THE LABOUR COURT OF SOUTH AFRICA, JOHANNESBURG
Case no: JS349/2023
In the matter between:
GIDEON SHOKO & 27 OTHERS Plaintiffs
and
ADCORP WORKFORCE SOLUTIONS
(PTY) LTD Defendant
Heard: 2 to 4, and 23 March 2026
Delivered: 20 August 2026
JUDGMENT
PHEHANE, J
Introduction
[1] The plaintiffs bring an application in terms of section 191(5)(b)(iii) of the
Labour Relations Act 1 (LRA) claiming that their dismissal from the employ of
the defendant with effect fr om 5 May 2020 is both procedurally and
1 Act 66 of 1995, as amended.
(1) Reportable Yes/No
(2) Of interest to other Judges: Yes/No
(3) Revised
____________ ______________
Signature Date
2
substantively unfair. They seek an order declaring their dismissal unfair and
retrospective reinstatement; alternatively, twelve months’ compensation; in the
further alternative, just and equitable compensation.
[2] The defendant opposes the referral and seeks an order dismissing it.
[3] The plaintiffs’ trial bundle is marked “A” and the defendant’s is marked “B”.
Background
[4] The defendant trades as an entity called Adcorp Blu and forms part of an
entity called the Adcorp Group.
[5] It is common cause that t he defendant ( Adcorp Blu) is a temporary
employment service (TES). Adcorp Blu supplies labour to a vast number of its
clients in Pretoria, Polokwane and Klerksdorp and manages the human
resources functions relating to their employees. In the present dispute, Adcorp
Blu supplied blue collar labour to its client KAP Automotive (Pty) Ltd trading as
Feltex Trim Silverton (Feltex). Feltex has sites at Silverton and Rosslyn in
Pretoria.
[6] The undisputed evidence of Mr Vernon Le Roux, Adcorp Blu’s Regional
Manager for a period of 25 years, was that Feltex manufactures and supplies
motor vehicle components, specifically carpets to the Ford Motor Company
(Ford) which is also based in Silverton. The carpets are produced on a “just in
time” (JIT) operating model, which means that carpets are not manufactured
in high volumes – they are manufactured on a quick turnaround period for
immediate supply to Ford as inadequate storage facilities exist to store excess
carpets. It is for this reason that the Feltex site in Siverton is located
approximately 200 to 300m from Ford. Adcorp Blu supplies employees to
Feltex for the variations in Feltex’s production cycles.
[7] Feltex operat es on a three- shift system: the morning shift from 06H00 to
14H00; the afternoon shift from 14HOO to 22H00; and the evening shift from
22HOO to 06H00. It is common cause that this dispute relates to only the
morning and afternoon shifts.
3
[8] It is common cause that the plaintiffs were employed by Adcorp Blu and were
placed at Feltex at the Silverton site , where they manufactured carpets
together with the permanent staff of Feltex. The plaintiffs were commonly
referred to as “ Blu” employees and the Feltex employees as “permanent
employees”. This distinction is important, as will become evident below.
[9] The plaintiffs comprised of employees who were unionised, as well as non-
unionised employees. The unions that the plaintiffs were affiliated with were
the South African Clothing and Textile Workers Union ( SACTWU) and the
National Union of Metalworkers of South Africa (NUMSA). In these present
proceedings, the plaintiffs are not represented by any trade union . However,
they are legally represented.
[10] It is also common cause that on 30 March 2023, the plaintiffs together with the
Feltex permanent employees, signed a petition s etting out 14 demands. In
essence, the plaintiffs and the Feltex employees were disgruntled about their
ill-treatment by a Feltex manager , namely Mr. Richard Gilbert (Mr Gilbert) .
They wanted Mr Gilbert to be dismissed from the employ of F eltex. The
employees also lodged a formal grievance regarding their ill-treatment by Mr.
Gilbert.
[11] It is common cause that on 6 April 2023, Feltex summarily dismissed its
employees and Adcorp Blu employees who participated in the unprotected
strike action and Adcorp Blu furnished the plaintiffs with dismissal notices on 9
May 2023. The employees of both Feltex and Adcorp Blu who complied with
the ultimata issued by Feltex were issued with final written warnings.
[12] The Feltex employees launched a similar dispute as this present dispute, that
was determined in this Co urt under case number JS348/23 (the Feltex
Judgment). In that dispute, this Court found that the dismissal of the Feltex
employees save for two , was both procedurally and substantively fair. Before
employees save for two , was both procedurally and substantively fair. Before
this present trial became part-heard, Adcorp Blu relied on the testimony of one
of the employees in the Feltex Judgment. When the trial recommenced, the
representative of the plaintiffs , who had changed from the initial
representative, informed this Court that the Fel tex Judgment was the subject
4
of an application for leave to appeal, including aspects of evidence that was
before this Court during those trial proceedings , with par ticular reference to
the evidence of Ch ristinah Thandekwayo, as shop steward of SACTWU and
former employee of Feltex, who was dismissed. The reliance on the Feltex
Judgment was thus jettisoned during the trial proceedings but resurfaced in
Adcorp Blu’s heads of argument without any explanation.
[13] In my view, this Court is not bound by the decision in the Feltex Judgment as
that judgment is the subject of an application for leave to appeal on findings of
law and fact. The decision of this Court in this present dispute is premised on
the pleadings, evidence and the applicable law in relation to the facts before
it.
