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[2021] ZALAC 28
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Sasol Mine Limited v Nhlapo and Others (JA20/2020) [2021] ZALAC 28; (2021) 42 ILJ 2589 (LAC); [2021] 12 BLLR 1209 (LAC) (9 September 2021)
IN
THE LABOUR APPEAL COURT OF SOUTH AFRICA, JOHANNESBURG
Reportable
Case
no:
JA
20/2020
In
the matter between:
SASOL
MINE
LIMITED Appellant
and
PAULOS
NHLAPO AND 941 OTHERS First
Respondents
VICTOR
MABUYAKHULU Second
Respondent
PETRUS
LEMOANE AND 7 OTHERS Third
Respondents
Heard:
24
March 2021
Delivered:
09
September 2021
In
view of the measures implemented as a result of the Covid-19
pandemic, this judgment was handed down electronically by circulation
to the parties' representatives by email on 09 September 2021.
Coram:
Waglay
JP, Savage AJA and Molefe AJA
JUDGMENT
MOLEFE
AJA
Introduction
[1] This
appeal is against the judgment and orders of the Labour Court
(Lagrange J) delivered on 17 September 2019,
which found the
dismissal of a number of the respondent employees to be substantively
unfair and ordered their reinstatement.
[2] Despite
not raising any cross-appeal, the respondents asserted in their heads
of argument and persisted in
argument before this Court that the
conduct of the respondents did not satisfy the requirements of a
strike. Since the appellant
had been provided with no opportunity to
answer to this contention it was afforded the opportunity to file a
supplementary note
on the issue. The parties were also invited to
attempt to resolve the matter between themselves, with the Court
informed on 25
April 2021, that no such resolution had been possible.
Background
[3] From
21 January 2009 until the afternoon of 23 January 2009, approximately
950 of the appellant’s employees
(the respondents) engaged in
an unprotected strike action across 10 underground shafts of the
appellant’s coal mining operations
near Secunda in Mpumalanga.
The unprotected strike was planned and well-coordinated, comprising
of a sit-in held underground over
a two-day period.
[4] The
respondent employees claimed that the appellant had provoked the
unprotected strike action by its failure
to make the so-called
“bonanza” payments of approximately R9000.00 to each
employee by January 2009. The appellant
denied that any such payments
were agreed and contended that employees had been informed that a
6.5% increase and a further 0.5%
annual service increment would be
paid in January 2009, there is no dispute that these amounts were
paid to employees.
[5] Dissatisfied
with the January 2009 payments, employees declared an internal
dispute with the appellant on 16
January 2009. Since a prior dispute
regarding the issue had already been declared and the agreed dispute
procedure commenced, the
appellant indicated that the dispute was not
competent and sought the intervention of the United Peoples’
Union of South
Africa (“UPUSA”), the union to which the
striking workers belonged. The union refused to intervene. The Local
Shop
stewards’ Council (“the LSC”) then sought
permission from the appellant for employees to march to the
appellant’s
Secunda head office. Permission was refused on the
basis that the LSC had not complied with the recognition agreement
and remedies
available in terms of it. Nevertheless, two marches took
place on 19 January 2009 as a result of which the appellant sought to
meet with the LSC. Members of the LSC attended but refused to allow
the meeting with the appellant to commence while the appellant’s
labour relations manager for the Secunda area remained present. The
appellant rejected this demand as unreasonable and the LSC
members
left the meeting. Thereafter the appellant suspended the members of
the LSC from duty for inciting unprotected industrial
action in the
form of the marches, which had taken place during working hours.
[6] After
the unprotected strike action commenced on 21 January 2009, employees
refused to communicate with the
appellant and would only be addressed
by the suspended members of the LSC. On 22 January 2009, a first
ultimatum was issued in
which it was stated that the respondents had
embarked on an unprotected industrial action and calling on them to
halt such conduct.
A second ultimatum was issued on the afternoon of
22 January 2009, with a third issued on the morning of 23 January
2009 instructing
the respondents who had finished their shift to
cease their unprotected strike and return home.
