Tawusa obo Ngendle & 93 others v Unitrans Fuel and Chemical (Pty) Ltd  CCT 131/15 Date of hearing: 23 February 2016

Media summary

The following explanatory note is provided to assist the media in reporting this case and is not binding on the Constitutional Court or any member of the Court.

On 23 February 2016 at 10h00, the Constitutional Court will hear an application for leave to appeal against a judgment of the Labour Appeal Court concerning the validity of a mass dismissal of approximately 94 employees, which occurred on 2 November 2010 pursuant to a strike.

The application is brought by the Transport and Allied Workers Union of South Africa (TAWUSA) in its own right and on behalf of the employees.  The respondent, Unitrans Fuel and Chemical (Pty) Ltd (Unitrans), conducts the business of haulage of petroleum and gas in the Road Freight Industry.

The parties are bound by the Constitution of the National Bargaining Council for the Road Freight Industry and the Main Collective Agreement for the Road Freight Industry (Main Agreement).  Pursuant to the termination of a certain contract, the remuneration of seven Unitrans employees was reduced, notwithstanding the refusal of the seven employees to sign a new employment contract.  After Unitrans did not accede to a number of demands raised by TAWUSA, TAWUSA issued a strike notice indicating its intention to strike on 6 August 2010.

The demands in the strike notice were:

“2.1 Wage discrepancies

2.2 Wage cut

2.3 Coupling – R500- pw

2.4 Unilateral change of the administration of your fund from the Bargaining Council to your in-house fund.”

Unitrans brought an urgent application to interdict the strike in the Labour Court and obtained an interim interdict on 11 August 2010.  However, the application (and consequently the interim interdict) was ultimately dismissed.

On 23 September 2010, Unitrans took that Labour Court judgment on appeal to the Labour Appeal Court.  The Labour Appeal Court confirmed that the strike could proceed in respect of two demands, namely the wage cut and wage discrepancies demands.  It further held that the employees were prohibited from striking in pursuit of the demands relating to the unilateral change of the administration of the provident fund, and an additional demand in respect of “coupling”.

The strike commenced at 14:30 on 28 October 2010.  Unitrans adopted the stance that the strike was not protected and therefore disciplinary action would be taken against TAWUSA’s members, which could result in dismissal.  TAWUSA, however, expressed the view that the strike was protected by virtue of the judgment of the Labour Appeal Court.  Unitrans subsequently issued a series of ultimatums informing striking employees that the failure to return to work immediately would result in dismissal.  Unitrans capitulated on the wage cut demand of the seven employees on 2 November 2011.  A final ultimatum was issued on 1 November 2010 at 14:05 directing the employees to report for duty the following day at 06:00.  The employees ignored this and were consequently summarily dismissed at around 08:00 on 2 November 2011.

The employees challenged the dismissals in the Labour Court, but the application was dismissed with costs (second Labour Court judgment).  Dissatisfied with this decision, the employees appealed to the Labour Appeal Court.  This appeal was also dismissed (second Labour Appeal Court judgment).

Before the Constitutional Court, TAWUSA alleges that even if it is found that the wage discrepancy demand and proposals, as articulated in strike settlement negotiations, rendered the strike on the wage discrepancy dispute unprotected, the strike remained protected until Unitrans capitulated on the wage cut demand in its final ultimatum.

TAWUSA further contends that the order in the (second Labour Court judgment restraining the workers from taking strike action in respect of wage cut and wage discrepancies was not competent.  This order, TAWUSA submits, is in conflict with the order of the first Labour Appeal Court judgment and is clearly wrong for that reason.

Unitrans argues that the Constitutional Court has no jurisdiction to hear the matter as it does not raise a constitutional issue and that the matter is not one of “general public importance which ought to be considered” by this Court.  Further, Unitrans contends that the dismissals complied with the Labour Relations Act and the Code of Good Practice.  Unitrans contends that the demands for the strike were unprotected as they fell outside the ambit of the first Labour Appeal Court judgment and, therefore, the application lacks prospects of success.  On Unitrans’ version, the demands fell within the jurisdiction of the Bargaining Council as the Main Agreement provides that the Council is the forum in which the negotiation of “substantive agreements on wages, benefits and other conditions of employment between the employer and employers’ organisation” should be brought.