Khan & others v Rainbow Chicken Farms (Pty) Ltd (1985) 6 ILJ 60 (IC)

Judgment

EHLERS, Deputy President: Applicants have applied in terms of s 43(2) of the Labour Relations Act 28 of 1956 (the Act) for the following order under s 43(4) of the Act:

(a) Respondent’s decision to terminate their employment be declared null and void;

(b) they be reinstated in their former positions under conditions no less favourable to them than the terms and conditions that governed their employment prior to their unlawful dismissals on 6 February 1984;

(c) alternative relief.

Applicants were employed in respondent’s ‘chicken slaughtering and processing concern’ (as they call it) as slaughterers. On 6 February 1984 they worked their normal shift from 05h00 – 14h00. They were requested to work overtime because the vehicle in which the following shift as well as applicants had to be conveyed had a puncture and would be some 30 – 45 minutes late. Applicants declined to work the overtime and were purportedly dismissed summarily because thereof.

On behalf of respondent it was contended that it conducts integrated farming operations at its Hammarsdale and other sites and no business other than that of a farmer and that this has been accepted as such over many years in various forums in this country. As a result thereof so it was argued, in terms of s 2(2) of the Act, the provisions of the Act do not apply in respect of applicants and therefore the provisions of s 43 of the Act are not available to applicants.

It seems apposite that this contention be considered first because if it is found to be correct then cadit quaestio and the merits need not be considered.

In s 2(2) of the Act one reads: ‘This Act shall not apply to persons in respect of their employment in farming operations or in domestic service in private households . . .’ (italics provided). It is common cause that respondent owns a number of farms in the vicinity of the site on which applicants were employed and that respondent’s operations are divided as follows:

(a)

(b) chicks;

Specialized breeding procedures to produce fertile eggs;
the incubating and hatching of fertile eggs to provide day – old

D (c) slaughtering; and

the growing of chicks for a period of time until they are suitable for

(d) the slaughtering, eviscerating, chilling and packing of chickens for delivery.

It is further stated that chickens suitable for slaughtering are transported to preparation plants one of which is situated in Hammarsdale in an industrial area, apart from other reasons such as the availability of labour, so as to facilitate the supply of power, lights and water. There the chickens are prepared for sale as aforesaid. It is also stated that the bulk of respondent’s employees is employed in the preparation plants.

Of significance may be the fact that respondent refers to the premises in which applicants were employed not as a ‘farm’ but as a ‘preparation plant’. It may further be important to note that s 1(1)(xii) of the Basic Conditions of Employment Act 3 of 1983 reads as follows:

‘(xii) “factory” means premises where an employer employs one or more employees and where –

(a) …

(c) livestock are slaughtered.’

It may also be noted that the Factories, Machinery and Building Work Act 22 of 1941 provides in s 3(1) as follows:

‘(1) Subject to the provisions of this section, ‘factory’ means-

(a) any premises on which any person performs work in connection with any business, undertaking or institution, whether as an employer or employee, pupil or inmate of an institution, or otherwise, in any one or more of the following activities- I

(i) …

(x) the slaughtering of livestock . . .’ and in s 3(2) as follows:

‘(2) Notwithstanding the provisions of sub – section (1), “factory” shall not include-

(a) …..

(f) premises (on a farm) on which a farmer, including a partnership or group of persons other than a company, performs work in any activity referred to in paragraph (a) of sub-section (1) solely in connection with products which he has produced on a farm occupied by him, or solely in connection with his farming operations . . .’.

From the aforegoing it can be deduced that the premises on a farm in which the farmer (as well as a partnership or group of persons other than a company) slaughter livestock which he has produced on a farm occupied by him or solely in connection with his farming operations shall not be deemed to be a factory for the purposes of that Act. However it may likewise be inferred that for the purposes of that Act where a company such as respondent conducts the same activities in such premises then it shall be deemed to be a factory; from which it

seems to follow that the activities conducted on such premises ought not to be deemed farming operations.

Of importance may also be that the Machinery and Occupational Safety Act 6 of 1983, which is not yet in operation, provides in s 9 which deals with the designation of safety representatives as follows in subsection (4):

‘For the purposes of this section any person employed in a private household or in farming operations shall be deemed not to be an employee.’

