THE LABOUR COURT OF SOUTH AFRICA, JOHANNESBURG
Not Reportable
Case No. JS686/23
In the matter between:
ASSOCIATION OF MINEWORKERS AND
CONSTRUCTION UNION o.b.o. MEMBERS Plaintiff
and
ECOTECH ENVIRONMENTAL SERVICES (PTY) LTD Defendant
Heard: 4 – 8 August 2025
Oral Arguments: 25 September 2025
Delivered: 8 December 2025
This judgment was handed down electronically by circulation to the parties’ legal
representatives by email. The date for hand-down is 8 December 2025.
JUDGMENT
MAKHURA, J
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Introduction
[1] The question before this Court is whether the individual plaintiffs or employees
and members of the Association of Mineworkers and Construction Union (AMCU
or union) have embarked on an unprotected strike , and if so, whether their
dismissal on account of their participation in the unprotected strike was
substantively and procedurally fair.
[2] The plaintiffs claim that they did not participate in an unprotected strike but were
unlawfully locked out, whilst the defendant ’s case is that the individual plaintiffs
were on strike. If the individual plaintiffs were not on strike, it should follow that
they could not be dismissed for participation in a strike. If they were on strike, the
Court must determine whether their dismissal is nevertheless fair.
Material facts and evidence
[3] The defendant is a temporary employment service which provides waste
management services to BMW South Africa (BMW) in Rosslyn. These services
are rendered at BMW, which has controlled access to and from the premises,
including the area where the defendant conducts its business. Vinscent Thabo
Moyo (Moyo), the defendant’s Human Resource and Operations Manager,
testified that BMW and the defendant concluded a Service Level Agreement
(SLA). One of the terms and conditions of the SLA is , according to Moyo 1, that if
BMW suspects an impropriety on the part of the defendant’s employees, it may
subject them to polygraph testing.
[4] The defendant operates a 24- hour shift dail y except on weekends and public
holidays. The morning shift runs from 6h00 to 14h00, the afternoon shift from
14h00 to 22h00, and the night shift from 22h00 to 6h00. Each shift is operated by
approximately 54 employees.
1 The SLA between the defendant and BMW was not part of the trial record.
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[5] In terms of the employees’ contract of employment, they were informed that the
defendant has an SLA with BMW and that the SLA may be cancelled if the
defendant and its employees do not abide by certain provisions of the SLA. The
contract of employment provides further that:
‘BMW has now informed us that they are implementing a new stipulation to our
service level agreement which means that this stipulation will now have to be
implemented by EcoTech. This provision has been made necessary because of
the high stock losses that is being experienced by BMW and the fact that several
of the EcoTech staff have been dismissed over the past years for theft.
BMW has thus indicated that with immediate effect, they will require the staff to
undergo polygraph tests from time to time. While there is no specific legislation in
place regulating the use of polygraph tests, an employer can ask an employee to
take one, but it must be voluntary and thus, no one can be forced to undergo a lie
detector test. We need to however caution you top think carefully before you
refuse as this could mean that you have something to hide which would
endanger the trust relationship between you and EcoTech…
Should you voluntar y (sic) subject yourself to the polygraph test (which we
encourage) and you fail the test and then BMW withdraws your access card, it
will mean that you will have no way of entering your workplace. This will then
mean that EcoTech will have no option but to commence a process of discussing
your continued employment and consider your termination of contract due to
operational requirements.’ (Emphasis added)
[6] The defendant deals with Michael Leibrandt (Leibrandt), the BMW Group South
Africa Section Leader. Moyo testified that he reports to Leibrandt in addition to
reporting to the defendant’s Chief Operations Officer, Nkululengo Makhungo
(Makhungo).
Pre-20 July 2023 events
[7] On 14 October 2022, BMW sent an email to the defendant in the following terms:
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‘Please note that due t o our zero tolerance to parts disappearing from site it is
time again for the monthly random polygraph testing. Please note that we will not
stop and we will carry on with random testing seeing that we as BMW has the
right and the interest to protect our interests.’
[8] Moyo testified that, during that year, 2022, the employees were subjected to two
to three polygraph tes ts. He testified further that the polygraph tests created fear
amongst all the defendant’s employees, including him, and that they felt “unfairly
done” because if they were informed that if they do not subject themselves to the
tests, their access cards would be blocked and as a result, they had to attend the
tests, albeit “unwillingly”.
[9] Following the events of 2022, on 4 April 2023, BMW sent an email to the
defendant enquiring when six of its employees would be back at work so that
they could undergo polygraph tests. The six employees, all from shift B, were
Oupa Motileng, Atlegang Motsepe, Jimmy Maluleka, Asia Nthongwa, Lucky
Mbokazi and Lungani Buthelezi. Moyo testified that there was probably a case of
theft that led to this email from BMW.
[10] On 12 April 2023, another email regarding the polygraph test was sent by BMW
to the defendant. It reads as follows:
‘Please send names of the guys who slipped yesterday, even the ones that was
(sic) absent. We also need to do the ones we discussed last week that was (sic)
absent as we started with polygraph testing. Please send the names and shifts
so that I can arrange with Jane.’
[11] On 13 June 2023, meetings were held w ith the employees in all three shifts at
12h30, 14h00 and 22h00. Moyo testified that these meetings discussed, amongst
others, issues such as theft, suspension of em ployees and polygraph testing
every time there was an incident of theft.
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[12] On 12 July 2023, Leibrandt sent an email to Moyo requesting a list of employees
on the first and second shifts. A further e mail was sent on 17 July 2023, where
Moyo was informed that:
‘Please note that it is the prerogative of BMW South Africa to protect its
belongings. If we become aware of and (sic) some inconsistencies we will
randomly conduct polygraph tests on our contractors as we deem fit.’
20 July 2023 events
[13] It is common cause that a week or so before 20 July 2023, and about two hours
into the shift C , which was operating 14h00 to 22h00 shift, six lithium batteries
were discovered in an area where they were not supposed to be and BMW
suspected that they were destined to be removed. This prompted BMW to call for
polygraph testing of the defendant’s employees , per emails of 12 and 17 July
2023 referred to above. There is a dispute whether it was only shift C that was
required to undergo the test or whether shifts A and B were also required to
undergo the test . The defendant’s statement of response stated that it was both
shifts B and C. However, the defendant’s evidence, led through Makhunga, Moyo
and Frans Les oga (Lesoga) , contradicted its pleaded case. These witnesses
testified that the polygraph tests were to be conducted only on shift C employees.
However, per the email s from BMW dated 1 2 and 17 July 2023, BMW wanted a
list of employees on the first and second shifts and confirmed random testing.
[14] Lesoga testified that he is employed as a supervisor by the defendant. He
testified that on Wednesday, 19 July 2023, he was requested to take all shift C
employees for polygraph testing. He did so by taking them in a group of five each
to avoid disruption in operations. By the end of the shift , all employees had taken
the tests and only 10 employees had refused to subject themselves to the
testing. However, on Thursday, 20 July 2023, this number reduced to seven as
the other employees took the tests.
