East Rand Proprietary Mines Ltd V UPUSA & Others

East Rand Proprietary Mines Ltd v UPUSA & others [1997] 1 BLLR 10 (LAC)

Division: Labour Appeal Court, Transvaal Division Date: 15 / 11 / 1996 Before: E Cameron, Judge, sitting with Dr D John & Adv M Masipa, Assessors

Flynote

Appeal in terms of section 17(21A)(a) of the 1956 Act

Dismissal – Ethnic hostility – Dismissal actuated by operational reasons arising from ethnic or racial hostility will be countenanced only when management not only acted reasonably, but had no alternative – Dismissal at point when threat to dismissed employees may have been averted by mediation premature and therefore unfair.

Dismissal – Operational reasons – Pressure for dismissal from other employees – Not to be equated with ordinary dismissal for operational reasons – Test not whether employer acted reasonably, but whether employer had no alternatives.

Dismissal – Reinstatement – Reinstatement prima facie the fair remedy for unfairly dismissed employees – Reinstatement imprudent where dismissal ruled unfair because employer had aborted mediation proceedings, outcome of which could not be predicted.

Industrial Court – Section 46(9) proceedings – Compensation – Compensation equivalent to six months’ wages sufficient for workers dismissed because of pressure from fellow employees – Greater compensation would be unfair to employer.

Retrenchment – Operational reason arising from inter-employee hostility – Not to be equated with ordinary dismissal for operational reasons – Test not whether employer acted reasonably, but whether employer had no alternatives.

Editor’s Summary The appellant dismissed about 350 of its Zulu-speaking employees in 1994 on the basis of operational reasons because it could not guarantee their safety as other employees objected violently to their presence. The Industrial Court ruled that the dismissals were unfair, and granted the dismissed employees compensation equivalent to six months’ wages. The respondent cross-appealed against the relief. The dismissals took place against the background of the run-up to the general election of 27/28 April 1994. Tensions were generated on the appellant’s mine, and came to a head just before the election, when an attack by Zulu-speaking hostel residents on other workers was narrowly averted. Meetings between the appellant, the National Union of Mineworkers (NUM), and the Zulu-speakers were held, during which NUM requested that the Zulu workers not be allowed back to their hostel as it could not guarantee their safety. Management then proposed to the Zulu speakers that they either be sent home for a period of paid leave until after the election, or take severance packages. A representative of the KwaZulu government objected to these proposals, and NUM distanced itself

of [1997] 1 BLLR 10 (LAC) from the problem. The representatives of the Zulus then proposed mediation, which was endorsed by management. NUM, however, refused to participate, and mediation could accordingly not be commenced. Management renewed its offer of two months’ “home leave”, with employment guaranteed thereafter, which the Zulus accepted. Before the Zulus returned to work, however, other workers signified their dissatisfaction with the fact that they had been given two months’ leave, and threats to “kill the Zulus” began to circulate. When the first batch of Zulus returned, violence erupted. Two were killed and 13 injured. Management immediately stopped further returns. The Zulu workers who had returned were removed to safety, and a meeting convened between their representatives and NUM. Mediation by the local Peace Committee was arranged, and a committee was formed to deal with the problem. The Zulus renewed their call for a separate hostel, which was opposed by NUM. By this stage three months had passed since the disturbances commenced, and management complained that 300 workers were still being paid without working. It then stated that it saw no other solution but to terminate the services of the Zulu employees – “a no-fault termination which is on operational grounds” – and proposed a severance package equal to two weeks’ pay for the first year of service and one weeks’ pay for each subsequent year. This decision was implemented a few days later, but management later agreed to revoke it if the parties reached agreement. After a series of further meetings, the decision to dismiss was finally taken. Regarding the appellant’s contention that the individual respondents had been dismissed for operational reasons, the Court noted that the real question was whether a dismissal which had its origins in ethnic victimisation of the dismissed employees should be countenanced. While it was true that management had not taken part in that victimisation, a distinction had to be drawn between management’s motives and the factors which caused the action. There was a difference between operational factors such as market forces and technological change (which might render a decision to dismiss within the competence of management), and operational reasons which had their roots in opprobrious social conflict. Just as it would be reprehensible to dismiss workers because they were Jewish, or Zulu, or had HIV, just so would it be reprehensible to dismiss them for some such reason because other employees wanted them dismissed for it. While an employer might dismiss employees because it could not guarantee their safety in the light of the reprehensible ethnic hostility of other employees, this could only happen when the employer truly had no other alternative. No discretionary “band of reasonableness” could be permitted. In a country that consisted of linguistic, ethnic and other minorities, public policy required a test of necessity, not of reasonableness in such contexts. The court found on the facts that management could “at a pinch” have found separate temporary accommodation for the Zulu speakers. More fundamental, however, was its failure to give more time to the mediation process. By the time of the dismissals, the parties had all made significant shifts from their previous positions, and had been brought together by the mediation process. Another factor which suggested that management should have allowed the process to continue was that it had contributed to the problems that had made the process necessary. The appeal was accordingly dismissed with costs. As to relief, the Court held that while at first glance the Zulu workers were entitled to reinstatement, the fact was that the appellant was at fault merely for prematurely halting the mediation process. Since the outcome of that process was a matter for conjecture, a reinstatement order would have been, and remained imprudent. Furthermore, there was sufficient evidence to suggest that an order for greater compensation would impose an unfair burden on the appellant. The cross-appeal was accordingly dismissed.

of [1997] 1 BLLR 10 (LAC) Judgment

Cameron J Introduction The question in this appeal is under what circumstances, if ever, an employer may dismiss employees who are the target of ethnic hostility from other employees, and whose safety in the workplace the employer in consequence cannot guarantee. On 13 July 1994, the employer in this case (“ERPM”) dismissed some 350 of its Zulu- speaking employees. It did so on the basis of operational reasons: it was unable to guarantee the safety of its Zulu-speaking employees because other employees objected violently to their presence. The Union (to which I shall on occasion refer as “UPUSA”), and some 320 individual applicants in the Court below (to whom I shall refer as “the individual applicants”, “the individual employees” or “the Zulu-speaking workers”) challenged the dismissal in unfair labour practice proceedings in the industrial court. After a protracted trial, the industrial court ruled that the dismissal was unfair, but that the workers should be denied the remedy of reinstatement. Each was given compensation of some six months’ wages instead. There is now an appeal and a cross-appeal. In the appeal, ERPM challenges the determination that the dismissal was unfair. It also appeals against the amount of compensation awarded. In the cross-appeal, the Union and the dismissed workers seek reinstatement; alternatively, increased compensation.

Background to the dismissals: First phase – April to June 1994 The dismissals have their origin in the period of fraught tension in March and April 1994 which preceded the country’s first democratic general election on 27/28 April 1994. Two events of national significance occurred in that period. The first was a march by Zulu speakers in Johannesburg on 27 March 1994 in the course of which, outside the ANC headquarters at Shell House, a number of Zulu speakers lost their lives. The second was that, very shortly before the election was scheduled to take place, the Inkatha Freedom Party, which represents many Zulu speakers, revoked its former stance and decided to participate in the elections. During this time, ERPM had its own sombre share of tension. ERPM’s hostel daily incident report book for 20 March 1994 records that a man, who refused to give his name, phoned “telling them of the rumours of Pondos who might attack the Zulus tonight”. This rumour was followed the next day by rumours that Zulu-speaking hostel residents were going to mount an attack over the Easter weekend. On two occasions before the end of the month, Mr GJM Reilly, ERPM’s hostel manager, took these rumours up with the IFP and with a leader of the Zulu delegation. The Easter weekend that year fell between Friday 1 April and Monday 4 April. It saw these tensions come to a head. On Saturday 2 April at about 03h30, approximately 200 Zulu speakers left the mine’s largest hostel, the Cinderella

