Summary of Judgment

1. Introduction

This matter concerned remitted proceedings in the Labour Court to determine, afresh, the appropriate sanction for employees who had participated in an unprotected strike, after the Constitutional Court set aside findings relating to assault based on the doctrine of common purpose.

The plaintiffs were NUMSA acting on behalf of seven dismissed employees (Thabo Mphuthi, Vusi Mthimkulu, Moses Dhludhlu, Potia Mosekedi, Thabang Pitsi, Hopolang Khumalo and Sarah Mokoena). The defendant was Marley Pipe Systems (Pty) Ltd.

The procedural history was central to the posture of the case. The dismissals followed events on 14 July 2017. The dispute proceeded to a Labour Court trial in 2019 (“the main trial”). Thereafter, the Constitutional Court delivered judgment on 22 August 2022, exonerating employees (including those relevant to this remittal) from liability for assault based on common purpose, while leaving intact the finding of participation in an unprotected strike. The Constitutional Court held that, once the assault was no longer part of the misconduct, sanction for participation in the unprotected strike had to be reconsidered, and the matter was accordingly remitted to the Labour Court to determine sanction afresh, constituted differently.

Although the remittal initially related to 41 employees, the remitted proceedings ultimately concerned seven employees only, because the balance were resolved by settlement. The remitted hearing proceeded on the basis of the 2019 trial record, supplemented by limited additional evidence confined to sanction and relief (if sanction were found unfair), as agreed between the parties.

The general subject matter was whether, on the remaining misconduct of participation in an unprotected strike (shorn of any violent dimension), dismissal remained a substantively fair and proportionate sanction under the Labour Relations Act 66 of 1995 and the applicable Code of Good Practice: Dismissal.

2. Material Facts

A sectoral wage agreement applicable to the plastics industry was concluded on 13 July 2017 through sectoral bargaining. The agreement bound the defendant and its employees and was communicated to NUMSA shop stewards on the same day.

On the morning of 14 July 2017, NUMSA members nonetheless embarked on a work stoppage. Employees initially gathered in the canteen expecting an address by the defendant’s head of human resources, Mr Steffens. When he did not arrive, the group moved towards the administrative offices.

An incident occurred in which Mr Steffens was assaulted. However, for purposes of the remitted enquiry, the court treated it as established that the plaintiffs were exonerated of the assault allegation by the Constitutional Court (on the basis that common purpose did not establish their guilt in relation to the assault). The Labour Court therefore approached the matter on the basis that the misconduct to be sanctioned was participation in an unprotected strike only, without any violent dimension.

An ultimatum was prepared by the defendant. It was handed to two employees only, and evidence led at the main trial was that, during the process of issuing it, a shop steward instructed that the ultimatum should not be distributed further, after which the issuer returned to the office block. The defendant also obtained an order interdicting the unprotected strike and unlawful conduct associated with it.

The unprotected strike endured for approximately six hours.

In the remitted proceedings, the fact of participation in an unprotected strike was treated as common cause for purposes of sanction. The defendant led additional evidence at the remitted hearing regarding financial losses and operational disruption following the strike, although the court noted that not all losses could necessarily be attributed to the strike itself given the presence of other events (which were excluded from the sanction enquiry).

The plaintiffs’ approach to the litigation was also relevant to sanction. In the main trial, their pleaded case had been that employees were instructed to leave due to safety concerns and that they were locked outside, implying they had not participated in an unprotected strike. In the remitted trial, one plaintiff witness sought initially to attribute her non-working to departmental closure but later conceded she had joined the strike; another plaintiff witness acknowledged participation. The court treated the absence of candour and remorse as material to sanction.

3. Legal Issues

The central legal question was whether, after excluding the assault and any violent dimension (because of the Constitutional Court’s exoneration), the defendant nonetheless proved that dismissal was a substantively fair sanction for participation in an unprotected strike.