[14] The plaintiffs’ pleaded case is that they did not participate in the unprotected
strike action – instead, they found themselves “ caught up” in the strike that
was undertaken by the Feltex employees, who prevented the plaintiffs from
accessing Feltex’s plant to render their services. They allege that Adcorp Blu
dismissed them without issuing any ultimata; that the ultimat a issued by
Feltex were unclear, ambiguous and did not afford them with sufficient time to
reconsider their actions. In addition, they allege that Adcorp Blu dismiss ed
them without holding a disciplinary inquiry prior to the dismissal. Therefore,
the plaintiffs alleg e that their dismissal was both procedurally and
substantively unfair.
Legal Framework
[15] Section 213 of the LRA defines “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’.
5
[16] In Transport and Allied Workers Union of South Africa obo Ngedle and others
v Unitrans Fuel and Chemical (Pty)Ltd 2 (Unitrans) the Constitutional Court
remarked that in everyday phraseology, every collective work stoppage is
called a strike action. The Constitutional Court proceeded to illustrate that the
following four elements must exist to make up a strike under the LRA:
‘(a) a partial or complete concerted refusal to work or retardation or
obstruction of work, (b) by persons who are or have been employed by 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.’
[17] Items 6 and 7 of the former Schedule 8 Code of G ood Practice: Dismissal 3
which was applicable at the time of the plaintiffs’ dismissal, pro vided the
following guidelines in respect of dismissal for participation in unprotected
strike action:
‘6. Dismissals and industrial action
(1) Participation in a strike that does not comply with the provisions of
Chapter IV is misconduct. However, like any other act of misconduct, it
does not always deserve dismissal. The substantive fairness of
dismissal in these circumstances must be determined in the light of
the facts of the case, including-
(a) the seriousness of the contravention of this Act;
(b) attempts made to comply with this Act; and
(c) whether or not the strike was in response to an unjustified
conduct by the employer.
(2) 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
2 2016 (11) BCLR 1140 (CC) at para 106.
3 Repealed with effect from 4 September 2025 by G eneral Notice No. 3470 in GG 53294 dated 4
September 2025.
6
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.’
[18] Adcorp Blu pleads rather clumsily, that Feltex, its client, is the deemed
employer of the plaintiffs .4 On the evidence of Adcorp Blu’s witnesses,
Messrs Vernon Le Roux (Mr Le Roux), its Regional Manager and Mr. Jacob
Boer (Mr Boer), its supervisor at the Feltex sites in Rosslyn and Silverton ,
Adcorp Blu took the tine from Feltex in terms of dealing with the strike action
from issuing ultimata, contacting the two unions and to ultimately dismiss the
plaintiffs and Feltex employees, as Feltex is the deemed employer.
[19] With the coming into effect of the 2014 Amendments to the LRA, provision
was made to regulate temporary employment amid the scourge of
unemployment in South Africa. Section 198(1) of the LRA defines a TES as
any person who for reward, procures for or provides to a client, other persons
who perform work for that client and who are remunerated by that TES.
Section 198(2) of the LRA provides that the TES is the employer of the person
whose services have been procured for or provided to a client by the TES.
[20] Section 198A(1) of the LRA provides that a temporary service means work for
a client by an employee ‘ not exceeding the duration of three months ’, as a
substitute for an employee who is temporality absent, or in a category of work
for any period of time determined to be a temporary service by a collective
agreement, a sectoral determination or notice published by the Minister of
Employment and Labour in accordance with subsections (6) to (8) of section
198A.
[21] The import of the provisions of section 198A(3)(b) of the LRA is where
198A.
[21] The import of the provisions of section 198A(3)(b) of the LRA is where
employees who earn below threshold as pres cribed from time to time by the
Minister in terms of section 6(3) of the Basic Conditions of Employment Act 5
4 Pleadings, statement of response at para 3.3 on p 26.
5 Act 75 of 1997.
7
and who do not perform a temporary service as defined in section 198A(1) for
a client are deemed to be employees of that client for an indefinite period
subject to the provisions of section 198B.
[22] On the common cause facts of the present dispute, Adcorp Blu is the
employer of the plaintiffs who provide services for its client, Feltex. There is
therefore, no merit to Adcorp Blu’s contention that Feltex is the deemed
employer of the plaintiffs. This contention is simply not supported by the
evidence. There is no evidence to trigger the application of section
198A(3)(b)(i) of the LRA relating to the duration of the plaintiffs’ placement at
Feltex and the ir earnings.6 To put this contention to bed: in Assign Services
(Pty) Ltd v National Union of Metalwor kers of South Africa and others ,7 the
Constitutional Court held that section 198(2) and section 198A(3)(b) cannot
co-exist. I am therefore satisfied that on the common cause facts, the
provisions of section 198(2) of the LRA apply. Therefore, Adcorp Blu was the
employer of the plaintiffs at the time of their dismissal.
The evidence
[23] The defendant called two witnesses: Messrs. Le Roux and Jacob Boer.
[24] The plaintiffs called t wo witnesses who are plaintiffs – Messrs. Gideon Shoko
and Koketso Molapo.
Evidence on behalf of the defendant
Mr Le Roux:
[25] Mr Le Roux stated that on the morning of Monday, 3 April 2023, he was
informed by Mr Leonard Du Pisanie, the Adcorp Blu Operations Manager, that
the employees of Adcorp Blu and Feltex were on strike; they were not at their
workstations and were outside Feltex’s premises at the security gate. Mr Le
Roux drove from home to the Feltex Silverton site and arrived between 10H00
and 11H00. He observed many employees, more than 60 or 70, comprising
6 The pay slip of plaintiff Gideon Shoko of March 2023 appears at A3 and his May 2023 at p 4. Other
than thes e documents . Nothing further is placed before the Court t hat would trigger section
198A(3)(b) of the LRA.