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[15] By 6h00, which was the start of shift C on 20 July 2023, the following employees
had not undergone the polygraph test – Baron Ngubeni, Justice Setaka,
Dumisani Nkosi, Charles Sithole (Sithole), Mpumelelo Baloyi , Barnett Fu thane
and Thabo Phiri. These employees are collectively referred to as the seven shift
C employees or individual plaintiffs. Their access cards were blocked and they
were unable to clock in to render their services.
[16] Sithole was a shop steward and a branch secretary of AMCU. He testified that he
attended the wage negotiations meeting on 19 July 2023, and h e had noticed
around 17h00 after he left the meeting that his access card was blocked. On 20
July 2023, he arrived at work at 6h00. He tried to access the premises, but his
card was still blocked. He went to the reception to enquire and was informed that
he needed to take the polygraph tests . He refused because of the fear of
suspension similar to other employees who had been on suspension for about 15
months after they took and allegedly failed the polygraph tests. He testified that
he called the AMCU Tshwane Regional Secretary, David Mohamose
(Mohamose) and explained the situation to him.
[17] Mohamose arrived at the premises around 6h30 and found that the seven shift C
employees were outside. These employees explained the issue to Mohamose.
Mohamose testified that he telephoned Moyo and later Makhunga. He also
testified that Makhunga informed him that employees who do not take polygraph
tests would have their access blocked. Further, the employees could not tender
their services because there was an instruction to subject themselves to
polygraph testing , failing which their access cards would be blocked. At 6h54,
Mohamose sent an email to Makhunga, which reads as follows:
‘It had come to my attention that employer is forcing employees to partake on
taking lie detector, and those who exercise their right not to participate their
clocks card are being blocked.
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Kindly be reminded that we have members who have been in suspension for
almost a year due to this polygraphy test, though there’s no evidence of
wrongdoing.
If this is the approach the employer is embarking on, we will be taking necessary
legal steps to interaction this ridiculous act by you.’ (sic) (Emphasis added)
[18] Makhunga responded to the email at 15h00 that afternoon. He wrote that:
‘It is not Ecotech that is conducting a polygraph test and no employee was forced
to take it.
It has been communicated to all employees that it is BMW who is requiring both
Ecotech and the security company employees to take the polygraph test . If they
refuse to take it we are in position to force any employee to or not to however,
BMW has made it clear that anyone [who] refuses to take the polygraph test,
his/her access will be blocked.’ (Emphasis added)
[19] In the interim before Makhunga’s email above, s hift A was scheduled to st art at
14h00. Mohamose testified that because the shift A supervisor, Lesoga, was
subjected to polygraph testing, employees on shift A were also required to
undergo polygraph testing. The shift A employees started arriving from 13h00.
He informed those who enquired what was happening that the defendant
required all the employees to undergo polygraph testing and that the employees
had a choice to go or not to go, but those who decide to gowent and fail the test
would have their access cards blocked. The employees joined the seven shift C
employees who were outside.
[20] At approximately 13h30 on 20 July 2023, Lesoga went to prepare for the
incoming shift A. He waited for the employees to arriv e, but only one reported.
He observed another employee, Victor Phalane (Phalane) , coming in and out. It
is common cause that only a few shift A employees reported for duty. When
Lesoga noticed that the shift A employees were not at work, he went outside to
check what was happening and he found employees gathered. They told him that
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they had an issue with the polygraph testing. In response, he told them that it
was only shift C employees who were subjected to the polygraph testing.
[21] Moyo testified that after realising that only a few employees reported for duty, he
arranged with the supervisors to ask some of the shift C employees to continue
working. At approximately 14h21, Moyo went to address the employees who
were gathered outside the premises. Moyo’s evidence was that:
‘I went there and I asked them what is happening, why are they outside, not
in, because they are supposed to be starting a shift and they should have
reported for work. And their answer was that they are not happy with the
polygraph test that are being done, and they want BMW management to
come and address them.
And I said to them, “But the polygraph test is not yet in this shift A, it is only
done with shift A (sic) employees and instead of us fighting outside, rather let
us go clock in and we can discuss the rest of the things there, because you
have your shop steward and they can be able to take your, your matter
forward”. And they insisted that they need BMW management to come and
address them, because they were not happy with the, with the polygraph
issue. And I then said to them, “This gathering, it is illegal and we should be at
work, we should be working”, because by that time I tried to persuade them to
go inside.
And I said, “It is fine, let me go ask the BMW security if she could facilitate
BMW managers to come and talk to the employees”. And I went to her and
she refused and said to me, “That is not going to happen and Ecotech
employees are not, are not BMW employees, so the company should deal
with that”. So I went back to them and gave them the answer, and told them
that what they are doing is illegal and amounts to an unprotected strike and
they should, they should go report to work. And the answer that I got w as that
they are not going to go inside .
they are not going to go inside .
And I said to them, “It is fine, but just, just know that this is an illegal strike
and I am going to phone the owner who maybe will come and talk to you
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guys”. And their response was that, “It is fine, we will wait for the owner to
come and address us”. But I did indicate to them that we should go back to
work as what you are doing amounts to an unprotected strike. ’ (Emphasis
added)
[22] Moyo was then asked by his legal representative if he had given the employees
“any time limit to go back to work”. His response was:
‘No, I said to them, “I am going to give, I am going to give the owner two,
three hours to come because when I called him, he said he was in
Klerksdorp, but she will, she will come back”. So I sort of tried saying to
them, “The owner is coming, let us go to work and maybe he can find us
talking there”. They said no, “We will wait for him here”. So I left them
sitting there outside.’
[23] Makhunga arrived at the premises later that afternoon. He addressed the
employees a t approximately 17h00. Makhunga asked the employees why they
were outside, and the ir response was that they wanted to speak to BMW
management regarding the polygrap h issue . Makhunga testified during
examination in chief that:
‘I drove from Krugersdorp straight to Rosslyn plant. I arrived at approximately
14:45 and I reported to Michael that I was on the plant and he said that I must go
and speak to our employees who were gathered outside the BMW premises. And
I went to them and when I arrived at them, I asked what is happening, why were
they not on duty
And they said that they would love to have a meeting with BMW management,
specifically to address the question of the polygraph test. And I said, “Look, you
are employed by us as Ecotech; and therefore, if you have matters that you
would like to raise, you must raise them with us. You cannot raise them with
BMW”. So this matter of the polygraph test has been addressed on numerous
occasions. It was not the first time that BMW had required some of our
employees to do that.
