THE LABOUR COURT OF SOUTH AFRICA, JOHANNESBURG

Reportable
Case No: JS 751/22

In the matter between:

SOUTHERN AFRICAN CLOTHING
AND TEXTILE WORKERS UNION First applicant

AGRICULTURAL FOOD
AND GENERAL WORKERS UNION Second applicant

KUNENE B &189 OTHERS Third and Further applicants
And

AGRI POULTRY(PTY) LTD
T/A DAYBREAK FARM Respondent

Heard on: 23 Oct 2023 to 03 November 2023; 25 March 2024 to 29 March 2024;
24 June 2024 to 28 June 2024 and 31 July 2024.
Delivered: 24 July 2025
Delivered: This judgment was handed down electronically by circulation to the
parties via email and uploading onto the Labour Court website. The date for
hand-down is deemed to be 24 July 2025.


JUDGMENT

2


MAHALELO, AJ

Introduction

[1] This judgment relates to the dismissal by the respondent of the third and
further applicants. The applicants submit ed that their dismissal was unfair and seek
full retrospective rein statement. The respondent in turn submit ted that the dismissal
was fair, and request that the claim be dismissed with costs.

[2] By way of preliminary issues , the statement of claim launching this case was
delivered on 1 November 2022. The trial first commenced in the week of 22 October
2023 and was postponed a few times. All in all, the trial lasted for a period of about
30 days.

[3] After the statement of claim was filed, the respondent reinstated 32 individual
applicants. At the outset of the trial, it was indicated that the dispute in respect of the
32 applicants who have been reinstated was withdrawn and a notice to that effect
was filed . During the course of the trial, it emerged that several other individual
applicants were erroneously listed twice. The final list of applicants which excluded
the withdrawn and duplicated applicants was handed up and marked as schedule
“A”.

Background Facts

[4] The respondent is a poultry producer which conducts its business in various
aspects of chicken production. The individual applicants were all employed by the
respondent in its operations which involved the processing of chicken, including the
slaughtering and further processing thereof. The respondent operates on a 24 hour
basis with a day shift starting from 6h 00 to 15h 45 and the night shift starting from
16h15 to 2h00. The day and night shift s work on a rotational basis in teams referred
to as Shift 1 and 2. In the morning shift chickens are received at approximately 6h00.

3
From there the chickens are processed through the various departments in the
production line and are finally packaged and frozen.

[5] In its business t he respondent pays its employees fortnightly. It pays an
annual bonus or 13th cheque in mid -December of every year . At midnight on 14
December 2021, the respondent processed the bonus payments for its employees .
The night shift employees were working at this time and received notification on their
cell phones. The amount paid appeared to be less than what the employees
expected. They were not happy with the amount deducted from their 13th cheque.

[6] Mr Kunene a shop steward for the South African Clothing and Textile Workers
Union (SACTWU) engaged the on-duty shift supervisor Mr Desmond Sibanyoni
regarding the issue. Sibanyoni testified that Kunene approached him and expressed
the employees’ unhappiness about the deductions on their 13th cheque. He advised
Kunene to approach the company ’s payroll officer, Mr Brendan Adams to enquire
about the deductions in the bonus payments and convey Adam's response to the
employees at the following night shift.

[7] On the morning of the 15 December 2021, Mr Kunene returned to the
respondent’s premises. He testified that he arrived at approximately 7h00 and at that
time the employees had already commenced on a work stoppage. The morning shift
had commenced at 6 h00 and by 6h15 they had left their workstations. Mr Johannes
Mngoma, a team leader at the respondent, testified that by 6h15 the employees had
left their workstations and were refusing to work. He accordingly went to the
receiving department and instructed the team leader M s Samantha Mangaliso to
stop the production. He testified that he instructed that production be stopped
because if the employees were not working the chickens would be left unattended.

[8] On that same morning of 15 December 2021, Mr Kunene met with Mr Dlamini
and several other shop stewards, including Mr Sipho Masilela, another SACTWU

and several other shop stewards, including Mr Sipho Masilela, another SACTWU
shop steward, and Mr Ndlovu a shop steward for AFGWU. Mr Dlamini requested that
the shop stewards engage with the employees to encourage them to return to work.
The shop stewards reported back to Mr Dlamini that the employees said that they

4
would not return back to work until the deductions on their salaries have been fully
explained.

[9] Mr Adams of p ayroll arrived at the company between 8h30 and 9h00. Mr
Dlamini testified that by 10h 30 the employees’ pay slips had been printed and the
shop stewards were distributing them to each employee. The employees became
aware that the deduction from the bonus payment was attributable to tax. T hey
advised that they did not understand why such a substantial amount was paid over
to tax and requested an explanation from management. They indicated that until the
explanation was proffered and the issue resolved, they would not return to work. The
shop stewards engaged Mr Adams on the issue. He directed them to a
memorandum affixed to the notice board outside his office explaining the tax
deductions. Mr Kunene testified that the shop stewards could not make sense of the
memorandum and requested Mr Adams to address the employees in the c anteen.
Mr Adams declined. The shop stewards returned to the canteen to address the
employees. They explained to them that they engaged Mr Adams, but still they did
not understand how the tax deductions were calculated. According to Mr Kunene the
employees insisted that they would not return to work until the deductions were fully
explained to them.

