THE LABOUR COURT OF SOUTH AFRICA, JOHANNESBURG
Case No: JS491/23
In the matter between:
THE ASSOCIATION OF MINEWORKERS AND
CONSTRUCTION UNION First Applicant
THE PERSONS WHOSE NAMES APPEARS ON
ANNEXURE ‘B’ Second Applicant
And
NORTHERN COAL Respondent
Heard: 1 – 5 December 2025
Delivered: 30 April 2026
Summary: Overtime omitted in employees’ payslips – work stoppage –
probabilities of instruction by employer to not work – no right to withhold
labour as a collective – unprotected strike – considerations of substantive
fairness – sanction unduly harsh in circumstances – counterclaim by employer
under section 68(1)(b) LRA – liability of union not proved – holding workers
liable not just and equitable.
(1) Reportable Yes/No
(2) Of interest to other Judges: Yes/No
(3) Revised
____________ ______________
Signature Date
2
JUDGMENT
RAMJI, AJ
Introduction
[1] This is an unusual work stoppage case in which workers allege that they were
not working for a portion of their shift because they were instructed not to
work.1 Most cases concern whether workers were justified in withholding their
labour following a perceived problematic instruction to work.
[2] The cessation of work was from 18h00 to approximately 22h30, i.e. four -and-
a-half hours of the 12- hour shift, at most . The effect of the cessation of work
stopped production for this period and approximately one additional hour. The
workers on shift were dismissed.
[3] The factual question to resolve first is whether, on a balance of probabilities,
the workers were (lawfully) instructed not to work for a portion of their shift. If it
resolves in favour of the workers, the inquiry ends and the dismissal was
unfair. If it does not, and I find that the instruction was unlawful or that workers
organised collectively to withhold their labour, then there are further legal
questions concerning the nature of the workers’ actions and the fairness of
the dismissal.
[4] I am grateful to parties’ representatives for the written submissions filed on
15 December 2025.
Parties
[5] The second applicants (the individual applicants ) were employed by the
respondent ( the company ), a subsidiary of Msobo Coal . The individual
1 Although there are few cases of this nature, this is not a complete anomaly. See for example:
NUMSA obo Dali and Others v Twin Structures Steel Construction (Pty) Ltd (Twin Structures )
(JS1051/2012) [2015] ZALCJHB 170 (28 May 2015) at para 6.
3
applicants are members of the first applicant (AMCU). Some of them have
worked for the company since 2001.
[6] The individual applicants were employed at the coal beneficiation plant at the
company’s Mimosa colliery in Mpumalanga. At the plant, the workers operate
a series of machines through which they ‘produced’ coal by washing it in
magnetite and water . The coal washed by the workers at the plant would be
transported to nearby ports in KwaZulu-Natal and sold for export.
[7] The byproduct of the coal wash ing process (the coal slurry) would then be
transported to the company’s plant in the KwaZulu- Natal Midlands where the
last useable coal was ‘recovered’. The company has an agreement with
Sappi Ltd, which buys the recovered coal for its operations.
Cessation of work
[8] On Thursday 23 March 2023, 21 workers were scheduled to work a shift from
18h00 to 06h00 (the night shift) . The individual applicants are AMCU
members. The remaining six workers are members of the National Union of
Mineworkers (NUM). They were also dismissed. However, neither t he NUM
members nor NUM is party to this litigation. When I refer to the 21 dismissed
workers collectively, I refer to them as ‘the workers.’
[9] After clocking in on time, the workers were issued their payslips by the shift
supervisor, Mr Mandla Ndinisa. It is common cause that the payslips did not
reflect the overtime that the workers had worked in the February/March 2023
payroll cycle. Their overtime makes up 25% of their hours per shift in terms of
the agreement with the company. From the payslips provided, the lowest
earning workers, such as a plant attendant (general worker) , earned a nett
income of R5,682.03 without overtime. With overtime, the nett income was
R8,367. The higher earning workers, such as operators, earned a nett income
of R10.301 without overtime and R16,083 with overtime. The prospective
earnings shortfalls were in the region of 30% per worker.
earnings shortfalls were in the region of 30% per worker.
[10] It is also common cause that the payslips were issued before salary transfers
took place, and that at the time of receiving their payslips, the workers were
4
not entitled to receive their salaries. They w ere to receive their salaries,
however, on 24 March 2023, i.e. in a few hours’ time. Payroll would have
processed payment according to their payslips. The ensuing days made up
the Easter long weekend. Those days (24 to 26 March 2023) would also be
the workers’ off-period in terms of the company’s shift system – the workers
would not be at work for the three days after the night shif t ended at 06h00 on
24 March 2023.
[11] It is not disputed that the incorrect payslips were the underlying trigger for the
workers not working for a portion of their shift, whether by instruction or of
their own volition.
Dismissal
[12] The payslips error was the fault of Mr Ndinisa who had failed to authorise the
overtime logged on the workers’ timesheets when submitting their hours
worked to the company’s human resources department (HR). There was no
negligence on the part of the workers.
[13] It is common cause that from the start of the shift, Mr Ndinisa was on the
phone with the group head of HR, Mr Mandla Mabunda, and with the plant
manager, Mr Abraham ‘Braam’ Fouche regarding the payslips error.
[14] It is also common cause that Mr Mabunda, who would normally report at the
plant at 07h00 daily, came to the plant at approximately 06h30 on the morning
of 24 March 2023, and that the payslips errors were then resolved following a
meeting with the workers which started at about 06h45. The workers were
paid their full entitlements in two tranches , and they reported for duty on 27
March 2023, after their planned three days off according to the company’s
shift system.
[15] On 4 April 2023, the company issued notices to attend a disciplinary inquiry to
be held on 11 April 2023. The disciplinary action concerned the four -and-a-
half hours for which they did not work until receiving an undertaking to their
satisfaction that their payslips would be corrected timeously and before pay -
day. They were charged with:
5
15.1. Gross misconduct for participating in an unprotected strike on 23 March
2023.
15.2. Gross misconduct for failing to adhere to multiple direct ultimatums
from management to start working on 23 March 2023.