[7] After
these ultimata were ignored, the appellant met with UPUSA local
officials who called on striking employees
in an urgent notice not to
align themselves with the unprotected industrial action, which had
been caused by “lies”
regarding the wage gap. This notice
warned that their action constituted a breach of mine health and
safety rules and cautioned
employees that a similar incident in
January 2007 had led to dismissals.
[8] Safety
teams were restricted by strikers from undertaking three-hourly
safety patrols necessary to monitor
methane build-up underground to
avoid underground explosions, potential flooding and rockfalls. The
appellant suffered significant
economic harm in consequence of the
underground strike which necessitated the halting of mine production
at 10 shafts over multiple
shifts, with all operations and production
halted for several days and only capable of resumption days after the
strike had ended.
In addition, it resulted in alternative coal for
use in the appellant’s continuous oil production facilities,
having to be
sourced. On 23 January 2009, the appellant obtained an
urgent order from the Labour Court interdicting the unprotected
strike.
[9] Following
the conclusion of the strike, those employees who had participated
were suspended from duty and faced
disciplinary action relating to
their participation in the strike, with a number of employees also
charged with assault, intimidation
and causing damage to the
appellant’s property. Approximately 20 different independent
chairpersons conducted a number of
internal disciplinary hearings
which resulted in disciplinary action being taken against 936
employees. Of these employees, 636
were dismissed from their
employment with the appellant, with the dismissal of 636 employees
upheld on appeal.
[10] Aggrieved
with their dismissals, the respondents referred an unfair dismissal
dispute to the Commission for
Conciliation Mediation and Arbitration
(“the CCMA”) for conciliation, which was unsuccessful,
and thereafter to the
Labour Court for adjudication. The evidence
before the Labour Court was that the strike had affected 10 shafts
across four of the
appellant’s mines. The respondent employees
were identified as having participated in the strike in one of a
number of different
categories:
10.1.
Category
1
(Night shift 22:00-08:00) - employees on the night shift of
21 January 2009. These employees performed their duties from 22:00 on
21 January 2009 to 08:00 on 22 January 2009, and commenced an
underground sit-in after their shift until they surfaced in the
afternoon of 23 January 2009;
10.2.
Category
2
(Morning shift 07:00-17:00) - employees of the morning
shift of 22 January 2009. These employees joined the underground
sit-in
from 17:00 on 22 January 2009 after their shift until they
surfaced in the afternoon of 23 January 2009;
10.3.
Category
3
(Afternoon shift 16:00-02:00) - employees of the afternoon
shift of 22 January 2009. These employees planned to, but were not
able
to join the underground strike as the employer cancelled their
shift in consequence of the strike. These strikers refused to
disperse
and remained on the surface at the employer’s premises
in support of the category 1 and 2 strikers until they surfaced on
23
January 2009;
10.4.
Category
4
- employees stationed in the appellant’s offices on
the surface (e.g. full-time safety representatives, surveyors,
general
workers). These employees joined the cause and remained on
the surface at the employer’s premises in support of the
category
1 and 2 strikers underground. They did not heed the
appellant’s instruction for them to return home until 23
January 2009
when the category 1 and 2 strikers surfaced; and
10.5.
Category
5
- shaft cage (lift) drivers or operators who were not able
to participate underground but joined the cause and remained on the
surface at the employer’s premises in support of the category 1
and 2 strikers underground. They did not heed the appellant’s
instruction to go home until 23 January 2009 when the category 1 and
2 strikers surfaced.
[11] A
sixth category of employees was identified, which is not the subject
of this appeal, being those employees
stationed as Sasol Coal Supply
(CSS), who joined the cause and remained on the surface at the
employer’s premises in support
of the category 1 and 2 strikers
underground. These employees heeded the appellant’s instruction
to return home and were
issued with final written warnings valid for
four months instead of being dismissed.
Judgment
of the Labour Court
[12] The
matter was argued in the Labour Court in 2018, almost a decade after
the respondents’ dismissals,
with judgment delivered in 2019.