[10] Throughout the morning of 15 December 2021 the shop stewards would
engage with management and go and report to the workers and back to
management. At this point, Mr Mdluli of the respondent , upon realizing that the
parties were not reaching any solution, communicated with the first applicant’s union
official, Mr Makhene through emails . He requested that Makhene attend at the
company pr emises to assist in resolving the strike. At the same time the shop
stewards also contacted Mr Makhene telephonically. He advised that he would
attend in the early afternoon of the same day.

[11] Mr Makhene arrived at the respondent in the afternoon. Upon engaging with

[11] Mr Makhene arrived at the respondent in the afternoon. Upon engaging with
the shop stewards, he proposed to Mr Mdluli that the respondent should investigate
the deductions to verify whether they were correctly calculated. In the meantime, the
respondent should advance half the deducted amount to the employees as a loan to
be repaid to the respondent if the deductions were correctly calculated. Mr Makhene

5
later presented that proposal in writing to Mr Mdluli. Unfortunately, the respondent
did not accept the proposal, the reason being that it would be illegal not to deduct tax
from the employees and pay it over to SARS.

[12] At this point, the day shift employees began leaving the premises and the
night shift employees were arriving for their shift. The night shift employees, upon
learning that the day shift employees were not working, decided to continue the
strike in solidarity and to similarly demand a full explanation for the deductions. The
employees continued with the strike on the following day , 16 December 2021. The
employees did not report for duty on 16 and 18 December 2021. They said that they
did not report for duty because 16 December 2021 was a public holiday and 18
December 2021 was a Saturday. They say that a lthough they might have been
rostered for duty, it was not compulsory for them to report for duty on public holidays
and weekends. The 19 of December 2021 was a Sunday, with the employees only
reporting for duty on Monday, 20 December 2021.

[13] On 4 January 2022, the company char ged 665 employees whose shifts fell
over the period of the strike with participation in the unprotected industrial action. All
the charged employees were not suspended pending the outcome of the disciplinary
process. All the employees pleaded guilty to this charge. The charge of participation
in an unprotected industrial action related to the employees participation therein on
15, 16 and 18 December 2021. In addition, four employees who were SACTWU
shop stewards were charged with the second charge of incitement/encouragement
to participate in unlawful/unprotected industrial action. They pleaded not guilty to the
second charge of incitement.

[14] On 22 June 2022 the disciplinary hearing chairperson delivered his outcome.
He accepted the 665 employees guilty plea in respect of participation in the

He accepted the 665 employees guilty plea in respect of participation in the
unprotected strike action for the 3 days . In addition he found three of the four
SACTWU shop stewards guilty of the charge of incitement. On or about the same
day, the disciplinary hearing chairperson delivered his outcome on the sanction. He
recommended that all 665 employees be summarily dismissed for participating in the
unprotected strike. He further r ecommended dismissal for the three shop stewards
found guilty on the charge of incitement.

6

[15] The basis upon which the individual applicants were selected for dismiss al is
central to these proceedings. From the 665 employees who were recommended to
be dismissed the respondent dismissed only 225 employees. The r espondent ’s case
is that despite the chairperson’s recommendation, it did not wish to dismiss all the
employees. Mr Mdluli and Mr M ahasha who both testified for the respondent stated
that despite the recommendations of the c hairperson of the disciplinary proceedings,
the respondent decided to r eview the disciplinary records of those employees who
had been found guilty of misconduct, and to dismiss only those whose records
reflected existing final written warnings for prior misconduct. In accordance with this
criteria, the respondent had subsequently reinstated 32 of the 225 employees who it
subsequently realised did not have final written warnings.

[16] SACTWU and AFGWU referred an unfair dismissal dispute in respect of the
individual applicants to the Commission for Conciliation, Mediation and Arbitration
(CCMA). The dispute was unsuccessfully conciliated. The dispute was then referred
to this court for adjudication in terms of section 191(5) (b)(iii) of the Labor Relations
Act
1 (LRA).

[17] The aforesaid constitutes the background against which this matter is to be
decided.
It is common cause between the parties that the individual applicants
participated in the strike. The fact that the strike was unprotected is also common
cause. What is in dispute between the parties is whether or not:
17.1 T he strike was provoked by the respondent by deducting tax on the 13
cheque of the employees.
17.2 Whether the strike was for a limited duration
17.3 Whether the three shop stewards were guilty of incitement
17.4 Whether the respondent served ultimatums on the striking employees,
and
17.5 Whether the respondent applied discipline inconsistently.