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And I then said to them that I wanted them to go back to work and they have
between 17:30 to 18:00 to get back to their working stations; and they did not
heed to that call by that time at 18:00 and we had to ask the other employees
from the other shifts to stand in, because if the line had stopped, BMW was going
to lose production; and if they lose production, that was going to be put on us;
and if that was put on us, then that meant that the contract was in jeopardy and
that we would lose the contract and the rest of the employees will also lose their
employment. It was a miracle how we worked, because with very few members
of staff we were able to keep the line running.’
[24] During cross examination, Makhunga was asked what he said to the employees
when he went to address them after 17h00. His response was:
‘I said that, “What you are doing is illegal and we cannot stop you from
exercising your rights if you want to withdraw your work. However, we will
expect you to report back for duty at 17:30 and please remember as much as
you have your rights, as an employer we also have our rights”.’
[25] Moyo testified that few employees reported for duty thereafter. Sithole disputed
that Moyo informed them that they were on an unprotected strike when he
addressed them and testified that Makhunga told the employees to “go inside”
and that if they did not, they would remain outside.
[26] The defendant called Innocent Kgari (Kgari) as a witness. Kgari is one of the
individual plaintiffs on whose behalf AMCU referred an unfair dismissal dispute to
the Commission for Conciliation, Mediation and Arbitration (CCMA) and later to
this Court. His evidence was that he was never dismissed. He testified that he
arrived at work by taxi at approximately 13h30. He worked shift A, which was
scheduled for 14h00 to 22h00. Upon arrival, Lawrence Motsepe (Motsepe) and
Pitsi (known to him as Pitsi) called him to join a group of employees who were
Pitsi (known to him as Pitsi) called him to join a group of employees who were
gathered outside the premises. They told him that t hey were not going to work
because of their grievance with the polygraph until BMW addresses them. He
joined them. Victor Malaka (Malaka) went inside to call those employees who
were already inside. At around 14h00, Moyo came to address them. Although his
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evidence changed on the words used by Moyo when addressing them, the crux
of his evidence was that Moyo told them to go to work and that they could
resolve their issues whilst working.
[27] The defendant also led the evidence of Refilwe Stephina Molele (Molele). Molele
testified that on 20 July 2023, she arrived at work by taxi. She was a shift A
employee and was scheduled for work from 14h00. After she got off the tax i at
approximately 13h45, she was called by Beverl ey Nyathela (Nyathela) to the
circle where some employees had gathered. Although there is a dispute whether
Nyathela called Molele or the other way around, Molele testified that Nyathela
told her that they were not going to work because of the issue relating to
polygraph testing. She joined them . It is common cause that Molele reported for
duty after the address to the employees by Moyo.
[28] Nyathela, who testified on behalf of the plaintiffs, said that she arrived at work at
approximately 13h30 and before 14h00. Upon her arrival, she parked her car on
the side of the road outside BMW and approached a group of employees who
were gathered outside. She enquired why they were gathered outside. It was
explained to her that there was an issue regarding the forced polygraph testing
and that the employees were waiting for management to address them. When
Molele arrived after her, she also enquired and it was explained to her the reason
they were gathered outside. Molele then went to join her friends.
[29] Nyathela testified further that Makhunga addressed them around 17h00, where
he said to them that he was giving them until 17h30 to report for duty – to “go
inside”. She did not report for duty and went home around 18h00. When she and
the other employees left on 20 July 2023, they agreed that they would report at
7h00 the following morning for feedback. She reported at the premises at 7h00
as agreed. She could not say whether her access card was blocked on 20 July
as agreed. She could not say whether her access card was blocked on 20 July
2023 because she did not go in or try to access the premises.
[30] Moyo testified that, except for the seven shift C employees, no other employee’s
access card was blocked, at least on 20 and 21 July 2023. He testified that some
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employees clocked in but did not proceed to work. Moyo testified that Thapelo
Madumo (Madumo), a shift A employee, clocked in at 13h19, clocked out at
13h31, clocked in again at 14h45, clocked out at 17h21, which Moyo said was
probably going out for lunch, clocked in again at 18h03 and clocked out at 22h16.
Sipho Masombuka (Masombuka) clocked in at 13h33 and clocked out at 13h44.
He never returned. Innocent Kgari (Kgari) clocked in at 15h38 and out at 21h51.
[31] Shift B, scheduled for 22h00 on 20 July to 6h00 on 21 July 2023, reported for
duty, except for the seven individual plaintiffs before this Court, which included
Norman Rakhuadzi (Rakhuadzi) . Rakhuadzi testified that after the wage
negotiations meeting around 17h00 on 19 July 2023, he requested time off for
the 19 – 20 July 2023 from Moyo and Moyo agreed. This version about the
request for time off was never put to Moyo during cross-examination.
21 July 2023 events
[32] On Friday, 21 July 2023, shift C continued to report for duty, save for the seven
employees whose access cards were blocked. A group of employees gathered
outside the premises and chanted. These employees included Rakhuadzi,
Sithole and Nyathela. Rakhuadzi went to work on 21 July 2023 and arrived at
6h00, which was the end of his shift. He did not try to access the premises.
[33] Nyathela testified that she reported at the premises on 21 July 2023 for feedback
and that nothing had changed. She testified that she tried to gain access to the
premises at 9h24 to use the rest room and get warm water , but her access card
was blocked. Another employee, Richard Musenga (Musenga) , also tried to gain
access, but his card was also blocked.
[34] The shift C employees, excluding the seven, continued to work on Friday, 21 July
2023. Mohamose testified that he went to the premises around 7h30. On this
day, the employees were joined by some of the shift B employees, who finished
their shift at 6h00. Mohamose went back to the office. Whilst at the office, he was
their shift at 6h00. Mohamose went back to the office. Whilst at the office, he was
telephoned by Mr Machete of the South African Police Service (SAPS) to attend
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at the premises. He arrived there around 10h30. He met the SAPS, the
defendant and BMW Head of Security , Jane (Jane) . He was accompanied by a
shop steward. Although he said during his evidence in chief that the shop
steward’s access card was blocked and he could not enter the premises using
his card and had to be opened by the security officers, he conceded during
cross-examination that the meeting took place in an area before the turnstiles or
the clocking point. At this meeting, they requested to meet BMW management.
Jane promised to convey the message and revert, but she never came back to
them.
Post 21 July 2023 events
[35] The employees were not required to work on Saturday , 22 and Sunday, 23 July
2023. The defendant confirmed that they were not dismissed for striking or not
reporting for duty on these days.
[36] On 23 July 2023, the defendant sent the following text message to the
employees:
‘Kindly note that due to the unprotected strike, we are working 2 shifts this week.
Morning Shift B 6am to 6pm
Night Shift C 6 pm to 6 am.’
[37] The defendant’s evidence, led through Moyo, was that the text messages were
sent to the individual plaintiffs on 23 July 2023, informing them that their strike
over the polygraph test was unprotected. The text messages noted the individual
plaintiffs’ persistence with the strike and indicated that disciplinary action would
be taken against them , which could include dismissal. The messages urged the
individual plaintiffs to “report to work as scheduled on Monday and for the rest of
the week”. The defendant s tated that it was committed to continuing discussions
with AMCU to find an amicable solution.