The Court found that the appellant had not been required to make a
“bonanza” payment
to the respondents, that the LSC had
failed to correct the mistaken view of the respondents that they
would receive such payment
and that they may have misrepresented to
the respondents that such payment would be received.
[13] It
was noted as common cause and as having been conceded by the
respondents’ legal representatives during
the course of the
trial that the industrial action embarked upon by the respondents
amounted to a strike. The Court found that
the strike was pre-planned
and reckless, with no attempt made by the striking employees to
adhere to the provisions of the recognition
agreement or the Labour
Relations Act (“the LRA”). The LSC was found to have been
involved in the planning and co-ordination
of the strike. Serious
breaches of mine safety procedures occurred during and as a result of
the unprotected strike which placed
the health, safety and wellbeing
of numbers of employees at risk, with some employees held underground
against their will, threatened,
physically attacked and harmed by
certain of the respondents. This while the respondents barred the
appellant from serving and
reading out ultimata issued calling for
the unprotected strike to end.
[14] Although
the Court accepted that the appellant had contacted UPUSA, that the
LSC had “torpedoed”
the appellant’s attempts to
engage with it and the respondents had refused to engage with the
appellant, it was found that
the appellant had made no
bona fide
attempt to end the strike as soon as possible by engaging with local
shop stewards.
[15] Furthermore,
the Court found that historical inconsistency existed in that despite
evidence put up that following
an unprotected strike from 23 to 25
December 2007, the appellant dismissed employees who had participated
in a four-day aboveground
unprotected strike in December 2006
employees received a final written warning.
[16] For
these reasons the Labour Court found that the sanction of dismissal
was unnecessarily severe and that
the dismissals were, in
consequence, procedurally fair but substantively unfair, with the
respondents reinstated into their employment
with the appellant. It
was ordered that those employees who elected not to be reinstated
should receive twelve months’ compensation.
On
appeal
[17] The
appellant appealed against the judgment and orders of the Labour
Court contending that the Labour Court
had erred in finding that the
appellant had failed to attempt to engage with the LSC when the
evidence showed the contrary and
the finding contradicted the Court’s
own findings. This included that the LSC had “torpedoed”
the appellant’s
attempts to engage with it; had misrepresented
to the respondents that they would receive a bonanza payment; had
caused the unauthorised
marches to occur on 19 January 2009; had been
present and involved at the meeting planning the underground strike;
and had been
in telephonic communication with the strikers
underground during the course of the strike until a Labour Court’s
interdict
was obtained. It is in this context that it was argued that
it is difficult to conceive how engagement with the LSC would have
altered the course of the strike.
[18] As
to the Court’s finding of historical inconsistency, it was
argued that the respondents had failed
to put up any evidence of such
inconsistency, with no witnesses testifying on the issue. The
December 2006 aboveground strike,
in being located at one building
over four days did not interrupt production, differed markedly from
the January 2009 underground
strike, which violated several mine
health and safety regulations which the December 2006 strike did not.
There were no identifiable
grievances in the January 2009 strike,
with no entitlement on the part of the respondents to any “bonanza”
payment.
In addition, there was no evidence that the respondents were
operating under the expectation that a practice had been established
that unprotected strikes, particularly an underground strike in a
coal mine, did not carry with it the possibility of a sanction
of
dismissal. For these reasons the appellant sought that the appeal
succeeds and that the dismissal of the respondents be found
to be
procedurally and substantively fair.
[19] The
respondents opposed the appeal submitting that the Labour Court had
correctly found that historical inconsistency
existed in relation to
category 3 to 5 respondents who like those employees who participated
in the 2006 strike remained aboveground
while recognising that the
conduct of category 1 and 2 respondents who had remained underground,
with resulting safety concerns
causing the appellant to halt
production, was distinguishable
from that of employees in the 2006
strike.
[20] The
respondents argued that the finding that the LSC had torpedoed
management’s attempts to engage with
them referred to what
transpired prior to the suspension of the LSC and that the Labour
Court correctly concluded that the appellant
had failed to
communicate with individuals from the LSC who could have persuaded
the category 1 and 2 respondents to surface. Furthermore,
the Court
cannot be faulted for finding that historical inconsistency existed
given that the two strikes were markedly different
as with the 2006
strike, a number of respondents were not underground.