1 Act 66 of 1995, as amended.

7
[18] T he applicants contended that al though the individual applicants took part in
the unprotected strike action, dismissal was an inappropriate sanction.

[19] Section 68 (5) of the LRA provides that:
‘Participation in a strike that does not comply with the provisions of this
Chapter, or conduct in contemplation or in furtherance of that strike, may
constitute a fair reason for dismissal. In determining whether or not the
dismissal is fair, the Code of Good Practice: Dismissal in Schedule 8 must be
taken into account.’

[20] Item 6(1) of Schedule 8: Code of Good Practice: Dismissal (the Code)
provides as follows:
“(1) Participation in a strike that does not comply with the provisions of
Chapter IV is misconduct. However, like any other act of misconduct, it does
not always deserve dismissal. The substantive fairness of dismissals in these
circumstances must be determined in the light of the facts of the case,
including –
a) the seriousness of the contravention of this Act;
b) attempts made to comply with this Act; and
c) whether or not the strike was in response to unjustified conduct by the
employer.”

[21] Section 68 (5) of the LRA and item 6 (1) of the C ode set the parameters for
the considerations affecting the substantive fairness of dismissals for participation in
an unprotected strike action. P articipation in an unprotected strike is unacceptable
conduct and a serious breach of the employees’ employment contracts. Once
participation in an unprotected strike is established it falls on the employees to
provide an acceptable explanation for it.

[22] When determining the appropriate sanction, the court must take into account
all surrounding circumstances. Where a particular factor or circumstance is
especially instructive on the effect of the misconduct on the trust relationship,
significant weight and consideration should be afforded to that factor. Accordingly, in
this matter , t he respondent b ears the onus to prove that (1) the three individual

8
employees dismissed for incitement actually incited the strike and (2) dismissal is an
appropriate sanction against the individual applicants for participating in the strike.

[23] I will now turn to deciding the merits of the matter by answering the issues in
dispute identified above. I will start by answering whether the three shop stewards
were guilty of incitement and whether their resultant dismissal was substantively fair.

[24] S hop stewards are subject to the employer’s disciplinary authority while they
act as intermediaries between the employer and union members. While shop
stewards cannot claim special privileges arising out of their role as employees, the
performance of their duties as such cannot in itself constitute a disciplinary offence,
and they must have committed an act normally categorised as misconduct for any
disciplinary action against them to be justified.
2 The basis f or the selection of the
three shop stewards for dismissal, as I noted above, is an alleged incitement or
encouragement of the employees to take part in the unprotected strike. In the
c
ontext of an unprotected strike, incitement is committed if the accused employee/s
“reached and sought to influence the mind” of other employees to participate in an
unprotected strike.3 For an employee to be found guilty of incitement evidence must
be led which demonstrates that the employee indeed sought to influence and or
raise the minds of his or her fellow employees to commit the unlawful strike action.

[25] Mr Moshoeshoe is one of the shop stewards who was dismissed for incitement.
The respondent did not lead any evidence about him and his alleged misconduct in
this regard. The respondent therefore did not discharge the burden of proof that Mr
Moshoeshoe was guilty of inciting the strike.

[26] The second employee who was found guilty of incitement and dismissed was
Mr Kunene. The evidence led against him in this regard w as speculative. Mr Dlamini

Mr Kunene. The evidence led against him in this regard w as speculative. Mr Dlamini
and Mr Mahasha testified that they suspected that Mr Kunene was responsible for
inciting the strike because he attended at the company’s pemises on the morning of
15 December 2021 outside of his shift. This was the basis for concluding that M r

2 See: J Grogan Dismissal, Discrimination and Unfair Labour Practices ( Juta. & Co Ltd, Cape Town )
2005 at 390-1.
3 See: Albion Services CC V CCMA and others [2016] JOL 36832 (LC).

9
Kunene incited the strike. During the trial, it was put to Mr Dlamini and Mr Mahasha
that Mr Kunene attended at the company’s premises on 15 December 2021 because
he was directed to do so by Mr Sibanyoni and the night shift employees. Mr
Sibanyoni confirmed in his testimony that he advised Mr Kunene to attend at the
company’s premises on 15 December 2021 to discuss the deductions with Mr
Adams. Mr Kunene confirmed that this was the reason for his attendance at the
company’s premises on 15 December 2021. On this score, Mr Dlamini confirmed
that Mr Kunene only arrived at the company ’s premises after the strike had
commenced. Similarly, Mr Kunene testified that by the time he arrived at the
premises, the strike had commenced for some time already. It seems impossible that
Mr Kunene would have incit ed the strike as he was absent at the time when the
strike could have been inci ted. No version to the contrary was put to Mr Kunene or
advanced by the respondent with regard to this . It does not appear to the court that
Mr Kunene would have been the cause of the strike because even Mr Dlamini
accepted that Mr Kunene and the other shop stewards conveyed management’s
position to the employees and in return conveyed the employees’ response to
management. Another witness for the respondent Mr Mahasha also testified that the
shop stewards including Mr Kunene encouraged the employees to return to work. On
the facts before court the respondent has failed to pro ve that Mr Kunene was guilty
of the charge of incitement.