Otherwise farming operations are not excluded from the activates to which that Act will apply. De Kock Industrial Laws of SA Revision Service No 14 (1983) at 1 writes:

‘The evolution of the Machinery and Occupational Safety Act has been briefly sketched in the Introduction to this chapter. Unlike its predecessor, the Factories, Machinery and Building Work Act, it applies not only to persons engaged or employed in factories, building and certain other work but to all persons in employment including the public sector, agriculture, commerce, local government and domestic service’ (italics provided).

In the Stock Theft Act 57 of 1959 in s 1 ‘poultry’ is included under the definition of ‘stock’ and it is difficult to think of any reason why it should be excluded from the concept when applying the provisions of the above Acts.

From the aforegoing it would seem that respondent’s activities in which applicants were engaged could be classified as not being farming operations which are excluded from the application of the provisions of the Act in terms of which this court derives its jurisdiction.

It is a fact that respondent’s site on which applicants were employed is in terms of the town planning scheme zoned as industrial land and the premises treated as a factory for the purposes of rate assessment by the local authority. Respondent submits that the land and building had been used for the same farming operations without any change for a considerable time prior to the adoption of the town planning scheme in December 1976 in terms of which the use of the premises is an existing use. However respondent states in its sworn written representations the reasons which are referred to above why the activities in question are being conducted in industrial areas and therefrom it can be inferred that respondent elects to conduct such operations in the specific environment and under the prevailing conditions which although not in existence at the time when such operations were commenced had probably been foreseen or at the very least expected to come about. It would otherwise seem rather foreign that a farmer would elect to conduct his farming activities in an industrial area.

On behalf of applicants as well as respondent this court was referred to the following judgments: R v Sidersky 1928 TPD 109; Bryant v Minister of Labour, and Minister of Justice 1943 TPD 205; R v Giesken & Giesken 1947 (4) SA 561 (a); Koöoperatiewe Wijnbouwers Vereniging van Zuid-Afrika Bpk v Industrial Council for the Building Industry & others (KWV case) 1949 (2) SA 600 (a); R v

Porterville Ko-op Landbou Mpy Bpk 1952 (1) SA 44 (c) and Ambleside Tobacco Grading Co (Pyt) Ltd v Abrahamson NO 1959 (1) SA 295 (SR).

In Sidersky’s case supra at 113 Solomon J said:

‘Once the character of the industry is determined all the employees are engaged in that industry, whatever the actual work may be which the employer allots to them. The accused confessedly conducts the industry of chemical manufacture, and it would be absurd to call him at the same time an employer in the building industry because he employs two bricklayers, also an employer in the engineering industry because he employs two engineers, also an employer in the printing industry because he employs two printers; and then force him as a multiple employer to comply with all the rules that might be binding upon these various industries, though wholly inapplicable to the main industry of chemical manufacture.

I think the argument is sound. It is quite possible for an employer to conduct two or more industries at the same time and to be an employer in all of these. The question is one of fact. In the present case it is not suggested that the accused has any other business than that of chemical manufacture. But it is said that he is an ’employer’ within the Act because he employs two bricklayers. In my opinion, however, he does not employ them upon any industry other than the one he is conducting, and therefore he remains an employer in the industry of chemical manufacture and has not converted himself into an employer in the building industry. If that is right, he does not fall within the class of persons bound by the agreement, and has committed no offence through non- compliance with its terms.’

In Bryant’s case supra at 209 Millin J stated:

‘In determining whether the employment of these 35 natives, or any of them, is employment in farming operations, regard must be had not to the special nature of the work they are doing but to the nature of the enterprise in which they and their employer are associated for a common purpose.’

In Giesken’s case supra at 566 Greenberg JA held:

‘But there is nothing in the decision of Rex v Sidersky or the other cases to which we were referred that is inconsistent with the conclusion, on an appropriate set of facts, that an employer and his employees may be engaged on two enterprises, each of which is to be treated as a separate trade or industry. In the present case, during the period in issue, the appellants’ activities involved the daily purchase and resale of 1 000 to 2 000 gallons of milk per day and the production and sale of 500 to 870 gallons per day. If there had (been) no exemption in the award in regard to farming operations, and if Bryant’s case (supra) is correctly decided, I think it would be clear that the appellants and the employees concerned would have been treated as being engaged both in the dairy trade, as defined, and in farming operations. The fact that they were engaged in the latter operations would of course be irrelevant, in the absence of the exemption, to the question whether the employer was governed by the

award, but this does not affect the conclusion as to the common dual purpose of the employer and his employees.’

