Khongelani Hlungwani is among the 181 Luxor Paints employees who were dismissed in 2018 but in whose favour the Commission for Conciliation, Mediation and Arbitration has ruled. (Magnificent Mndebele)
After an arbitration process that has taken more than two years to complete, the Commission for Conciliation, Mediation and Arbitration (CCMA) has ordered the reinstatement of 178 workers who had been fired from a paint manufacturing company in 2018. In addition, the workers were awarded back pay of about R38.2 million.
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The company dismissed 181 workers, but only 178 will return to work as two have passed away and the other worker was sick when he was fired. He wasn’t part of the process that challenged the dismissal and he doesn’t want to go back. “When I saw that we won, I was over the moon and I am sure that this feeling is mutual for the other dismissed workers,” said Khongelani Hlungwani, 33.
Luxor Paints, in Boksburg on Gauteng’s East Rand, manufactures automotive and industrial paints as well as refinishing products. From 26 February until 5 March 2018, its workers embarked on a protected strike, calling for the company to provide medical aid and job security, among other demands. At the time, they had been permanent employees for two years; before that, they worked through labour brokers and were subjected to what they said were unbearable working conditions.
During the strike, Luxor Paints hired the National Strike Intervention Unit, a private security company whose guards are heavily armed. They fired rubber bullets at the striking employees, severely wounding some of them, including one whose eye “popped out”. Because of this brutality, the workers called off the strike.
Three days later, on 8 March, Luxor Paints dismissed 111 workers. They were accused of stopping customers and vehicles from entering its premises, smashing the windows of vehicles, damaging company property, and intimidating and threatening security staff as well as temporary employees.
A further 70 workers were dismissed on 28 July. For 33 of them, the reason given was “derivative misconduct”, which means they had knowledge of wrongdoing but failed to inform the company. A further 36 were fired for interrupting business operations, while one was dismissed for publicly displaying a placard stating the employer is “a devil and a racist”.
Hlungwani said the company dismissed the workers because it wanted to undermine the gains they had made. “The only reason we were dismissed is because the company wanted to continue exploiting people and to ensure that those who have been hired after us don’t get their benefits, or even provident funds,” he said. “Before we became permanent, they’d give us R50 or R100 in an envelope as a year-end bonus. This happened simply because we were [working] under labour brokers who turned us into slaves. It’s been difficult.”
Legal arguments
The General Industries Workers Union of South Africa (Giwusa) and the Casual Workers Advice Office (CWAO) challenged the workers’ dismissal at the CCMA, which ruled that Luxor Paints had failed to provide substantial and solid evidence of their alleged misconduct. Because of this failure, commissioner Bonginkosi Zulu ordered the workers’ reinstatement by 1 February 2021, by which time the company must also pay back all the income they have lost.
Bhavna Ramji, the CWAO’s legal representative of the workers, says Luxor Paints’ legal arguments were flawed. “The company’s entire argument during the arbitration was based on common purpose, a very problematic doctrine in our law to the extent that it can be mobilised against groups of people engaged in collective action. In this case, the arguments were more swart gevaar (Black peril) than common purpose,” Ramji said.
“The case introduced several new angles to these kinds of deliberations that are now being pursued in other matters, including the use of sticks during strikes, the use of rubber bullets and private security, derivative misconduct and, of course, the application of the common purpose doctrine in labour matters.”
Luxor Paints is opposing the CCMA ruling and has asked for its review by the labour court. Giwusa organiser Andile Nyembezi said the company also wants the arbitration award not to be implemented until the court’s decision is made.
“Their basis is that they don’t agree with the outcome … and they are not prepared to pay the amount,” he said. “One of the things I am suspicious about is that one of the reasons they wanted us to agree to a stay [of the award] is that they want to avoid total compliance, especially of Section 145(8) [of the Labour Relations Act].”
The act states that the “institution of review proceedings does not suspend the operation of an arbitration award, unless the applicant furnishes security to the satisfaction of the court in accordance with subsection (8)”. This means that if a company wants a matter to be reviewed, it must have an upfront payment equivalent to 24 months’ remuneration available for each employee, which in this case is about 83% of the back-pay amount.
Further delays
“The company may have wanted a stay in the award because there is a bigger issue,” said Nyembezi. “At the moment they’ve got other employees and it’s a huge number. The award means that they might have to get rid of those workers in order to secure the back payments and reinstate the unfairly dismissed workers. In most cases, they’d want to minimise the number, especially in cases of this magnitude. If they review the matter, they are trying to frustrate the workers. At the moment they are full of pride and they were confident that they would win the case, yet the opposite happened.”
Hlungwani says the arbitration process dragged on for more than two years because “the company would always come with excuses. They’d say their lawyers are sick and busy. The CCMA said, ‘Let’s find their diaries,’ and even so, they’d still want to postpone,” said Hlungwani.
“As workers, we knew that the company does not have a case. But we did not want to rush them because they’d have had more points for review. When I read that award, I don’t think there is any loophole to use to review the case and they were given three years to bring all the witnesses. I am definitely sure that even if they grant them the review application, they won’t win. They are just dragging the matter.”
Life in the interim
Joshua Hlungwani, 50, a father of two, worked as a machine operator before he was fired from Luxor Paints. He wishes for “an amicable solution to this matter so that everyone can continue with their lives”. Joshua says life has been extremely difficult for the dismissed workers.
“The majority of the workers have gone to their former homelands and it is very difficult for them. Some are still trying to make ends meet around Gauteng [but] it is difficult to live here if you don’t have an income.”
He says Luxor Paints’ intention to review the arbitration award will likely cause further harm to those who are unemployed. “I feel pity for those who are not working. This was going to be a huge financial boost for them and currently there is Covid-19.”
However, Joshua says the workers are far from losing hope. “The working class must continue to fight for their rights in the workplace. In the WhatsApp group of the dismissed workers at Luxor Paints, they keep on encouraging one another to keep on fighting. The comrades are willing to continue with the battle.”
Luxor Paints was given ample time to answer questions on the matter but never responded.
This article was first published on New Frame