198A(3)(b) of the LRA.
7 2018 (11) BCLR 1309 (CC) at para [83].
8
of both Adcorp Blu and Feltex employees standing outside the security gate at
the Feltex site. He stated that he could not identify the Adcorp Blu employees
as he wanted to drive safely through the striking employees who were
protesting by singing and dancing. He found it difficult to drive his vehicle,
which he described as a “ big bakkie” through the entrance gate due to the
conduct of striking employees who were “toyi-toying” in front of the security
gate and making intimidating remarks.
[26] He managed to drive through with difficulty and went to the administration
block and met with M essrs Jacob Boer and Gideon van Zyl , Adcorp Blu
contract managers who work on four Feltex sites, including the Silverton site.
Messrs Boer and van Zyl took him to meet with the Feltex human resources
official, Ms Roenel Haywood (Ms Haywood) and a Feltex production manager.
His evidence was that “several” meetings were held between Adcorp Blu and
Feltex to discuss the correct steps that should be taken according to the law
to address the unprotected strike action. Mr Le Roux emphasized that Feltex
took the lead in addressing the striking workers and issuing the ultimata. Mr
Le Roux confirmed that Mr. Clinton Milan, Feltex’s Operations Manager who is
no longer employed by Feltex, issued a notice to the striking workers and
trade unions on 3 April 2023
8 notifying them that the workers were embarking
on an unprotected strike action and had ignored the first ultimatum issued by
Feltex at 9h25AM instructing them to return to work. Mr L e Roux stated that
Mr. Clinton issued ultimata to the striking wor kers by communicating them to
the striking workers and placing them on “notice boards”.
[27] Mr Le Roux’s evidence did not assist the Court as the bulk of his testimony
comprised of his legal representative reading emails to him into the record,
which Mr Le Roux confirmed although he was not a recipient of the emails. It
is unclear how and when he gained knowledge of these emails. He did not
is unclear how and when he gained knowledge of these emails. He did not
explain this to the Court. His evidence entailed explaining to the Court, that
Ms Haywood sent emails to the two unions on 3 April 2023
9 requiring them to
intervene in the unprotected strike action. This email refers to a petition. He
stated that he was aware of a petition by both Adcorp Blu and Feltex
8 B4 to 5.
9 B3.
9
employees who wanted Mr Gilbert to be dismissed. 10 The employees lodged
a grievance which led to a grievance hearing being scheduled for 5 April
2023. The grievance hearing was to be facilitated at Feltex by an external
chairperson named Natalie Singer 11 and according to Mr Le Roux, this
grievance hearing did not commence as the employees saw Mr Gilbert on the
shop floor and recommenced their strike action because they were unhappy
that Feltex management reneged on an agreement that Mr Gilbert would not
enter the plant . It later transpired during the evidence of Mr Shoko that an
agreement was reached between management and the unions that Mr Gilbert
would not be permitted to be present at work until the grievance had been
resolved.
[28] Mr Le Roux’s evidence was that he was not present at Feltex on 4 and 5 April
2023. He was present at Feltex on 6 April 2023, when he observed the
plaintiffs striking outside the security gate. He stated that their enthusiasm had
waned on this date due to the passage of days and they were not as actively
engaged in the strike action compared to their conduct on 3 April 2023. He
vaguely explained that the same process that occurred on 3 April was
repeated on 6 April 2023- that is, meetings were held with Feltex
management, Mr Milan communicated the ultimata to the striking employees
and placed them on “ notice boards”. In response to a direct question by the
Court if he was present when the ultimat a were issued on 3 and 6 April 2023,
he answered in the negative and directed the Court to the video footage to
give the Court “better content”.
12
[29] With reference to a schedule compiled by the defendant, 13 Mr Le Roux
confirmed that Adcorp Blu assembled this schedule using data from Feltex’s
face recognition clocking system and the grievance form . This schedule
shows who was on strike and when. He confirmed that most of the plaintiffs
worked an 8-hour shift on 5 April 2023.
10 B6 to 8.
11 B12.
worked an 8-hour shift on 5 April 2023.
10 B6 to 8.
11 B12.
12 Transcript, Vol 2 at p 38, lines 5 to 25.
13 B161 to 162.
10
[30] Without any particularity, Mr Le Roux stated that the effect of a work stoppage
in the production of carpets would be “massive” and he gave example of an
international entity that was penalized “close to a million rand per month” for
having stopped a production line. 14 Adcorp Bl u did not place any evidence
before this Court in respect of the penalties incurred by it during the
unprotected strike action relevant to this dispute. Mr Le Roux confirmed that
he did not receive any feedback regarding any damages Felt ex suffered as a
result of the strike action.15
Mr Boer:
[31] During Mr. Boer’s evidence, video footage16 was shown, which he confirmed
was taken by Feltex during the strike action. The video footage is not disputed
by the plaintiffs.
[32] Mr Boer confirmed that he and Mr van Zyl were called to Feltex at Silverton by
Mr du Pisanie on 3 April 2023. Mr du Pisanie informed them that there was
unrest at Silverton. On arrival at Feltex at approximately 08H30, he observed
more than 20 workers outside the Feltex security gate, engaging in strike
action. Himself, together with Messrs van Zyl and Du Pisanie went to the
administration block and met with Feltex management. Both himself and Mr
van Zyl waited outside the boardroom for instructions from Mr du Pisanie, who
emerged from the boardroom and told them to go and observe the shop floor,
which they did. He observed no work on the production side. No machines
were running. He observed that a handful of employees were working on the
logistics side. This was reported to Mr du Pisanie.