of [1997] 1 BLLR 10 (LAC) Hostel. According to an account Mr T Karallis, the Human Resources Manager of the Randgold Group (the holding company of ERPM), gave at a later meeting, the Zulus “left the hostel and promised others that they are coming back to attack them”. On Easter Sunday, some Zulu speakers returned to the hostel, but security managed to avert a confrontation. One Zulu speaker suffered an assault. On Easter Monday, management met representatives of both the National Union of Mine Workers (“NUM”), and Zulu representatives. NUM represented the majority of workers at ERPM. An access agreement between ERPM and NUM was concluded on 22 November 1991. In the dealings between NUM and management between April and July 1994, NUM was represented initially only by shop stewards from the mine. NUM regional representatives later also became involved. In the minutes of the parties’ meetings, and in their correspondence, the Zulu speaking employees whose presence on the mine (or absence from it) was contentious are uniformly referred to as “the Zulus”, and the resultant issue as “the Zulu issue”. This is notwithstanding the fact that many of “the Zulus” were NUM members and that, conversely, the NUM delegation itself included persons with obviously Zulu names like Nkomo and Vilakazi. Both meetings management held on Easter Monday are significant to understanding the later events, since at them many of the positions the parties later took were nascent. At the meeting with NUM on Easter Monday, after the NUM delegates had alluded to the rumours of an IFP attack, management emphasised that its “first responsibility towards employees [is] the safety of all employees”. It is then recorded that the chairman asked NUM “for any suggestions”. NUM’s response was that the Zulu employees could not be allowed back into the hostel “as their safety cannot be guaranteed by the Union”. The NUM representative “explained that the Zulus are also not wanted in the workplace by other employees”. The NUM branch representatives according to this minute neither distanced themselves from the ethnic hostility they were reporting nor undertook to counter it. At the meeting that same day between management and Zulu representatives, management observed that there was “a total mistrust between Zulus and others”. The chairman then posed the question “what is the solution to the problem?” Management would not force the Zulus to go back to the hostel because “management cannot guarantee their safety both in the hostel and at work”. Management appeared at this meeting already to have “discarded the option of transfers to other mines”. Instead, management proposed two options, and two only: 1. All Zulus were to be sent back to Natal for a paid period of “home stay”, with the situation being reviewed after the election had taken place. 2. The Zulu workers were to take a package and leave the mine. The following day, Tuesday 5 April, two KwaZulu government representatives joined the management-Zulu meeting. This was to be the source of objections from NUM later. Management made its dilemma plain. The Zulu demand that

of [1997] 1 BLLR 10 (LAC) Zulu-speaking workers be housed in a separate hostel could not be countenanced: “The chairman explained that they are here to run a business. We are not politicians and what we are trying to do is to solve a problem. You cannot separate people in hostels and expect them to work together.” The Zulu representatives asserted that the Zulus wanted to go back to work. By sending them home, “management is creating a bad impression”. Instead of disciplining the troublemakers, “management wants to discipline innocent people”. The two-option position that management had taken was reported later that day to NUM. The next day, in a management/NUM meeting, NUM declined its co-operation. It claimed this was “not a Union-related problem”. NUM asserted it “would like to play a neutral role in this issue”. Furthermore, NUM refused to meet with the IFP or the KwaZulu Government. This was because NUM was “not a political party”. Given that NUM was at that stage a prominent member of the Congress of South African Trade Unions (COSATU), which itself was one of the pillars of a tripartite alliance with the SA Communist Party and the African National Congress, formed with a view to the impending elections, this stand can best be described as cynical. The Zulus started removing their personal belongings from the Cinderella Hostel on the Wednesday. The possibility of mediation, which later was to play such a contentious role in the dispute, first arose at a meeting on the Thursday between management and the Zulu representatives. It emanated from the KwaZulu Government representatives. They proposed “a professional mediation”, to include the KwaZulu Government, NUM, the ANC, the Transkei Consulate, UPUSA and the IFP. Management responded with immediate endorsement. It even offered to pay the fees of the Independent Mediation Service of South Africa (IMSSA). Management put the mediation suggestion to NUM the following morning, asking them to participate despite their expressed aversion to “politics”. NUM refused. It did not “want to be involved with politics”. NUM now advanced a further ground for filibustering the mediation. NUM was “not prepared to break their members into different cultures, because they are representing everybody”. This standpoint apparently sought to advance non-ethnicity by refusing to participate in a mediation designed to abate ethnic hostility. Though NUM was not represented in the court below or in the appeal before, it is difficult to believe that its approach was articulated in good faith. When asked if the Zulu employees would be allowed to return to the hostel, NUM’s retort was that “if management wanted to return the Zulu employees, management must take the consequences”. There were now approximately 300 Zulu employees, including NUM members, being housed at the mine’s training centre. They were not working, but were being paid. NUM’s veto meant that management’s efforts to get the mediation process off the ground were unavailing. A further meeting between management and NUM on Saturday 9 April took the matter no further. On Monday 11 April, the Zulu representatives renewed their request for mediation. Management now elaborated its suggestion regarding “home stay” for

of [1997] 1 BLLR 10 (LAC) Zulu employees. The period was to be two months. This was hoped to operate as a “cooling off period”. The proposal was that “all Zulu employees return on 18 June 1994”. This date is significant. Management put in prospect a written guarantee of re-employment; no new employees would be taken on. Each employee would receive R1 000,00 in cash and their salaries and bonuses to date would be paid into their TEBA (The Employment Bureau of Africa) bank accounts. The reason for insistence on the “home stay” was that “management cannot guarantee anybody’s safety”. The Zulu representatives repeated their request that the Zulus be “moved to a separate hostel”. The Zulus’ sense of grievance and victimisation was vividly presented in a letter from “concerned Zulu employees” handed by a delegation of six Zulus to management at a meeting on Tuesday 12 April. The General Manager, Mr le Roux, was present. There was, they stated, no problem in the workplace. If a separate hostel was provided, there would thus be no problem. Their perception was that, “Because we are a minority, we must go”. Management were “thanking us by saying others don’t want us”. At the outset, and above all, mediation was again pressed: “Why does management not get others to talk?” Shortly after this meeting, the General Manager, addressing a “well-disciplined” Zulu group in front of the ERPM offices. Later that day, a formal meeting was held between KwaZulu Government representatives and management. Management explained that its attempts to initiate mediation had failed. Management had given consideration to housing the Zulus at the Far East Hostel, “but if somebody gets killed it can set a spark”. Management emphasised that ERPM was “a marginal mine” which could not afford a work stoppage. ERPM was “on the very last bones of its existence”. Management ran the risk of a strike by 5 000 employees if the Zulus returned to work. Confronted with a choice between being subjected to involuntary severance, and being dispatched home on two months’ enforced paid leave, the Zulu employees chose the latter. At a meeting between management and NUM the next day, Wednesday 13 April, the regional organiser, Mr Fabian Nkomo, made what appears to be his first appearance. The next day, Thursday 14 April, an agreement was reached between management and Zulu and KwaZulu Government representatives. The Zulu representatives again asked that they be moved into “their own hostel”, a request management again rejected. The agreement, which was set down in writing and signed on behalf of both ERPM and the Zulu employees, embodied two months’ paid leave, with re-employment guarantee thereafter. The written agreement contains a guarantee of return to work “on 20 June 1994”. A letter directed to “ERPM Zulu employees” on 14 April 1994 likewise indicates “a return date to the mine of 20 June 1994”. The significance of these intimations regarding the return date will emerge later. Less than two weeks later, the national democratic elections took place. Unexpectedly, the IFP participated. Thereafter, a government of national unity took office, including a cabinet which contained a number of IFP cabinet ministers. On 4 May 1994, the general manager of the mine and two further management officials met with eight NUM representatives. Regarding “the return of the