In the KWV case supra at 608 Centlivres JA remarked:

‘It may at once be conceded that the main activities of the applicant have no relationship to the building industry. This, however, does not conclude the matter, for as pointed out in Rex v Sidersky (ib at p 113):

‘It is quite possible for an employer to conduct two or more industries at the same time and to be an employer in all of these. The question is one of fact.’

Cf Rex v Giesken and Giesken (1947 (4) SALR 561 at p 566). The two or more industries may be distinct or the one may be ancillary to the other. At least in the latter class of case, of which the present is an example, the test resolves itself into a question of degree.’

In the Porterville case supra at 47H Van Winsen J ruled:

‘Die begrip ‘boederywerk’ kan egter ‘n wye betekenis hê en ook werk dek deur In boer of sy werknemers verrig in die produksie of verkoop van plaasprodukte, afgesien van waar dit verrig word. Ek is egter die mening toegedaan dat die begrip nie in so ‘n wye sin toegepas kan word nie om werk te dek in verband met plaasprodukte wat verrig word na die produksie daarvan en wel deur iemand anders as die produsent.’

In the Ambleside case supra at 296H Murray CJ said:

‘Ever since the case of R v Sidersky, 1928 TPD 109, which has repeatedly and consistently been followed, the question as to whether an employer and his employees are subject to the provisions of an industrial agreement or the like, applicable to a particular industry, falls to be decided by having regard not to the special nature of the activities to be performed by the employee, but to the nature of the enterprise in which the particular employees and their employer are associated for a common purpose.’

When applying the above dicta to the facts under consideration would appear that because applicants were employed at a site where the bulk of respondent’s work-force is employed it may be inferred in accordance with Sidersky’s case that respondent could be classified as being an employer conducting more than one industry. The fact that the majority of respondent’s employees are engaged in its preparation plants and not merely ‘two bricklayers’ as was the fact in Sidersky’s case tends to influence one to think that respondent can be said not to be in one industry only.

In determining whether the employment of applicants is employment in farming operations regard must be had to the nature of the enterprise in which they and respondent were associated for a common purpose when applying the ratio decidendi observed in Bryant’s case. In the present matter there can be little doubt that applicants and respondent were associated for the slaughtering of chickens.

When applying the principle followed in Giesken’s case supra it would seem that respondent and some of its employees engaged elsewhere could be said to be involved in farming operations while applicants and their workmates appear to be engaged in the slaughtering of chickens. It can therefore be argued that the respondent and all its employees if taken as a whole may be considered to be pursuing common dual purposes.

The principle of degree mentioned in the KWV case supra also seems apposite in casu where if is conceded on behalf of respondent that the bulk of its work-force is employed in its preparation plants where applicants were also engaged. It would further appear that the activities in the preparation plants viewed by themselves are of sufficient dimensions to justify the conclusion that respondent and the total of its employees carry on more than one industry.

Although applicants concede that respondent is involved in farming operations seemingly in relation to those activities set out in paras (a) to (c) above it is not clear whether the notion farming operation can be applied in such a broad sense so as to cover respondent’s disputed activities as was remarked in the Porterville case supra in respect of work performed in connection with farm products subsequent to the production thereof although a further consideration in that matter was that the work was performed by someone other than the producer.

When applying the principle followed in the Ambleside case supra regard has to be had to the nature of the enterprise in which applicants, being the particular employees, and respondent, as their employer, were associated for a common purpose. It would seem obvious that the nature of the enterprise in which applicants and respondent were associated is that of a chicken preparation plant which per se need not necessarily be part and parcel of its farming operations and does not become so because respondent elects to process its products to the stage that it does.

It is not clear how it can be argued with justification that the activities in which the bulk of respondent’s work-force are engaged could be considered to be incidental to its farming operations. It would rather seem that judged primarily on the allocation of its employees respondent could possibly be said to be mainly involved not in farming operations but in the processing of chickens for sale.