A preliminary legal issue concerned the permissible scope of the remitted sanction enquiry: specifically, whether the court could have regard to violence associated with the strike despite the plaintiffs being exonerated of the assault. The court characterised and resolved this as a question about the proper basis on which sanction could be assessed following the Constitutional Court’s decision.

The dispute principally concerned the application of legal standards to established facts and the making of an overall value judgment on proportionality and fairness of dismissal as a sanction. It also involved evaluation of aggravating and mitigating factors recognised in the Labour Relations Act framework and the Code of Good Practice: Dismissal.

4. Court’s Reasoning

The court began by delimiting the enquiry in light of the Constitutional Court’s findings. It held that it could not consider violence associated with the strike, because the Constitutional Court made clear that the plaintiffs bore no responsibility for the assault on Mr Steffens, and the assault was the primary manifestation of violence. The court reasoned that reliance could not be placed directly or indirectly on the assault itself, any associated acts of violence, or the broader characterisation of the strike as violent. It therefore assessed sanction on the basis of participation in an unprotected strike alone, “shorn of any violent dimension”.

The court identified the relevant legal framework governing strike-related dismissals. It relied on section 192(2) of the Labour Relations Act 66 of 1995, placing the onus on the employer to prove the fairness of dismissal. It noted that section 68(5) expressly recognises that participation in an unprotected strike may constitute a fair reason for dismissal and requires consideration of the Code of Good Practice: Dismissal in Schedule 8. Although the Code had been repealed by the time of the remitted hearing, it remained applicable because it was in force at the time of the misconduct and throughout earlier litigation.

The court applied the Code’s two-stage enquiry as understood in authority, requiring consideration of item 6 (strike-specific factors) and item 7 (general misconduct principles). In evaluating item 6(1), the court treated the seriousness of the contravention as significant because the strike occurred the day after a binding sectoral wage agreement had been concluded and communicated to the union’s shop stewards. On that basis, the employees acted with full knowledge that the bargaining process had run its course and nonetheless withheld labour in defiance of the agreement and the statute. The court regarded the strike as deliberate and collective rather than arising from confusion.

The court accepted that duration was relevant but not decisive. Although the strike lasted about six hours, it held that a short stoppage could still be serious where it was calculated and deliberate. Under item 6(1)’s second factor (attempts to comply with the Labour Relations Act), the court found there were no attempts to comply: no referral to conciliation and no strike notice. It treated this as a wholesale disregard of statutory requirements rather than a technical failure.

Regarding the third item 6(1) factor (whether the strike responded to unjustified employer conduct), the court found the strike was not a response to unlawful or unjustified conduct by the defendant, but rather to dissatisfaction with the collective bargaining outcome.

The court then considered the ultimatum requirement in item 6(2). It held that an ultimatum had been prepared and issuance commenced, but further distribution was actively thwarted by a shop steward. Given that the plaintiffs could not reasonably have believed the strike was protected, the court concluded the defendant could not be faulted for failing to do more. The ultimatum factor was treated as neutral, at best for the plaintiffs.

Beyond the Code’s enumerated factors, the court also treated harm to the employer as relevant. Based on evidence led at the remitted hearing, it accepted there were substantial financial losses and operational disruption following the strike, while recognising not all losses could necessarily be attributed to the strike (because some might have flowed from excluded conduct). Nonetheless, it found the unprotected strike caused real harm and disrupted operational continuity, constituting an aggravating factor.

The court further treated absence of remorse as aggravating. It relied on the plaintiffs’ litigation stance—initially pleading a version inconsistent with participation in an unprotected strike, and later making belated concessions without explanation, justification, or demonstrated accountability. The court reasoned that lack of candour and remorse reduced the prospects that progressive discipline would rehabilitate the employment relationship.

As mitigation, the court accepted that the plaintiffs had clean disciplinary records, and also that the strike was of limited duration. However, it considered these factors insufficient to outweigh the aggravating considerations, particularly given that the strike was deliberate, in defiance of a binding agreement, and was followed by a lack of remorse.