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[38] The defendant testified that on 24 July 2023, BMW blocked the access card of
the remainder of the employees who did not report for duty on 20 and 21 July
2023.
Monday, 24 July 2023 events
[39] On Monday, 24 July 2023, Mohamose sent a letter to the defendant. In it, he
stated that it had come to his attention that the defendant ha d issued a
communique to the employees that they were embarking on an unprotected
strike. Mohamose recorded the previous correspondence exchanged between
the parties. The letter also notes that:
‘there has been a communique from employer to employees declaring that
there’s unprotected striking place which as AMCU aren’t aware of, but we know
members who are not willing to take a polygraph test and being instructed that
they will be forced and their access card will be blocked.’
[40] The letter also records that:
‘On 20 July 2023, AMCU notes that seven (7) of employees exercised their rights
to refuse the polygraph test and by virtue of that they were unlawfully lock -out as
their access card were blocked.’
[41] AMCU then stated that the defendant, in terms of the email from Makhunga sent
at 15h00 on 20 July 2023, suggested an immediate lockout in that it said that
anyone who refused to take the p olygraph tests would have their access card
blocked. The letter record ed the address made by Makhunga on 20 July 2023
after 17h00 as follows:
‘At around 17H08, Mr. Makhunga briefly addressed employees in unwelcoming
manner, as he made these remarks –
a. “Why aren’t you at work”?
b. “Do you work for BMW”?
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c. “Everyone has choice to be at work by 17H30 or we will reserve our rights
as the company”?
With this kind of attitude one can conclude that, employer had no intentions to
hear or accent to employees’ grievances and address them accordingly, but
resorted to I don’t care mode.’ (sic)
[42] AMCU then proposed a meeting at 12h00 on 24 July 2023 with BMW and the
defendant. The defendant did not respond to the letter , and the proposed
meeting did not happen.
The dismissal: 25 July to 3 August 2023
[43] On 25 August 2023, the defendant had sent a text message to the individual
plaintiffs in terms of which it recorded that they persisted with and refused to
cease their unprotected strike action “despite ultimatums both written and
verbally” issued to them and AMCU that their conduct was serious and could
result in the termination of their employment. The defendant alleged in the text
message that the individual plaintiffs ignored the ultimatums and the “warning
that dismissal might result”. The individual plaintiffs were then informed that:
‘the employer has no option but to terminate your employment with effect from
Tuesday 25 July 2023. Accordingly, you are advised to collect your termination
notices on the 26 July 2023 between 10:00 – 12:00.
Kindly take note that the employer herewith provides you with the opportunity to
make written representation directly and/or through your trade union by no later
than the 27
th July 2023 stating why your dismissal should not be made final.’
[44] On 25 July 2023, the plaintiffs’ attorneys , seemingly unaware of the individual
plaintiffs’ dismissal, addressed a letter to the defendant. The letter records that at
least 69 AMCU members had been locked out of the premises since 20 July
2023 and that:
‘We have been advised that our client’s members have tendered their services to
Ecotec daily , yet our client’s members access cards have systematically been
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denied access to their workplace. The AMCU members are currently gathered at
the [entrance] to the premises, waiting to be allowed access to their workplace.’
[45] AMCU demanded access to the premises by 14h00 on 25 July 2023, failing
which it would approach this Court on an urgent basis to interdict the unprotected
and/or unlawful lockout.
[46] In response on the same day, the defendant denied that the individual plaintiffs
had been locked out. It recorded that the individual plaintiffs had embarked on an
unprotected strike on 20 July 2023 and had refused to report to their workplace
since. The defendant said that the individual plaintiffs:
‘continued with and refused to cease with the unprotected strike in the face of
numerous instructions and ultimatums issued since the date of commencement
of their strike advising them that:
Their conduct constituted serious misconduct that could result in their dismissal
and that:
The commercial relationship between EcoTech and its client may be in
danger as of their strike; which could lead to all employees (including
those employees who did not partake in the strike action and those that
were working during the unprotected strike) losing their job; and
Instructing them to cease with their unprotected strike and return to work
unconditionally.
As delineated above your client’s members persisted with their rejection of all the
ultimatum issued to them and elected to continue with their unprotected strike
until the employer was left with no option but to dismiss.’
[47] Despite the plaintiffs’ attorneys’ protest in subsequent correspondences and the
demand for the withdrawal of the dismissal , the defendant maintained its stance
taken in its pervious letter t hat the individual plaintiffs had not been locked out
and that they had been dismissed.
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[48] The plaintiffs submitted their written representations on 27 July 2023. On 3
August 2023, the defendant addressed a letter to the individual plaintiffs
attaching the independent chairperson’s disciplinary outcome and sanction and
confirming their dismissal with effect from 2 August 2023.
Evaluation
[49] The plaintiffs’ case is that:
‘During July 2023, the individual applicants employees were requested to
undergo polygraph testing. As polygraph testing was not a term in the individual
applicants’ employment contract, nor was it founded in any of Ecotech’s policies.
The employees refused to undergo polygraph test ing. This resulted in the
individual applicants being refused access to the workplace and an unprotected
lock-out ensued.’
[50] In defence, the defendant sought to suggest that polygraph testing was a term
and condition of the individual plaintiffs’ contracts of employment and that even if
it was not, the request for the individual plaintiffs to under go the polygraph test
was a reasonable one, which was necessitated by the unauthorised removal of
the lithium batteries. Earlier in its statement of defence, the defendant pleaded
that BMW in itiated the polygraph test after the incident and as batteries were
found at around 16h00 during shift B, which at the time was operating the 14h00-
22h00 shift, the tests were to be conducted on all the employees working on
shifts B and C. Shift C worked the morning shift, 6h00- 14h00. Shift A, so the
defendant pleaded, was excluded.
[51] The defendant pleaded that on 21 July 2023, some of the shift B employees
joined the strike. This was confirmed by Mohamose in his evidence before this
Court that some of the shift B employees who finished their shift at 6h00 on 21
July 2023 joined the other employees outside.
[52] The plaintiffs disputed that t hey participated in a strike. It is therefore necessary
to determine first whether the individual plaintiffs were on strike. If they were,
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their dismissal cannot be fair or sustained and that should mark the end of the
enquiry into the fairness of the dismissal. If they embarked on an unprotected
strike, the enquiry moves to the fairness of their dismissal.
Did the individual plaintiffs embark in a strike?
[53] Section 213 of the Labour Relations Act2 (LRA) defines a strike to mean:
‘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.’
[54] From the above definition, four elements emerge for conduct to constitute a
strike. There are (a) a partial or complete concerted refusal to work or retardation
or obstruction of work, (b) by employees of the same employer or by different
employers, (c) for the purpose of remedying a grievance or resolving a dispute,
(d) in respect of a matter of mutual interest between employer and employee. 3
The Constitutional Court clarified that:
‘One should not talk about a strike in support of a certain demand because, in
terms of the definition of the word ‘ strike’, a strike already includes a demand.