[27] Mr Masilela was the last shop steward who was found guilty and dismissed
for inciting the unprotected strike action. The alleged misconduct is based on the
testimony of Mr Dlamini that on 15 December 2021 at approximately 06h15 he was
called by Mr Mngoma who informed him that Mr Masilela had stopped the hangers at
the receiving department and instructed the employees to leave their works stations.

the receiving department and instructed the employees to leave their works stations.
Apart from this evidence being hearsay, Mr Mngoma testified that Mr Masilela did not
stop the hangers at the receiving department, but rather Mr Mngoma instructed
Mangaliso to stop the hangers as the employees had already refused to work. He did
not implicate Masilela or even imply that Masilela was responsible for instigating the
strike.

[28] The version proffered by the respondent ’s witnesses on this charge is
inconsistent with the suggestion t hat the three shop stewards incited the strike. The

10
respondent has failed to discharge its onus in this regard and the dismissal of the
three shop stewards for incitement is substantively unfair.

Were the individual applicants provoked?

[29] As indicated above, i t was common cause that the individual applicants
participated in the unprotected strike action for a period of three days to which they
pleaded guilty. This clearly constituted admitted misconduct for which dismissal may
well be appropriate. Section 68(5) of the LRA, as well as schedule 8 deals with the
issue of substantive fairness when it comes to dismissals for participation in
unprotected strike action, quoted above, as well as item 6(2) which reads:
‘(2) P rior to dismissal the employer should, at the earliest opportunity
contact a trade union official to discuss the course of action it intends to
adopt. The employer should 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. The employees
should be allowed sufficient time to reflect on the ultimatum and respond to it ,
either by complying with it or rejecting it. If the employer cannot reasonably be
expected to extend these steps to the employees in question, the employer
may dispense with them.’

[30] The applicants have pleaded that the individual applicants were provoked by
the respondent into striking. The applicants have said that the provocation is based
on the substantial and unexplained deductions from their bonus payments. I find it
very hard to believe on the evidence presented before me that the individual
applicants were provoked. The deductions from their bonuses by the respondent
were for purposes of paying over income tax to SARS.

[31] The concept provocation requires at least some form of wrongful conduct or
mala fides or material breach of employment conditions or employment contract by

mala fides or material breach of employment conditions or employment contract by
the employer or its representatives. In my view, it cannot be said that where an
employer implement tax deductions in the salaries of employees , this could be seen
to be provocation of the employees. In short, some wicked behaviour on the part of
the employer is necessary. An example of the kind of conduct that could be seen to

11
constitute such wicked behaviour can be found in National Union of Metalworkers of
South Africa and others v Pro Roof Cape (Pty) L td4. In this judgment, the court held
that the employer ’s failure to pay significant amounts in renumeration due to
employees “contributed significantly to a loss of trust in its industrial relations with its
workforce”5. Further, the court also considered the fact that once the dispute reared
its head, the employer chose to deal with the matter in a dismissive fashion,
breached an agreement it reached with a union and never had the intention to pay
the amounts concerned, despite saying it would. The court described these actions
of the employer as being nothing less than provocative6 and reprehensible.7

[32] Embarking on a full blown industrial action which action was unprotected, in
circumstances where the deduction was lawful and mandatory and all reasonable
steps taken to explain the deduction by giving pay slips and rendering an
explanatory memorandum is in my view, wholly unreasonable and unjustified. The
individual applicants were steadfast in their refusal to work despite the fact that they
were fully aware that they would receive another payment in the form of their
monthly wages a mere 48 hours after their 13th cheque was paid. Any reasonable
person considering these facts would conclude that there was no real provocation
from the respondent which led to the unprotected strike action of the individual
applicants. Based on the facts, it is my conclusion that the respondent did not
provoke the individual applicants. The strike of the individual applicants was not
based on any unjustified conduct by the respondent.

The duration of the strike

[33] The charge of participation in the unprotected strike action to which the
individual applicants pleaded guilty stated that the strike action took place on 15, 16
and 18 December 2021. From the evidence led during the trial, it became apparent

and 18 December 2021. From the evidence led during the trial, it became apparent
that the strike continued for at least three days. It cannot therefore be accepted that
the strike was for a limited duration.


4 (2005) 26 ILJ 1705 (LC).
5 Ibid at para 31.
6 Id fn 5 at para 31.
7 Id fn 5 at para 34.