of [1997] 1 BLLR 10 (LAC) Zulus”, management requested the representatives “to react positively and responsibly”. Management stated that IFP participation in the general elections had “drastically defused the political situation in the country”. Management recorded the following: “An undertaking was given by management that the Zulus would be allowed to return on 20 June 1994 and this agreement would be honoured.” Security was still present at the hostel “and it is felt that they should now be withdrawn. A security liaison committee should be formed so as to monitor the situation”. Other issues were discussed during this meeting. On “the Zulu question”, NUM’s attitude was that it could not be addressed at that forum. Instead, NUM representatives suggested that it “be dealt with through the regional office”. In the interregnum between the departure of the Zulus and their projected return, a further meeting took place between management and the NUM branch committee, on 24 May 1994. NUM’s position was that its head office was busy with discussions regarding “the Zulu issue” and that at that stage NUM could not comment on the issue. There was an undertaking to give feedback to management at the next meeting. On 1 June 1994, ERPM directed a letter to Mr Gwide Mantashe at NUM head office. The letter was circulated to the NUM regional office for the attention of Mr Fabian Nkomo. The letter proposed a meeting on Friday 3 June 1994 in order to discuss the “Zulu issue”. The letter contained the following paragraph: “As you are aware, we sent some 300 Zulu employees home for two months in April 1994. These employees will be returning on 20 June 1994.” On 7 June 1994, management held a meeting with the NUM branch committee. NUM recorded at this meeting that ERPM’s workers were “unhappy” because the Zulus had been given two months’ paid leave “while other workers had to work”. The minute of the meeting records a statement from the NUM delegation which is of critical significance to the issues: “Some workers wanted to kill the Zulus, they said.” NUM stated its disapproval “of management dealing with the KwaZulu authorities concerning a labour issue when it should have been dealt with by unions only”. Management countered by stating that its decision on paid home stay was based “on humanitarian grounds”. Significantly, management reiterated in this meeting with NUM that the return date for the home stay Zulus was 20 June 1994. The minutes record that “management called for the reconciliation of workers and Zulus on 20 June 1994 as fellow-employees” (emphasis added). NUM responded that it “would try to persuade workers to accept the Zulus back”. In his evidence, Dr Kent McNamara, a social anthropologist with considerable expertise regarding mine violence, stated that this meeting conveyed “clear warning signals” of threats to Zulu workers.

Summary and overview: Events preceding the Zulus’ return Four salient points deserve emphasis regarding the events preceding the return of the Zulus in June 1994. First, management stressed at all times that its two priorities were the safety of its workforce and the maintenance and continuation

of [1997] 1 BLLR 10 (LAC) of production on the mine. The importance of continued production was underscored by the position of management that the mine was marginal and its continued existence therefore open to doubt. Secondly, from the outset, management rejected any notion of segregated hostel facilities. It therefore rejected the possibility of accommodating the Zulu-speaking members of its workforce in separate hostel accommodation. Thirdly, mediation was a possibility discussed by the parties involved in the problem almost from the outset. It first appears in the minutes of the meeting between management and the KwaZulu Government representatives on Thursday 7 April 1994. At this stage, however, mediation did not get off the ground. This was because the attitude of NUM scuppered it. Fourthly, and finally, apart from a single initial suggestion at one meeting that the Zulus were to return on 18 June, the return date management consistently envisaged, and communicated to everyone concerned, was 20 June 1994.

Background: Second phase – June to July 1994 A meeting critical to the later fate of labour relations at ERPM was held between management and a Zulu delegation on Friday 10 June 1994. The Zulu delegates included Prince J Zulu and Mr Vitus Mvelase of the KwaZulu Natal government. The record of the meeting reveals that, at the outset, the Zulu delegation proposed to management “that the Zulus be allowed to return on 15 June 1994 so that all administration functions could be finalised timeously”. The Zulus renewed their request for a separate hostel. The minute records that, “after the exchanging of different ideas and some lengthy deliberation”, management and the Zulu representatives agreed that the Zulu employees on home stay “will begin returning to the mine from 15 June 1994”. The significance of this agreement, and the circumstances under which it was reached, will in due course emerge. For the present, it is sufficient to note that neither NUM nor any other employee representatives, least of all any hostel dwellers, were present at this meeting. Nor were NUM or any other employee representatives party to the agreement regarding the advanced return date. Meanwhile, in apparent anticipation of the return of the home stay Zulus on 20 June, the ERPM branch of NUM at the Cinderella Hostel directed a letter to ERPM’s IR manager on 13 June 1994. The letter requested “an urgent meeting with the management of ERPM” on Wednesday 15 June in order to discuss inter alia “the Zulu issue”. Regrettably, the parties, for reasons which do not appear from the record, could not schedule a meeting for 15 June. Instead, the meeting was arranged for 16 June. Meanwhile, the first returns commenced on 15 and 16 June. At a meeting between management and the NUM branch committee on 16 June, the NUM delegation hedged on whether it was willing to sign, and procure its members to sign, a peace pledge management had drafted, and which the returning home stay Zulus were required to sign. The question of the grievance apparently felt by the workers who remained about the paid leave accorded the home stay Zulus again arose. NUM recorded that this was “a serious issue”. Management was requested to “make an effort to the people who remained behind”. That evening, upon the return to Cinderella Hostel of the first batch of home stay Zulus, disaster struck. Statements collected from the victims of the violence

of [1997] 1 BLLR 10 (LAC) paint an agonising picture of brutality and of the destruction of human life and limb. Two Zulu speakers were killed. Thirteen were injured, five of them seriously. In the entire record of more then 3 900 pages, the name of only one of the two dead men appears. He was Mr Alpheus Zindla Dludla. No details about him appear. We do not know whether he had loved ones, dependants or a family. The record shows only that at the time of his death he was wearing short pants and a T-shirt, and that he was attempting to run away from his attackers. One of them, a man named as Jonathan Giyose, allegedly attacked him with a pick-handle. Mr Dludla fell to the ground. A group of people then attacked him “and killed him”. Other Zulus were beaten with sticks, hacked with axes and confronted by groups of toyi-toyiing assailants. Management instantly suspended the return at source. A meeting with NUM was immediately convened. The NUM representatives now included Mr PE Mdletshe from NUM head office. Management recorded, with inescapable understatement, that the situation “was presently volatile”. NUM complained bitterly and immediately that management “had taken a unilateral decision concerning the Zulu issue instead of a participated decision and had ignored the involvement of a recognised union”. NUM also pointed out that the procedure presented on 16 June for returning the Zulus “was a unilateral management decision”. Management, in response, pointed out that before the decision to send the Zulu-speaking workers home had been taken in April, management had “requested the assistance of the NUM to help with the problem and come up with a solution yet it was not forthcoming”. Mr Nkomo responded that “his Union would not be involved with a Government/political party when dealing with a labour issue”. Mr Mdletshe seized upon the procedure management had agreed a week before with KwaZulu Natal Government representatives for the returning Zulu employees. He objected that management had “still involved a political party after the Union had raised objections to their involvement”. He blamed management for the incident at Cinderella and stated that the Union had told management “not to involve the KwaZulu Government in this matter”. In conclusion, NUM stressed its grievance about the “lack of consultation by management before making a decision about when the Zulus would return” and emphasised that NUM were not expecting the Zulus to return on 15 June, but only on 20 June. The themes of this meeting were continued at a meeting the next day. Mr T Karallis, the Randgold Human Resources manager, attended the meeting of Saturday 18 June, as did Mr Mdletshe. Karallis placed on record that it was “disappointing” that NUM had not been informed about the advanced return date. “He said that it should have been done in the correct order”. Mr Karallis added that “if a problem with communication had led to a reaction by employees whereby two were killed and thirteen were injured, then it was very bad and he hoped that there was no link. He apologised that information was not timeously communicated”. NUM’s response was this: “Mr Mdletshe said that the unilateral decision to deal with the KwaZulu Government recently was the cause of the problems when ERPM has a recognised trade union. He said that Mr Karallis had apologised about the matter but he did not understand why