One should speak of a collective refusal to work in support of a certain demand
or in pursuit of a certain demand.’4
[55] The question is whether the conduct of the individual plaintiffs satisfied all four
elements above to constitute a strike. If so, whether the dismissal was
substantively fair. To answer this question, the conduct of the employees from
shift C is considered separately from the shifts A and B employees.
2 Act 66 of 1995, as amended.
3 See also Transport and Allied Workers Union of South Africa obo Ngedle and others v Unitrans Fuel
and Chemical (Pty) Ltd Ltd [2016] 11 BLLR 1059 (CC); (2016) 37 ILJ 2485 (CC) (Unitrans) at para 106.
4 Ibid.
19
The seven shift C employees
[56] There were only seven employees from shift C who were dismissed for
participation in an unprotected strike. It is common cause that t hese seven
individual plaintiffs’ access cards were blocked as at 6h00 on 20 July 202 3. The
defendant had k nowledge of this fact . The se plaintiffs arrived before 6h00 to
report for duty, they tried to access the premises, but they could not because
their access cards were blocked. They did not refuse to work. Their conduct does
not satisfy the very first element of the definition of str ike because they were
ready to work but could not. They were not on strike.
[57] The employees’ contracts of employment state that where their access cards had
been blocked by BMW, the defendant would consider termination of employment
for operational reasons. However, t he defendant elected to dismiss these seven
plaintiffs for participation in an unprotected strike. Moyo was asked by the Court
why the defendant dismissed them for alleged participation in an unprotected
strike and his response was that he was not sure why the defendant took the
decision it did.
The shifts A and B employees
[58] Shifts A and B employees were scheduled respectively to work from 14h00 to
22h00 and 22h00 to 6h00 the following morning on 21 July 2023. Their case that
they were not on strike but were locked out on 20 and 21 July 2023 is not borne
out of the evidence. It is, in fact, contradicted by their own evidence, which is that
they did not attempt to access the premises. There was no evidence presented
on behalf of any of these plaintiffs that their cards were blocked. On the contrary,
Nyathela testified that she did not attempt to access the premises on 20 July
2023. The defendant’s witnesses, Molele and Kgari , testified that after the
address by Moyo and Makhunga, they reported for duty, and their cards were not
blocked.
20
[59] The defendant’s s tatement of response s tates that employees from shifts B and
C were to be subjected to polygraph tests. Of the more than 50 shift B
employees, only seven joined the strike, and the rest continued to work. Shift A is
not mentioned in any correspondence or the statement of response yet 43
employees joined the strike. In fact, they started the strike at 14h00 on 20 July
2023. Mr Cook, for the plaintiffs, submitted that their strike lasted for one hour,
from 14h00 to 15h00 when Makhunga address ed an email to Mohamose.
Makhunga’s email stated that the defendant to communicated to “all employees”
that BMW required them to undergo polygraph tests and any employee who
refused take the test would have his or her access card blocked. Whilst there
may be force in Mr Cook’s argument, this is undermined by the fact at his 17h00
address to the employees, Makhunga asked or told or “instructed” the employees
to report for duty. Whilst Makhunga’s address will be discussed in detail later
insofar as whether this constituted an ultimat um as contemplated by the law, the
fact that he mentioned to the individual plaintiffs present at this meeting that they
should report for duty is not in dispute. I am unable to agree that the shift A
employees were on strike only for one hour. The seven shift B employees also
withdrew their services on 20 and 21 July 2023.
[60] Those individual plaintiffs who accessed the premises on 21 July 2023 did not do
so for the purpose of rendering services. There is no evidence that they tendered
services on 21 July 2023 but were unable to do so because their access cards
were blocked. The evidence established that these individual plaintiffs’ access
cards were only blocked on Monday, 24 July 2023. These individual plaintiffs
engaged in a concerted refusal to work until the issue relating to the polygraph
test is resolved, alternatively un til the ir demand to meet BMW management to
test is resolved, alternatively un til the ir demand to meet BMW management to
address the issue was met . Their conduct constitutes a strike. This strike was
unprotected. Accordingly, the shifts A and B plaintiffs participated in an
unprotected strike on 20 and 21 July 2023. They were not on strike on Monday,
24 July 2023 until the date of dismissal because their access cards were
blocked.
21
Was the dismissal substantively fair?
[61] The reason for the dismissal of the seven shift C employees for alleged
participation in an unprotected strike is unsustainable. The defendant, per the
contract of employment, should have considered dismissing them for operational
requirements. Their dismissal was therefore substantively unfair.
[62] The shifts A and B plaintiffs had embarked on an unprotected strike. A sudden
withdrawal of labour by employees without notice to the employer is prima facie
serious. It is disruptive to the operations of the employer and could result in
serious loss of production. In Mzeku & others v Volkswagen SA (Pty) Ltd &
others
5, the LAC stated that:
‘Once there is no acceptable explanation for the appellants ’ conduct, then it has
to be accepted that the appellants were guilty of unacceptable conduct which
was a serious breach of their contracts of employment with the first respondent.
In such a case the only way in which the appellants ’ dismissal can justifiably be
said to be substantively unfair is if it can be said that dismissal was not an
appropriate sanction. In this case it must be borne in mind that the appellants
refused to work or failed to perform work for over two weeks and, in the process,
caused the first respondent huge financial losses. In our view there can be no
doubt that dismissal would be an appropriate sanction if it is properly established
that they were guilty of such misconduct.’
6
[63] It is trite that whilst participation in an unprotected strike may constitute a fair
reason for the employer to dismiss its employees,7 it does not follow
axiomatically that dismissal for participation in an unprotected strike is fair. The
onus to prove the fairness of the dismissal remains with the employer. This much
5 2001 (4) SA 1009 (LAC); (2001) 22 ILJ 1575 (LAC).
6 Ibid at para 17; see also the minority judgment in Unitrans (fn 3 above), where the Constitutional Court
stated that “[a]n illegal strike has been recognised by our courts to constitute serious and unacceptable
misconduct by workers” ; Sasol Mine Ltd v Nhlapo an others [2021] 12 BLLR 1209; (LAC) (2021) 42 ILJ
2589 (LAC) at para 39.