12
[34] The individual applicants, including the three shop stewards participated in the
unprotected strike and were dismissed for participation. The crucial question is
therefore whether the individual applicants were fairly dismissed for participating in
the unlawful strike. They contended that the dismissal of all of the individual
applicants was unfair since it had been effected in breach of what has become
known as the ‘ parity principle’ coupled with the fact that the respondent failed to
issue clear and unambigious ultimatums to the striking employees.

The Ultimatums

[35] The applicants have placed in dispute that the responded issued the striking
employees with u ltimatums. They contended that the respondent did not issue any
ultimatum therefore the dismissal of the individual applicants is substantively unfair.

[36] The issue of an ultimatum is dealt with in item 6(2) of the Code quoted above.
Applying this provision, the court in Mndebele a nd others v Xstrator South Africa
(Pty) Ltd t/a Xstrata Alloys (Rustenburg Plant)8 said:
“The code does not suggest how the ultimatum should be distributed or
require that it must be in writing. Furthermore, it states that the issuing of an
ultimatum is not an invariable requirement. The purpose of an ultimatum is not
to elicit any information or explanations from the employees but to give them
an opportunity to reflect on their conduct, digest issues and if need be, seek
advice before making the decision whether to heed the ultimatum or not. The
ultimatum must be issued w ith the sole purpose of enticing the employees to
return to work and should in clear terms , warn the employees of the folly of
their conduct and that should they not desist from their conduct, they face
dismissal. Because an ultimatum is akin to a final warning, t he purpose of
which is to provide for a cooling-off period before a final decision to dismiss is
taken, the audi rule must be observed both before and ultimatum is issued

taken, the audi rule must be observed both before and ultimatum is issued
and after it has expired…”


8 (2016) 37 ILJ 2610 (LAC) at para 27

13
[37] An employer is only ever relieved of its duty to issue an ultimatum if it cannot
reasonably be expected of him to do so. O nly in those limited circumstances may it
dispense with its duty to issue an ultimatum. Otherwise, it is obliged to do so, and
any failure on its part in this regard renders the subsequent dismissal of striking
employees procedurally and substantively unfair.

[38] What does the evidence in casu demonstrate: Mr Mdluli testified that he
contacted the union official Mr Makhene representing the employees by way of email
on the morning of 15 December 2021 and made several follow ups thereafter , with
the hope that the union will intervene and contain the strike earlier. The shop
stewards including Mr Mahasha also contacted Mr Makhene and requested that he
attend at the company’s premises to resolve the strike. Mr Makhene advised that he
would only be available to attend the company premises in the afternoon, which he
then did. The company ’s management kept on engaging with Mr Makhene and the
shop stewards with the hope that the strike will be resolved. It is the respondent’s
case that verbal ultimatums were given to the employees and every effort was made
to advise the employees through the shop stewards that they were engaging in
unacceptable behaviour which may result in disciplinary proceedings and dismissal .
Mr Mahasha testified that apart from the engagement of the shop stewards and Mr
Makhene with the employees no written ultimatums were issued because shortly
after the employees were addressed by Mr Makhene, the day shift employees
started leaving the company’s premises and the night shift staff followed, therefore, it
was impossible to issue formal ultimatums.

[39] On this issue of ultimatums, it is important to note that the individual
applicants pleaded guilty to the charge of participati ng in the unprotected strike for
three days during the disciplinary hearing without raising the allegation that no

three days during the disciplinary hearing without raising the allegation that no
ultimatums were issued. It is clear that the individual applicants accepted that the
respondent had warned them of the consequences of their conduct and were
prepared to accept the consequences of their conduct.

14
[40] I n Association of M ine Workers and C onstruction Union and O thers v
Anglogold Ashanti Ltd9, it was said:
“I also accept that at least once the strike action commenced AM CU national
leadership, as represented by Mpha hlele had sufficient information to have
recognised the need to intervene even if the consequences of failing to bring
the strike action to an end were not spelled out. In this regard, I think it is
reasonable to acknowledge that while there is an obvious need for
unambiguous and explicit communication to striking workers about the
employers intentions, it is sufficient for the purposes of seeking the unions
assistance that it be advised of the unfolding events , a nd that its urgent
assistance in resolving the situation is required.”

[41] The facts in casu are clearly in conformity with the above principle set out in
Anglogold Ashanti. Mr Makhene as a trade union official was asked several times to
intervene and he undertook to do so. He did try to persuade the individual applicants
to resume their work, but they were steadfast in their demand and he failed. The
shop stewards engaged several times with the workers in relation to their conduct
and the consequences thereof. In my view the employees were given a chance to
reflect on their conduct and come to other insights. The explanations about the tax
deduction w as given to them t hrough a memorandum that was p ublished on the
notice board. My view on this issue is that despite there being no formal ultimatums
issued, the individual applicants were clearly appraised that what they were doing
was misconduct and that they faced disciplinary action as a result. The first applicant
as a trade union was properly consulted beforehand a nd given the opportunity to
consult its members in order to persuade them to return to work. The individual
applicants made a deliberate decision to continue with the strike despite the
consequences.The applicants’s case of not receiving formal ultimatums thus falls to

consequences.The applicants’s case of not receiving formal ultimatums thus falls to
be rejected.