of [1997] 1 BLLR 10 (LAC) management had decided to allow the Zulu workers to return on 15 June when it had earlier said that 20 June 1994 was the return date.” By Monday 20 June all the Zulu employees who had returned had been moved to safety. At a meeting between the management and Zulu representatives, UPUSA asked for an independent mediator “to assist with both parties’ problems”. The Zulu representatives expressly agreed to meet with the NUM committee to mediate. Later that day, management met with the NUM branch committee and Mr Mdletshe from NUM head office. Mdletshe now called for a meeting “as soon as possible” between NUM and the Zulu employees “as there was a need for reconciliation”. NUM alleged that approximately seventeen employees (apparently its members) had been “seriously assaulted” on 16 June. Despite management’s requests for the identification of these employees, it seems that this never occurred. ERPM’s technical manager, Mr RRK Zorab, “agreed to help set up the meeting between the NUM and Zulu representatives as soon as possible”. Management “recognised the positive step of NUM agreeing to assist with the investigation to identify the cause of the violence on June 16”. This meeting “never materialised” according to a complaint of NUM at a meeting with management the next day, Wednesday 22 June. NUM again placed on record that it was not happy with management “involving political movements and non-recognised unions in the process”. The meeting in ques tion was, however, meant to be “with the Zulu representatives” and the fact that it had not materialised indicated to NUM “the delaying tactics of management”. At this meeting, the appointment of a mediator from the Boksburg/Benoni Peace Committee was approved. Management undertook to set the date for the first mediation cession as soon as the mediator had been appointed. How ever management undertook that this issue “would be treated as a matter of urgency”. On Thursday 23 June, the Boksburg/Benoni Peace Committee held a meeting with management. In the meanwhile, both NUM and management prepared draft-written procedures for the conduct of the mediation and the accompanying investigation into the violence. On Friday 24 June, a further meeting took place between management and the Peace Committee. The meeting was chaired by Rev Steve Mbande and Rev Peter Moerane. Later that same day, there was a meeting between the Peace Committee, NUM and the Zulu representatives. A further meeting took place between management and the Peace Committee on Tuesday 28 June. Management emphasised its concerns: they were the payment of non-productive workers; and the principle that there could not be ethnic separation in the hostels or in the workplace. On Friday 1 July, the Peace Committee held a meeting with the Zulu workers and other hostel residents. The interchange between the factions is recorded in the minutes by allusions to “Xhosas” and “Zulus”. There is some indication in the record that Mr Mvelase, on behalf of the Zulus, and Mr Mdletshe, on behalf of NUM, “supported each other”. Significantly, at this meeting, Mr Mvelase admitted that the idea of separate hostel accommodation was not good. However, “for now”, separation was necessary because of the conflict.

of [1997] 1 BLLR 10 (LAC) At this meeting, a “committee of ten” was appointed to carry the mediation and investigation process further. The committee consisted of both NUM and Zulu representatives. A mass meeting of the workers appears to have taken place on Wednesday 6 July to discuss the dispute between Zulu speakers and other hostel residents. Rev Steve Mbande and Mr Mathebula from the Peace Committee were present. The hostel residents apparently thought that this meeting would deal with their demand for an equivalent two-month bonus to match the “home stay workers” paid absence. When this did not transpire, there was apparently a walk-out. On Friday 8 July, a meeting took place between management and NUM. NUM recorded that “all people in the hostel say they want the Zulus back”. NUM proposed a joint mass meeting, at which it promised that there would be no violence. Management’s response was that “possibly we can arrange a meeting between the two committees on Monday to discuss the issue”. It was agreed, in conclusion, that a joint meeting of management, NUM, Zulu representatives and the Peace Committee would be held on Monday 11 July at 10h00. This meeting in fact occurred. It appears to have been minuted in detail. The Zulu representatives placed on the table again their request for a separate hostel. NUM recorded that at their mass meeting with their members on Wednesday 6 July, their members had stated “that the Zulus must come to the hostel and meet the employees and solve the problems in order for them to reintegrate”. Management expressed the hope “that out of this process . . . the parties would have joint common ground to facilitate the process of reintegration”. This, however, appeared “not to be so”. The Zulu proposal at this stage was in fact for a “temporary” separate accommodation arrangement. During the course of the meeting management undertook to “consider NUM and Zulu proposals”. There was then a caucus. On management’s return, according to the minutes, they appeared to have given consideration to the proposal that the 320 home stay Zulus might be accommodated temporarily at the Far East Vertical Shaft Hostel (FEV). Management regarded the proposal for a joint mass meeting, however, as being “fraught with danger”. The meet ing now, however, appeared to take a decisive turn. Management made a statement: “ The process so far has taken three months. Some 300 employees are being paid with no production. Management’s priorities are safety for all employees and continued production which supports everyone’s job on the mine. The risk with continuing with this situation is far too great. The future is fraught with possibilities of further violence and production losses. Management sees no other solution but to terminate the services of the Zulu employees. This decision has not been taken lightly but it is the only solution to the current problems. This is a no-fault termination and is effected on operational grounds. The mine will pay a package of two weeks for the first year of service and one week per year of service thereafter. Repeat that it is a no-fault termination. The package will be ready on Wednesday as there is work to be done in organising it. It is with deep regret that management had to make the decision. Page 21 of [1997] 1 BLLR 10 (LAC) Management thank the Peace Committee in its attempt to mediate and thank the KwaZulu representative and NUM for their part in the process.” This development plainly took NUM, the Zulu representatives and the Peace Committee by surprise. According to Mr Mvelase’s subsequent portrayal of the dynamics of the meeting, “when management came into the meeting it appreciated the progress made. Then it went out of the meeting. Thought a positive response would come back. The parties were [then] told that the Zulus must go”. The Peace Committee said that it was “surprised by the decision”. It stated: “May be, management is not aware of the progress”. In the events that occurred thereafter, the decision of this day to dismiss the Zulu- speaking employees was never revoked. It was, in fact, implemented with effect from Wednesday 13 July. However, management suspended the decision temporarily, pending further discussions with NUM, the Zulu representatives and the Peace Committee. At a meeting between management and the Peace Committee on Tuesday 12 July, management asserted that its solution was “the only practical one”. The Peace Committee representatives urged that only “the first phase is complete”. Rev P Moerane, who had been chairing a number of the meetings, objected that the Peace Committee had not been approached before management took its “drastic step”. Feedback to management “may have been slow”, but this was because of the perception “that management had a hand in the violence”. The Peace Committee begged management to reverse the dismissals. Management’s response was that the Peace Committee had “not come up with any concrete proposals”. The proposed joint mass meeting of all the workers provoked “obvious concerns”. As far as separate temporary accommodation was concerned, the FEV was the only hostel that could be used, but there were “logistical problems” with this. Moreover, “the hostel would be predominantly Zulu”. Mr Moerane stated that the Peace Committee needed “48 hours to finalise the process”. In his evidence in the industrial court, Mr Moerane explained that he was, in effect, pleading for mercy from management. At the meeting, he stated that he needed the 48 hours “on moral grounds”. Management’s response was that the “decision stands”. On Wednesday 13 July, management issued a notice to “Zulu employees”. It was headed “Termination of Services”. The notice read as follows: “Following extensive discussions, consultation and lengthy efforts to resolve the conflict situation facing us for the last three months, it has become clear that no constructive and lasting solution is possible. At the meeting held with your representatives on 1994/07/11 it was decided to effect a ‘no fault termination’ on operational grounds and a package of two weeks’ pay for the first year of service and one week’s pay for every year thereafter will be paid to you. This money will be available on Wednesday 1994/07/13 from plus/minus 12h00 and buses will be available to transport you home. Management deeply regrets this situation.” Later that morning, a stormy meeting took place between management, the Peace Committee representatives, NUM, the IFP, and representatives of the KwaZulu Natal Government. Management placed on record that ERPM was “in