[21]
In
addition, without raising a cross-appeal, the respondents submitted
that the Labour Court had erred in not determining whether
the legal
concessions made by the respondents’ legal representatives that
the respondents had engaged in a strike were correctly
made; and
that, because the concessions were wrong, they were not binding on
the Court.
[1]
It was argued that
category 1 and 2 respondents could not have embarked on a strike by
refusing the instruction to return to the
surface after completing
their shifts, as the instruction and refusal must be given during
work or during their shift and the appellant’s
instruction was
given after the shift.
[2]
Furthermore, it was contended that there was no evidence that any of
the respondents had refused, retarded or obstructed work with
the
result that no strike could be said to have occurred; and, it was
submitted with reference to paragraph 402 of the judgment,
the Labour
Court failed to make a finding that their conduct amounted to a
strike.
[22] In
its supplementary note filed on the issue, it was argued for the
appellant that the evidence had patently
shown that the respondents
had engaged in an unprotected strike by withholding their labour in
circumstances in which they were
not permitted to do so and that as
much had, correctly, been found to be the case by the Labour Court.
Evaluation
[23]
A
judgment or order cannot as a general rule be varied against an
appellant to its prejudice, in the absence of the necessary
cross-appeal
by the respondent.
[3]
There are compelling reasons why this is so, including ensuring that
the playing fields in the context of an appeal are levelled,
that
parties are aware of the issues that are in dispute between them and
provided with an appropriate opportunity to answer to
such issues.
This also prevents litigation by ambush, which is neither fair nor
permissible in our legal system.
[24] Although
the respondents failed to raise a cross-appeal in this matter and in
their heads of argument filed
after those of the appellant, for the
first time disputed that the Labour Court had found that their
conduct had constituted a
strike, this Court took the view that it
was appropriate to allow the issue to be properly ventilated. This
was so given that the
substantive fairness of the respondents’
dismissals was already before this Court.
[25]
From
the judgment of the Labour Court, it is apparent that the Court took
account of the fact that the respondents’ legal
representatives
had conceded during the course of the trial that the respondents had
engaged in an unprotected strike and the trial
proceeded on that
basis. On appeal, the respondents contend that that the Court erred
in not determining whether such legal concession
was correctly made,
and because the concession was wrong, it was not binding on the
Court.
[4]
[26]
Quite
apart from the concession made, the Court of its own accord undertook
a careful analysis of what constitutes a strike as defined
in section
213,
[5]
with reference to
section 68(5) of the LRA, read with items 6 and 7 of the Code of Good
Practice and repeatedly referred to the
respondents’ conduct as
constituting a strike. The reliance by the respondents on one
paragraph of the judgment in isolation
in an attempt to prove the
contrary is unfounded. The Court had regard to the sit-in both
underground and above ground and found
that the respondents’
conduct across all categories amounted to participation in the same
unprotected strike. This finding
was supported by the evidence which
indicated that the respondents had withheld their labour and refused
to work for the purpose
of remedying a grievance or resolving a
dispute in respect of any matter of mutual interest in circumstances
in which they were
not lawfully entitled to do so.
[6]
From the evidence, it was apparent that those who remained on the
appellant’s premises after their shift, after having been
instructed not to do so, had retarded or obstructed work through
their physical and intentional conduct even though off-duty and
that
by so doing they too had participated in the unprotected industrial
action.
[7]
As much was made
clear in
Association
of Mineworkers & Construction Union & others v AngloGold
Ashanti
[8]
where the court held that in certain circumstances, a failure to obey
a lawful instruction amounts to strike action. The fact that
the
appellant immobilised machinery as a result of the strike did not
alter the fact that the respondents had participated in the
action.
[27] The
evidence placed before the Labour Court clearly proved that the
respondents engaged in an unprotected
strike and that the Labour
Court correctly found as such.