15.3. Gross misconduct for causing production loss to the company through
the above conduct.
[16] The individual applicants pleaded not guilty. They were found guilty following
disciplinary hearings. They were dismissed with effect from 18 April 2023
following a recommendation made by the chairperson of the disciplinary
hearing made on the same day . The NUM members pleaded guilty and they
too were dismissed. Mr Ndinisa was also dismissed in relation to the payslips
error and the events arising out of it.
[17] Between resuming their duties in the ordinary course and being dis ciplined,
there is no record, or claim, of the workers stopping work or underperforming.
[18] They were dismissed because it is the recommended sanction for
participating in an unprotected strike in terms of the company’s disciplinary
code.
[19] The applicants challenge the substantive and procedural fairness of the
dismissal.
Jurisdiction
[20] This Court’s jurisdiction arises from section 191(5)(b) (i), (ii) and (iii) of the
Labour Relations Act , 1995 (LRA) – that is, its exclusive jurisdiction over
automatically unfair dismissals and dismissals for participating in an
unprotected strike.
[21] The applicants pleaded that this is an automatically unfair dismissal because,
in not working, the workers were responding to the looming short payment, for
which they were entitled to withhold their labour . The disciplinary action and
subsequent dismissal were therefore a case of the workers being prejudiced
6
for ‘the failure or refusal to do something that an employer may not lawfully
permit or require an employee to do.’2
[22] The applicants pleaded further was that the true reason for the alleged unduly
harsh sanction (dismissal) was because they had filed a grievance against the
mine manager, Mr Dirk Swart, two months earlier, on 23 January 2023.At the
time of the disciplinary action, Mr Swart was still the mine manager.3
[23] If the applicants fail to prove this case (and also on the employer’s version),
this is a dismissal for participating in an unprotected strike. This Court’s
jurisdiction therefore also arises from section 191(5)(b)(iii) of the LRA.
Overview of judgment
[24] The issues are dealt with as follows:
22.1. Issue 1: Were the workers instructed not to work did they choose to
down tools?
22.2. Issue 2: If the workers were not instructed to not work, w ere the
workers exercising their right not to work in the circumstances relating
to their payslips?
22.3. Issue 3: Was the true reason for the sanction of dismissal that the
workers had laid a grievance against Mr Swart in January 2023?
22.4. Issue 4: If this was not the true reason for their dismissal, was there
good reason to dismiss the individual applicants?
22.5. Issue 5: Has the company proved its counterclaim under section
68(1)(b) of the LRA?
[25] Procedural fairness was addressed by the company at trial and was not
questioned by the applicants. Substantive fairness was therefore the only
issue before me.
2 Section 5(2)(c)(iv) of the LRA.
3 Mackay v Absa Group & Another (2000) 21 ILJ 2054 (LC).
7
[26] In respect of Issues 1 and 2 (though Issue 2 is largely a matter for legal
argument), the applicants called one of the individual applicants , Mr
Funukwazi Milton Nkosi and the company called the Mr Mabunda and Mr
Fouche.
[27] In respect of Issue 3, the substantive fairness of the dismissal, the applicants
relied on Mr Nkosi again and on Mr Percy Mashinini, a former operator at the
plant and an AMCU shop steward. The company in addition called Mr Swart.
[28] In respect of Issue 4, the evidence of the applicants’ two witnesses and the
company’s three witnesses are relevant.
[29] In respect of I ssue 5, the company called the Mr Swart , who was cross -
examined.
Issue 1: Instruction not to work or downing tools?
Testimony of Mr Nkosi for the applicants
[30] Mr Nkosi, testified that on 23 March 2023, all 21 workers arrived at security
where they were breathalysed, and then they clocked in. They reported for the
standard toolbox talk with Mr Ndinisa. After the toolbox talk, Mr Ndinisa gave
the workers their payslips . In Mr Nkosi’s words, translated from his testimony
in isiZulu:
‘We opened our payslips and did not find what we were expecting. We were
expecting our full payslips. We spoke to foreman to say there was a problem.
The foreman told us to wait there, and he would call HR to sort out matter.
We did not go with him. We were waiting where he left us in the safety
toolbox area.’
[31] Mr Nkosi testified that from the toolbox area, he saw Nr Ndinisa making phone
calls, and that, ‘We could see him on the phone. We could not hear him on
the phone.’ Then, Mr Ndinisa returned and informed the workers that ‘he was
fighting with Mr Mabunda and that they could not reach an agreement. ’ He
then told the workers ‘to wait’ and that he would phone Mr Fouche. Again, Mr
Nkosi testified that he saw Mr Ndinisa on the phone, but that he did not hear
8
the call. Mr Ndinisa then reported back to the workers that he had spoken to
Mr Fouche who would call him back.
[32] Finally, Mr Nkosi testified that Mr Ndinisa told the workers ‘ to wait where we
were’, and that ‘he went away ’. He testified that they were told once, at
approximately 22h30, to start working, that they were instructed only by Mr
Ndinisa, and that at no stage did any other person instruct or address them.
[33] The company attacked the strength of the applicants’ evidence, specifically –
33.1 the applicants’ failure to call Mr Ndinisa, as a key witness;
33.2 the applicants’ failure to generally call corroborating witnesses;
33.3 Mr Nkosi’s credibility, then argued that its witnesses were relatively more
credible; and
33.4 referred pointedly to the fact that Mr Nkosi was a single witness in
respect of the events of 23 March.
The failure to call Mr Ndinisa as a key witness
[34] The company requested that I draw an adverse inference from the applicants’
failure to call Mr Ndinisa as a witness.
[35] A court is not mandated to draw an adverse inference from the failure to call a
witness, and the company provided no exceptional circumstances for why an
adverse inference should be drawn.
4
[36] The company did not show, never mind argue, that Mr Nkosi’s evidence was
wholly inadequate, the applicants could not have reasonably believed a prima
facie case had been proved, Mr Nkosi was unreliable, Mr Ndinisa was
available to testify and was simply not called, there was a basis to believe that
the applicants were not calling Mr Ndinisa to testify because it would
undermine Mr Nkosi’s version of events, or Mr Ndinisa had any duty to
testify.