Even if the above reasoning might be questioned it has to be borne in mind that this court is apparently not bound by any previous judicial precedent when making a demarcation. Although in casu this court is not mainly performing a function in terms of s 17(11)(e) of the Act read with s 76 G thereof but substantially one in terms of s 17(11)(bA) read with s 43(4) of the Act it can be said that incidental thereto it is also demarcating the activities in question. If this is accepted then the final sentence of s 76(6) which reads as follows might be applicable:

‘In determining a question under this sub-section the industrial court shall give such decision as it deems equitable having regard to the circumstances of each particular case.’

Of significance could be the following said by Coetzee J in National Industrial Council for the Iron, Steel, Engineering and Metallurgical Industry v Viljoen NO & others 1974 (1) SA 80 (T) at 83B – D:

‘Because it is clear that the tribunal is not bound by any previous judicial precedent but indeed is charged to decide every matter on the basis of what it deems equitable, having regard to the circumstances of such particular case, and because its decisions are final and not subject to appeal, it is argued that it was clearly the intention of the Legislature to achieve the result presently contended for.

I think that the language of sec 76(6) is so clear and couched in such imperative terms that I must uphold the applicant’s contention. Of some importance is the fact that it is not equity in a general sense which must be applied but that which the tribunal itself deems to be equitable. It is difficult to conceive of stronger language if one wanted to clothe the tribunal with absolute power to effect industrial demarcations when disputes arise.’

In view of the aforegoing this court believes that it has not been shown that respondent and applicants were associated for the common purpose of conducting farming operations or that applicants were employed, engaged in, or the work they were doing fell within, farming operations. Consequently respondent’s contention that the provisions of s 43 of the Act are not available to applicants cannot be sustained.

It follows then that the provisions of the Act as well as the Basic Conditions of Employment Act 3 of 1983 are applicable in respect of applicants.

That being the case it appears apposite that the relief sought by applicants be further considered in the light of the circumstances surrounding the application. The reinstatement which this court is authorized to grant in terms of s 43(4)(b) of the Act might be viewed against the provisions contained in s 43(6) of the Act, which read as follows:

‘(6) An order made by the industrial court under sub-section (4) shall prevail over any contrary provisions in any law or wage regulating measure and shall, unless it is withdrawn sooner, remain operative-

(a) until the dispute has been settled by the industrial council or the conciliation board concerned or, if it is referred or is required to be referred to arbitration or to the industrial court for determination, by an award or determination, as the case may be; or

(b) until the industrial council or conciliation board concerned, as the case may be, informs the industrial court that it failed to settle the dispute and has decided not to refer the dispute to an arbitrator or to arbitrators and an umpire or to the industrial court; or

(c) until the expiry of a period of 14 days from the date of the Minister’s decision not to approve of the establishment of a conciliation board,

whichever event occurs first: Provided that no such order shall remain operative for longer than 90 days from the date of commencement fixed by the industrial court under sub-section (5), unless the industrial court of its own motion or on application extends that period by periods not exceeding 30 days at a time.’

At least to the extent of its temporary duration in terms of those provisions the relief which this court may grant under s 43(4)(b) might be said to be analogous to an interim interdict. It is apparently permissible for this court as has been intimated on behalf of both sides to apply the same principles and requirements in respect of s 43 applications as those adopted by the Supreme Court when considering applications for interim interdicts. The approach of the Supreme Court is succinctly summarized in Eriksen Motors (Welkom) Ltd v Protea Motors, Warrenton 1973 (3) SA 685 (a) at 691 by Holmes JA as follows:

‘The granting of an interim interdict pending an action is an extraordinary remedy within the discretion of the Court. Where the right which it is sought to protect is not clear, the Court’s approach in the matter of an interim interdict was lucidly laid down by INNES, J.A., in Setlogelo v Setlogelo, 1914 AD 221 at p 227. In general the requisites are-

(a) a right which, ‘though prima facie established, is open to some doubt’;

2. (b)  a well grounded apprehension of irreparable injury;
3. (c)  the absence of ordinary remedy.

In exercising its discretion the Court weighs, inter alia, the prejudice to the applicant, if the interdict is withheld, against the prejudice to the respondent if it is granted. This is sometimes called the balance of convenience.

