'Absurd' labour law causes divisions

A ruling to reinstate workers has stirred debate over the Labour Relations Act

Glenda Daniels

The controversial Volkswagen South Africa (VWSA) arbitration ruling to reinstate 1300 workers who went on an illegal strike a year ago is exposing serious flaws in labour legislation.

It also reinforces a disturbing trend in which courts are failing to distinguish between legal and illegal strikes.

VWSA is awaiting a Labour Appeal Court review of the decision. Most labour lawyers are critical of the ruling, but believe that the problem lies with the labour legislation not the ruling itself.
Lawyers are also divided over the interpretation of the Labour Relations Act (LRA).

“The problem is that the ruling was made on the basis of procedural unfairness not substantive unfairness, so the reinstatement didn’t make sense in terms of the Act,” says Susan Stelzner, president of the South African Society for Labour Law.

She does not believe that the problem lies with the union, the company or the courts, but rather with the legislative framework that allows for such a reinstatement to happen.

“Proposed amendments seem to be taking forever to change. In addition, courts are booked up to capacity and the Commission for Conciliation, Mediation and Arbitration [CCMA] is overloaded. This case should have been decided on within two to three months; instead it’s taken 12. This makes it difficult for employers, when they have to pay out large sums of money,” says Stelzner.

Webber Wentzel Bowens attorney Rod Harper finds the ruling “absurd”, but adds: “The section in the LRA is so badly drafted that it removes judicial discretion for appropriate compensation.” If a court wishes to grant compensation, he says, it must grant full compensation, in this case 12 months, or nothing at all.

“What is a disturbing trend is that remedies for illegal strikes are moving towards remedies for legal strikes. Workers should accept dismissals for illegal strikes because there are the proper channels in the LRA for a legal strike,” says Harper.

The Gauteng president of South African Society of Labour, Ingrid de Villiers, takes a different view. She says the VW case raises two controversial points: to what lengths an employer has to go to dismiss workers who have engaged in a procedural strike; and whether the CCMA or the Labour Court can reinstate employees when they have found that the dismissal was substantively fair but the employer did not follow a fair procedure.

She says some lawyers interpret Section 193 of the Act as meaning that the Labour Court or arbitrators are precluded from ordering reinstatement for dismissal that was only unfair because the employer did not follow a fair procedure. But others say the section requires the Labour Court arbitrator to reinstate or re-employ if a dismissal is found to be unfair, whether procedurally or substantively a distinction is not made.

If, however, the dismissal was only procedurally unfair then the Labour Court or the CCMA has a discretion either to reinstate or award compensation. De Villiers believes compensation is the correct remedy, based purely on the wording of Section 193.

She says: “It is my view that on a pure interpretation of the section regarding reinstatement for procedural unfairness, the case is, at the very least, arguable.

“It is arguable that reinstatement or re-employment is peremptory if the dismissal is found to be unfair, for whatever reason, but if it is found to be unfair only because a fair procedure was not followed, the arbitrator has a discretion to award reinstatement, re- employment or compensation.”

She says that the ruling is a “well-reasoned and well-written award and the legal points raised are worthy of consideration by the Labour Court”.

In contrast with this view, another legal expert said that there is a move away from overly technical and legal points when making judgements.

“What has been said over and over again by the courts is that it is a question of fairness to both sides, which includes taking into account society’s interests as well. In my view endangering the viability of a major motor car manufacturer, deterring foreign investment and endangering the continued existence of an already bankrupt or near-bankrupt region [the Eastern Cape] are relevant factors.”

Andrew Levy and Associates labour consultant Jackie Kelly says that since the commissioner found that the dismissals were only procedurally unfair, “it is very unusual to order reinstatement because once the dismissal is for a fair reason, it means that the employment relationship has broken down.

“If a dismissal is only procedurally unfair, the arbitrator has the discretion to apply the all-or-nothing principle. In this case, because the strike was an undeserving one, the giving of no compensation should have been considered.”