[33] From the boardroom, Mr. Boer observed Mr . Milan at the security gate,
engaging with the striking workers and handing out papers, which Mr Boer
understood to be ultimata, as he had inquired from Mr . Milan as to what the
documents were. He saw Mr. Milan placing these documents on the windows
of the security guard house in full view of the striking workers. He confirmed
of the security guard house in full view of the striking workers. He confirmed
that neither h e nor Mr van Zyl went to the security gate where the strike was
14 Transcript, Vol 1 at pp 6 to 7.
15 Ibid at p 12, lines 29 to 32.
16 Exhibit 1.
11
occurring. Mr Boer made his observations from the boardroom. He confirmed
that the first ultimatum dated 3 April 2023 17 was placed on the security guard
window at about 09H00. He stated according to his knowledge, the striking
workers did not return to their workstations at 10H30 as instructed in this
ultimatum. He stated that at 14H00 , he did not note any attendance by
employees on the shop floor and he left the Feltex premises at about 15H00.
[34] He stated that according to Feltex’s clocking system, the plaintiffs worked on 4
and 5 April 2023 and “thinks” he did not go to Feltex on 4 and 5 April 2023. He
was not involved in the grievance hearing that pertained to the complaint
against Mr. Gilbert. Mr Du Pisanie instructed him and Mr van Zyl to go to
Feltex on 6 April 2023 and he stated that “What happened on Monday [3 April
2023] happened again on Thursday [6 April 2023]”.
[35] Mr. Boer confirmed that they arrived at Feltex on 6 April 2023 at around
09H00 or 10H00 and the workers were on strike action as depicted in the
video footage. About 30 employees were on strike, a bigger number
compared to 3 April 2023 and the striking employees were more active on 6
April than they had been on 3 April 2023.
[36] He observed that no machines were running on the shop floor and this was
communicated to Mr du Pisanie. He also observed Mr Milan at the security
gate, placing the last and final ultimatum dated 6 April 2023 18 on the security
gate windows and the employees continued striking until after 14H00. He left
the Feltex premises at around 15H00 as no further instructions were issued to
him.
[37] His evidence is that he knew the plaintiffs as he worked with them; however,
he did not at any stage, with the benefit of the video footage, identify the
striking workers in the video footage. He confirmed that he contributed to
populating the schedule 19 which indicates who was not at the workstation by
viewing the fac e recognition time and attendance printouts received from
viewing the fac e recognition time and attendance printouts received from
Feltex. Although Mr. Boer did not identify the plaintiffs in the video footage, he
17 B2.
18 B19.
19 B 161 to 162.
12
was able to identify a Feltex female employee entering the turnstyle at the
security gate on 3 April 2023, while the strike was ongoing.
[38] Mr. Boer confirmed that the plaintiffs were at work on 4 and 5 April 2023.
Some had returned to work after the first ultimatum was issued and were
given final written warnings for their conduct. He confirmed that employees
who were able to prove that they were ill an d had not participated in strike
action on 6 April 2023 were “excused”. He confirmed that about 40 to 50 final
written warnings were issued by him to employees who participated in the
strike action from 3 to 6 April 2023 but heeded to ultimat a.20 He further
confirmed that dismissal “letters” were issued by him and Mr van Zyl on
instructions from Adcorp Blu m anagement, which “letters” the employees
refused to sign. 21 These documents are not dismissal letters – they are
entitled “Disciplinary Outcome Form ”. Mr Boer explained Adcorp Blu did not
have standard dismissal letters.
[39] Mr Boer confirmed that the plaintiffs were on strike action on 6 April 2023, as
their shift started at 06H00 and they did not report to their workstations. When
the plaintiffs were dismissed by Feltex on 6 April 2023, he received
instructions from Adcorp Blu management to issue the plaintiffs with dismissal
letters. He confirmed that he sent the plaintiffs a voice note 22 in which he
informed them that “people who are dismissed from Feltex are dismissed from
[Adcorp] Blu” and they are to appear at his offices to receive documentation
relating to the Provident Fund and Unemployment Insurance Fund forms.
[40] Mr Boer stated that all the ultimata were clear and afforded the plaintiffs
sufficient time to consider their actions.
Evidence for the plaintiffs
20 B159 is an example of such final written warning as was confirmed by Mr Boer.
21 B 33 to B55.
22 Exhibit 2.
13
[41] The plaintiff’s pleaded case is that they were not on strike action and were
caught up in the strike of Feltex employees and were prevented by them from
entering the plant.
Mr Shoko:
[42] Mr. Shoko’s evidence, confirmed by Mr Molapo, was that the plaintiffs had 14
issues noted in a petition and a grievance form which they planned would be
handed up to human resources on 3 April 2023. He stated that after handing
over the grievance, the morning shift intended to return to work by 10h30. He
confirmed that their plan to handover the grievance to human resources did
not materialize as planned and ultimately, the plaintiffs including himself who
worked the morning shift did not render their services on 3 April 2023. He
confirmed that the first ultimatum was issued to the employees at 09H25 or
09H30 and this ultimatum was not heeded to. However, his evidence was that
“no one worked” on 3 April 2023.