7 Section 68(5) of the LRA.
22
was aptly articulated as follows by the LAC in National Union of Metalworkers of
South Africa (NUMSA) v CBI Electric African Cables8:
‘In my view the determination of substantive fairness of the strike -related
dismissal must take place in two stages, first under item 6 when the strike related
enquiry takes place and secondly, under item 7 when the nature of the rule which
an employee is alleged to have contravened, is considered. It follows that a
strike-related dismissal which passes muster under item 6 may nevertheless fail
to pass substantive fairness requirements under item 7. This is so because the
illegality of the strike is not “a magic wand which when raised renders the
dismissal of strikers fair ” (National Union of Metalworkers of SA v Tek
Corporation Ltd and others (1991) 12 ILJ 577 (LAC)). The employer still bears
the onus to prove that the dismissal is fair.’9
[64] Item 6 of the now repealed and substituted Schedule 8 of the Code of Good
Practice: Dismissal (old Code) regulated dismissal for participation in an
unprotected strike. It emphasised that the like any other misconduct, the enquiry
into the substantive fairness of this dismissal must consider factors such as the
seriousness of the contravent ion, attempts made to comply with the LRA and
whether the strike was in response to the employer’s unjustified conduct. 10 Item
6(1) was retained as item 12(1) of the new Code of Practical: Dismissal 11 (new
Code), with “unjustified” now replaced by “unlawful, unfair or unreasonable”.
[65] The assessment of the seriousness of the participation in the unprotected strike
must in clude the conduct of the parties, the legitimacy of the demands, the
duration and timing of the strike and the harm caused by the strike.12
[66] Item 6(2) of the old Code dealt with what the employer should do before
dismissing the employees. It provided that:
8 [2014] 1 BLLR 31 (LAC); (2014) 35 ILJ 642 (LAC).
9 Ibid at para 29.
10 See item 6(1) of the old Code.
9 Ibid at para 29.
10 See item 6(1) of the old Code.
11 GG No 53294 dated 22 August 2025, wef 4 September 2025.
12 Item 12(2) of the Code of Practice.
23
‘Prior 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 .’ (Emphasis
added)
[67] The above provision is now ret ained under item 12(3) of the new Code, albeit
more detailed. Item 12(3) provides:
‘The process before dismissal should include the following –
(a) The employer should, at the earliest opportunity, contact a trade union official
to inform the trade union about the strike so as to afford the trade union an
opportunity to consult with the striking employees.
(b) The employer should consider representations by the official, and discuss the
course of action it intends to adopt with the trade union.
(c) If there is no trade union involved, the employer should seek to engage with
leaders or representatives of the striking employees.
(d) 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.
(e) The employees should be allowed sufficient time to reflect on the ultimatum
and respond to it, either by complying with it or rejecting it.
(f) If an employer issues an ultimatum to employees engaged in an unprotected
strike, it may not be fair to dismiss employees for participation in that strike
who obey the ultimatum and return to work within the stipulated period.
24
(g) If participating employees reject an ultimatum, the employer may dismiss the
employees after considering the conduct and any representations of the
employees in accordance with the provisions of this Code.
(h) In cases of collective misconduct, the employer may, depending on the
circumstances, satisfy the requirements of procedural fairness by calling for
collective representations.
(i) In the employer cannot reasonably be expected to extend any of these steps
to the employees in question, the employer may dispense with them.’
(Emphasis added)
[68] There is no material difference between the old and the new Code. Ultimately,
the enquiry involves that the employer must , before dismissing the employees,
(1) contact the trade union for intervention and engage on the course of action to
be taken, (2) issue an ultimatum in clear and unambiguous terms, (3) the
ultimatum must warn the employees of the sanction that would be imposed if
they do not comply with it, (4) give the employees sufficient time to reflect on and
respond to t he ultimatum and (5) ensure that a fair procedure is followed before
dismissing the employees. Employees who comply with the ultimatum cannot be
fairly dismissed.13
[69] I have already articulated what these employees’ demands were above. The
demand was communicated to both Moyo and Makhunga during their address to
the employees at 14h21 and 17h00 , respectively. Moyo and Makhunga were
aware of the demand from these employees, yet they did not inform the
employees that shift A was not required to undergo polygraph testing. Lesoga
and Moyo testified that they informed the employees that only shift C employees
were expected to undergo the tests. Although the evidence of Makhunga, Moyo
and Lesoga was consistent that only shift C employees were required to undergo
polygraph tests, this evidence was undermined by BMW’s email dated 12 July
2023 which stated that employees on the first and second shifts were to undergo
2023 which stated that employees on the first and second shifts were to undergo
13 Item 12(3)( f) of the new Code; see also Mveltrans (Pty) Ltd t/a Bojananla Bus Services v Pule and
others [2014] ZALAC 63.
25
the polygraph tests, the defen dant’s pleaded case that shifts B and C were
required to undergo the polygraph test s, supported by the findings of the
chairperson of the alleged disciplinary hearing and the defendant’s failure to
inform these employees that they were not required to undergo the tests. Further,
Makhunga’s email at 15h00 stated that “ all employees” who do not undergo the
polygraph tests would have their access cards blocked and that it was not the
defendant but BMW that required the tests. The defendant ’s oral evidence is
inconsistent with its pleaded case and the documentary evidence. I am therefore
not able to accept that the employees were informed, and informed
unequivocally, that they were not expected to undergo the polygraph tests and
that only shift C employees were expected to undergo the tests.
[70] The strike started at 14h00 on 20 July 2023, when shift A employees refused to
report for duty after being informed by Mohamose that they were required to
undergo the tests . The defendant did not contact AMCU , nor did it seek its
intervention at any stage from the commencement of the strike . Even after
Friday, 21 July 2023, the defendant continued to engage the employees directly
to the exclusion of AMCU. Had the defendant contacted AMCU or informed
AMCU in its email at 15h00 that only shift C employees were expected to take
the tests and not shifts A and B, the matter might have taken a different turn.
[71] The defendant claimed that it issued written and verbal ultimatums . In Mveltrans
(Pty) Ltd t/a Bojananla Bus Services v Pule and O thers
14, the LAC said the
following about the ultimatum:
‘It is beyond cavil that the purpose of an ultimatum is to get workers who are
participating in unlawful industrial action back to work. Although the participation
in an unprotected strike remains a serious misconduct, workers can avoid the
ultimate sentence, which is dismissal, by complying with an ultimatum. Those
ultimate sentence, which is dismissal, by complying with an ultimatum. Those
who comply with the ultimatum may not be dismissed, because compliance is an
act of atonement. Those who do not comply may be dismissed, after being
heard, because non-compliance is an unacceptable act of defiance… It has been
14 [2014] ZALAC 63.
26
said that an ultimatum is as much a means of avoiding a dismissal as a
prerequisite to affecting one…
The ultimatum must be fair and geared at achieving its primary purpose of getting
the workers back to work. Whether an ultimatum was fair will depend on the facts
of the particular case.’
15
[72] In Association of Mineworkers & Construction Union o n behalf of Members &
another v Samancor Western Chrome Mines16, the LAC held that:
‘The object of an ultimatum is to give striking employees the opportunity to
reconsider their action. It must, therefore, be clear and unambiguous and give
the employees sufficient time to reflect. The ultimata issued by Samancor were
not entirely clear but indicated that dismissal would only follow after non-
compliance with a final ultimatum to be issued after unjustified non- compliance
with the preliminary ultimatum. Samancor also reserved its right to take
disciplinary action against the employees for participating in unprotected strike
action and for their conduct during the strike.’
