The Supreme Court of Appeal has rejected the National Union of Metalworkers of South Africa (NUMSA) leave to appeal in the Fry’s Metal case. This move seems to change the interpretation of the Labour Relations Act 187(c) and set a shocking precedent in the workplace on dismissals of workers.

The battle has been going on for five years between Fry’s Metals (Pty) and NUMSA on whether employers can dismiss workers to force them to comply with their demands or are such dismissals “automatically unfair”?

The context of the case

The issues arose on 18 October 2000 directly from the parties respective contentions. Fry’s Metals claim that it proposed to dismiss the employees solely because they had declined to accept changes necessary for the company’s business efficiency and well being. This emanates from lengthy negotiations between the company and NUMSA over a change from previous three shift system arrangement. From the start workers emphatically rejected the proposal from the company.

Ultimately, the company informed the union that it would be forced to retrench those workers who declined to work the new shifts, and that these workers would not receive a severance pay because they have refused a reasonable alternative to retrenchment. The company gave notices for dismissal. Workers claimed that the company wanted to dismiss them in order to compel them to agree to the proposed changes to their terms and conditions of employment.

The first and second judgment

NUMSA took the matter to labour court in 2001 and the dismissal was held to be automatically unfair by Francis J. The union won the case. The company subsequently took the matter to the Labour Appeal Court in 2003 under Zondo JP.

According to Zondo JP, employers are entitled to dismiss employees who refuse to conform to operational changes because such dismissals are for operational requirements as contemplated by section 213 of the LRA. He said the purpose of dismissing employees who refuse to accept operational changes is to “get rid of employees who do not meet the business requirements of the employer so that new employees who will meet the business requirements of the employer will be employed” Zondo JP dismissed the union argument as “without merit”.

NUMSA lost the case and took the matter to the Supreme Court of Appeal (SCA).

The third devastating judgment

On the 12 April 2005, in a very devastating move for NUMSA and the labour movement in general, the SCA under Mpati DP, Cameron, Nugent, Conradie JJA and Comrie AJA dismissed NUMSA’s application for leave to appeal. NUMSA once again lost the case. The outcome means that the law remains unchanged from the Labour Appeal Court decision in favour of Fry’s Metals.

The Constitutional Court and the implications of the judgements

NUMSA will now take the matter to the Constitutional Court as last a resort to protect workers. The LAC and SCA have suddenly become stricter and harsher on NUMSA. We also believe that the courts are helping business to deregulate the labour market and instill an exploitative environment. There will be no regulation in the workplace that will protect workers.

The outcome of the judgement is viewed as a total deletion of section 187 (c) and the courts are changing the rules.

Firstly, the case is very serious and it will give employers an ultimate right to dismiss workers for every operational reasons. Secondly, it undermines the institutional arrangements in the collective bargaining process, where workplace agreements will be ignored.

Thirdly, it undermines existence of Labour Relations Act where the employer must fulfill its onus of proving that the retrenchment was fair in all respect. The duty of the employer to provide genuine reason for retrenching and the employees chosen for retrenchment were fairly chosen.

Fourthly, the outcome will render the law meaningless and distracts the employer from the legal aspects of the retrenchment process. Employers will misuse retrenchments clause based on operational reasons to remove undesirable and unionised employees. It means workers will lose jobs through no fault of their own. In addition, the unemployment rate is extremely high and it will be very difficult for retrenched employees to find jobs.

NUMSA believes that there were sufficient merits and rationale to take the case.

Programme of Action

In the recent COSATU CEC, the Fry’s Metals case was discussed, it was resolved that the federation will support with all existing resources and action to challenge the matter. The Constitutional Court is our dead end, we now have to mobilise close to 5 000 workers from next month to picket at the Constitutional Court . The pickets will be part of the build up campaign for a bigger protest march when the case starts.

In the same vein, COSATU will mobilise all affiliates to take action, because an injury to one is an injury to all. We will further lobby the Minister of Labour to protect the rights of workers. We will again lobby international unions for solidarity. The current judgements will weaken trade unions as the pillar of the workers and destroy hard won rights in the Labour Relations Act.

There has always been a consistent effort by employers to derail NUMSA and influence changes in the current labour regime in the steel and engineering industry. Therefore the outcome of the SCA borders on the influence of employers to weaken the trade union.

[For more information contact Dumisa Ntuli @ 689 1700 or cell 0829737282]