5
4 Schwikkard 3rd Ed at p 546.
5 Ibid.
9
[37] The company has therefore given me no factual basis based on the
authorities from which to draw an adverse inference against the applicants
from the failure to call Mr Ndinisa as a witness.
The failure to call witnesses to corroborate Mr Nkosi’s version
[38] It also submitted that the applicants did not call other corroborating witnesses
‘placed centrally in their narrative’ and that ‘ the Court is entitled to draw an
adverse inference that their evidence would not have supported the
applicants’ version.’
[39] I agree with the company in that, unlike in the case of Mr Ndinisa, other
individual applicants, at least one out of the 15, must have been available. A
few of Mr Nkosi’s co-applicants were present in Court and were instructing the
applicants’ attorneys.
[40] An adverse inference is drawn in exceptional circumstances. I am not
prepared to effectively infer that the applicants’ failure to call other individual
applicants to testify was because they would harm Mr Nkosi’s version of
events. In reaching this decision, I have considered that a prima facie case
was made by Mr Nkosi, he was a credible witness, and therefore the applicant
could have believed it unnecessary to call further witnesses. The company’s
case is not that there was information missing from Mr Nkosi’s testimony, but
rather that it required corroboration. 6 The applicants may have made the
assessment that it did not. In civil cases, judgment may be given on the
evidence of a single witness.7
[41] The applicants must, however, accept that the failure to call other individual
applicants in the circumstances and the failure to explain why it did not do so,
weakens thei r ability to prove their version. It something the merits
consideration in ultimately assessing the balance of probabilities.
Mr Nkosi’s credibility
6 The case law where adverse inferences have been drawn therefore do not apply . See in particular:
Elgin Fireclays Ltd v Webb 1947 (4) SA 744 (A) at 749
7 Schwikkard supra at p 552.
10
[42] Mr Nkosi’s credibility was called into question. A t first, the Company made a
generalised statement during oral submissions that Mr Nkosi lacked
credibility. I did not consider, on an initial assessment, that any of the
witnesses lacked credibility and so questioned the company’s representative
on this submission.
[43] I was referred to an incident during cross -examination when the witness was
allegedly receiving cues from the gallery. The company’s representative was
cross-examining Mr Nkosi at the time this was alleged and could not have
seen it. Apparently, he was informed by his candidate attorney who was
sitting next to him of this. It was further submitted in oral argument that Mr
Nkosi even admitted to doing this when confronted. I stated that I had no
recollection of Mr Nkosi admitting this and that I , with full view of the
courtroom, did not see cues being given. The relevant portion of the recording
was promised with written submissions, which the company requested time to
provide.
[44] Ultimately, the company did not provide any recording or transcript with its
written submissions. Further, in written submissions, it did not provide any
other indicators relating to credibility such as ‘ the witness’s demeanour,
candour, bias, and the internal consistency of their evidence.’
[45] There is therefore no basis on which I can question Mr Nkosi’s credibility as
an individual – or the credibility of any of the other individuals testifying for that
matter.
[46] The company argued that its witnesses were more credible. As I stated, I did
not consider any witness to lack credibility. As the applicants’ representative
pointed out in argument and written submissions, they were simply more
eloquent. To be precise, the employers’ witnesses were speaking the
language of the Court, English, and were fluent in it. They were engineers and
senior human resource managers. The workers were speaking primarily in
senior human resource managers. The workers were speaking primarily in
isiZulu, were not comfortable speaking English, and spoke through an
interpreter.
11
[47] There were no issues with the interpretation in any legal sense, but it is the
case that a court of record will receive only the English translations of Mr
Nkosi’s testimony, and that it sees that his answers brief. It may seem
improbable that Mr Nkosi so quickly captured a four -and-a-half-hour event so
briefly.
[48] In listening to his testimony and the interpretation, and the more
conversational witnesses for the company, I am mindful of the following:
48.1. It is well- recognised that the act of interpretation naturally and
unavoidably loses literal meaning 8 and cultured or figurative meaning,
particularly conventions such as politeness or respect, embarrassment,
sadness or fear. It is also recognised that the expression of these
conventions varies between cultures.
9
48.2. It is trite that the courtroom setting, 10 its terminologies and processes
(including ‘the witness box’, and oath-taking) and unfamiliar language
(for example, ‘M’Lady’) are daunting.
48.3. As an example, w hen Mr Nkosi was clearly struggling to read the
notice to attend a disciplinary hearing from the evidence bundles, he
did not say that he was struggling and did not admit to struggling. This
was, however, apparent, and it was AMCU’s counsel who intervened
having received instructions from the other workers that Mr Nkosi could
not read. This is all the more reason why the c ourt process, governed
by English language, would have, in my assessment, made Mr Nkosi
nervous or reserved. I view his testimony and credibility also in this
context.
8 See: Barbara Cassin Dictionary of Untranslatables: A Philosophical Lexicon (2014); Englund African
Languages and Untranslatables: Reflections on “Decolonial Knowledge” (2024) Reflections at 148;
De Vries, A. & Docrat, Z., 2022, ‘Judges and court interpreters’ experiences of multilingualism in
South African courts’, in M.K. Ralarala, R.H. Kaschula & G. Heydon (eds.), Language and the law:
Global perspectives in forensic linguistics from Africa and beyond, pp. 101– 128, African Sun Media,
Stellenbosch.
9 Figliulo, J.R. 1984. Breaking the Language Barrier. Litig, 10:32–63.
10 Karpen I O & Senova M (2021) Designing for Trust: Role and Benefits of Human-Centered Design
in the Legal System in the International Journal for Court Administration.
12
The single witness
[49] The company mentioned several times in written submissions that Mr Nkosi is
merely a single witness.
[50] I am guided by the approach set out in S v Sauls and Others:
‘There is no rule of thumb test or formula to apply when it comes to a
consideration of the credibility of a single witness. The trial judge will weigh
his evidence, will consider its merits and demerits and, having done so will
decide whether it is trustworthy, and whether, despite the fact that there are
shortcomings or defects or contradictions in the testimony he is satisfied that
the truth has been told… The presiding officer when evaluating the evidence
of a single witness should not allow the exercis e of caution to displace the
exercise of common sense.’