Was there inconsistency?


9 (2016) 37 ILJ 2320 (LC) at para 237.

15
[42] The individual applicants, including the three shop stewards participated in the
unprotected strike and were dismissed for participation. The crucial question is
therefore whether the individual applicants were fairly dismissed for participating in
the unlawful strike. As mentioned, they contended that the dismissal of all of the
individual applicants was substantively unfair since it had been effected
inconsistently in breach of the ‘parity principle’ in that the respondent subsequently
did not dismiss employees who were part of the group who the disciplinary
chairperson had recommended be dismissed.

[43] It em 3(6) of the Code of Good Practice: Dismissal provides that:
“The employer should apply the penalty of dismissal consistently with the way in
wh
ich it has b een applied to the same and other employees in the past and
consistently as between two or more employees who participate in the misconduct
under consideration.”

[44] The parity principle requires that like cases be treated alike which is an
element of disciplinary fairness. It applies where there are two or more employees
engaged in the same or similar conduct at the same time but only one or some of
them are disciplined or where different penalties are imposed. Unfairness flows from
the principle that like cases should, in fairness, be treated alike.
10 In Reckitt &
Colman (SA) (Pty) Ltd v CWIU and others 11 the Court held that there is a difference
between cases where employees are arbitrarily selected for discipline and cases in
which an employer selects for discipline from a mass of workers only those against
whom it has evidence.

[45] The other context is where historical inconsistency is raised as a basis to
challenge the fairness of the sanction of dismissal.
12 In this instance, there would be
no dispute that what the employee was charged with was indeed valid and proper to
constitute misconduct, of which the employee is guilty. However, the issue would be

constitute misconduct, of which the employee is guilty. However, the issue would be
that the dismissal of the employee for such misconduct is inconsistent with the

10 National Union of Metalworkers of SA and Others v Henred Fruehauf Trailers (Pty) Ltd (1994) 15
ILJ 1257 (A) at 1264A -D: National Union Of Mineworkers obo Botsane v Anglo Platinum Mine
(Rustenburg Section) (2014) 35 ILJ 2406 (LAC) at para 25.
11 (1991) 12 ILJ 806 (LAC).
12See: Schedule 8 Item 3(6).

16
sanction imposed by the employer for similar and related misconduct, in the past, in
respect of other employees. In Southern Sun Hotel Interests (Pty) Ltd v Commission
for Conciliation, Mediation and Arbitration and Others ,13 the Court in this context
said:
‘The courts have distinguished two forms of inconsistency - historical and
contemporaneous inconsistency. The former requires that an 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. A claim of inconsistency (in either historical or
contemporaneous terms) must satisfy a subjective element - an inconsistency
challenge will fail where the employer did not know of the misconduct
allegedly committed by the employee used as a comparator (see, for
example, Gcwensha v CCMA & others [2006] 3 BLLR 234 (LAC) at paras 37-
38). The objective element of the test to be applied is a comparator in the
form of a similarly circumstanced employee subjected to different treatment,
usually in the form of a disciplinary penalty less severe than that imposed on
the claimant’.

[46] It was conceded by Mr Mdluli during cross examination that employees who
participated in previous unprotected strike action at the company were not
disciplined at all for participation in the unprotected strike. The applicant, however,
does not pursue this point but only note the historical inconsistency in this
regard.The present case is therefore concerned with contempor aneous
inconsistency.

[47] It is not uncommon that in the context of an unprotected strike, the employer
inconsistently dismisses only some striking employees for one reason or the other .
As was held in the judgment of Cape Town City Council v Masitho and others
14 that:
“There may be valid grounds in a particular case to distinguish one employee

14 that:
“There may be valid grounds in a particular case to distinguish one employee
from another, albeit that they have engaged in the same conduct on the basis
of their respective records or on the basis of other material factors. But in the

13 (2010) 31 ILJ 452 (LC) at para 10. (‘Southern Sun Hotel’)
14 (CA9/1999) [2000] ZALAC 15 (28 June 2000) at p 5 and 6.

17
absence of material distinguishing features equity would generally demand
parity of treatment …
Where two employees have committed the same wrong and there is nothing
else to distinguish them, I can see no reason why they ought not generally to
be dealt with in the same way, and I do not understand the decision in that
case to suggest the contrary. Without that, employees will inevitably , and in
my view justifiably, consider themselves to be aggrieved in consequence of at
least a perception of bias.”

