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Labour Court slams bosses for suspending workers that used the CCMA
Seriti’s Kriel Colliery is a mine south of Emalahleni producing coal for Eskom. In December 2020 more than 300 workers at the mine, who work for eight different companies providing outsourced workers to the mine, referred a dispute to the CCMA seeking section 198 rights for permanent jobs.
Managements’ response was quick and brutal: workers were instructed to sign letters, drafted by their different employers, withdrawing from the CCMA matter, and stating ‘I had no knowledge of what I was signing for; I was misinformed’ when they added their names to the CCMA dispute.
What would happen to workers who refused to sign? Their access cards to the mine would be ‘deactivated’ – and this is exactly what happened to seven workers employed by cleaning contractor SNO Aluhle, on Friday 7 January 2021. Their supervisor confirmed that the reason their access cards no longer worked was because they had refused to sign the withdrawal letters.
On Monday 11 January 2021 the seven reported to the local NUM office. The Branch Secretary immediately arranged for two of the access cards to be reactivated – those two cards belonged to the two who are NUM shop stewards. The other five workers hitch-hiked to the SNO Aluhle offices. There they confronted their HR Manager, a Mr Mdluli, who gave them letters (dated 8 January) which said:
‘Your clock card has been suspended or blocked as per telephonic discussion with you … on the matter of the CCMA and Simunye case that was addressed and a letter was served to each employee to agree or disagree in knowing such in which on your discussion u agreed to know about the CCMA matter.
Please kindly note that a disciplinary hearing date will be communicated with you to attend at the main office of the company in due time.’
The workers reported these developments to the Casual Workers Advice Office, which sent a letter to SNO Aluhle explaining that it is illegal to interfere with a worker’s right to exercise LRA rights, or to prejudice a worker for participating in CCMA proceedings. The CWAO demanded that the workers’ access cards be reactivated by Wednesday 13 January, and that the employer withdraw the threat of a disciplinary hearing.
When SNO Aluhle ignored this letter, the CWAO law centre travelled to Kriel and spent the weekend writing up the workers’ statements, before launching an urgent Labour Court application on Monday 18 January 2021.
CWAO officials personally took the court papers to the SNO Aluhle offices, but both HR manager Mdluli and Director Nonhlanhla Shakwane refused to sign for them. Therefore, our officials simply placed the court papers on Shakwane’s desk, and explained to her that the papers were now ‘served’ in line with Labour Court rules.
The case was due to be heard the following week, on Thursday 28 January 2021. SNO Aluhle was supposed to submit its explanation to the Court by Monday 25 January, but it did not do so. Just hours before senior Labour Court Judge van Niekerk was due to hear the workers’ case, at 11 minutes after 09h00 on 28 January, SNO Aluhle lawyers sent through an answer: SNO Aluhle said the workers had been suspended for ‘sharing confidential company information with third parties without the employer’s permission’. The employer’s lawyers said that, if the workers believed the suspension was unfair, they could refer a dispute to the CCMA.
The Judge was not convinced. He asked the SNO Aluhle lawyer to explain what the letters meant, at which point the lawyer disappeared from the zoom call due to load shedding.
When the hearing reconvened on 29 January 2021, the SNO Aluhle lawyer remained unable to explain to the court how it could happen that the workers were actually suspended for ‘sharing confidential information’ whereas the 8 January letter confirmed the workers’ version: that they were excluded from the workplace because they refused to say that they didn’t know what they were doing when they referred the CCMA case.
In his judgment of 1 February 2021 van Niekerk J rejected SNO Aluhle’s version as a ‘bare denial’ and held furthermore that it was ‘improbable’. Instead, he found that:
‘…the [employer] attempted to pressure the [workers] into withdrawing their [CCMA] referral and, when they refused, its subsequent actions were directed at prejudicing the workers on account of their exercising a right in terms of the LRA and participating in [CCMA] proceedings.’
The court declared that SNO Aluhle’s conduct, in deactivating the workers’ access cards and in threatening to discipline them for participating in the CCMA proceedings, contravenes section 5 of the LRA and is unlawful. SNO Aluhle was ordered to reactivate the access cards and permit the workers to resume work. SNO Aluhle is interdicted and restrained from instituting disciplinary action against the workers for participating in referring their s198 dispute to the CCMA. The company was also ordered to pay the CWAO’s legal costs, including the costs of counsel.
Van Niekerk J is not new to such matters. In 1989 he heard an urgent interdict brought by the National Automobile and Allied Workers Union (one of four unions which later merged to form NUMSA) against Atlantis Diesel Engines (Pty) Ltd, which had offered to implement a wage increase for all union members who resigned from the union. The Atlantis Diesel Engines judgment became one of the leading judgments on victimisation: the judge held that the employer was in effect saying “resign and I will reward you” which was a ‘crass labour practice’ known as union bashing. He interdicted this conduct and ordered the employer to pay the union’s legal costs.
We should sit up and take notice: the behaviour of South African employers is everywhere beginning to resemble conduct we last saw from the apartheid bosses in the nineteen eighties. That behaviour inspired workers to unite with courage, to educate themselves, and to build a strong, fierce, democratic workers’ movement. That movement ultimately won the significant labour rights in the 1995 LRA, supported by a hugely unionised workforce and backed by strong institutions like the CCMA. Today, all of these institutions have dwindled and died, creating conditions for employers to behave again as they did in the seventies and eighties – apartheid or no apartheid. It is time for a new workers’ movement.
Contact Lynford Dor (CWAO) 074 891 0438
This statement was released by Casual Workers Advice Office on 10 February 2021.
