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In the matter between:
NATIONAL UNION OF METALWORKERS OF SOUTH AFRICA Applicant
and
ACTOM (PTY) LTD t/a ACTOM ENGINEERING PROJECTS
AND OTHERS Respondents
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SUMMARY OF FINDINGS(PRIVATE ARBITRATION AWARD)
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1. From March 2015 to April 2015, there was industrial action at the Eskom Medupi Power station site. On 30 April 2015, NUMSA’s members (the individual applicants) received text messages informing them that they would be paid travel allowances and that employees residing in company provided accommodation should vacate the accommodation. The individual applicants were not required to report for work from 30 April 2015.
2. From May 2015 to September 2015, the respondents proceeded to take disciplinary action against the employees. Some employees were made to sign “peace agreements” and were sanctioned with final written warnings prior to being allowed to resume their duties and some employees were subjected to disciplinary enquiries which resulted in dismissals. The individual applicants were not paid their wages from 30 April 2015 until their respective dates of resumption of duties (after signing the peace agreement) or dismissal. The individual applicants also forfeited their project labour bonuses which they had accrued for the months of Dec 2014, Jan 2015 and Feb 2015.
3. NUMSA referred disputes against the various respondents to the CDR, the parties agreed to refer the matter to private arbitration. NUMSA sought an award declaring that the suspension of all of its members by the respondents constituted an unfair labour practice as contemplated in section 186(2)(b) of the LRA and directing the respondents to pay each of the individual applicants an amount equal to the remuneration due to each of them during their suspension; declaring that imposing a final written warning on individual applicants who were not found guilty of any misconduct by the respondents constitutes an unfair labour practice and directing that these final written warnings be set aside and further declaring that the respondents’ conduct in depriving the applicants of their project labour bonuses for the months of Dec 2014, Jan 2015 and Feb 2015 constitutes an unfair labour practice relating to the provision of benefits and directing the respondents to each individual applicant an amount equal to the remuneration due to the individual concerned in terms of the bonus scheme.
4. The arbitrator accepted that although the individual applicants did not provide their services during the relevant period, NUMSA had made a valid tender to the respondents. The arbitrator stated that the inability of the respondents to provide work for the individual applicants was not a defence against a claim for remuneration but may be a cause for the termination of employment.
5. The arbitrator held that it was unfair for the respondents to withhold the individual applicants’ project bonuses for a period during which no industrial action occurred and it was unfair where no evidence exists that the employees who signed the peace agreements had participated in unprotected strike action and violent activities.
6. The arbitrator stated that the individual applicants who had signed the peace agreements had no choice whether they wanted to sign the agreements or not. The individual applicants succumbed to the employers’ influential positions and signed the agreements against their free will. The conduct of the respondents in exerting undue influence on the individual applicants was contra bonos mores.
7. The arbitrator also held that the process followed in obtaining the individual applicants’ acceptance of final written warnings was unfair and the final warnings were not based on a correct and true reason and factual basis. Therefore the conduct of the respondents in requiring the individual applicants to sign the peace agreements in terms of which they accept a final written warning was unfair as contemplated in section 186(2)(b) of the LRA.
8. The arbitrator granted an award in favour of NUMSA and ordered the respondents to pay compensation to the individual applicants as a result of the unfair suspension, equal to the remuneration which the individual applicants would have received from 30 April 2015 until their dates of dismissal or the dates on which the individual applicants signed peace agreements.
9. The arbitrator further ordered the respondents to pay compensation to each of the individual applicants equal to the project bonuses which each of them were supposed to receive for the period Dec 2014 to Feb 2015.
10. The arbitrator also ordered that the final written warnings issued by the respondents to the individual applicants in terms of the peace agreements are, as contemplated in section 193(4) of the LRA, set aside.