Contact
with LSC
[28] Turning
to the substantive fairness of the dismissals of the respondents,
item 6(2) of Schedule 8 requires
the employer, in the context of a
strike, at the earliest opportunity, prior to dismissal, to
contact a trade union official to
discuss the course of
action it intends to adopt. In addition, the employer is required to
issue an ultimatum in clear and unambiguous
terms that should state
what is required of the employees and what sanction will be
imposed if they do not comply with
the ultimatum, with the employees
allowed sufficient time to reflect on the ultimatum and respond to
it, either by complying
with it or rejecting it. Where the employer
cannot reasonably be expected to comply with these steps, item 6(2)
permits such steps
to be dispensed with.
[29] There
is no dispute that the appellant contacted UPUSA, being the union of
which the respondents were members,
and secured a letter from its
local official calling on the respondents to halt their unprotected
strike. It was apparent that
the appellant was in contact with
members of the LSC, despite their suspension from duty, since the
respondents refused to communicate
with the appellant. The evidence
showed that the LSC had been party to planning the strike. The
evidence supported the Labour Court’s
finding that the LSC had
“torpedoed” efforts made by the appellant to resolve
workplace issues, after defying the appellant’s
refusal to
consent to marches proceeding. Since LSC members had been suspended
due to their conduct which had evidenced their refusal
to discuss
issues with the appellant, the appellant was confronted with local
labour representatives who were unwilling to discuss
issues with
their employer. This placed the appellant in a difficult position.
[30]
There
was however no dispute that the appellant had before the strike
attempted to meet with the LSC and that the LSC was aware
after the
strike had commenced that various ultimata had been issued by the
appellant in which the serious consequences of embarking
upon and
continuing with strike were set out. The Labour Court recognised that
the LSC, the members of which were lawfully suspended,
were in
telephonic communication with the underground strikers and intervened
when the interdict was granted and that the appellant
was faced with
strikers who were ‘heedless’ to management’s
attempts to engage, and a ‘cavalier’
LSC who had already
‘torpedoed’ attempts to engage in consultation. The
purpose of the employer’s obligation
to contact the union is to
enable the union to advise its members on the course of action that
the employer intends to adopt, thus
allowing employees an opportunity
to consider their position and making a rational decision.
[9]
.
[31] The
ultimata issued by the appellant were repeatedly ignored by the
respondents. The evidence before the Court
was that the strikers had
impeded management’s attempt to engage with them and sought to
prevent service of the ultimata.
It was recognised by the Court that
the appellant had attempted to ensure that ultimata were served “
and
for the most part did what could be expected in the circumstances
which varied from shaft to shaft.”
[32] When
weighing the strikers’ conduct, the Court found that the
respondents could not, given their conduct,
complain of insufficient
time to consider and reflect on the ultimata given the course of
conduct they had chosen to prevent such
ultimata being served.
[33]
The
LSC members did not intervene to halt the unlawful action. In this
sense this matter is distinguishable from the facts of
NUM
v Goldfields,
[10]
in which the union official on learning of the unprotected strike,
rushed to the scene, and began fervently counselling the strikers
to
resume work. To the contrary, in
casu,
there
can be no conclusion that the pre-planned underground strike would
have ended any sooner had management made further attempts
(following
already rejected attempts) to engage the LSC. There can equally be no
conclusion that the strikers were deprived of
an opportunity to
reflect on their course of action or to seek advice from their
leadership. The court
a
quo
correctly characterised the strikers’ conduct as heedless, and
that the strikers could not seek to rely on the success of
their own
efforts to frustrate the issuing of ultimata by management.
[34] The
strikers had sufficient opportunity to reflect and seek advice, but
they continued with the underground
strike with the approval of the
LSC. They would not surface when management indicated that it would
listen to their concerns on
the surface. In none of the shafts was
the decision to surface promoted by receipt of an ultimatum, and the
LSC was in telephonic
contact with the strikers through the shaft
telephones. The reality is that the LSC had made promises of bonanza
payments to UPUSA
members, which ultimately turned out to be a
significant misrepresentation. Therefore, the LSC steered the entire
course of the
underground strike as a tactic to bring pressure on the
management to make the bonanza payment.