[43] He confirmed that a notice was issued to the employees at 12H00, which was
pasted on the window at the security gate – this notice called upon employees
to return to work by 2pm as they had ignored the first ultimatum that was
issued at 09H45.23
[44] Mr Shoko stated that shop stewards who met with management during the
course of the morning on 3 April 2023 reached an agreement concerning the
grievance hearing that would be held t o deal with the employees’ grievances
to the effect that Mr Gilbert would leave the premises, would work from home
and would return to work when the grievance hearing was arranged.
[45] Mr Shoko stated that the plaintiffs rendered their services on 4 April 2023.
[46] Mr Shoko sought to explain that why the plaintiffs were not at their workstation
on 5 April 2023. He stated that they were called by Ms Thandekwayo for her
to explain to them the presence of Mr Gilbert on the shop floor. This version is
not pleaded.
23 A53.
14
[47] Mr. Shoko made much about himself having a rapport with Mr Gooch, Feltex’s
General M anager for speaking up about the workers’ dissatisfaction with
seeing Mr Gilbert walking on the shop floor with M r. Milan, creating an
impression of a ‘bro therhood’ that was bothersome to the employees. He
further made much about the workers walking to the security gate to wait to
hear from management. It is not pleaded that the employees left their
workstations to have a meeting with the union shop steward or to have a
meeting with management at the security gate.
[48] Mr Shoko’s evidence was not coherent. He further stated that at a point, the
employees asked to take a “ lunch” break and were permitted to take their
break between 09h50 to 10h20. His evidence was that he went to wait at the
boardroom as he was a witness in the grievance hearing. At 13h25, Ms
Thandekwayo informed him that Mr Milan stated that the grievance hearing is
cancelled and all employees of the morning and afternoon shifts were to
attend at the canteen at 13h45 in order for her to provide them with an
explanation. Once more, none of this is pleaded.
[49] Mr Shoko left the premises as his shift had ended and he does not know what
happened in the afternoon.
[50] Mr Shoko gave a long-winded explanation about how he was unable to gain
entry to the Feltex premises on 6 April 202 3 when he arrived for work. H e
stated that armed security refused to permit him entry. Again, this version is
not pleaded. He also stated that Feltex management prevented the plaintiffs
from gaining entry into the premises on 6 April by not placing attendance
registers at the security gate for the employees to sign to gain access to the
premises. Once again, this version is not pleaded. Of importance, Mr Shoko
distanced himself from the plaintiffs’ pleaded case that they were “caught up”
in industrial action not of their making and could not proceed to their
workstations on account of the conduct of Feltex employees.24
workstations on account of the conduct of Feltex employees.24
24 See: Pleadings, statement of claim at paras 32.1 t o 32.2 on p 9 and t ranscript Vol 4 at p 7, lines 20
to 29 and p 8, lines 1 to 15.
15
[51] According to Mr Shoko, he worked his morning shift and left the premises on
5 April 2023 when his shift ended. He was confused about the ultimatum that
was issued on 5 April 2023 calling for representations by 07H30 on 6 April
2023 explaining why they should not be dismissed for partaking in an
unprotected strike action from 09H15 to 10H20 and from 14H20 on 5 April
2023,25 whereas he had worked his shift until 14H00 on 5 April 2023 and now
was blocked f rom entering the premises. He made several contradictory
statements – he did not see the final ultimatum that was posted, he did not
know about it or what was expected of him . His evidence is that around
08H00 on 6 April 2023, he read the final and last ultimatum that was issued to
the morning shift 26 and he understood it to be “ lies”27 as he was unaware of
any document requiring employees to make representations. His evidence
was that he was not aware of any representations made by SACTWU on 5
April 2023 at 18H45 setting out reasons why the employees should not be
dismissed.28 He only became aware of SACTWU’s representations in this
regard in 2025 during preparations for the present trial proceedings.
[52] Mr Shoko confirmed that the plaintiffs were dismissed at 09H30 on 6 April
2023 and he formed part of the employees seen on the video footage dancing
and protesting in a circle outside the security gate following their dismissal. He
stated that he was not aware of the appeal that was lodged by SACTWU
against the dismissal of their members.29
Mr Molapo:
[53] Mr Koketso Molapo testified that he worked the afternoon shift that
commences at 14H00. He sent a WhatsApp message to his team leader on 6
April at 15H36 informing him that he is unable to attend work as he was
attending a funeral. He explained that when he went to collect his dismissal
letter on 3 May 2023, he inserted on the “disciplinary outcome form”30 that the
dismissal is unfair, as he informed his team leader “ during that day ” that he
25 B15.
dismissal is unfair, as he informed his team leader “ during that day ” that he
25 B15.
26 B19.
27 Transcript Vol 4 at p 9, lines 25 to 29 to p 10 at lines 1 to 16.
28 B17.
29 The appeal appears at B24 to 26.
30 B37.
16
“won’t be available”. Mr Molapo stated that on 3 May 2023, he had in his
possession, a death certificate proving that he attended a funeral, but he
could not explain when the death certificate was handed over to Adcorp Blu. It
was not put to Mr Boer that Mr Molapo was not at work on 6 April 2023 due to
attending a funeral. Further, Mr Molapo, who was a member of SACTWU, did
not tell his union that he was attending a funeral when the union was making
representations and lodging an appeal – his reason for not informing
SACTWU is because he was already dismissed and there was no one to
communicate with. This explanation is unconvincing.