[73] Despite the defendant’s assertion that ultimatums were issued, there was , in my
view, no single ultimatum issued by either Moyo or Makhunga. Alternatively, their
ultimatums were not issued in “ clear and unambiguous terms” and did not inform
the individual plaintiffs that they would take disciplinary action and the sanction
that would be imposed if they did not adhere to the ultimatums . This finding is
based on the fact that Moyo’s address to the employees at 14h21 ended with him
saying that he would call Makhunga or wait for two to three hours for Makhunga
to arrive.
[74] Makhunga’s message to the employees, whilst going a bit further than Moyo’s in
that he gave the shift A employees a choice to report for duty by 17h30 or 18h00
or the defendant reserved the right, cannot be said t o constitute a clear and
unambiguous message to the striking employees that if they do not report for
duty, the would be disciplined and a sanction of dismissal could be imposed.
duty, the would be disciplined and a sanction of dismissal could be imposed.
15 Ibid at paras 55 – 56.
16 (2020) 41 ILJ 2771 (LAC); [2021] 3 BLLR 236 (LAC).
27
Makhunga conceded that he did not warn the employees of the consequences .
This was his evidence during cross-examination:
‘MR COOK : And did you advise them of what the consequence was of –
because you have not given that evidence. I am telling you now.
MR MAKHUNGA: Not, not here.
MR COOK: In your evidence-in-chief… (intervenes)
MR MAKHUNGA: Not in this meeting.
MR COOK: So you never said, “If you do not come back to work, you could
face dismissal?”
MR MAKHUNGA: No, not in this meeting.
MR COOK: So therefore there was no consequence on your version which is
disputed and your changed version is, you said, “What you are doing is
illegal”.
MR MAKHUNGA: Yes, it… (intervenes)
MR COOK: “You have a right to withdraw your labour”.
MR MAKHUNGA: At this stage I still believed that they will fit their call and go
back to their workstation.
MR COOK: But you did not… (intervenes)
MR MAKHUNGA: And therefore that at that time, because I believed that they
will, that is why I did not say to them these are the consequences, that is why
I said as much as they have the right to strike, we have the right, we also
have our rights as an employer.
MR COOK : Yes, but an ultimatum must tell an employee in clear language
that they understand what is expected of them and the consequences of not
heeding the ultimatum. That is the requirement for an ultimatum.
28
MR MAKHUNGA : We subsequently did that when they did not do…
(intervenes)
MR COOK: No, I, do not go ahead of me. I am dealing with this meeting. On
your own version you never told them what the consequences were?
MR MAKHUNGA: No, at this meeting I did not. I have said that. ’
[75] There was no evidence of an ultimatum issued to the employees who were on
shift B. The absence of ultimatums or clear and unambiguous ultimatums setting
out the consequences of non- compliance means that these plaintiffs had no
opportunity to consider and reflect on their conduct.
[76] The duration of the strike was two days or two shifts. Moyo’s evidence was that
they worked extra hours with the assistance of temporary employees and shift C
employees. T here was no penalty imposed on the defendant and therefore,
BMW did not suffer any loss. He conceded that there was no economic loss. The
loss attributed to the strike was overtime and payment of temporary employees,
and nothing more.
[77] Makhunga’s evidence did not take the issue any further , despite suggesting that
the defendant suffered economic loss. His evidence was that:
‘MR COOK : And you would agree with me that now that BMW nor Ecotech
suffered any economic loss as a result of the strike?
MR MAKHUNGA: We did.
MR COOK: What did, what loss did you suffer?
MR MAKHUNGA : Because we had to had people to work on the weekend
when they were not supposed to work and we had to find people to work in
the positions that the other employees were on the illegal strike.
MR COOK : In the same breath you said, no work no pay, so you were not
paying for those people, so the money that you were going to pay those
people to perform those functions, you paid other people?
29
MR MAKHUNGA: I paid… (intervenes)
MR COOK: So there is no loss?
MR MAKHUNGA : There is because you also have to consider the PEE, it is
not just the salaries, it is also the total cost of employment, the cost that we
would have not incurred and the overtime that we would have not worked.
MR COOK : And more importantly, you never pleaded that you suffered any
loss. Why not?
MR MAKHUNGA: I cannot answer with why… (intervenes) ’
[78] For the above reasons above, there is no harm suffered by the defendant.
Accordingly, considering the duration of the strike which lasted two days or shifts,
which is not significantly long and the defendant’s failure to contact AMCU and to
issue ultimatums at all or issue clear and unambiguous ultimatums with clear and
unambiguous consequences for non-compliance and that the defendant suffered
no harm , I find that dismissal was not an appropriate sanction and that the
dismissal of the shift A and B employees was substantively unfair.
Procedurally fairness
[79] Although the trial record did not include a disciplinary code, b oth Moyo and
Makhunga admitted that the defendant has a disciplinary code that requires a
disciplinary hearing to be followed for allegations of misconduct. T he defendant
admitted that it deviated from the disciplinary code as it failed to conduct a
disciplinary hearing. The individual plaintiffs were not issued with a charge sheet,
were not called to a disciplinary hearing, were not afforded an opportunity to
submit mitigating factors.
[80] Makhunga conceded that the disciplinary code provides certain procedural rights
or steps before the dismissal. He was asked why the defendant did not follow
those steps:
30
‘MR COOK : We know in this matter that they were dismissed and asked to
make written submissions. Why were they not afforded, why did you deviate
from your Disciplinary Code, what justified the deviation?
MR MAKHUNGA: It is because we were dealing with an unprotected strike. ’
[81] Asked why th e individual plaintiffs could not be issued the charge sheet and
called to a hearing to present their evidence and arguments in mitigation ,
Makhunga’s response was that “ because we were dealing with that situation
and I cannot comment and say why not ”.
[82] The dismissal of all the individual plaintiffs was procedurally unfair. Mr Ntaka
conceded during closing arguments that the defendant made a “mistake”. The
procedural mistake was egregious. They were provisionally dismissed, asked to
make representations and later the defendant purported to constitute a
disciplinary hearing without the individual plaintiffs. There was no evidence of any
exceptional circumstances justifying the procedure followed by the defendant of a
provisional dismissal without a charge sheet and a hearing. Further, there was no
evidence that it was not reasonably practicable to charge the individual plaintiffs
and call them to a disciplinary hearing before a decision to dismiss was taken .
Accordingly, the dismissal of the individual plaintiffs was procedurally unfair.
Remedy
[83] Section 193 of the LRA sets out the relief which this Court may award following a
finding that a dismissal was substantively and/or procedurally unfair. Section
193(2) requires this Court to reinstate the employees unless they do not wish to
be reinstated or the circumstances surrounding the dismissal are such that a
continued employment relationship would be intolerable or that it is not
reasonably practicable for the employer to reinstate the employees.