[51] This will guide my assessment of Mr Nkosi’s testimony against that of the
company’s witnesses.
[52] In any case, it was also not only the applicants who kept their evidence brief .
The company did not use evidence that would be easily accessible to it, most
notably CCTV footage which could have demonstrated w orkers’ interactions
with Mr Ndinisa and telephone conversations involving the shop stewards or
broader group of workers if any . In fact, none of the company’ s witnesses
were present at the plant, never mind in or around the toolbox area at any
time during the night shift and the documentary evidence contains no
evidence of workers refusing to work or being given an ultimatum to start
work. This too is a factor to consider in assessing the reliability of witnesses.
The more probable version
[53] Mr Nkosi in his evidence-in-chief did not state that Mr Ndinisa told them not to
work until he had resolved the issue. Instead, Mr Nkosi repeatedly testified
that Mr Ndinisa told the workers to ‘wait’ while he made some calls to resolve
their payroll issue. He used the words translating to ‘wait’ even when
answering questions under cross-examination.
13
[54] It is not improbable that Mr Ndinisa, faced with a serious payroll error of his
making, panicked and rushed to resolve the matter, and that he instructed the
workers to wait for him to resolve the issue. Even Mr Mabunda testified that
he and Mr Ndinisa were going ‘back and forth’ on the phone.
[55] That said, I find it improbable that any shift manager would have actually told
workers to down tools , or that workers would have understood to mean t hat
they should down tools . This is possibly even an unlawful instruction – an
instruction to embark on an unprotected strike. Mr Ndinisa was not a fellow
machine operator or a shop steward. He was part of and accountable to
management. There is also no apparent reason why he would tell the workers
to down tools.
[56] There is no direct evidence that Mr Ndinisa instructed the workers to start
working. There is also no evidence that the workers were instructed to start
working. The WhatsApp conversations relied on by the company did not
involve the workers, stop stewards or other union officials. The company’s
evidence is of Mr Mabunda and Mr Fouche speaking to Mr Ndinisa, and to an
AMCU member and a NUM shop steward, Mr Peter Ngwenya and Mr
Mdlalose respectively.
56.1 Mr Mabunda stated in cross examination that approximately 18h05 (in
his first call with Mr Ndinisa), he gave the workers an ultimatum through
Mr Ndinisa, testifying as follows:
‘I would not say the first ultimatum was at 7pm, because we spoke at
6pm, and I was very clear that I would resolve this and workers must
go back to work.’
56.2 Mr Fouche testified that at approximately 18h30, he phoned Mr Ndinisa,
was put on speaker and spoke to Mr Ngwenya and Mr Mdlalose. Mr
Fouche testified as follows on the alleged conversation:
‘I spoke to them and I said please, we’ve never done this before, why
would you stop us now. First, they said they were not happy. I gave
them an ultimatum and said go back to work. I told them that Mandla
them an ultimatum and said go back to work. I told them that Mandla
confirmed this would be resolved, and I said that I would make sure
14
they got their money. I said you are playing with fire, think about your
children, your family at home. I meant that they could lose their jobs,
because they were on an illegal strike.’
56.3 Mr Mabunda testified that later that evening, he too had a group call with
Mr Ngwenya and Mr Mdlalose. Mr Nkosi had no comment on their
movements during this period.
[57] Mr Nkosi could not dispute this, as he stated during cross -examination. It is
therefore in its failure to call Mr Ngwenya as a witness that the applicants’
case is weakened. I do not doubt Mr Nkosi’s testimony that Mr Ndinisa told
the workers to wait. I cannot, however, accept on his version alone that there
was no discussion, over a four -and-a-half-hour period, for the workers to start
working. This is especially given the fact that the machines generally remain
in operation during shift changeovers because they require tim e to start
working again after being stopped.
[58] I therefore find it more probable, on the evidence available, that during this
period, the workers chos e, and were not instructed, to physically wait in the
toolbox area for a satisfactory resolution of the payslips issue, instead of
starting work.
[59] The following facts will be relevant to whether a dismissal was justified:
59.1. It is not in dispute that none of the managers addressed the workers
directly, even over the phone.
59.2. The relevant AMCU shop steward, Mr Mashinini, was not notified even
when there was a WhatsApp group that included him and made it easy
to contact him and other elected AMCU representatives.
59.3. Although Mr Ngwenya and Mr Mdlalose may have been party to two of
the phone calls in which ultimatums, they do not have the managerial
power to give other workers ultimatums and Mr Ngwenya was not an
elected representative for bargaining purposes.
Issue 2: In deciding not to work, were the workers exercising a protectable right?
15
[60] It was pleaded and argued that the workers were not unlawfully withholding
their labour given the employer’s breach of contract: the applicants’ position is
that the workers were entitled to not work until they were paid in full (i.e. for
the overtime that they had worked in the February/March 2023 payroll cycle)
by the company.
[61] The workers are essentially relying on the common law remedy of the
exceptio non adempliti contractus.
[62] I do not believe that this claim or defence is available to the workers:
62.1. Under the common law, the workers’ act of remaining in the toolbox
area might have constituted legitimate use of the exceptio non
adimpleti contractus remedy.11 However, in National Union of
Mineworkers on behalf of Employees v Commission for Conciliation,
Mediation & Arbitration (NUM v CCMA) ,12 the LAC held once conduct
meets the definition of a strike in terms of section 213 of the LRA, that
conduct is governed by the LRA.
62.2. The effect of NUM v CCMA is that the exceptio is not available as a
remedy to a group of workers acting collectively in not working or not
working fully, when employers fail to perform in terms of a contract
because it is not legislated.
62.3. On the other hand, the exceptio has been codified as a remedy
available to employers during a protected strike. Section 67(3) of the
LRA states: ‘… an employer is not obliged to remunerate an employee
for services that the employee does not render during a protected
strike.’