[48] The established jurisprudence as regards the parity principle is therefore
unambiguous. Where two or more employees engaged in the same misconduct at
the same time, including and especially in the context of an unprotected strike, a nd
there is nothing to distinguish one employee from the other, the employer must apply
the penalty of dismissal consistently. In the Labour Appeal Court’s own words, failure
to do so renders the dismissal arbitrary and absurd, and ultimately, substantively
unfair.
15

[49] In this case, in deciding whether the dismissal of the individual applicants was
fair the individual applicants can be categorized in two groups. First, those
employees who were dismissed for participating in the unprotected strike action but
did not have final wirtten warnings or a disciplinary record. Second, those employees
in respect of whom the company has adduc ed final written warnings. The position in
relation to the former is addressed first.

[50] The company's witnesses testified that approximately 665 employees
participated in the unprotected strike in question. The disciplinary hearing
chairperson recommended that all 665 employees be dismissed. The company,
however, diverged from this recommendation and dismissed those employees of the
665 who had been issued with valid final written warnings previously. According to
the company’s witnesses, this was the criteria utilized by the company to determine

the company’s witnesses, this was the criteria utilized by the company to determine
which employees to retain in employment and which employees to dismiss. On this
basis, the company ultimately only dismissed 22 5 employees. After this case was

15 See: Cape Town City Council v Masitho (2000) 21 ILJ 1957 (LAC) and CEPPWAWU v Metrofile
(Pty) Ltd (2004) 25 ILJ 231 (LAC).

18
instituted the company subsequently reistated 32 of the 225 employees. These were
the employees who the company realized did not have valid final written warnings.
As a result, the list of individual applicants accordingly reduced to 190 employees.

[51] In the course of the trial, it was established that a further 125 of the 190
remaining individual applicants also did not have final written warnings. A list of the
125 individual applicants without final written warnings was marked Schedule “B”.
For these employees, the company was put to prove the valid final written warnings
in line with the criteria it applied when determining which of the 665 employees to
dismiss. The company was not able to do so for the 125 employees. Both Mr Mdluli
and Mr Mahasha con ceded that no evidence has been placed before the court to
prove that the 125 individual applicants were issued with final written warnings. Mr
Mahasha accepted that there is no record that these 125 individual applicants had
any disciplinary record whatsoever. Apart from the failure of the respondent to prove
that the 125 i ndividual applicants had final written warnings , in the disciplinary
hearing outcome, the chairperson recorded that of the 665 employees who
participated in the strike, only 72 of them had final written warnings, and Mr Mahasha
and Mr Mdluli confirmed that this is correct.

[52] In the result, t he respondent has failed to discharge its onus in respect of the
criteria it adopted to dismiss the 125 individual applicants. It arbitrarily dismissed
them even though they did not have final written warnings or any disciplinary record
whatsoever. There was no basis to differentiate them from the other employees who
the company did not dismiss , or the 32 employees who the company subsequently
reinstated because they did not have any record of final written warnings. That
differentiation is arbitrary and a bsurd and the dismissal of the 125 individual
applicants is substantively unfair.

applicants is substantively unfair.

[53] With regards to employees with final written warnings, o f the 190 individual
applicants, the company discovered final written warnings for 65 of the individual
applicants. A list of these 65 individual applicants is marked Schedule “ C”. The
applicants contended that the dismissal of the 65 individual applicants with final
written warnings i s unfair for two reasons. First, although the company discovered
final written warnings for these 65 individuals , the final written warnings were not

19
valid as contemplated in the company's criteria for dismissal. Second, the dismissal
is inconsistent as there are several other employees against whom the company had
issued similar final written warnings who also participated in the strike but were not
dismissed.

[54] I do not agree with the applicants on why they say the dismissal of the
individual applicants with expired final written warning is unfair. As stated in Cape
Town City Council v Masitho, 16 there may be valid grounds in a particular case to
distinguish one employee from another, albeit that they have engaged in the same
conduct on the basis of their respective records. However, on the second basis I find
that the company differentiated between the employees when it dismissed the 65
individual applicants because they had final written warnings for the following
reasons: The evidence before court discloses that there are other 18 employees
against whom the company issued final written warnings, exactly as with the 65
individual applicants listed in schedule C who participated in the strike, but were not
dismissed. If the company did not dismiss these 18 employees then there is no
reason for it to dismiss the 65 individual applicants listed in schedule C . The
company discovered final written warnings against these 18 employees. These final
written warnings, as with the 65 individual applicants , had also expired. It was
undisputed that these 18 employees had final written warnings issued against them
previously and participated in the strike in question but were not dismissed. Mr
Dlamini confirmed that Alfred Nkosi one of the 18 employees had a final written
warning and participated in the strike in question but was not dismissed, Mr Mngoma
confirmed the same in respect of Benedict Molapo.

