its contention that respondents were required to work on each and every Sunday and that their refusal to do so constituted a strike within the meaning of s213 of the Act.