11 A consideration under the exceptio is whether at the time that the workers withheld their labour, the
employer had breached its obligation to pay them for their services, or whether that date had not yet
come. However, this question does not have to be answered as the exceptio is currently unavailable
to the workers.
12 (2011) 32 ILJ 2104 (LAC) at paras 14; 16 – 18.
16
62.4. The company in written submissions provided more recent case law
which confirms this position.13
[63] Put simply, whether rightly or wrongly, the law currently prevents workers from
exercising common law remedies that were once available to them , and the
workers cannot justify collective withholding of labour based on the employer’s
breach of contract.
[64] The applicants’ claim of an automatically unfair dismissal is therefore
dismissed
Issue 3: Was the true reason for the sanction of dismissal that the workers laid a
grievance against the mine manager?
[65] There is no convincing evidence that the dominant reason for imposing the
sanction of dismissal was based on pressure by Mr Swart because these
workers had laid a grievance against him . The only evidence was the say -so
of Mr Mashinini and the say -so of Mr Swart. The disciplinary chairperson who
made the recommendation did not testify.
[66] I find it unconvincing that the grievance was even a factor in the decision to
dismiss the workers. From the testimony of both Mr Mashinini and Mr Swart,
they engaged with each other openly and robustly. Mr Mashinini was clearly a
very assertive shop steward, and Mr Swart was approachable, but forthright.
Their engagements evidenced good- natured goading typical between union
officials and managers, and not aggressive antagonism.
[67] This therefore becomes a case of an ordinary unfair dismissal , centred on the
question of whether the sanction was unduly harsh. If the sanction was unduly
harsh, the dismissal is unfair . The company bears the onus of proving
fairness.
Issue 4: Was the dismissal for good reason?
13 Mndebele and Others v Xstrata South Africa (Pty) Ltd t/a Xstrata Alloys (Rustenburg Plant)
(Xstrata) JA57/12 [2016] ZALAC 28; National Union of Metalworkers of SA and Others v CBI Electric
African Cables JA51/11 [2013] ZALAC 25; [2014] 1 BLLR 31 (LAC)
17
[68] If the workers chose to stop working until the payslips error was resolved to
their satisfaction, as I have found is the case, this also meant that they were
on an unprotected strike. Given the extended and complicated statutory
process for embarking on a strike, the immediate and brief downing of tools
could never have met the requirements for protected industrial action.
[69] The workers therefore did commit the misconduct in charge 1.
14 This does
not, however, mean that the company acted fairly in dismissing the workers.
This is regardless of the company’s disciplinary code and the fact that
dismissal is the recommended sanction for an unprotected strike, particularly
when the internal code does not take into account the different ways in which
an unprotected strike can be conducted.
Law on dismissal for embarking on an unprotected strike
[70] The LAC in NUM v CCMA stated:
‘[T]he unprotected nature of this strike is not a license to dismiss without a
careful consideration of the surrounding circumstances. In determining
whether those workers who participated in an unprotected strike should be
dismissed, a number of considerations must be part of the decision.’15
[71] The LAC turned to the Code of Good Practice: Dismissal, in Schedule 8 to the
LRA, as mandated under section 68(5) of the LRA , and considered the
seriousness of the contravention, the attempts made to comply, and
‘unjustified conduct’ by the employer.16
[72] In Twin Steel, Prinsloo AJ (as she then was), described the assessment as
‘multifactoral’:
‘At one level it might be so that participation in an unprotected strike is never
justifiable, since the Act provides avenues for the resolution of disputes,
whatever their nature. However, justifiability in relation to an assessment of
14 On the above evidence, there is also no evidence of the workers having been issued ultimatums.
Therefore, there is no good reason to have found that they were found insubordinate in terms of
charge 2. Charge 3 concerning loss is dealt with when assessing the company’s counterclaim.
15 NUM v CCMA supra at para 21.
16 The amended Code (2025) circumscribes the conduct this to ‘unlawful, unfair or unreasonable
conduct by the employer.’
18
substantive fairness is a rather different concept. The Code specifically
acknowledges that the participation in an unprotected strike is not an act that
per se justifies dismissal. The relevant enquiry is a multi-factoral one, in which
the cause of the strike and the conduct of the employer must be
considered.’17
[73] In reviewing and setting aside the CCMA award in NUM v CCMA (which was
against the workers) the LAC held that the following factors rendered the
dismissal substantively unfair:
73.1. It was common cause that the employer had wrongfully deducted
money due to the workers.
73.2. The workers were justifiably distressed by this decision.
73.3. The strike could be described as fairly peaceful.
73.4. The objective of the strike was to recover the unlawful deductions made
unilaterally by the employer.
73.5. The impact was minimal in that ‘ only 3 x 12- hour shifts had been
affected’ and the estimated loss was between R120,000 and 180,000.
18
[74] It was not unreasonable to find that these considerations outweighed that the
facts that the workers had alternative remedies, and that the company had
acknowledged its error and offered to rectify it in the next pay cycle.
19
[75] As in the present case, the workers in NUM v CCMA wanted to be addressed.
The company insisted on only engaged with selected representatives. Unlike
in the present case, in NUM v CCMA there was clear evidence of an
17 Twin Steel supra at para 116.
18 NUM v CCMA supra at para 24.
19 NUM v CCMA supra at para 25.
19
ultimatum having been given. 20 Unlike in the present case, the workers
missed three shifts, and not one-third of a single shift.
[76] In Twin Steel, the workers were being dishonestly underpaid – as opposed to
it being a case of negligence by the employer, as it is here. Even though the
Court found that the employer had issued an ultimatum in compliance with the
Code, and that the workers had sufficient opportunity to reflect on it, 21 the
Court was swayed not only by the employer underpaying the workers, but also
by their manager ’s refusal to engage with the employees at all, and instead
instructing them to go back to work without addressing their legitimate
complaints. In the Court’s view, it made it ‘ worse… that he used the
receptionist and foreman to convey his instructions’ (own emphasis).22 This is
not the only parallel with the present case.