[55] The 18 employees are in the exact same position as the 65 individual
applicants. The company issued final written warnings against both the 18

applicants. The company issued final written warnings against both the 18
employees and the 65 individual applicants. The final written warnings issued
against both groups were for the same misconduct but had expired by the time of the
strike. The only difference between the two groups is that the company dismissed
the 65 individual applicants, but did not dismiss the 18 employees. The differentiation
renders the dismissal of the 65 individual applicants substantively unfair.

16 Id fn 15.

20

Remedy

[56] This brings me to the consideration of an appropriate remedy. The applicants
have indicated that they wish to return to work . Section 193 (1) of the LRA provides
that where it is found that a dismissal is unfair a court or an arbitrator may order
reinstatement or re-employment from a date not earlier than the date of dismissal, or
order the employer to pay compensation subject to the provisions of s ection 194.
Section 193(2) states the primary remedy for an unfair dismissal and it provides that:
“The Labour Court or the arbitrator must require the employer to reinstate or
re-employ the employee, unless-
(a) the employee does not wish to be reinstated or re-employed;
(b) the circumstances surrounding the dismissal are such that a continued
employment relationship would be intolerable;
(c) it is not reasonably practicable for the employer to reinstate or re-
employ the employee; or
(d) the dismissal is unfair only because the employer did not follow a fair
procedure.”

[57] Where it is not reasonably practicab le to order reinstatement or re-
employment, compensation would be an appropriate remedy. This is so because
reinstatement means placing the employees in the same positions and the
conditions of service which existed prior to their dismissal.
17

[58] As will be shown, the conduct of the individual applicants is one factor which
weighs heavily against reinstatement or re employment . Had it not been for the
different treatment which was accorded to them, this would have been a proper case
where dismissal would have been an appropriate sanction.

[59] In my view, when granting the applicants a remedy , it is important to have
regard to Section 23 of the Constitution for the Republic of South Africa, 1996, which

17 Equity Aviation Services (Pty) Ltd v Commission for Conciliation, Mediation and Arbitration and
Others 2009 (1) SA 390 (CC) (Equity Aviation) at para 36.

21
provides that everyone has a right to fair labour practice. The right to fair labour
practice applies to both the employer and employee.

[60] The individual applicants did not approach the courts with clean hands. They
were particularly obstinate in their persistence with the unprotected s trike action and
it had the maximum adverse effects for the respondent. The industrial action was not
for a short period, it lasted for three days. It was unprovoked, unwarranted and in
pursuit of an entirely illegitimate demand. The damage ran into millions of rands and
lots of wastage in terms of the product that had to be condemned and additional
expenses that had to be incurred by the company during this time.

[61] It cannot also be disputed that the unprotected strike action took place over
the busiest period for the respondent’s business and that maximized the effect of the
harm caused by the individual applicants ’ actions. The applicants participated in the
unprotected industrial actions at the company previously which caused the company
losses. The company acted leniently and did not dismiss them.

[62] More than four years have elapsed since the dismissal of the individual
applicants. The probability is that their posts have been filled. Although we do not
have evidence in this regard it is highly unlikely that a plant as big as Sundra would
operate without these posts being filled; t he individual applicants should thus not be
allowed to benefit from their misconduct.

[63] The evidence presented suggest s that the circumstances surrounding the
dismissal of the applicants are such that a continued employment relationship would
be intolerable, that it is not reasonably practicable for the employer to reinstate or re-
employ the employees and that the dismissal of the applicants is unfair only because
the employer did not follow a fair procedure.

[64] In these circumstances, justice and equity dictate that the employer should be

[64] In these circumstances, justice and equity dictate that the employer should be
ordered to pay compensat ion to each of the individual applicants, in the amount
equivalent to 5 months (five) salary calculated at the rate they were earning as at the
date of their dismissal.

22
Costs

[65] In terms of section 162 of the LRA, the Court has a wide discretion in
awarding costs. The Constitutional Court has recently reiterated in Zungu v Premier
of the Province of KwaZulu- Natal and others,
18 that costs orders should be made in
accordance with the requirements of the law and fairness. I have considered that the
first and second applicants and the respondent may have a continuing relationship.
Therefore, in this matter , the requirements of law and fairness dictate that there
should be no order as to costs.

[66] For all the aforegoing reasons, the following order is made:

Order
1. The dismissal of the individual applicants is found to be substantively
unfair.
2. The respondent is ordered to pay to the individual applicants (Listed in
Annexure “B and C” ) compensation equivalent to 5(Five) months salary
calculated at their rate of remuneration as at the date of dismissal.
3. There is no other is to costs.

MB Mahalelo
Acting Judge of the Labour Court of South Africa

Appearances:
For the Applicant: Mr. J. Phillips
Instructed by Cheadle Thompson & Haysom
For the Respondent: Adv L. Steenkamp
Instructed by: VZLR Attorneys

18 (2018) 39 ILJ 523 (CC) at para 24.