[35]
Neither
the evidence nor the findings of the court
a
quo
supports the proposition that the LSC was opposed to the underground
strike, and that its attitude would have weighed on the strikers
to
discontinue their course of action had management done something
different.
[11]
The course of
the underground strike was chartered by the LSC from the meeting of
21 January 2009 (the day before), and as correctly
concluded by the
court
a
quo, ‘on the whole, the only time workers in the sit-in heeded
the call to surface was when they got the call from their
own
leadership to do so, and that call came after the interdict was
obtained’.
[36] The
court
a quo’s
finding that the appellant failed to
engage with the LSC ought to be set aside, and more importantly, this
finding cannot form
a basis for the finding of substantive
unfairness. Although the LSC were lawfully suspended, they were
involved in the planning
of the strike.
Historical
inconsistency
[37] Item
6(1) of Schedule 8 to the LRA makes it clear that the substantive
fairness of a dismissal as a result
of participation in an
unprotected strike, like other misconduct, does not always deserve
dismissal and must be determined
in the light of the facts of
the case, including the seriousness of the contravention of the
LRA, attempts made to comply
with the LRA and whether or not
the strike was in response to unjustified conduct by the
employer.
[38]
In
Mzeku
and Others v Volkswagen SA (Pty) Ltd and Others
it
was stated that:
[12]
‘
O
nce
there is no acceptable explanation for the [workers’] conduct,
then it has to be accepted that the [workers] were guilty
of
unacceptable conduct which was a serious breach of their contracts of
employment . . . The only way in which the [workers’]
dismissal
can justifiably be said to be substantively unfair is if it can be
said that dismissal was not an appropriate sanction.’
[39]
The
Constitutional Court in
Transport
and Allied Workers Union of South Africa obo Ngedle and Others v
Unitrans Fuel and Chemical (Pty) Ltd Limited
[13]
ma
de
it
clear that in
determining the appropriateness of a dismissal as a sanction for
striking workers’ conduct, consideration must be given to
whether a less severe form of discipline would have been more
appropriate, as dismissal is the most severe sanction available. An
illegal strike has been recognised by our courts to constitute
serious and unacceptable misconduct by workers.
[14]
In this matter, the respondents acted outside the bounds of the
recognition agreement entered into with the appellant, failed to
adhere to the unequivocal ultimata issued by the appellant and
refused to comply with the appellant’s instructions to halt
their dangerous and unlawful industrial action. In such
circumstances, dismissal has been found by our courts to be an
appropriate
sanction.
[15]
[40]
The
obligation upon an employer to act consistently in the application of
discipline arises in two contexts in our law. The first
is in
relation to the application of the rule and the second is in relation
to the imposition of sanction.
[16]
In both respects there can exist either contemporaneous inconsistency
or historical consistency. In relation to the consistent
imposition
of sanction it was stated in
Southern
Sun Hotel Interests (Pty) Ltd v Commission for Conciliation,
Mediation & Arbitration & others
[17]
the court said the following:
‘
The courts have
distinguished two forms of inconsistency - historical and
contemporaneous inconsistency. The former requires that
the employer
apply the penalty of dismissal consistently with the way in which the
penalty has been applied to other employees
in the past; the latter
requires that the penalty be applied consistently as between two or
more employees who commit the same
misconduct.’
[41] The
Labour Court had regard to the evidence as to the distinctions
between the December 2006 above ground
strike and the far more
dangerous and coordinated underground strike at the appellant’s
premises in January 2009. However,
it failed to have regard to the
fact that no evidence existed to justify a finding of historical
inconsistency in that the 2007
unprotected strike resulted in the
dismissal of the striking employees who participated. While the Court
recognised that the 2006
strike was distinct in the sense that it was
a conventional above ground strike, the Court failed to give
appropriate weight to
the differences between that strike and the
2009 underground strike, including the serious consequences of the
2009 strike which
halted production, compromised mines safety and
exposed workers to serious personal risk.