[77] The Court in Twin Steel held that the extent of production loss could have
been mitigated by the employer taking a practical (‘common sense’) approach:
‘[T]he employees were concerned about the non-payment of wage increases
and overtime and their interest was to discuss those issues with the
[employer]. The [employer] on the other hand had no interest in discussing
the issues with the employees and its main concern was to secure a return to
work and full production.
In my view and with the application of a modicum of common sense, a
solution might have been found, but the gap between the interests of the
employees and the interests of the [employer] was never bridged with the
consequence that the employees lost their jobs and the [employer] lost
production.’
23
[78] Considering the law as set out above, I find that the dismissal of the workers
for participating in an unprotected strike was substantively unfair.
78.1 The payslips error would have been socially and financially devastating
to the workers had their overtime not been added. As mentioned, they
20 NUM v CCMA supra at para 11.
20 NUM v CCMA supra at para 11.
21 Twin Steel supra at paras 95 – 97.
22 Twin Steel supra at para 120.
23 Twin Steel supra at paras 127 – 128.
20
would have taken home at least 30% less money that what they had in
fact rendered services for . General workers such as Mr Nkosi only took
home R8,000.
78.2 These are not individuals with reserves, and many are breadwinners for
families. Mr Nkosi explained the seriousness of the impact. One can
presume that all the individual applicants are similarly placed. Mr
Mabunda, as Group HR manager conceded that a short payment ‘ hurts’
and that ‘ even 10% [short payment] hurts ’ and answered in the
affirmative when asked if it would have been hard for him to suffer a
similar short payment.
78.3 This is also more understandable because only a few months earlier, in
December 2022, another significant time of year for all wage- earners,
there was a shortfall in salaries actually paid. T he workers followed the
prescribed processes, and they were only reimbursed in January 2023.
The significance of this, and the wait period, for workers who live from
one month’s salary to the next, cannot be overstated. Mr Mabunda’s own
testimony is proof of this:
‘Question: Mr Mashinini said that [the workers] were suffering over
December.
Mr Mabunda: I don’t know.
Question: You wouldn’t want the suffering to continue?
Mr Mabunda: Yes. So, I fixed the problem on the 24th.’
78.4 The strike was peaceful and not disruptive, except to operations to a
limited extent set out below. In Mr Nkosi words, the workers were not
‘fighting’. I do not accept the evidence of Mr Mabunda, who was not
present at the plant, and attempted to cast the AMCU workers as being
‘aggressive’, testifying, ‘Well, if you look at the hearing, they said AMCU
was aggressive.’ No evidence from the hearing was led.
78.5 Related to this, the stoppage was only for part of the shift, and the
workers did not wait until their payslips were corrected but instead
commenced work as soon as they were satisfied that someone would be
21
addressing their issue. The workers therefore started the shift even
before their payslips were corrected.
78.6 The company contributed to the length of the work stoppage by not
having its managers go to the plant to address the workers, alternatively,
by not speaking to all of them on speak over the phone. Mr Mabunda
explained during cross-examination that he did not want to have a call
with all the workers ‘because [he] was not there and [he] did not want an
out-of-control situation.’ The logic is hard to follow, and he did not
expand on it. There was no re- examination, and I can only assess his
decision as poor judgement. Mr Fouche never explained why he did not
have a group call with all workers. There is also no evidence of
strategising a response from the WhatsApp messages on the company
WhatsApp group.
78.7 There is no evidence that between returning to work on 27 March 2023
and receiving notices to attend a disciplinary hearing on 4 April 2023,
that the workers performed their duties poorly or were insubordinate.
There is also no evidence of a break in the trust relationship. Mr
Fouche’s evidence in this regard is dealt with under remedy.
78.8 There is no pattern of misconduct of this nature that would justify the
exercise of the harshest form of workplace discipline against the
individual applicants – if not also the entire night shift. This is not a case
of ‘naughty’ or ‘criminal’ workers as the company described them in
closing arguments. By all accounts, these are remarkably restrained and
obedient workers.
[79] All that the company has to justify the dismissal is the loss that it allegedly
suffered. Even accepting that the quantum is correct, it is not sufficient to
outweigh all the above factors that point to the dismissal being substantively
unfair and disproportionate to the misconduct.
[80] Finally, for all the dispute resolution mechanisms under the LRA and internal
grievance processes, the purpose of the LRA is to promote orderly collective
grievance processes, the purpose of the LRA is to promote orderly collective
bargaining and speedy dispute resolution. Although the workers did not follow
the prescribed processes, their actions, together with the company’s swift
22
response, upheld these values. Essentially, a group of workers, regardless of
union affiliations, trusted in their own organisation and discipline and engaged
with their employer to have their dispute resolved before it escalated not only
in terms of industrial action, but also in terms of the impact that it would have
on their own lives. The company responded by keeping its promise to address
their concerns. It is therefore surprising that the company then dismissed all
21 workers and their shift supervisor, effectively escalating a dispute that
could have been closed amicably.
[81] The LRA cannot uphold its own values if workers (or employers)
24 are
punished for peacefully speaking to, listening to and trusting in each other ,
however frustrating it may be for the affected hours . This is not licence to
down tools, as fair labour practices operate in both directions. The facts of this
case, considering previous judgments discussed above, however , render this
dismissal substantively unfair.
[82] This leaves the company’s counterclaim for damages.
Issue 5: The company’s counterclaim for damages arising from an unprotected strike
[83] The company filed a counterclaim in terms of section 68(1)(b) of the LRA. It is
dated 18 July 2025. The pre- trial minute was filed more than one year earlier,
in April 2024. A subsequent minute was signed on 1 December 2025 because
of the timing of the company’s counterclaim. In any case, I turn to the merits of
the counterclaim.
[84] There is no need to deal with the company’s evidence on quantum in this
matter, because I find that it has failed to demonstrate liability of AMCU and
its members for purposes of section 68(1)(b) of the LRA.
[85] The company restricted its claim to positive interesse, or restitution, seeking to
quantify the losses actually suffered. Section 68(1)(b) is still, however,
underpinned by considerations of what is just and equitable in respect of any
loss suffered by an employer because of an unprotected strike.
loss suffered by an employer because of an unprotected strike.