of [1997] 1 BLLR 10 (LAC) dire straits”. If production did not increase, the “likelihood of the mine closing is imminent”. The Peace Committee “begged” management to reverse the dismissals. Moerane’s previous request for 48 hours “to reintegrate the workers” was repeated. The meeting became fraught. Peace Committee representatives from the South African Council of Churches (SACC) threatened a sit-in at management offices. Management, in its turn, objected to a press statement the SACC had released the previous day. The non- management parties made the strongest objection to the fact that the termination letter had already been distributed before the meeting took place. Management placed on record that its concern was “the rate and progress of the mediation”. As for the 48-hours moratorium that had been requested, matters had “gone on for 3½ months”. Management then “asked what could be demonstrated in 48 hours that could not be done in 3½ months”. The proposals tabled on Monday were the same as in April – that is, the demand for a separate hostel, with the only difference being that it was now for “temporary” separate accommodation. The Peace Committee insisted that management had jumped the gun, and that further proposals would be forthcoming. Mr Brooks, a minister of religion on the Peace Committee, asserted that “reconciliation of the employees is a concrete proposal”. In response, Mr Zorab conceded that “some progress was made, that is, [the] parties [are] together in the same room”. After management caucus, management agreed to grant the parties until Monday 18 July at 09h00 for an agreement to be reached, “after which the decision will be upheld”. In the meantime, the Zulu-speaking employees – who had already received their notice of termination – would not be paid from Wednesday 13 July “until resolution”. A further meeting took place the next day, on Thursday 14 July. Management, the Peace Committee, the SACC, NUM, KwaZulu Natal and Zulu representatives were present. In addition, three UPUSA representatives attended. This was the first time that UPUSA had become involved. Management had tabled a 12-point draft for the resolution of the dispute. This included a refusal to pay the non-home stay workers two months’ extra pay; a rejection of separate hostel accommodation; the signature by all employees of a peace pledge; and the reintegration of the Zulus. Management itself had moved. It now suggested as an interim measure that, instead of being given separate temporary hostel accommodation, the Zulu- speaking employees should be paid a one month’s living-out allowance. The meeting encompassed detailed negotiations on the original management draft. These negotiations led to a redraft of management’s proposals, which management after the meeting directed by letter to NUM with the draft agreement, plus a peace pledge. On Friday 15 July, a further meeting took place between management, NUM and Zulu representatives. Mr Mdletshe was in Durban. He put in prospect a meeting the next day (Saturday), but his attendance was in fact not procured until the Monday. At the Friday meeting, management proposed that there should be “another meeting to discuss the new proposals” by the Peace Committee. Management emphasised that it was “available 24 hours and for the whole weekend to attend to this issue”.

of [1997] 1 BLLR 10 (LAC) On Saturday 16 July, ERPM directed a letter to NUM concerning the unsuccessful attempts to arrange a meeting for that day. The letter emphasised that “the cut-off time remains 09h00 on Monday 18 July 1994”. Monday saw a stormy series of meetings. At 09h00, a meeting took place between management, NUM, the SACC, the Peace Committee and Zulu representatives. Management placed on record that, if the cession showed signs of reconciliation or resolution, “it will be ongoing”. NUM proposed three steps. First, the living-out allowance to the Zulu workers should be rejected. Instead, employees “must be accommodated in the hostel”. Secondly, the meeting should be adjourned and reconvened in the early afternoon to permit NUM to meet the Zulu employees and to “discuss the mechanism of going back to the hostel”. Thirdly, NUM proposed to have a mass meeting at 16h30, and to involve the South African Police Services “as a neutral party”. One of the Zulu representatives, Mr MA Mzizi, a member of Parliament, now proposed that Zulu employees should be given accommodation within the hostel, but within a separate block. Management stated “that they want to see this process in continuation and they want to conclude this process today”. He emphasised “that management is available until late tonight”. Apparently the NUM/Zulu meeting occurred in the early afternoon. In addition, there was a mass meeting of hostel residents or NUM members in the later afternoon. At 19h45, a meeting between management and NUM took place. Zulu representatives were also present. The agenda had only one item: the “Zulu issue”. NUM brought from its mass meeting the proposal that the Zulu workers could return to the hostel provided there was “a process where people involved in the violence can be pointed out and brought forward”. Zulu-speaking employees who were still at home were to be “brought to the mine and identified”. The proposal evidently involved that perpetrators and instigators should be identified “on both sides”. Mr Zorab pointed out that there was no mechanism as to how identification should take place. There was some difference between the Zulu representatives and NUM as to whether a face-to-face confrontation was necessary to identify alleged perpetrators. Management pointed out that, although it had now been agreed “that perpetrators on both sides have to be identified”, the question remained what would happen the next day? This meant, Mr Zorab said, that there was the “same problem as three months ago”. Management was urged to grant “a little more time to sort this out”. Mr Zorab responded that, “despite all the good talk and will, [management was] still faced” with the same questions relating to the productive employment of the Zulu employees, and their reintegration into the hostel. Management’s concerns remained “safety for all employees and continued production”. Mr Zorab said that he heard the request for time, “but this could go on forever”. There is no success in the short term, and “this company must think in the short term”. The Peace Committee had pleaded for more time, namely 48 hours. Management’s answer, Mr Zorab said, was “how can it be shown that a solution will be reached”? Three and a half months later, the parties were “still on the same point”. Mr Nkomo, on behalf of NUM, insisted that, after the national elections, management had “jeopardised the process” of the Zulus’ return and reintegration.

of [1997] 1 BLLR 10 (LAC) NUM, he said, had been prepared to talk to its members “so that the reintegration would be smooth”. At the management/NUM meeting on 16 June 1994, however, management had informed NUM that they had “concluded the issue”. NUM had only then been informed that the Zulus “were back”. This, Mr Nkomo said, had had “a negative impact”. Mr Zorab stated again that, for negotiations to continue, “the process today would have to show a good chance of success”. However, “every time we go forward, another stone is raised”. Since management did not see “the likelihood of success” with the further proposals, which were not workable, and since there was no guarantee to solve the problem, management had concluded “that we cannot get agreement”. Management’s further proposals were therefore withdrawn. The termination of the workers’ employment on Wednesday 13 July therefore remained. The meeting closed on this note. On Tuesday 19 July, management issued a further notice to the Zulu employees, informing them of a no-fault termination together with a remuneration package. On Wednesday 20 July, the SACC released a press statement indicating its outrage and shock at the “inhuman” decision that management had taken. The SACC took the view that the Zulu workers had been “prosecuted and sacrificed to solve the problem” at ERPM.

Summary and overview: Events between the Zulus’ return and the dismissal Five salient points in the above account deserve emphasis. First, NUM was not consulted or informed about the Zulus’ advanced return date from their home stay. Secondly, the hostel dwellers, whom NUM represented, were likewise not informed. Thirdly, mediation was agreed within days after the tragic events of 16 June. The Zulus (who had in any event proposed mediation in April) again proposed it at the meeting of 20 June. On the same day. NUM called for an urgent, direct, meeting with the Zulu representatives, and expressed a commitment to “reconciliation”. NUM agreed to mediation and the appointment of a mediator specifically on Wednesday 22 June. Fourthly, unlike the negotiations of April, the June negotiations not only included NUM, but NUM were talking directly to Zulu representatives who included KwaZulu Natal Government representatives. Fifthly, the Zulus’ stance on separate accommodation was mitigated during the mediation process. As early as 1 July, Mvelase acknowledged that separate hostel accommodation was a bad idea; and he shifted to the request for temporary separation. Finally, the initial decision to dismiss the Zulu workers was taken, at latest, during the management caucus during the meeting of Monday 11 July 1994.