The foregoing considerations are not individually decisive, but are interrelated; for example, the stronger the applicant’s prospects of success the less his need to rely on prejudice to himself Conversely, the more the element of ‘some doubt”, the greater the need for the other factors to favour him. The Court considers the affidavits as a whole, and the interrelation the foregoing considerations, according to the facts and probabilities; see Olympic Passenger Service (Pty.) Ltd. v Ramlagan, 1957 (2) SA 382 (d) at p. 383D – G. Viewed in that light, the reference to a right which, ‘though prima facie established, is open to some doubt’ is apt, flexible and practical, and needs no further elaboration.’

Turning to the particulars of the present matter it is common cause that applicants were purportedly dismissed summarily for having declined to work overtime on 6 February 1984 after the completion of their normal shift which lasted from 05h00 – 14h00 when requested to do so by supervisors. The reason for the request was that the tyre of the vehicle which conveyed the incoming shift and was intended also to convey applicants home had had a puncture causing a delay of some 30 – 45 minutes.

Respondent alleged that an emergency had arisen and referred to the definition of emergency work in the Basic Conditions of Employment Act 3 of 1983 which reads as follows:

’emergency work’ means work which, owing to fire, accident, storm, epidemic, act of violence, theft, breakdown of plant or machinery or any other unforeseen circumstances, is required to be done without delay or work in connection with the overhauling or repairing of plant or machinery which cannot be performed within normal working time.’

Reference was also made to s 3(2) of that Act which reads as follows:

‘(2) The provisions of this section shall not apply in respect of an employee-

1. (a)  referred to in paragraph (a) or (b) of section 2(3); or
2. (b)  while he is engaged on emergency work or on work connected with

the arrival, departure, provisioning, loading or unloading of a ship or aircraft or the loading or unloading of a truck or vehicle of the South African Transport Services or of a vehicle used by any cartage contractor in the execution of a contract with the South African Transport Services.’

De Kock supra in the notes on s 3 at 226 writes as follows:

‘This section determines the maximum number of hours over which hours of work can be spread during one day in occupations where consecutive hours cannot always be worked, as for example in the hotel industry.’

It would then seem that the particular provision does not apply in respect of applicants.

As regards the possibility of an emergency having arisen conflicting views are held by the parties. On behalf of respondent in para 17 of its sworn written representations it is stated as follows:

‘The applicants’ refusal to work placed the respondent’s whole production in jeopardy and if the inspectors had not been able to find other slaughterers who were prepared to work, the respondent’s operations could have been brought to a stop.’

Applicants in para 3(h) of their reply aver as follows:

‘It is submitted that the only aspect of respondent’s operations that was placed in jeopardy due to Applicants’ failure to work overtime, was respondent’s ability to continue production at the same rate, thereby affecting respondent’s profitability.

In any event, applicants submit that any drop in the rate of production caused by the cessation of a particular shift, could be easily made up within a number of hours, by requiring the next shift to slaughter at the rate of one hundred and forty-seven birds rather than one hundred and thirty-five birds per minute.’

In view of the above conflicting allegations it is not clear that an emergency situation did in fact exist particularly in the light of the above definition of emergency work. Whether a punctured tyre of a vehicle can be categorized as an emergency seems doubtful especially if it is taken into account that it is common knowledge that most vehicles are fitted with spare wheels obviously because of the foreseeability of punctures. However that may be, the fact is that respondent had been able to find other slaughterers who were prepared to work and its operations were not brought to a standstill by applicants’ refusal to work the overtime as requested.

On behalf of respondent Mr Allaway contended that applicants in terms of their duty of co-operation were obliged to work the overtime and in that connection he relied on Creighton, Ford & Mitchell Labour Law (1983) at 77 where one reads in para 7.2:

‘For present purposes it is proposed to concentrate upon some eight issues which are customarily regulated in this way, and which appear to be of special interest from both a practical and a theoretical point of view. The eight areas are: (i) the employee’s duty of obedience/co-operation; (ii) the employee’s duty of fidelity; (iii) the employee’s duty of care and competence; (iv) the employer’s obligation to pay wages; (v) the G employer’s duty to provide work; (vi) the employer’s duty of care; (vii) the employer’s duty to indemnify and (viii) the employer’s duty to act reasonably’,

and in para 7.3:

‘The corollary of this right of control is the employee’s duty to be controlled – in other words to obey what are usually termed the ‘lawful reasonable orders’ of the employer. Breach of this duty can have serious consequences for the future of the employment relationship in that it may establish the employer’s right summarily to dismiss the employee, and/or (theoretically at least) to recover damages for breach of contract.’