[84] The individual plaintiffs seek reinstatement. Where a dismissal is found to be
substantively unfair and the employees seek to be reinstated, the primary
31
remedy of reinstatement must be awarded. 17 The defendant has failed to issue
ultimatums in clear and unambiguous terms against the shift B employees and
the one verbal ultimatum issued by Makhunga against the shift A employees was
not clear and unambiguous and did not inform the employee of the
consequences of their persistence with the strike. There was no harm suffered by
the defendant because of the misconduct committed by the shift s A and B
employees.
[85] The breakdown of the trust relationship must be assessed based on the
misconduct committed by the employee. The evidence led by the defendant
suggests that there was no breakdown of the trust relationship. Moyo testified
that:
‘MR COOK: You do not have anything personally against these people.
MR MOYO: No.
MR COOK: In fact, you know lot of them by face. You worked with them. You
have been there for what; four years.
MR MOYO: Yes, it is just unfortunate that my position is critical in the company
and allows for one to take disciplinary actions there and there; and for that you
will not be popular with employees, but I personally, I do not think I have any
issues with anyone.
MR COOK: And they also do not have any issues. They are obviously not happy
that they were dismissed, but they are hoping that the Court will remedy it and
they say that the trust relationship has not broken down. – Your comment?
MR MOYO: Ja, trust relationship is something else, because I believe, M'Lord, as
the advocate has put my version, I would have thought as their manager, they
would have listened to me on that day and came back to work; and whatever
issues that were there, their regional official was still going to assist in that. So I
17 See: Booi v Amathole District Municipality and Others (2022) 43 ILJ 91 (CC); [2022] 1 BLLR 1 (CC) at
paras 39 – 40; Notisi v So uth African Police Service and O thers [2023] ZALAC 33; [2024] 4 BLLR 380
(LAC) at paras 58 – 60.
32
am not sure in terms of the relationship being completely broken down, because
it was just a once -off incident that had happened, which would not necessarily
mean the relationship had broken completely.’ (Emphasis added)
[86] Makhunga was also given an opportunity to provide evidence whether the trust
relationship had broken down between the defendant and the individual plaintiffs.
He was non-committal and instead chose to wait for the judgment of this Court.
There was no evidence of any alleged misconduct suspected to have been
committed by these employees during their two- day unprotected strike. The
strike was caused by poor communication between the defendant and AMCU
and the defendant’s lack of clarity as to who was expected to undergo the
polygraph tests when the strike commenced at 14h00.
[87] The dismissal of the seven shift C employees for participation in an unprotected
strike was unnecessary. The defendant conceded that these employees were not
on strike. The defendant should have followed the operational requirements
procedure per the contract of employment. Instead, it opted to dismiss them for
alleged participation in an unprotected strike despite knowledge of the fact that
they had elected to exercise their rights not to undergo the polygraph testing, that
BMW had blocked their access cards and that they attempted to access the
premises to render their services but were unable to do so on account of its
client. There can be no issue with the trust relationship because these
employees did not commit the alleged misconduct and there was no evidence to
suggest that their conduct pre and/or post the dismissal had broken down t he
trust relationship. For these employees, there are no factors militating against
reinstatement, with a full retrospective backpay.
[88] The remainder of the plaintiffs denied participating in the unprotected strike. Their
strike lasted for two days before they were locked out . The evidence shows that
strike lasted for two days before they were locked out . The evidence shows that
Mohamose understood that all the employees were required to undergo the
polygraph tests. When the employees conveyed their grievance to Moyo and
Makhunga and demanded a meeting with BMW to resolve the issue, Moyo and
Makhunga did not c larify to them that they were not required to undergo the
33
tests. Instead, Makhunga was dismissive of their demand, questioning whether
they worked for BMW. Had t he defendant contacted AMCU to seek intervention
at the commencement of strike at 14h00 and to discuss the issue raised by the
employees with AMCU and clarified that only shift C employees were expected to
undergo the tests, and had the defendant issued clear and unambiguous
ultimatums, the strike could have been averted or resolved shortly after its
commencement on 20 July 2023. This does not mean that the shifts A and B
employees should not be held accountable for participation in an unprotected
strike. Had they, through AMCU or during the two meetings with Moyo and
Makhunga respectively, sought clarity on who was expected to undergo the
polygraph tests, the strike could have been averted or resolved during Moyo’s
address at 14h21.
[89] The defendant did not suffer any economic harm and there is insufficient
evidence to suggest that the trust relationship had irretrievably broken down.
Moyo, who worked closely to the plaintiffs, went as far as labelling the strike a
once off incident which could not have led to a breakdown of a trust relationship.
For these reasons, the shift A and B employees should also be reinstated.
However, their reinstatement should not be with full back pay . Their denial of
participating in the unprotected strike on 20 and 21 July 2023 was a waste of the
Court’s time. In my view, for procedural and substantive unfairness, eight months
back pay and a final written warning for 12 months applicable from the date of
their reinstatement would be an appropriate remedy.18
[90] The plaintiffs sought costs. I am not persuaded that this is a matter that warrants
a costs order to be made.
[91] In the premises, the following order is made:
Order
18 See: Equity Aviation Services (Pty) Ltd v Commission for Conciliation, Mediation and Arbitration and
Others 2009 (1) SA 390 (CC); [2008] 12 BLLR 1129 (CC) at para 43.
34
1. In respect of the seven shift C plaintiffs, namely, Barron Ngobeni, Justice
Setaka, Samuel Sithole, Charles Sithole, Mpumelelo Baloyi, Barnett Hemp
Futhane and Thabo Phiri:
1.1. Their dismissal was substantively and procedurally unfair.
1.2. The defendant is ordered to reinstate them retrospectively from the
date of their dismissal, without loss of earnings on the same terms and
conditions as they applied before their dismissal.
2. In respect of the remainder of the plaintiffs (shifts A and B plaintiffs
excluding Innocent Kgari):
2.1. Their dismissal was substantively and procedurally unfair.
2.2. They are issued with a final written warning for their participation in the
unprotected strike on 20 and 21 July 2023, which will apply for 12
months from the date of their reinstatement.
2.3. The defendant is ordered to reinstate them from the date of their
dismissal, on the same terms and conditions of employment applicable
at the time of their dismissal, and to pay them backpay limited to eight
(8) months remuneration at the rate applicable at the time of their
dismissal.
3. The individual plaintiffs must report for duty on Monday, 5 January 2026 at
6h00.
4. Payment of backpay to all the individual plaintiffs must be made on or
before 16 January 2026.
5. There is no order as to costs.
____________________
35
M. Makhura
Judge of the Labour Court of South Africa
36
Appearances:
For the Plaintiffs: Mr A. Cook
Instructed by: Larry Dave Incorporated
For the Defendant: Mr T. Ntaka
c/o T Ntaka Attorneys Inc.