Brief Summary

Labour Law — Unfair Dismissal — Automatically unfair dismissal — Appeal against finding of automatically unfair dismissal of employees for participating in unprotected strike action — Employees, acting as shop stewards, refused to work pending a meeting to address grievances — Dismissals deemed automatically unfair under section 187(1) of the Labour Relations Act 66 of 1995 — Employer required to demonstrate that dismissals were not due to employees' roles as representatives — Appeal court upheld the finding of the court a quo, ordering reinstatement of dismissed employees with retroactive effect.

Comprehensive Summary

Summary of Judgment

1. Introduction

This matter concerned an appeal to the Labour Appeal Court against a judgment of the Labour Court delivered on 2 August 2012. The appeal was brought by Martin and East (Pty) Limited (the employer) against the National Union of Mineworkers and seven individual employees (shop stewards/employee representatives) cited as respondents.

In the court a quo, the Labour Court found that the dismissal of the individual respondents was automatically unfair and ordered their reinstatement with retrospective effect to the date of dismissal, on the applicable terms and in their positions at the employer. The employer was also ordered to pay costs. The present appeal sought to overturn that finding and the associated relief.

The general subject matter of the dispute was whether the employer’s termination of employment of certain shop stewards/representatives—following a work stoppage and subsequent disciplinary steps—constituted an automatically unfair dismissal under the Labour Relations Act 66 of 1995, particularly in relation to alleged adverse treatment for performing trade union or representative functions.

2. Material Facts

On 23 August 2010, approximately 124 employees assembled at Borchards Quarry from about 06:30. At least four of the five elected shop stewards were present. After assembling, the employees refused to board trucks that would have taken them to different work sites. The court treated it as common cause that the workforce remained steadfast for a period in their refusal to work and demanded engagement with management.

At approximately 07:00, the employer’s representative, Mr Megan Adolus, telephoned one of the respondents, Mr Nelson Ngqisha, to enquire about the refusal to work. Ngqisha conveyed that employees demanded a meeting with the employer’s human resources manager, Mr Chris Escreet, at the quarry site to address grievances. Adolus proposed that the shop stewards travel to head office for a meeting, but Ngqisha explained that employees insisted that Escreet come to the quarry.

Between approximately 07:00 and 09:00, a series of telephone discussions occurred. The position of the workforce and shop stewards remained that they would not return to work unless Escreet met them at the quarry. At about 09:00, Escreet telephoned Ngqisha and repeated management’s position: Escreet was willing to meet the shop stewards, but at head office, and transport would be provided.

Ultimately, a meeting occurred at head office in the afternoon. A delegation comprising four shop stewards and three observers met with Escreet and other employer representatives. Various grievances were discussed. These included (among others) dissatisfaction about the irregularity of monthly meetings between managers and shop stewards (the last having been held in April 2010), a request to adjust Friday working hours on paydays, the discontinuation of a practice concerning reimbursement of shop steward travel expenses, concerns about union correspondence (faxes) not reaching shop stewards, a dispute about transport for employees to attend memorial services of colleagues, and concerns relating to training.

At the end of the meeting, Escreet advised that disciplinary action would be taken against all those involved in the events of the day, notwithstanding that employees returned to work in the afternoon. The delegation reported back to the workforce and conveyed to Escreet that this report-back had taken place.

The individual respondents, together with Alfred Mlonyeni and Elvis Lukheleni, were issued notices to attend a disciplinary hearing (ultimately held on 15 September 2010). The charges included participation in unprotected strike action, gross insubordination, and unacceptable conduct in disrupting business and causing losses. They were found guilty, and after mitigation/aggravation submissions, the chairperson recommended dismissal but also proposed an alternative sanction of a written warning coupled with three months’ unpaid suspension.

On 15 October 2010, the employer imposed the alternative sanction of three months’ unpaid suspension with a final written warning. On 28 October 2010, the union referred an unfair labour practice dispute to the CCMA challenging the final written warning and suspension. The dispute was conciliated without resolution, and it was set down for arbitration on 28 January 2011.