24 For example, in the form of a lengthy grievance process, or even a claim at the CCMA in terms of
section 73A of the BCEA.
23
[86] The company’s claim against AMCU is dismissed for the following reasons:
86.1 First, there are indications that despite this being framed as restitution,
the action is retributive. The entire night shift withheld their labour. This
included AMCU and NUM members. Despite this, when filing the
counterclaim, the company did not join NUM to proceedings. Under
cross-examination and in legal argument, there was no explanation as to
why NUM was omitted when the clear effect of granting the counterclaim
in such circumstances would be that one union would be footing a joint
bill.
86.2 This is unfair, legally problematic, and would not promote workplace
peace when both unions have a presence at the company and on the
mine.
86.3 During oral argument, when I put this to the company, the response was
that AMCU could have brought an application to join NUM. As AMCU
pointed out, given that the counterclaim was filed after a trial date was
issued, and a mere five- and-a-half months before the trial, an
interlocutory application could have lost the applicants their trial date. I
accept this, particularly given that the workers are asking for their jobs
back.
86.4 Second, the employer provided no evidence of irreparable harm,
including, for example, evidence of having lost clients, that its current
financial position is suffering as a result of the 6 hours of production lost
in 2023. Ordering one union to pay a R2,2 million claim, or portion of it,
does not rectify an injustice and it undermines what would be equitable.
In PTAWU v New Kleinfontein Gold Mine (PTAWU),
25 Le Grange J held:
“While unions cannot escape liability simply because it would be onerous
financially, it is important that compensation claims are not used as a device to
cripple a union’s ability to operate or to deal it a terminal blow. While I am
reluctant to allow a union to escape the consequences of pursuing the
unprotected strike, I am also concerned that the issue of liability for
unprotected strike, I am also concerned that the issue of liability for
25 (2016) 37 ILJ 1728 (LC) at para 79.
24
compensation under s68(1)(b) was only raised with it after the event, at a stage
when PTAWU could not have done anything to minimise its exposure to such
liability. Had it been made aware of the potential liability faced at an earlier
stage that might well have concentrated the minds of the union leadership to
consider more seriously the wisdom of persisting with the strike action.”
86.5 PTAWU was a two- hour strike. This was a four -and-a-half-hour strike
with an approximate additional one- and-a-half-hour production loss.
There was no damage to the machines as a result of them not running
during this period and needing to be restarted.
86.6 Also, in PTAWU and in Algoa Bus Co (Pty) Ltd v Transport Action Retail
& General Workers Union & Others (Algoa Bus),26 to which the company
referred, there was an interdict in place. The union had knowledge of the
strike. I was specifically referred to the approach of the Labour Court in
Algoa Bus to the effect that a union may be liable if did little if anything to
discourage its members from participating in the strike or to distance
itself from the strike.
86.7 In this case, there is no indication that AMCU officials knew of the strike.
There was a WhatsApp group for the company and AMCU
representatives, and the company adduced no evidence of chats from
the WhatsApp group and Mr Mashinini testified that he was not made
aware of the work stoppage.
86.8 A union cannot discourage members from participating in an unprotected
strike when it is not made aware of it. It is also difficult to imagine how a
union could take steps to distance itself from a strike that lasted between
18h00 and 22h30 on the night before the Easter long weekend. Even Mr
Mabunda said that as HR, he could do nothing for the workers at this
time. In the interests of equity, the same considerations should apply to
the union.
26 (2015) 36 ILJ 2292 (LC).
25
[87] I therefore find that ‘that the party sought to be fixed with liability ’ did not
participate in the strike or commit other acts in furtherance thereof.27
[88] Last, I must consider the workers’ conduct, since the employer seeks to hold
AMCU and the individual applicants jointly and severally liable for the R2.2
million claim. Ultimately, even if their unprotected strike caused the company
these financial losses, it is not just and equitable to impute to the individual
applicants a legal obligation to pay the company whatever it may have lost
during the stoppage:
88.1 The AMCU and NUM workers’ action was undisputedly spontaneous,
an immediate response to receiving payslips that suggested that they
would be paid substantially less than they were entitled to. This was not
a plan to catch the employer off-guard.28
88.2 Instead, it was a spontaneous response to incorrect payslips, 29 that
would by the company witness’s own admission ‘hurt’, and which had
occurred previously and had approximately on month to resolve. The
company cannot erase its contribution to the situation that ensued.30
88.3 The workers withheld labour for less than half of the shift, and at most,
the effect of their stoppage was that potential production for half the
shift was affected. There conduct was peaceful and docile as already
detailed.
88.4 Given the obvious fact that, even when they worked, they were poor,
holding them jointly and severally liable with AMCU undermines
principles of equitability.
31
Appropriate remedy
27 Rustenburg Platinum Mines v Mouthpiece Workers Union (2001) 22 ILJ 2035 (LC) at
2041D.
28 Section 68(1)(b)(i)(bb) of the LRA.
29 This distinguishes this case from the Xstrata supra at para 34, where the workers conduct was
found to have been ‘ ’planned to occur at the time that would create m aximum pressure on the
company’.
30 Section 68(1)(b)(i)(cc) of the LRA. This is another factor distinguishing this case from Xstrata supra
at para 34.
at para 34.
31 See: CSAAWU obo Dube and Others v Robertson Abattoir (2015) 36 ILJ 2080 (LC) at para 34.5.
26
[89] Reinstatement is the primary statutory remedy in unfair dismissal disputes.32
[90] The company put to Mr Mashinini that because of the large amount of money
lost during the stop in production, the company could not accept the workers
back. That is not a basis not to reinstate or re-employ the workers – or to keep
them unemployed. The arguments against these remedies are not based on
retribution.
[91] The only relevant consideration, based on the evidence, is intolerability
evidence.
33 The evidence was not convincing and on balance, it cannot be
said that a continued employment relationship between the company and the
individual applicants would be intolerable. When asked if he could work with
the individual applicants again, Mr Fouche stated:
‘We go back a long time. But the AMCU union has changed things so much.
They became so distracted by the union. You cannot have people just
stopping work. I have a good relationship, but the company needs to do what
it needs to do.’