Reference was also made to Secretary of State for Employment v Associated Society of Locomotive Engineers and Firemen & others (2) (ASLEF case) [1972] 2 QB 455, where one reads in the headnotes at 456:

‘Three trade unions representing railway workers pressed for increases in pay. Offers of increases by the Railways Board were refused. The executive committees of the unions instructed their members to work strictly to rule from April 17, 1972 and to ban overtime, rest day and Sunday working. The instructions were obeyed, causing much dislocation of services’,

and at 457:
‘On appeal by unions:-

Held, dismissing the appeal, (1) that since the unions had combined in ordering their members to work to rule with the intention of impeding railway services the requisite in section 33(4)(a) of “irregular industrial action short of a strike” was satisfied (post, pp 489G, 495A-B, 502E-G).

(2) That although the banning of Sunday and rostered rest day working might well not have involved any breach of contract the whole “concerted course of conduct” had to be viewed together (post, pp 491C-D, 495H-496A, 503A-B). (3) That obedience to instructions to ‘work to rule’ constituted breaches of contract.’

Although an employee’s duty of obedience and co-operation cannot be denied during his ordinary working hours it has not been shown that that duty also extends until after the employee’s working hours. It might further be noted that the ASLEF case supra seems to have been decided to some extent in terms of some specific statutory provisions.

Weekes, Mellish, Dickens & Lloyd Industrial Relations and the Limits of Law (1975) at 190 in a discussion of that case write in note 12:

‘In a recent Redundancy Payment Act case (Tarmac Roadstone Holdings Ltd v Peacock (1973) ICR, 273) the Court of Appeal decided that there were three types of overtime: (i) that which is contractually binding on both employee and employer, eg shift working paid at overtime rates; (ii) that which is voluntary on both sides; and (iii) that which is contractually binding on the employee when offered by an employer, but which does not carry with it a contractual obligation on the employer to offer it.’

Applicants apparently worked the overtime referred to in para (i), eg on Saturdays as shown on their clock cards photostats of which were furnished by respondent. The overtime which applicants refused to work could probably be deemed to be that referred to in para (ii) of the quoted phrase.

The Basic Conditions of Employment Act 3 of 1983 provides in s 8(1) that:

‘No employer shall require or permit an employee to work overtime otherwise than in terms of an agreement concluded by him with the employee and provided such overtime does not exceed three hours on any day or 10 hours in any week, or, where subsection (2) has been applied, does not exceed the maximum fixed under that subsection.’

De Kock supra at 230 writes in his notes on the above provision as follows:

‘It was held under the Factories Act that before an employer could require or permit his employees to work overtime he must have contracted with them to that effect by reserving the right to do so in the contract of service – see R v Canqan & others 1956 (3) SA 366 (e). The section now requires such an agreement to be concluded before overtime can be worked but it should be noted that the amount of overtime may not exceed 10 hours per week and 3 hours per day except with the approval of an inspector.’

These remarks should preferably be read against the backdrop of what was said by Price J P in R v Canqan & others 1956 (3) SA 366 (e) at 367H et seq in connection with the provisions in the Factories, Machinery and Building Work Act 22 of 1941 relating to hours of work:

‘It appears to me that the whole of Chap III of Act 22 of 1941, which includes secs 19 to 28, is designed to protect the interests of employees and to safeguard their rights, and its effect is to limit the common law rights of employers and to enlarge the common law rights of employees. The history of social legislation discloses that for a considerable number of years there has been progressive encroachment on the rights of employers in the interests of workmen and all employees. So much has this been the purpose of social legislation that employees have been prevented from contracting to their own detriment. They have been prohibited from consenting to accept conditions of employment which the Legislature has considered are too onerous and burdensome from their point of view.’

