Nearly 100 employees of Vector Logistics, idling at home for the past five years after being dismissed for an allegedly illegal strike, will have to stay put with no end in sight to the protracted legal wrangle.
Vector is a logistics operator, providing parent company RCL Foods and many third parties with multi-temperature warehousing and distribution, sales and merchandising solutions.
RCL Foods said in March that it had sold Vector to a local investment vehicle managed by European private equity fund manager AP Moller Capital for R1.25bn. The effective date of the deal is July 3.
Vector’s long-running dispute with the workers began in June 2018, when several employees engaged in an unprotected strike. Vector obtained an interim order restraining the strike action.
After several attempts to get the striking employees to return to work, Vector dismissed about 88 of them for participation in and acting in furtherance of an unprotected strike.
The fired employees approached the Commission for Conciliation, Mediation and Arbitration (CCMA) and bargaining councils. Eventually, the parties agreed to private arbitration.
Before the arbitration process could officially start and to limit the issues at dispute, the parties agreed on scenario and schedule agreements. The agreements acknowledged that the existence of the unprotected strike was not necessarily placed in dispute. What was in dispute was participation in, or acting in furtherance of, the strike.
The arbitrator perused the company’s clocking mechanism and found that some of the employees had reported for work. He ordered their reinstatement.
Vector took the decision on review at the labour court and argued that the arbitrator committed latent irregularities, which denied it a full and fair trial of the issues, when he conducted a forensic assessment of the clocking information.
The company also argued that the arbitrator exceeded his powers by going beyond what was contained in the scenario and the schedule agreements.
Judge Graham Moshoana of the labour court ruled in favour of Vector and ordered a new arbitration process with a new chair.
Moshoana said that by conducting an analysis of the clocking records without giving Vector an opportunity to make any input, the arbitrator, Motlatsi Phala, failed to observe the rules of natural justice.
“Given the agreed position of the parties in the schedule agreement, it was no longer necessary for Phala to conduct a forensic assessment of the clocking records. Had it been that he was not satisfied with the manner in which the parties agreed on the clocking information, it was incumbent on Phala to intra the proceedings indicate that much to the parties,” the judge said.
“Vector was not forewarned of this action. This mistake was obviously serious enough to deprave the arbitral award. It clearly offends the duty to act fairly. Its effect is that Vector did not receive a fair and full hearing of the issues.”
The court was told that Ndumiso Voyi, attorney for the majority of the employees, had been instructed by the employees to apply for leave to appeal against the judgment of the labour court.
“Our application for leave to appeal was filed on April 24. Most of them are just sitting at home. The majority of the dismissed employees are elderly and it is therefore difficult for them to find employment,” said Voyi.
“The learned judge erred in finding that the first respondent [the arbitrator] conducting an analysis of the clocking time sheets with respect to the 33 dismissed employees in scenario 8 constituted a gross irregularity,” the leave to appeal application said.
“The learned judge ought to have found that the employer adduced evidence on the clocking time sheets and this is contained in the transcript of the arbitration and it was for the first respondent to analyse all the evidence before him and give that evidence the necessary weight.”
Vector did not respond to questions.
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