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Cape Town - Eleven Western Cape farmworkers failed on Tuesday in a bid to fight their dismissal in the Labour Court in Cape Town.
Labour Court judge Anton Steenkamp said their dismissal from a Robertson farm on January 21 last year had not been referred to the Commission for Conciliation, Mediation and Arbitration (CCMA).
Thus, the court had no jurisdiction to hear the matter.
The workers and their union, the Commercial Stevedoring Agricultural and Allied Workers Union (CSAAWU), were ordered to pay the costs of the respondent, Steytler Boerdery.
“The workers may be indigent. The union is not,” Steenkamp ruled.
“Should the workers be unable to pay, the union - that has actively been involved and representing the applicants throughout - should do so.”
The applicants are Daniel Sambo, Jacques Jaftha, Andries Ambrose, Dawid Jooste, Salmon Swarts, Daniel Jonas, Linda Afrika, Adean Bruntjies, Christian Paulsen, and Esmeralda and Donovan Grootboom.
They had referred a dispute to the CCMA on January 8 last year after their employer locked them out. Conciliation of that dispute failed and was referred to the court.
However, the workers never referred a dispute over their actual dismissal on January 21 to the CCMA.
Farming towns across the province came to a standstill during a workers' protest against poor wages and harsh living conditions towards the end of 2012 and the start of 2013.
According to employer David Steytler, the 11 workers took part in six unprotected strikes in two months within that period.
When they went on an unprotected strike for the seventh time, he told them that their actions amounted to “ekonomisie sabotasie” (economic sabotage) and he had no option but to lock them out.
He said he would lift the lock-out if they agreed to give a written undertaking to stop striking. When they refused, he lifted the lock-out and asked them to return to work.
They stayed away and he issued two ultimatums. The workers continued to strike and he notified them of a disciplinary hearing on January 17.
Neither the workers nor their trade union representative attended the hearing, chaired by a human resources practitioner. They were dismissed a few days later.
Yvette Isaacs had argued that her clients thought the lock-out was a dismissal.
Steenkamp said the farmer had made the effort to correct this impression.
“They could not have possibly laboured under the impression that they had been dismissed,” he said in his judgment.
“Not only did Steytler make it clear to CSAAWU that the workers should return to work, he also sent a number of messages to the workers directly, inviting them to return to work.”
The court refused a postponement request by Isaacs before the judgment, saying it would lead to further delays.
Should the workers now wish to refer their dismissal to the CCMA, they would have to apply to the commission to condone why the failed to refer the dismissals within 30 days.
The commission had to consider the lateness of the referral, the reason for the lateness, the prospects of success on the merits and the prejudice to both parties.
CSAAWU general secretary Trevor Christians said they were still deciding what their next step would be.
“What is next is quite a setback for us but, nevertheless, we have to sit with our lawyers to discuss what is the way forward legally.” - Sapa