In respect of applicants’ refusal to work the overtime, respondent in the final sentences of para 17 of its sworn written representations avers as follows:

‘In refusing to work overtime, the applicants were in direct breach of an agreement concluded between them and the respondent to the effect that in an emergency, slaughterers will, if requested, work overtime. In terms of that agreement, the slaughterers who work overtime are paid time and a half therefor. This agreement was concluded orally by Mr Zammert on behalf of the respondent and by the secretary of the Islamic organization which recruits slaughterers. The applicants were all well aware of this agreement.

It follows that the applicants’ refusal to work overtime in the emergency which had arisen, constituted a serious breach of an agreement which was, at all times, valid and binding.’

Applicants in para 10(b) of their reply allege as follows:

‘Applicants deny that they were in breach of an agreement concluded between them and respondent. As stated in their founding affidavits applicants deny that they at any stage entered into an agreement to work overtime for respondent other than acceding to respondent’s random requests when it suited them. Applicants are unaware of any agreement concluded by Mr Zammert and the secretary of the Islamic organization. They are unaware as to who the secretary of the said organization is and submit that at no time during the period of their employ or before their employ were they advised of an agreement purportedly operating between themselves and respondent to do overtime.’

From the aforegoing it is not clear that an agreement had in fact been concluded in terms of which applicants could have been expected to work overtime. Applicants, according to the allegations contained in para 3 of their founding affidavit, have been recruited for employment at respondent’s plant by a religious Muslim organization. Respondent in the above-quoted phrase of its sworn written representations alleges that applicants were recruited by the Islamic organization’s secretary who orally concluded an agreement (on behalf of applicants) with Mr Zammert on behalf of respondent to the effect that applicants would in an emergency, if requested, work overtime and be paid at time and a half therefor. Except that Mr Zammert in an affidavit verifies the truth and correctness of the written representations in so far as they refer to facts within his personal knowledge no confirmation has been submitted from

the said secretary in connection with the alleged agreement of which applicants state that they are unaware.

From the fact that applicants had been recruited by the secretary of the religious organization it need not necessarily be deduced that that secretary had entered into an agreement with respondent on applicants’ behalf to work overtime. No evidence has been placed before this court that that secretary had been authorized by applicants to so enter into such an agreement on their behalf. Applicants aver as quoted above that they were unaware who the said secretary is and that at no time prior to or during the period of their employment they were advised of the purported agreement. The existence of the alleged agreement therefore seems to be questionable.

From the evidence placed before this court it can be inferred that applicants were purportedly dismissed summarily without any enquiry being held or their being given an opportunity to explain their standpoints. In this regard it might be apposite to note ILO Recommendation 119 (1963) on Termination of Employment para 2.1 of which reads as follows:

‘Termination of employment should not take place unless there is a valid reason for such termination connected with the capacity of conduct of the worker or based on the operational requirements of the undertaking, establishment or service.’

Also of significance might be para 4 thereof reading as follows:

‘A worker who feels that his employment has been unjustifiably terminated should be entitled, unless the matter has been satisfactorily determined through such procedures within the undertaking, establishment or service, as may exist or be established consistent with this Recommendation, to appeal, within a reasonable time, against that termination with the assistance, where the worker so requests, of a person representing him to a body established under a collective agreement or to a neutral body such as a court, an arbitrator, an arbitration committee or a similar body.’

Applicants in para 8(e) and (f) of their founding affidavit allege:

‘(e) We declined to work overtime.

(f) The said inspector left and returned after some minutes. He advised us that on the instructions of one of respondent’s foremen we were dismissed with immediate effect and that we were to return to the company premises on 10 February 1984 to collect our wages.’

Respondent in para 17(d)-(f) of its sworn written representations avers as follows:

‘(d) Hoosen, as has already been indicated, requested the applicants to work overtime in view of the emergency which had arisen. As has been indicated, they initially agreed to do so.

(e) Hoosen in fact informed the applicants when they stated that they were not prepared to work, that they could not get home as the vehicle was not

there to take them home. This made no difference to the applicants. The first applicant, who appeared to be the spokesman, stated that they were still not prepared to work.