[54] He confirmed that he signed the petition that was to be handed over to
management on 3 April 2023. He further confirmed that he only worked six
hours on 3 April 2023 as he arrived l ate for work due to transport problems.
He claimed not to know about any strike action on his late arrival . On 4 April
2023, he worked eight hours. On 5 April 2023, he clocked in before the
afternoon shift commenced and explained that he did not work as there was a
hearing; as n o leaders were present , he left the workstation and went and
stood outside in the yard with fellow shift employees , waiting for the hearing
and denied participating in strike action. This version is at odds with the
plaintiff’s pleaded case.
Analysis
[55] The strike occurred on Feltex’s premises.
[56] A material contradiction arises in the evidence of Adcorp Blu’s witnesees. Mr
Boer’s evidence is that only Mr Du Pisanie, himself and Mr van Zyl from
Adcorp were present at Feltex on 3 and 6 April 2023 and only Mr du Pisanie
met with Feltex management in the boardroom to discuss how to deal with the
strike action. Mr Le Roux was vague in respect of what occurred on 3 and 6
April 2023 in meetings with Feltex management. He vaguely referred to
numerous meetings, phone calls and messages. His evidence that ultimata
numerous meetings, phone calls and messages. His evidence that ultimata
were placed on “notice boards” is not borne out by with the video evidence
and oral evidence tendered by Mr Boer that the ultimata were placed in glass
windows at the security guard house.
17
[57] Further, his evidence that the strike had waned on 6 April 2023 does not
accord with the video footage and the evidence of Mr Boer. Mr Le Roux’s
evidence in respect of what occurred on 3 and 6 April is unreliable. His
evidence that he was not physically present when the ultimata were issued
totally removes him from the Feltex premises on 3 and 6 April 2023. This is
buttressed by the further contradiction in the evidence of Messrs Boer and Le
Roux with regard to the atmosphere of the strike action on 3 and 6 April 2023
– Mr Boer described the atmosphere as having escalated – this is borne out
by the video footage, whereas Mr Le Roux stated that the atmosphere had
waned due to the burning sun. Mr le Roux had no independent knowledge of
what transpired on 3 and 6 April 2023 and wanted to refer to his notes at a
point during his ev idence. This request was refused by his own legal
representative. Further, he was cautioned by the Court to stop making notes
on the witness bundle when questions were posed to him. Mr Le Roux could
not assist the Court with the impact of the strike action on Adcorp Blu or
Feltex that is a consideration in determining whether dismissal is the
appropriate sanction. Therefore, the evidence of Mr Le Roux in respect to
what occurred on 3 and 6 April 2023 is unreliable. This taints his credibility as
a witness.
[58] Mr Boer conceded with reference to Adcorp’s schedule,
31 that the plaintiffs
participated in a strike action over two days. 32 Although he did not specify
these two days, on his own version, it was 3 and 6 April 2023, when was
present at Feltex’s premises following Mr du Pisanie’s instructions that he
must attend at the premises. In the same breath, Mr Boer conceded that the
plaintiffs complied with the ultimatum of 3 April 2023. 33 Having made these
concessions, it is concerning Adcorp Blu dismissed the plaintiffs for
participating in strike action from 3 to 6 April 2023 as recorded in the dismissal
participating in strike action from 3 to 6 April 2023 as recorded in the dismissal
notices issued by Adcorp Blu. Mr Boer gave the impression of a supervisor
who danced to the tune of the marching orders of his managers and Feltex ,
without establishing the facts.
31 B 161.
32 Transcript, Vol 2, p 81 at lines 10 to 20.
33 Ibid at p 82, lines 1 to 20.
18
Did the plaintiffs engage in strike action on 3 April 2023? If so, what was the duration
of the strike action?
[59] Contrary to the plaintiff s’ pleaded case that they did not participate in strike
action but were “caught up” in the conduct of Feltex employees that prevented
them from accessing the Feltex premises to render their services, on the
version of both Messrs Shoko and Molapo, the plaintiffs’ had a grievance with
demands – one of which was the removal of a manager who was ill -treating
employees. The employees agreed amongst themselves that they would not
render services at the start of the morning shift on 3 April 2023 at 06H00, as
they intended to hand up a memorandum to Feltex, containing their demands
and thereafter, render their services. On the evidence of Mr Shoko, meetings
regarding a grievance hearing concerning Mr Gilbert were held during the
morning of 3 April 2023 while the employees withheld their labour. Their
conduct on 3 April 2023 is consistent with the definition of strike action in that
they withheld their services in the furtherance of a demand.
[60] On Mr Shoko’s evidence supported by the schedule 34 of the strike action
compiled by Adcorp Blu, most of the morning shift workers did not render
services on 3 April 2023 and therefore, they participated in strike action for the
duration of 8 hours, save for plaintiff Papiki Dikobe, who worked his eight hour
morning shift. Two of the plaintiffs were scheduled to work the afternoon shift.
One of them, namely Paul Moeng worked his eight hour afternoon shift, but
Koketso Molapo worked for only six hours and therefore, it is taken that he
participated in strike action for two hours. His explanation about transport
problems is unconvincing and is not supported by any indication that he
informed his team leader that he would be late on the day.
Did the plaintiffs participate in strike action on 4 April 2023?
[61] It is not disputed that the plaintiffs worked their shifts on 4 April 2023. Thus, I
[61] It is not disputed that the plaintiffs worked their shifts on 4 April 2023. Thus, I
do not find that they participated in strike action on this date.