On 24 November 2010, the employer wrote to the union asserting that it was not open to the employees to challenge the sanction because it had been concluded by agreement. The employer indicated that if employees protested the alternative sanction (as the CCMA referral suggested), it would treat the offer as rejected and proceed to impose dismissal. On 30 November 2010, after further correspondence, the employer issued dismissal notices. (One affected employee, Mlonyeni, withdrew from the CCMA dispute by 11 January 2011; Lukheleni was subsequently reinstated.)

The dispute then proceeded to the Labour Court, which found the dismissals of the respondents to be automatically unfair and ordered retrospective reinstatement. The employer appealed that outcome.

3. Legal Issues

The central legal question on appeal was whether the dismissals were automatically unfair as contemplated in section 187(1) of the Labour Relations Act 66 of 1995, read with sections 4 and 5, on the basis that the respondents were dismissed for carrying out the functions of a trade union or acting as employee representatives (specifically, as the delegation communicating grievances to management).

A closely related issue concerned the allocation of the evidential burden and onus in automatically unfair dismissal disputes: in particular, what employees must establish to raise an inference of an automatically unfair reason for dismissal, and what the employer must then prove to justify the dismissal on a permissible basis.

Although other questions were raised (including issues relating to the acceptance or non-acceptance of the alternative sanction), the Labour Appeal Court treated the automatically unfair dismissal enquiry as the primary determinative issue. The dispute thus turned principally on the application of legal principles to the established facts, including an evaluative assessment of whether the employer produced evidence sufficient to displace an inference of discriminatory targeting of shop stewards.

4. Court’s Reasoning

The Labour Appeal Court approached the matter through the established framework for automatically unfair dismissal claims. Relying on Kroukam v SA Airlink (Pty) Ltd 2005 (26) ILJ 2153 (LAC), the Court reiterated that employees bear an initial evidential burden to produce evidence sufficient to raise a credible possibility that an automatically unfair dismissal occurred. Once such a credible possibility is raised, the employer must produce evidence to show that the reason for dismissal did not fall within section 187’s prohibited grounds. The Court further referred to Ngoza & Others v Scorpions Legal Protection 2008 (29) ILJ 1039 (LC) to reinforce that the employee’s onus in a section 187 case is directed at proving that the dismissal falls within the scope of section 187.

On the facts, the Court considered it significant that all employees were charged with participation in an unprotected strike, yet only the respondents received the specific sanction trajectory culminating in dismissal (linked to the employer’s subsequent withdrawal of the alternative sanction following the CCMA referral). The Court held that this differential treatment, viewed against the broader participation in the work stoppage, was sufficient to raise a reasonable inference and credible possibility that the respondents were singled out because they were shop stewards/representatives.

Once that inference was established, the Court held that the employer bore the burden to rebut it by producing evidence showing that dismissal occurred for a permissible reason—namely, because the respondents instigated or promoted the strike—rather than because they acted in their representative capacity by communicating employee grievances. The Court scrutinised the employer’s attempt to justify dismissal on the basis that the strike must have been initiated by leaders and that, in management’s view, those who attended the meeting were the instigators.

The Court rejected the employer’s argument that the grievances discussed were exclusive to shop stewards rather than the workforce. It pointed out that the record reflected multiple issues affecting employees directly, including the Friday working-hours request, the ability to attend colleagues’ memorial services, and training concerns. Accordingly, the Court held that it was incorrect to characterise the grievances as purely shop steward interests.

The Court also rejected a further submission advanced for the employer: that it was sufficient for the employer to have held a belief, even if mistaken, that the respondents instigated the strike. The Court treated this as inconsistent with the LRA’s culture of rationality and justification in workplace governance. It held that an employer could not justify dismissal on the basis of an unsupported belief or “figment of imagination,” even if said belief was held in good faith; rather, the decision must be linked to a reasonable inference that a reasonable employer could draw from the evidence as a whole. In this case, the Court considered the employer’s evidentiary basis to amount to little more than Mr Escreet’s assertion that he believed the respondents were responsible, without direct supporting evidence.