The Industrial Court’s determination The dismissed employees, as indicated earlier, instituted unfair labour practice proceedings and sought their reinstatement. After a protracted trial, the Industrial Court ruled that the employees’ dismissal had been unfair, but denied them reinstatement. The Industrial Court held that the imposition upon management of “a neutral role in the process” once the Peace Committee had become involved “was a difficult role for management to adjust to, having been accustomed to

of [1997] 1 BLLR 10 (LAC) doing precisely what management do best, that is, manage and control”. Before long, the Court stated, “management became impatient and insisted on seeing results from the Peace Committee”. The Court decided, however, that “to have expected the mediators to have resolved the matter within a week would have been to expect a miracle”. The Court added, “perhaps a miracle is what the parties expected”. The Court found that, at the meeting of Monday 11 June, there appeared “to be a degree of optimism prevailing”. Management rejected both temporary separate accommodation and the NUM proposal of a joint mass meeting on the basis of what the Court considered to be “rational grounds”. Management’s allusion to the three-month period from April the Court considered “something of a red herring”. At 11 July, the process had not dragged on for three months, but, for various reasons the Court set out, for (at best for the respondent) a period of only one month. Furthermore, mediation itself had only been undertaken from 24 June. It is therefore not entirely fair to name the mediation process for not having worked over a three-month period. In a situation where the parties appear to be miles apart, the fact that they might have moved closer together by a few inches “cannot be disregarded in its entirety”. The Court found that the meeting of Thursday 14 July was significant in that management, albeit, grudgingly, conceded that “some progress” had been made in bringing the parties together; because management had initiated its own proposals which were being debated; because NUM for the first time in the dispute held itself out and was recognised as being the sole representative of all the employees; and because of the recognition by management of the work done by the Peace Committee “in bringing the divided parties to a point where NUM saw itself as the representative of the entire workforce”. With regard to management’s position at the meeting on 18 July, the court found that management was “intransigent about its refusal to grant the Zulus separate accommodation”. This was because management had not properly applied its mind to the Zulus’ request for temporary separate accommodation. With regard to the proposal that the Zulu workers be paid a living-out allowance, the Industrial Court found that “it ought to have been apparent to management that there were practical difficulties”. It was not “really practicable” to expect the Zulus merely to return to Cinderella Hostel while the perpetrators of the violence and killings remained at large. While management’s decision to dismiss an employee as a result of operational requirements is within management’s discretion as falling within the managerial prerogative, management in this case had not “reasonably exhausted all the dispute resolution options and opportunities available to all the parties”. Although the mediation process had not proved to be successful in the sense that no final agreement or proposal had been placed before the parties on or before 13 July, the process had at least been partially successful in bringing parties who were previously not talking to the negotiating forum. For these reasons “to cut the root of the process while there was a chance that the process might have succeeded and whilst there appeared to be some life or at least momentum in the process” was precipitate. Various alternatives such as suspending the unwilling Zulu employees without pay; the possibility of providing temporary alternative accommodation for a fixed period of time; re-employment elsewhere within the group; had not been properly considered. Management’s decision was therefore, Page 26 of [1997] 1 BLLR 10 (LAC) in the Court’s view, premature and management had “elected to scuttle a mediation process which was still in progress”. The Industrial Court, however, refused reinstatement because there was no evidence to suggest that the dangerous position which had prevailed in April and June 1994 had changed and that it was “now safe and secure for the Zulu miners to return to the hostel”. To reinstate the Zulu employees without the necessary guarantee of safety would therefore “be unwise and bordering on reckless”. They were therefore awarded compensation.

The merits: Was the dismissal of the Zulu workers fair? Mr Sutherland urged on behalf of management that the dismissal of the workers was to be categorised as one arising from operational reasons. The decision as to such a dismissal lay within the managerial prerogative. There was what he called “a band of reasonableness” within which management’s present decision readily fell. Management was in an intractable dilemma. It was not disputed that ERPM is a marginal mine. Workers that were being paid had to be employed productively. A strike by 6 000 employees could not be countenanced. In an ideal world, no doubt, it might have been possible for management to put its entire workforce on terms, and, if they proved intransigent to the Zulus’ presence or return, to dismiss them. This however was not a practical solution. In the circumstances which prevailed in mid-July 1994, management had taken, to its avowed regret, a decision which admittedly was “expedient”. But it was justifiably expedient. To require of management to take a “purely moral stance” was inappropriate. Where the viability of the enterprise itself was threatened, the interests of the enterprise, and the thousands it employed, had to take precedence. The mediation process, Mr Sutherland urged, had by Monday 18 July wound down to a “whimper”. The Peace Committee’s proposals were vacuous and misdirected. There was what Mr Sutherland called no “realistic spes of development” on that front, and therefore management’s reaction could not be faulted. The argument regarding the scope of managerial responsibility to direct and reshape an enterprise in response to operational necessities cannot be faulted. That “the ultimate decision to retrench is one which falls squarely within the competence and responsibility of management”, where operational reasons for dismissal in fact exist, has been authoritatively established. See Atlantis Diesel Engines (Pty) Ltd v National Union of Metal Workers of South Africa 1995 (3) SA 22 (A) at 28I; (1994) 15 ILJ 1247 (A) at 1252H–I. These dismissals were not, however, as in Atlantis Diesel Engines, the product of operational reasons arising from serious financial difficulties in consequence of a declining market share. Nor were they retrenchments arising from “outsourcing” of a portion of the enterprise’s business. Nor, again, were they the product of reorganisation or technological developments or electronic supercession of previous employee functions. There was in fact work for these workers to do. It was urgent that they should return to it. The company could, at least in the foreseeable short-term, pay them to do it. They were not dismissed because their jobs disappeared. They were dismissed because the company was unable to guarantee their safety at its premises because of ethnic hostility in the workplace.

of [1997] 1 BLLR 10 (LAC) The Industrial Court judgment proceeds on the assumption that the applicable principle was that management was entitled to decide regarding an operational reasons termination, but that it did so prematurely. The argument of both parties proceeded upon the same premise. But, in my view, the case sits uneasily within the operational reasons framework. It is necessary to be very clear on what occurred here. At the causal root of the dismissal of these workers was ethnic hostility to them. As their representatives said in the meeting of Tuesday 12 April before the “home stay’ period was agreed on, “because we are minority, we must go”. On that same day, the Zulus addressed a letter to the general manager of ERPM. It was signed by “concerned Zulu employees”. It asked of management an answer to the following question: “Are the employees have right to dismiss other employees just because they don’t want them?” No amount of verbal elaboration or supposed legal sophistication can express more powerfully the question this appeal raises. The question, therefore, is not whether the Court should defer to the reasonable ambit of management’s prerogative to dismiss for operational reasons. The question is in what circumstances the Court should countenance a dismissal which has its origins in ethnic victimisation of the dismissed employees. It is true that management was not deliberately victimising the employees for ethnic reasons. Despite the reproaches from, initially, the Zulu representatives and eventually from NUM also, nothing in the record supports the suggestion that management took sides against the Zulu employees, or that ethnic or racial impropriety tinged its motives. On the contrary: management had a business to run, and its urgent desire to pursue that commitment, and therefore to re-establish peaceful ethnic co-existence at its mine, speaks from all the evidence and documentation. But the Court, in examining what is fair in the circumstances, must draw a distinction between management’s motives (which were not impure) and the actuating causes which formed the background to its action. The Court must distinguish between the forces of the market and the advances of electronics or technology (which may render a decision to dismiss within the competence and responsibility of management), and operational reasons which have their roots in opprobrious social conflict. There can be no doubt that, for management itself to dismiss a worker merely because he is Zulu, or because she is Jewish, or because he or she has HIV, would be reprehensible. For management to dismiss not directly for that reason, but because the rest of its workforce holds that reason, places management only at one remove from the opprobrious consideration. That remove is of course not without significance. it means that management will, ultimately, when it truly has no alternative, be permitted to dismiss when it cannot guarantee the safety of employees whom the rest of its workforce, for reprehensible reasons of ethnic hostility, threaten with injury or death. But it also means, in my view, that management truly must have no alternative, and that no discretionary “band of reasonableness” can be granted it. Where a dismissal is actuated by operational reasons which arise from ethnic or racial hostility, the Court will in my view countenance the dismissal only