[92] Read with Mr Nkosi and Mr Mashinini’s testimony about Mr Fouche, and the
serious approach taken by Mr Mabunda to the payslip issues, there are all
indications that there a good and generally respectful relations between
individuals in the workplace. The testimony against AMCU is irrelevant:
workers have a right to join a trade union of their choice, they cannot be
refused reinstatement because of union affiliation, and finally, it is not AMCU
that is being reinstated.
[93] Even if the financial loss suffered were an argument, it would be weakened by
the show of good faith by the workers, whose uncontested evidence was that,
before they were dismissed, the workers offered to work back the time that the
company lost when they ceased work on 23 March 2023. It would be further
weakened by Mr Mashinini’s undisputed evidence under cross -examination
that ‘we used to have shutdowns and losses happened, but during those
that ‘we used to have shutdowns and losses happened, but during those
32 Equity Aviation Services (Pty) Ltd v Commission for Conciliation, Mediation & Arbitration 2009 (1)
SA 390 (CC) (Equity Aviation) at para 36.
33 Section 193(2) of the LRA.
27
shutdowns, the employees were never dismissed’. Mr Swart also confirmed
that there were periods of shutdown for maintenance.
[94] The company sought in written submissions to draw comparisons with other
judgments. This cannot be compared to the shutdown of high- capacity
furnaces, as was the case in Xstrata , where the impact of totally shutting
down the furnaces (as opposed to merely idling, for example) , could cause
damage to the plant as a whole. The same logic applied in Xstrata therefore
does not apply. Also, in Xstrata, other factors that persuaded the LAC to find
against the workers was that the unprotected strike action was premeditated,
calculated to cause maximum harm, and was unprovoked by any action by
the employer.
[95] The same applies in respect of the other judgment relied on by the company
in written submissions: in Motor Transport Workers Union on behalf of
Sehularo & others v G4S Cash Services (Pty) Ltd , the court considered that
time was of the essence to operations in the contex t of ‘sporadic disruptions
that occurred far too often and had significant financial and operational
consequences.’
34 In the present case, Mr Mabunda testified that that ‘ not to
his knowledge’ had there been strikes at the company. This was not
contradicted by other company witnesses. This is significant considering Mr
Mabunda has worked in HR at the company since 2018.
[96] In testifying that the workers’ offer to work o ver Easter or on Sunday was
meaningless because work was not done on these days because of the
company did not have the required exemption from the prohibition to work on
those days in terms of section 9 of the Mine and Works Act 27 of 1956. His
testimony is self -defeating: where stopping mining or works would jeopardise
safety or cause damage, a company applies for permission to continue
operation. The fact that colliery and plant were not exempted points to the
seriousness of the temporary stop to production on 23 March 2023 being
overstated.
seriousness of the temporary stop to production on 23 March 2023 being
overstated.
34 (2013) 34 ILJ 1221 (LC) at para 41.
28
[97] I have a discretion regarding the date from which the reinstatement will run,
provided it is not earlier than the date of dismissal. Three factors are decisive:
97.1. The evidence is that the individual applicants have generally been
without an income, or at least stable income, since their dismissal. This
is unsurprisingly given not only the difficulty finding permanent work,
but because they would have had to explain to prospective employers
that they were dismissed and why. It is therefore not incredulous that
Mr Nkosi testified that he only ever found casual work from time to time.
That he could not remember the exact days on which he worked, and
that in approaching other mines in the region (which he names), he was
unsuccessful. The company’s implied contention that this could not be
regarded as reliable evidence is inappropriate in this context: these are
machine operators at a coal plant, and Mr Nkosi does not have or use
e-mail.
97.2. Second, the retrospective period is relatively short in the context of
labour litigation because this case came to court without unnecessary
delay, and therefore not resulting in a claim for backpay that would
excessive and resultantly unfair towards the company.
35 Only three
years have passed since the individual applicants were dismissed, and
the pre-trial minute was filed within 14 months of their dismissal. In any
case, no evidence was led or argument advanced against the date of
reinstatement sought by the applicants. The trial could in fact have
proceeded in July 2025, but for the company’s application for a
postponement and the associated counterclaim filed.
97.3. Finally, the workers pleaded with the company not to dismiss them,
sought to mitigate its losses by working an extra shift without receiving
payment, and they were willing to even accept a final written warning,
notwithstanding the predicament that the company placed them in on 23
March 2023, for the second time in a four-month period.
March 2023, for the second time in a four-month period.
35 See: Toyota SA Motors (Pty) Ltd v CCMA (2016) 37 ILJ 313 (CC) at para 1.
29
[98] The date of dismissal is therefore an appropriate date from which the order of
reinstatement should run, and an entitlement to backpay.
Costs
[99] The applicants have been successful. Were the appropriate relief not
reinstatement, I would have been inclined to award costs in the counterclaim.
It was entirely meritless and took up significant time during the trial and time in
preparation for the applicants’ representatives.
[100] I have, however, considered that AMCU is a recognised union at the
company. A costs order, even limited to costs for the counterclaim, would not
be constructive to the ongoing relationship between AMCU and the company ,
or between the mine and the workers , especially where all evidence points to
the prospects of the workers rejoining the company with a clean slate and
good relationships with their overall superior, Mr Fouche.
[101] Accordingly, the following order is made:
Order
1. The dismissal of the individuals comprising the second applicants is
declared substantively unfair.
2. The respondent is ordered to ordered to reinstate the individuals
comprising the second applicants in the same or not less favourable
positions that they held at the time of their dismissals on 18 April 2023.
3. The reinstatement is effective from the date of dismissal, 18 April 2023.
4. The individuals comprising the second applicants are entitled to
retrospective payment from the date of dismissal, 18 April 2023, until
the date of reinstatement.
5. There is no order as to costs.
_______________________
30
B. Ramji
Acting Judge of the Labour Court of South Africa
31
Appearances:
For the Applicant : Adv S Saunders
Instructed by : Larry Dave Attorneys Inc.
For the Respondents : Mr C Crafford, Crafford Attorneys