[42] Given
the serious and dangerous circumstances of the strike, the extent of
the contravention of the LRA,
the lack of any attempt on the
part of the respondents to comply with the provisions of the LRA and
the fact that the strike was
not in response to any
unjustified conduct by the employer, this Court is satisfied that
dismissal was the appropriate sanction
in the circumstances of this
matter.
[43] The
appellant seeks no order of costs order against the respondents and
in the circumstances no costs order
is made.
Order
[44] In
the result, the following order is made:
1. The
appeal is upheld.
2. The
order of the court
a quo
of the 17 September 2019 is set aside
and replaced as follows:
“
The dismissal of
the respondent employees was procedurally and substantively fair”.
D
S Molefe
Acting
Judge of the Labour Appeal Court
Waglay
JP and Savage AJA concur.
APPEARANCES:
FOR
THE APPELLANT: Adv. W.G LaGrange SC and Adv. A.C Russell
Instructed
by Cliffe Dekker Hofmeyr Inc
FOR
THE FIRST RESPONDENT: Adv. V. Mndebele
Instructed
by Motshegare Attorneys Inc
[1]
With
reference to Electoral
Commission
of South Africa v Speaker of the National Assembly
2018 JDR 2059 (CC) at para 79.
[2]
With
reference to
Association
of Mineworkers and Construction Union & others v AngloGold
Ashanti Limited
(2016) 37 ILJ 2320 (LC) para 185.
[3]
Standard
Bank of SA Ltd v Stama
(Pty)
Ltd
1975 (1) SA 730
(A) 746E.
[4]
Matatiele
Municipality v President of the Republic of South Africa
[2006]
ZACC 2
;
2006
(5) SA 47
(CC)
[2006] ZACC 2
; ;
2006
(5) BCLR 622
(CC)
at para 67.
[5]
A strike is defined in section 213 of the LRA as: ‘…the
partial or complete concerted refusal to work, or the retardation
or
obstruction of work, by persons who are or have been employed by the
same employer or by different employers for the purpose
of remedying
a grievance or resolving a dispute in respect of any matter of
mutual interest between employer and employee and
every reference to
“work” in this definition includes overtime work,
whether it is voluntary or compulsory.’
[6]
See
Transport
& Allied Workers Union of SA obo Ngedle & others v Unitrans
& Chemical (Pty) Ltd
(2016)
37 ILJ 2485 (CC) at para 106.
[7]
John
Grogan, workplace Law 12ed (Juta 2017), page 406.
[8]
(2016)
37 ILJ 2320 (LC) at para 185.
[9]
Nation
Union of Mineworkers & others v Goldfields Security Ltd
(1999) 20 ILJ 1553 (LC).
[10]
National
Union of Mineworkers & others v Goldfields Security Ltd
(1999) 20 ILJ 1553 (LC).
[11]
Performing
Arts Council of the Transvaal v Paper Printing Wood and Allied
Workers Union
1994 (2) SA 204 (A).
[12]
[2001]
ZALAC 8
;
2001
(4) SA 1009
(LAC);
(2001) 22
ILJ
1575
(LAC) at para 17.
[13]
[2016]
ZACC 28; 2016 (11) BCLR 1440 (CC); [2016] 11 BLLR 1059 (CC); (2016)
37 ILJ 2485 (CC) at para 50.
[14]
Performing
Arts Council of the Transvaal v Paper Printing Wood and Allied
Workers Union and Others
[1993]
ZASCA 201
;
1994
(2) SA 204
(A)
at 216E.
[15]
See, for example,
SA
Clothing and Textile Workers Union and Others v Berg River Textiles
– A Division of Seardel Group Trading (Pty) Ltd
(2012)
33
ILJ
972
(LC) at para 30
[16]
Item
7 of Schedule 8 to the LRA provides guidelines for the determination
of cases of dismissal for misconduct which include a
determination
as to whether
the
rule or standard has been consistently applied by the employer
and
whether dismissal is an appropriate sanction for its contravention.
[17]
(2010)
31 ILJ 452 (LC) at para 10.