The court described the overall determination as one involving weighing relevant considerations and making a value judgment on proportionality. On balance, it concluded the misconduct went beyond what progressive discipline could address and undermined the trust and discipline required for an ongoing employment relationship. It therefore held the employer discharged its onus of proving that dismissal was a proportionate and substantively fair sanction for participation in an unprotected strike in this matter.

On costs, the court considered law and fairness, and took into account that the remitted trial occurred because of the Constitutional Court’s order. It held that no costs order was warranted.

5. Outcome and Relief

The court declared that the dismissals of Thabo Mphuthi, Vusi Mthimkulu, Moses Dhludhlu, Potia Mosekedi, Thabang Pitsi, Hopolang Khumalo and Sarah Mokoena were substantively fair at the level of sanction, and it dismissed their unfair dismissal claims.

The court made no order as to costs.

Cases Cited

NUMSA obo Aubrey Dhludhlu and 147 Others v Marley Pipe Systems (SA)(Pty) Ltd [2022] ZACC 30; (2022) 43 ILJ 2269 (CC).

NUMSA v CBI Electric African Cables [2014] 1 BLLR 31 (LAC).

De Beers Consolidated Mines Ltd v CCMA & others [2000] 9 BLLR 995 (LAC).

Timothy v Nampak Corrugated Containers (Pty) Ltd [2010] 8 BLLR 830 (LAC).

Department of Labour v General Public Service Sectoral Bargaining Council & others (2010) 31 ILJ 1313 (LAC).

Legislation Cited

Labour Relations Act 66 of 1995 (as amended), section 192(2).

Labour Relations Act 66 of 1995 (as amended), section 68(5).

Code of Good Practice: Dismissal, Schedule 8 to the Labour Relations Act 66 of 1995.

Rules of Court Cited

No rules of court were cited in the judgment.

Held

The court held that, because the Constitutional Court exonerated the plaintiffs from the assault allegation, the sanction enquiry had to be conducted on the basis of participation in an unprotected strike only, and the court could not rely on the assault, any associated violence, the atmosphere in which it occurred, or any characterisation of the strike as violent.

Applying section 192(2) and section 68(5) of the Labour Relations Act 66 of 1995 and the Code of Good Practice: Dismissal, the court held that the employer proved dismissal was a proportionate and substantively fair sanction given the deliberate nature of the unprotected strike in defiance of a binding wage agreement, the absence of attempts to comply with statutory strike requirements, the harm caused to the employer, and the absence of remorse, notwithstanding mitigating factors such as the strike’s limited duration and the plaintiffs’ clean disciplinary records.

The unfair dismissal claims were dismissed, and no costs order was made.

LEGAL PRINCIPLES

Participation in an unprotected strike may constitute a fair reason for dismissal, and in assessing substantive fairness the court must consider the requirements of section 68(5) of the Labour Relations Act 66 of 1995 and the guidance in the Code of Good Practice: Dismissal (Schedule 8), applying the strike-specific enquiry under item 6 together with general misconduct principles under item 7.

Where a higher court’s findings exclude a component of misconduct (here, assault and any violent dimension), sanction must be assessed on the remaining misconduct alone, and the decision-maker should not rely directly or indirectly on excluded conduct in characterising the seriousness of the misconduct or the appropriateness of dismissal.

In evaluating sanction for an unprotected strike, relevant considerations include the seriousness of the contravention, whether employees attempted to comply with statutory requirements (including conciliation and notice), whether the strike responded to unjustified conduct by the employer, the issuing (or reasonable impossibility) of an ultimatum, the harm caused to the employer, and employee remorse and accountability, weighed together in an overall proportionality assessment that entails a value judgment.

The onus to prove the fairness of dismissal rests on the employer in terms of section 192(2), including where the dispute is narrowed to the fairness of sanction alone.