of [1997] 1 BLLR 10 (LAC) where it is satisfied that management not only acted reasonably, but that it had no alternative to the dismissal. The underlying point is tellingly made in the recent report of the Commission of Enquiry into the Recent Violence and Occurrences at the East Driefontein, Leeudooring and Northam Mines (“the Myburgh Commission”), dated 5 October 1996. At all three mines the Commission investigated, Zulu employees were forced to leave in consequence of violence directed at them for reasons of racial or ethnic hostility. In all cases, they did not intend to abandon their jobs and, as the Commission pointed out, they would return “if they can be assured that their lives will not be at risk”. From a policy point of view, the Commission urged that “every effort should be made to facilitate their return, not only for the benefit of the Zulu-speakers, but for the future of industrial relations on those mines”. The Commission made this sobering observation: “If one group of mineworkers is allowed to create a situation where another group feels compelled to leave, evictions of this kind will continue. Next time it will be another minority group that is picked on.” (Report of the Commission, para 26.1.) In a country that consists of linguistic, ethnic and other minorities, public policy in my view requires that a test of necessity, and not reasonableness, should be applied in scrutinising management’s action in dismissing workers in such circumstances. In my view, management does not in the present case pass that test. A considerable portion of the argument on appeal was taken up with projections and predictions regarding the possible outcome of the mediation process, had it been permitted to continue beyond Monday 18 July. By contrast with Mr Sutherland’s contention that the mediators had proved themselves inept and dysfunctional, Mr Kuny submitted that the Peace Committee had achieved substantial success. it had initiated the process of achieving dialogue, and acted as a catalyst for the resolution of the dispute. Mr Kuny was, however, able to point to only one demonstrable option which management had rejected, and which might, if explored or pursued, have led to a resolution of the impasse. That was the Zulus’ request in the final days of the dénouement for temporary separate accommodation. There can be no doubt that management’s resolve not to countenance ethnically segregated hostel accommodation was well justified. The reasons its managers gave during their evidence were confirmed and elaborated in that of Dr McNamara. Their essence is reflected thus by the Myburgh Commission, where Dr McNamara also testified: “Besides obvious social and moral objections to separating people on the grounds of ethnicity, Dr McNamara explained that there are advantages to integrating the hostels: he has found that integration is in accordance with the wishes of hostel dwellers; in an integrated hostel the production and storage of dangerous weapons is difficult because informant networks are more effective in blocks which are integrated; and it is far easier to mobilise as a group when the whole block is already aligned on that basis, whereas in an integrated hostel it is much more difficult to arrange a mobilisation of an ethnic group.” (Para 15.1.) The Myburgh Commission found these considerations to be “compelling”. In his evidence in the present matter, however, Dr McNamara did contemplate the possibility of separate temporary accommodation as being an acceptable mechanism in dispute resolution:

of [1997] 1 BLLR 10 (LAC) “ Dismissal as an option also ignores the possibility of staying with the separate accommodation process . . . The separate accommodation of a group of workers during a conflict situation is a frequently used method to cool the situation off. In some respects the two-month home stay was a separation very similar to that except in that case the men were accommodated in their own homes. This is not very substantially different from the principle of accommodating them separately somewhere on the mine. So I think that one needs to balance up the principle of separating people through the home stay with the principle of separating them while on the mine for a temporary period. Now it needs to be said that it is widely accepted in the industry that the separate accommodation of different cultural groups is not to be condoned and is not to be supported. The reasons for that are simply that it does two things. It keeps the group apart and, therefore, makes it possible for them to build up internal antagonisms against other groups having not had enough contact with them to break their prejudices. But secondly, it allows for a very rapid mobilisation of a particular group in violence because they are all accommodated together. So on those two grounds alone it is not a desirable option and I would definitely not support the permanent separation of people in the hostel environment. But what the Court must consider is that the temporary accommodation of people on a separate basis is a well-used practice.” Dr McNamara went on to testify in general that the “temporary accommodation of people in separate ethnic areas” is in fact “the current . . . temporary solution, pending the development of a broader reconciliation process on a mine”. The value of this expedient is that “while the men are temporarily accommodated, they are still working together in the underground environment”. Apart from some of its alleged ills, that environment has the important benefit “that it does put people onto the common purpose, the common task of working together and the principle is that people slowly begin to be accustomed to each other by working and rubbing shoulders in the workplace”. The evidence also established, and management witnesses were constrained to concede, that temporary separate accommodation was, at least “at a pinch”, available in the Far East Vertical Hostel. There would no doubt have been disadvantages to that expedient, including pressure on change-house facilities. But the temporary accommodation there of the 350 Zulus was at least possible. On this basis, alone, it seems to me that the impasse, where 100 workers were temporarily housed at a training centre, and not being employed, with the arrival of the other home stay workers pending, could have been resolved by the temporary expedient of separate accommodation while the mediation process sought the reintegration of the workers. But, however this may be, the setting up of potential practicable further expedients in the mediation process seems to me to risk missing the underlying point. It is, in the first place, somewhat speculative to advance these possibilities, even with the inexpensively acquired wisdom of hindsight. But there seems to me to be a more fundamental point. This is that management had already decided at the 11 July meeting that the Zulu speakers were to be dismissed; and that the condition upon which it temporarily suspended its decision was that “concrete” progress should be made within the mediation process within the short term – that is, within a matter of days. I agree with the Industrial Court that this condition required a miracle. The question is whether management had

of [1997] 1 BLLR 10 (LAC) reached the point where it was entitled to expect a miracle and, in its absence, to proceed with the dismissals. In my view, it had not. There are two principal reasons for this conclusion. The first relates to the nature of the process itself. The second relates to management’s shared responsibility for the impasse. Both reasons, in my view, lead to the conclusion that, in fairness, management should have afforded the mediation process a longer period of development and fruition. The first reason concerns the nature of the process in which the parties were engaged in July 1994. They were not only all talking to each other, they were all talking together. Whereas, in April, NUM had refused to meet the Zulu representatives at all, because (spuriously) of the involvement of KwaZulu/IFP representatives, now these and NUM were talking face to face. What is more, the factions’ representatives, in the form, respectively, of the Zulu representatives and NUM, were at one regarding the necessity for reconciliation, reintegration and peace. They were also at one in deploring vehemently management’s resort to dismissal. They were further at one in the necessity for the mediation process to continue under the leadership and guidance of the Boksburg/Benoni Peace Committee. The point seems to me to be that the resolution of ethnic hostility at ERPM had been dogged from the outset by process issues. While the parties might have mouthed a unanimous commitment to peace, they had been at odds about how to achieve it. This was no longer the case. NUM, which represented the majority of hostel dwellers, had itself made significant shifts. NUM’s role in the events, on the evidence which is before this Court, can at times be characterised only as disingenuous and irresponsible. It displayed a breathtaking inconsistency in seeking to veto the participation of the IFP/KwaZulu delegates on the grounds that this was to “politicise” the issue, when NUM itself was in apolitically charged alliance with a view to the 27/28 April elections. Given its refusal, in April, to participate in mediating the ethnic strife, with the enforced consequence that management had to send its workers away on a paid two- month “home stay” NUM’s attempt thereafter to force management to “make an effort to the people who remained behind” by paying also them two months’ unearned wages, was cynical and exploitative. However, by the end of June, NUM was not only committed to mediation, but deeply involved in it, from head office, through the region, down to the branch. The qualitative difference that the engagement in this process brought appears not to have been fully appreciated by management. It seems to me to be necessary to make a distinction between the process and the product. The process is undoubtedly directed at a product, for, without it, the process is pointless. But a mediated process of dialogue has more than instrumental value. It is beneficial in itself. It brings the parties together. It exposes the extremities of their conflicting viewpoints to the moderating effect of interchange. And it affords them the opportunity to formulate joint solutions. These benefits of the process eventually, given time and good faith, may yield the product of resolution. But the process cannot deliver this product according to rigid or over-hasty specifications. Page 31 of [1997] 1 BLLR 10 (LAC) In saying this I do not intend to oblige management to pause indefinitely before the majesty of mediation. On the contrary: the appeal was rightly argued on the basis that, at some point, management was entitled to, and would have had to, draw the line. The question is when; and to pose it, of course, places management in a dilemma, since it always runs the risk that a Court may later rule that it did not persist in the process long enough. (See the comparable observation in the majority judgment in National Union of Metalworkers of SA v Vetsak Co-Operative Ltd and Others (1996) 17 ILJ 455 (A) at 460D–E; 1996 (4) SA 577 (A) at 593A–B.) But, in the circumstances of the present case, it seems to me well-warranted to conclude that management pressed the fruit while still green and expected it, unreasonably, to ripen. While ERPM is a “marginal mine”, there was no suggestion either that its closure was imminent on a day to day basis in the latter half of July 1994 or that the continuation of the mediation process for a few more days, or even longer, would have contributed signally to its peril. What is more, an examination of the documentary record of the parties’ dealings in the eighteen days leading up to the final collapse of the process on 18 July leads, in my view, to the conclusion that each party had shifted; that a joint commitment to reconciliation and reintegration had emerged; and that this created the reasonable hope and expectation that further developments would eventuate. The termination of the process was therefore precipitate and unfair. A second reason, in my view, for concluding that management was not entitled to draw the line when it did is that management itself contributed substantially to the crisis which made that process necessary. I allude in this regard to the manner in which the dismissed workers returned to the mine. At all stages up to Friday 10 June 1994, the return date for the workers was 20 June. That date was known and agreed. It had featured repeatedly in written communications and in the parties’ discussions. It appeared in management’s letter of 14 April to the home stay employees; in the management/NUM meeting of 4 May; in management’s letter to NUM of 1 June; and in the management/NUM meeting of 7 June. That last meeting was itself the occasion from which Dr McNamara discerned “clear warning signals” of threats to the returning Zulus. “Some workers”, it will be recalled in the rumour the NUM branch committee reported to management, “wanted to kill the Zulus”. Against this background, it is a matter for the greatest surprise and regret that management, only three days later, on 10 June unilaterally agreed with the Zulu delegation that the return date could be advanced to 15 June. It is even more surprising and regrettable that management made no effort to communicate this to the hostel dwellers or to their representative, NUM. NUM’s rebuke to management about this glaring and possibly fatal omission are fully warranted. It requires but little surmise to conclude that management’s oversight contributed directly to the near-carnage that ensued when the workers returned, unannounced and unexpected, to the hostel on 16 June 1994. Had management properly informed NUM and the hostel dwellers of the advanced date for the return, there might have been an opportunity for tensions to be allayed and for appropriate remedial action to be taken. As it was, NUM itself was surprised not