In addressing the scope of protection for shop stewards, the Court accepted that the LRA does not confer blanket immunity on worker representatives. Referring to National Union of Mineworkers and Others v Black Mountain Mining (Pty) Ltd 2010 (31) ILJ 387, the Court endorsed the principle that shop stewards may be disciplined if their conduct falls outside fair and acceptable bargaining conduct and is not reasonably related to the performance of their functions. However, on the evidence before it, the Court found no credible basis to conclude that the respondents engaged in disorderly, disrespectful, or irresponsible conduct beyond their mandate; instead, the evidence showed that they communicated employee complaints and performed their representative tasks.

On that basis, the Court held there was no credible explanation for the differential treatment other than that the respondents, as shop stewards/representatives, were subjected to special adverse treatment. The Court therefore upheld the conclusion that the dismissals were automatically unfair under section 187(1) read with sections 4 and 5 of the LRA. It considered that this conclusion was sufficient to dispose of the appeal.

Finally, the Court made an additional observation concerning the LRA’s objective of expeditious dispute resolution, cautioning that labour courts should be careful when granting leave to appeal in matters that are fact-bound and raise no novel legal issues, because employees may otherwise remain in prolonged uncertainty while appeals are pursued.

5. Outcome and Relief

The Labour Appeal Court dismissed the appeal with costs. The effect was that the Labour Court’s order—finding the dismissals automatically unfair and directing reinstatement with retrospective effect on applicable terms and in the employees’ positions—remained in place.

Cases Cited

Kroukam v SA Airlink (Pty) Ltd 2005 (26) ILJ 2153 (Labour Appeal Court).

Ngoza & Others v Scorpions Legal Protection 2008 (29) ILJ 1039 (Labour Court).

National Union of Mineworkers and Others v Black Mountain Mining (Pty) Ltd 2010 (31) ILJ 387.

Legislation Cited

Labour Relations Act 66 of 1995, sections 4, 5, and 187(1).

Rules of Court Cited

No rules of court were cited in the judgment.

Held

The Labour Appeal Court held that the respondents discharged the initial evidential burden of raising a credible possibility that their dismissal was automatically unfair, principally because they were treated differently from the broader group of employees involved in the unprotected strike and were shop stewards/representatives.

It further held that the employer failed to rebut the inference of discrimination with credible evidence showing a permissible reason for dismissal. The employer’s justification rested materially on management’s belief that the respondents instigated the strike, which the Court found was not supported by evidence and did not meet the standard of rational justification required.

Accordingly, the dismissals were held to be automatically unfair under section 187(1) read with sections 4 and 5 of the Labour Relations Act 66 of 1995, and the appeal was dismissed with costs.

LEGAL PRINCIPLES

An employee alleging an automatically unfair dismissal must produce evidence sufficient to raise a credible possibility that the dismissal falls within the prohibited grounds in section 187 of the Labour Relations Act 66 of 1995. Once that threshold is met, the employer must produce evidence to show that the dismissal was for a reason not proscribed by section 187, consistent with the employer’s overall obligation to justify dismissal.

Where there is differential treatment (such as dismissal of shop stewards/representatives where most participants in the same conduct were not dismissed), this may support an inference that the dismissal was connected to union activity or representative functions, thereby triggering the employer’s duty to rebut that inference with credible evidence.

An employer cannot justify dismissal on the basis of an unsupported belief, even if honestly held. A dismissal decision must be grounded in a reasonable inference drawn from the evidence as a whole, reflecting the LRA’s emphasis on rationality and justification in workplace discipline.

Shop stewards are not immune from discipline. They may be disciplined where their conduct falls outside fair and acceptable bargaining conduct and is not reasonably related to the performance of their representative functions. However, where representatives act within their mandate by communicating workforce grievances, adverse targeting on that basis may fall within the protection contemplated by sections 4, 5, and 187 of the LRA.

Martin And East (Pty) Limited v National union mineworkers and Others (CA23/2012) [2013] ZALAC 35; (2014) 35 ILJ 2399 (LAC) (10 March 2013)