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[2018] ZALCJHB 363
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Dhlamini and Others v Mosego Home t/a New Takalani (JS 544/16) [2018] ZALCJHB 363 (9 November 2018)
IN
THE LABOUR COURT OF SOUTH AFRICA, JOHANNESBURG
Not Reportable
case
no: JS 544/16
In
the matter between
BUSISIWE
DHLAMINI & 19 OTHERS
Applicants
and
MOSEGO
HOME T/A NEW TAKALANI
Respondent
Heard:
06 November 2018
Delivered: 09 November
2018
JUDGMENT
LALLIE. J
Introduction
[1] The applicants were
employed by the respondent, an organization which is a home safety
for mentally ill and infirm patients.
The respondent’s interim
administrator was Elizabeth Avril who paid the applicants bonuses,
leave pay, overtime pay, and
annual wage increments and contributed
to their Unemployment Insurance Fund (UIF). In 2012 the government
joined the interim administrator
position to another home known as
Mosego Home which took over the running of the Home.
[2] The new administrator
changed the terms and conditions of the applicants’ employment
by stopping paying them bonuses,
leave and overtime pay and
contributing towards their UIF. Aggrieved by the change the
applicants referred a dispute to the Commission
for Conciliation,
Mediation and Arbitration (CCMA). Attempts to resolve it through
conciliation were unsuccessful and the certificate
of outcome was
issued. The applicants thereafter issued the respondent with 48 hour
strike notice and embarked on a protected strike
from 3 March 2016.
The respondent responded by dismissing them. Those who were off duty
on the day were dismissed for the same
reason on 9 March 2016. The
applicants alleged that their dismissal was automatically unfair and
sought reinstatement. They each
earned a monthly wage of R2000.00.
[3] The respondent filed
a notice of its intention to oppose the applicants’ matter but
failed to file a response to the applicants’
statement of
claim. Long after the expiry of the date on which the respondent was
required to file its response to the statement
of claim the applicant
applied for default judgment.
[4]
Having considered the contents of the papers filed of record and the
evidence led by Ms Mabunzi on behalf of all the applicants,
I am
satisfied that the applicants’ dismissal was automatically
unfair. Section 187(1)(a) of the Labour Relations Act
[1]
(LRA) unequivocally provides that dismissal for participating in a
protected strike is automatically unfair. In the absence evidence
against their reinstatement, the relief of reinstatement the
applicants sought should be granted.
[5] In the premises, the
following order is made:
Order
1.
The
applicants’ dismissal on 3 and 9 March 2016 was automatically
unfair.
2.
The
respondent is ordered to reinstate the applicants with retrospective
effect to the date of their dismissal within 5 days of
the applicants
tendering their services to the respondent.
3.
The
applicants are ordered to tender their services within 10 days of
receipt of this order.
Z.
Lallie
Judge of the Labour Court
of South Africa
Appearances
For
the applicant Ms
Mabunzi (on
behalf of all the applicants’)
For the
respondent No
appearance
[1]
66 of 1995