of [1997] 1 BLLR 10 (LAC) only that violence took place on the night of 16 June, but by the fact that the Zulus’ return which occasioned it had commenced on that date at all. The apology that Mr Karallis placed on record on Saturday 18 June was thoroughly justified. But it did not expunge the place of management’s oversight in the genesis of the subsequent impasse. Management was, on 11 July, itself the part author of the debacle. This renders more ready the conclusion that, in fairness, it was not entitled to draw the process to such a precipitate close when it did. In these circumstances, I conclude that management was not entitled to dismiss the workers when it did, and that its doing so constituted an unfair labour practice. Is reinstatement an appropriate remedy? According to the latest Appellate Division formulation of the test for whether reinstatement should be granted to dismissed workers, fairness and justice require that an employee unfairly dismissed should obtain redress. The fullest redress obtainable is provided by restoration of the position the dismissed worker enjoyed before dismissal. “It follows that it is incumbent on the Court when deciding what remedy is appropriate to consider whether, in the light of all the proved circumstances, there is reason to refuse reinstatement.” (National Union of Metal Workers of South Africa and Others v Henred Fruehauf Trailers (Pty) Ltd 1995 (4) SA 456 (A) at 462I–463A; (1994) 15 ILJ 1257 (A) at 1263D.) This test tellingly echoes that posited by Goldstein J in Sentraal-Wes Koöperatief Bpk v Food and Allied Workers’ Union and Others (1990) 11 ILJ 977 (LAC) at 994E, subject of course to the flexibility enjoined by Goldstone JA in Performing Arts Council of the Transvaal v Paper Printing Wood and Allied Workers’ Union and Others 1994 (2) SA 204 (A) at 219A–C. The question is whether there is reason, in the light of the circumstances set out above, to refuse the unfairly dismissed Zulu workers reinstatement. The relevant considerations are in my view the following. The Zulu speakers were wholly without fault. The ethnic hostility and violence directed at them were opprobrious and reprehensible, and were offensive to public policy. Management moreover acted prematurely in dismissing them. For their part the dismissed workers wanted to work. They felt a justified sense of victimisation and grievance. There was work for them to do. And their employer wanted them to do it. These circumstances make the case for reinstatement, at first glance, compelling. But that is not an end of it. As is clear from what has gone before, the determination that the workers’ dismissal was unfair is not based on a finding that the mediation process had an outcome that was certain. On the contrary, it is based on a finding that when management prematurely ended it, the process was as yet indeterminate. It was the precipitate interruption of the process that made the dismissal unfair, and not the certainty that it would have ended in reconciliation and reintegration. It has already been granted that an employer may, for operational reasons based on ethnic or racial hostility, eventually have to dismiss a victimised minority whose safety in the workplace it is unable to guarantee. That this point would not have been reached in the present case is

of [1997] 1 BLLR 10 (LAC) impossible to say. In argument, Mr Kuny on behalf of the Union put his case at highest thus: “Had the process been given more time, various possibilities could have emerged.” That submission is correct. But it portrays the fatal weakness in the workers’ plea for reinstatement. To reinstate them would require a judgment, which exceed seven the most optimistic extent of the Union’s argument, that (a) their safety would have been guaranteed; and (b) their reintegration into the hostel would have been successful. It is therefore in my view impossible to differ from the Industrial Court’s determination that a reinstatement order would be unwise and imprudent. There is, therefore, in my judgment, however regretful, “reason” to refuse these workers reinstatement.

Was the compensation granted appropriate? Both parties attacked the Industrial Court’s order that the workers should each receive compensation in an amount equivalent to six months of their wages. Mr Kuny argued that this was unjustly small, and that management could afford more. Mr Sutherland argued that the compensation was too generous because the Court had found that there was a “procedural slip-up” in the dismissal. In my view, neither contention can be upheld. Even though the Court found that the procedure which was in progress when the workers were dismissed had been prematurely interrupted, the injustice of the workers’ dismissal remains acute. They are denied reinstatement only because of the violence and near-carnage which triggered the crisis in the first place. It is impossible, in my view, to say that six months’ compensation is overgenerous. On the other hand, it would also in my view be inappropriate to say that six months is inappropriately small. As Mr Sutherland correctly argued, the fact that the mine might have the liquid assets to enable it to write out a cheque for nearly R600 000 does not mean that it ought to be ordered to pay more. The evidence regarding the economic position of the mine demonstrates, in my view, that an increased compensation order may impose an unfair burden upon it. In addition, the marginality of the mine renders even the continued job prospects of the existing employees no better than somewhat uncertain. In these circumstances, there is in my view no warrant for interfering with the compensation the Industrial Court determined.

Conclusion The appeal and the cross-appeal must therefore both be dismissed. Appellant’s counsel did not ask for any costs in the latter eventuality. There is accordingly an order in the following terms: 1. The appeal is dismissed with costs. 2. The cross-appeal is dismissed. No order as to costs is made in regard to the cross- appeal.

of [1997] 1 BLLR 10 (LAC) For appellant: Mr R Sutherland SC & Mr G Pretorius, instructed by Brink Cohen Le Roux & Roodt Inc

For respondent: Adv S Kuny, instructed by Van der Westhuizen en Vennote

Cases referred to

Atlantis Diesel Engines (Pty) Ltd v National Union of Metal Workers of South 26 Africa 1995 (3) SA 22 (A); (1994) 15 ILJ 1247 (A): [1995] 1 BLLR 1 (AD) National Union of Metal Workers of South Africa and Others v Henred Fruehauf Trailers (Pty) Ltd 1995 (4) SA 456 (A); (1994) 15 ILJ 1257 (A): [1995] 2 BLLR 1 32 (AD) National Union of Metalworkers of SA v Vetsak Co-Operative Ltd and Others 31 (1996) 17 ILJ 455 (A); 1996 (4) SA 577 (A): [1996] 6 BLLR 697 (AD) Performing Arts Council of the Transvaal v Paper Printing Wood and Allied 32 Workers’ Union and Others 1994 (2) SA 204 (A) Sentraal-Wes Koöperatief Bpk v Food and Allied Workers’ Union and Others 32 (1990) 11 ILJ 977 (LAC)