34 B163 to 164.
19
Did the plaintiffs participate in strike action on 5 April 2023? If so, what was the
duration of the strike action?
[62] Most of the plaintiffs did not participate in strike action on 5 April 2023, save
for the following employees: Messrs. Paul Moeng, Koketso Molapo and
Jabulani Mkansi who did not work the full afternoon shift as no clock out data
is recorded. Mr Molap o’s evidence is that he sat in the yard and waited for
instructions. Therefore, I find that Mr Molapo participated in strike action
although the duration cannot be ascertained from Adcorp Blu’s schedule.35
There is no explanation why Messrs. Moeng and Mkansi were not at work and
the duration of their absence cannot be ascertained. In the scenario of a strike
action, while the onus rests on the employer to show that the dismissal was
fair, it is for an employee to explain his or her conduct.36
[63] The schedule indicates that Messrs Thulani Chauke and Ernest Mokoko did
not work the afternoon shift. No clocking data is available for them . I therefore
find, in the absence of any explanation, that they participated in strike action
for the duration of eight hours on 5 April 2023.
[64] It cannot be gainsaid that the Feltex employees were on strike on 5 April
2023. On Adcorp Blu’s own version, most of the plaintiffs worked the morning
shift on 5 April 2023 and ended their shift at 14H00. The employees that left
work at 14H20 and did not work the afternoon shift were not the plaintiffs,
barring Messrs. Moeng, Molapo and Mkansi. Therefore, the penultimate
ultimatum of 5 April 2023 did not apply to most of the plaintiffs as they had not
participated in an unprotected strike action on 5 April 2023 , save for the
aforementioned three plaintiffs.
Did the plaintiffs participate in strike action on 6 April 2023? If so, what was the
duration?
35 B163 to 164.
36 See: Sephai v Barloworld Transport (Pty) Ltd (JS411/16) [2021] ZALCJHB 446 (14 December 2021)
at para 12 and 13. For the difference between the onus of proof and evidential burden s ee DB
Contracting North CC v National Union of Mineworkers and Others [2015] 10 BLLR 973 (LAC) at para
75, Jugwanth v Mobile Telephone Networks (Pty) Ltd [2021] 4 All SA 346 (SCA) at para 6.
20
[65] The schedule indicates that all the plaintiffs on both shifts partook in strike
action on 6 April 2023. According to Mr Boer, the plaintiffs on the morning shift
did not report to their workstations to commence the shift at 06H00, therefore,
they were on strike action. Further, as the situation remained unchanged at
14H00, the afternoon shift as well, were on strike action.
[66] According to Mr Shoko, the plaintiffs were confused on 6 April 2023 about the
ultimatum that was issued on 5 April 2023 as they had worked their shift and
were “blocked” from entering the premises by Feltex management. Plaintiff
Enock Khoza is recorded to have been off sick on 5 April 2023,
37 yet, he was
dismissed.
[67] The ultimatum is confusing, as it gives the employees a deadline of 07H30 to
make representations why they should not be dismissed and failing which,
they would be dismissed. Therefore, the version of Mr Shoko that there was
confusion on the morning of 6 April 2023 and that the plaintiffs were prevented
from entering the premises is probable.
[68] The video footage of 6 April depicts strike action and Mr Milan pasting ultimata
on the security windows. It also depicts some individuals standing and looking
on. Once more, it cannot be gainsaid that both Feltex employees and Adcorp
Blu employees were observed striking by Mr Boer. In my view, Adcorp Blu did
not make any serious effort to identify from the numerous video footage, on 6
April 2023 which of its own employees who work the morning and afternoon
shift were participating in the strike action at the security gate . It painted its
own employees with the same brush.
[69] Therefore, Adcorp Blu did not discharge its onus to prove on a balance of
probabilities that its own employees par ticipated in strike action on 6 April
2023.
Ultimata
[70] As the strike action occurred on its premises, undertaken by both Feltex and
Adcorp Blu employees, Feltex took the lead in issuing and communicating the
37 B 164.
21
ultimata. It is not disputed that Adcorp Blu did not issue separate ultimata to
its own employees. It did not have to do so, as it worked in concert with Feltex
in managing the strike action. The ultimata were also addressed to Adcorp Blu
site management.
[71] Feltex communicated with SACTWU and NUMSA at the earliest opportunity,
at 07h58 on 3 April 2023 to seek their intervention.
[72] In terms of the pre- trial minute,38 Adcorp Blu records that the first ultimatum
was issued at 08h00 on 3 April 2023, giving the employees until 10H30 AM to
return to work. However, according to Adcorp Blu’s notice of the same date to
all employees, the two unions and Adcorp Blu site management, the first
ultimatum was issued at 09H25 on 3 April 2023. 39 The first ultimatum was
directed to all the employees. The deadline of 10H30 was applicable to the
morning shift. On the version of Mr Boer and considering Feltex’s
correspondence, the employees eventually heeded to this ultimatum.
[73] In Feltex’s penultimate ultimatum to all employees, the two unions and Adcorp
Blu site management of 5 April 2023, Feltex records that the employees were
issued with an ultimatum on 3 April 2023 and they eventually returned to
work.40 On the facts, the employees rendered their services on 4 April 2023.
With Mr Shoko’s ramblings about meeting in the canteen, assembling at the
security gate for the reason of waiting for feedback about an aborted
grievance hearing on 5 April 2023, the schedule shows that the majority of the
plaintiffs worked their morning shift and only two of the plaintiffs, Messrs
Moeng and Molapo were s cheduled for the afternoon shift. Five of the
plaintiffs are recorded to have been on strike action on 5 April 2023, being,
Messrs Moeng, Molapo, Chauke, Mkansi and Mokoko.