(f) Inspector Desai then reported to Mr Tyack that the applicants refused to work and he told Desai to inform them that they were dismissed. This he duly did. Mr Fraser was in the company of Mr Tyack at the time and confirms these facts. Desai who is an experienced inspector is of the opinion that he would also have dismissed the applicants for their refusal to work in the circumstances. If he had thought the decision of Mr Tyack and Mr Fraser was wrong, he would have argued on behalf of the applicants. However, he is of the view and was of the view at the time, that the decision was the correct one and that the applicants were acting most unreasonably particularly in view of the fact that they had worked overtime on 22 January 1984 in an emergency situation also brought about by the breakdown of a vehicle.’

It may be, noted that applicants in para 7 of their reply allege that a second vehicle was ready and waiting to transport applicants.

It would seem from these allegations that applicants have not been afforded the opportunity of a proper enquiry or other disciplinary procedure at which they were given the opportunity to be represented by a person of their choice.

In Sigwebela v Huletts Refineries Ltd (1980) 1 ILJ 51 (N) James JP remarked at 51H as follows:

‘It seems to me that the plaintiff’s case was no more than this, that he had been summarily dismissed and that in view of his dismissal he was entitled to R26,22 in lieu of notice since his employment was on a weekly basis. The defendant did not dispute that it had dismissed the plaintiff but it disputed that it was obliged to pay him a week’s wages in lieu of notice because it maintained that he had been summarily dismissed for conduct which justified it in dismissing him summarily.

In these circumstances it seems to me that the onus is clearly on the defendant to establish that the plaintiff had been summarily dismissed on good grounds, and that if it failed to establish this on a balance of probabilities, the plaintiff is entitled to judgment for the amount claimed.’

In view of this quotation respondent may be expected to justify the purported summary dismissal on good grounds. This court has not been convinced that respondent has established on a balance of convenience that the purported summary dismissal of applicants was under the circumstances under which it occurred fair and reasonable. (See Cape Town Municipality v Minister of Labour 1965 (4) SA 770 (c) at 779H.)

In applying the test thus far applied by this court when considering applications for s 43(4)(b) orders it might be appropriate to follow the approach adopted by our courts in a number of cases and lucidly stated by Clayden J in Webster v Mitchell 1948 (1) SA 1186 (W) at 1189 as follows:

‘The proper manner of approach I consider is to take the facts as set out by the applicant, together with any facts set out by the respondent which the applicant cannot dispute, and to consider whether, having regard to the inherent probabilities, the applicant could on those facts obtain final relief at a trial. The facts set up in contradiction by the respondent should then be considered. If serious doubt is thrown on the case of the applicant he could not succeed in obtaining temporary relief, for his right, though prima facie established, may only be open to ‘some doubt’. But if there is mere contradiction, or unconvincing explanation, the matter should be left to trial and the right be protected in the meanwhile, subject of course to the respective prejudice in the grant or refusal of interim relief.’

In accordance with this approach and in the light of the aforegoing it would seem that as a real emergency had not arisen as a result of which applicants’ refusal to work the overtime when requested to do so in the probable absence of an agreement to that effect, the purported summary dismissal of applicants without a proper enquiry being held might be considered to be unreasonable.

It would appear that applicants have prima facie established an entitlement to reinstatement which may be open to some doubt. Because of the high unemployment which prevails at present a well-grounded apprehension of irreparable injury is conceivable as applicants who are not skilled employees will probably not easily find other employment. It is likely that applicants will suffer financial hardships with little possibility of ever making up the earnings lost because of their dismissals. The remedy applied for by applicants is the particular remedy provided for in the Act and also the ordinary one which is available under comparable circumstances.

On the balance of convenience the prejudice to applicants who were employed on a very specialized type of unskilled work, if the relief is not granted, appears to outweigh, should the relief be granted, the prejudice to respondent which is a large and successful company judging from its final accounts for the preceding financial year and to which it would not make much difference if it had to reinstate applicants.

From the papers before the court it is apparent that there has not been any true and serious effort to consult and negotiate.

Under the circumstances surrounding this matter it might be advisable that the parties be encouraged to attempt the conciliation procedures provided for in the Act.

In view of the above considerations the court ordered as it did on 8 May 1984. Applicants’ Attorneys: R Lyster of Legal Resources Centre, Durban. Respondent’s Attorney: Leandy & Partners, Durban.