41
[74] Mr Shoko’s evidence is that the employees were confused on the morning of
6 April 2023 when they reported for duty, as to the reason for this penultimate
6 April 2023 when they reported for duty, as to the reason for this penultimate
ultimatum. The basis for the penultimate ultimatum on the afternoon of 5 April
38 At para 17.4 on p 40 of the pleadings bundle.
39 B 4.
40 B15 to 16.
41 B163 to 164.
22
2023 directed at all the plaintiffs in unclear, as the majority worked their eight
hour morning shift that ended at 14H00. The afternoon shift starts at 14H00
and ends at 22H00. The penultimate ultimatum states that the afternoon shift
left work at 14H20 and it was unclear, as it did not indicate what time the
employees were expected to return to work on 5 April 2023. The ultimatum
called upon the employees to submit written representations by 07H30 on 6
April 2023 explaining why they should not be dismissed for refusing to work
normally. They were further warned that failure to provide written
representations would lead to dismissal . SACTWU was astute and provided
the written representations on 5 April 2023 at 18H45. 42 SACTWU’s response
was met with a last and final ultimatum, which, on Adcorp Blu’s pleaded
version, was issued at 08H00 on 6 April 2023, instructing the employees to
return to work by 09H30.43
[75] Adcorp Blu’s pleaded version is at odds with the evidence of Mr Boer, who
stated that on 6 April 2023, he and Mr van Zyl arrived at the premises at
09H00 or 10H00 and repeated the same processes as had occurred on 3
April 2023 – they went to the boardroom, waited for instructions outside while
Mr du Pisanie met with Feltex management, he went to make observations on
the shopfloor and reported these to Mr Du Pisanie, and Mr Milan went to issue
ultimata to the employees at the security gate. It is improbable that all this
could have occurred within 30 minutes.
[76] Feltex issued not one, but two last and final ultimata on 6 April 2023. The first
directed the employees to return to work by 09H30; 44 the second directed all
employees to return to work by 15H00.45
[77] Mr Boer ’s evidence regarding what had transpired after the last and final
ultimatum was issued is unclear. He stated that after 09H30 on 6 April 2023,
him and Mr van Zyl were waiting for instructions outside the boardroom and
afterwards, “emails were sent out ”. He stated that decisions were taken
afterwards, “emails were sent out ”. He stated that decisions were taken
between Feltex and Mr du P isanie in the boardroom behind closed doors. He
42 B17.
43 Pleadings, pre-trial minute at para 17.4 on p 40.
44 B 19.
45 B 22.
23
proceeded to state that at 14H00, there was no change as the strike action
continued past 14H 00. Him and Mr van Z yl waited for ins tructions – none
came and they left the premises at 15H00 an d h e does not know what
happened thereafter.46
[78] In view of the aforegoing, the penultimate ultimatum issued on the sequence
of events, on the afternoon of 5 April 2023 was unclear and ambiguous for the
reasons mentioned above.
[79] The last and final ultimatum that was issued in the morning of 6 April 2023
instructing the employees to return to work by 09H30 di d not afford the
employees sufficient time to reconsider their position and actions. On the
sequence of events, at 07H37, Ms Haywood sent an email to SACTWU
thanking him for written representations sent by him on the previous day.
SACTWU was informed inter alia , that the decision by Feltex to issue a final
ultimatum was not taken lightly and was warned that if their members would
be dismissed if they persisted with their refusal to work.
47
[80] Considering the tone of Feltex’s email to the unions on 6 April 2023 at 07H37,
in my view, a decision had already been taken then, to issue a final ultimatum
with an intention to dismiss the employees. This is confirmed by the dismissal
of all morning shift employees having taken effect at 09H30 48 thus not
affording the employees sufficient opport unity to reconsider their actions and
for the unions to engage with their members.
[81] In view of Adcorp Blu’s pleaded version that the last ultimatum was issued at
08H00 on 6 April 2023, the second last and final ultimatum dated 6 April 2023
directing the employees to return to work by 15H00 makes no logical sense,
as it would have been impossible for the employees to comply with the time
frame as they had already been dismissed at 09H30 on 6 April 2023. No
evidence was led by Adcorp Blu on how and when the second last and final
ultimatum was issued.
46 Transcript Vol 2, pp 63 to 64.
47 B18.
48 B 23.
24
[82] Adcorp Blu’s version that the plaintiffs continually refused to return to work
from 3 to 6 April 2023 is not borne out by the schedule it relies on. Feltex
acknowledged that after the ultimatum was issued on 3 April 2023, the
employees eventually returned to work. It is not disputed that the plaintiffs
rendered their services on 4 April and on 5 April, most of the plaintiffs
rendered their services barring Messrs Moeng, Molapo, Chauke, Mkansi and
Mokoko. On 6 April 2023, a decision to dismiss the plaintiffs au fait accompli –
the plaintiffs who arrived for the morning shift were not on strike action, as
they had rendered their services the previous day barring Messrs Moeng,
Molapo, Chauke, Mkansi and Mokoko. The penultimate ultimatum was not
applicable to the plaintiffs that rendered their services on the morning shift on
5 April 2023 nor to Mr Khoza as he was ill . Even if they were viewed to be on
strike action on 6 April 2023 on the morning shift, they were not afforded
sufficient opportunity to consider their actions – they were confused –
SACTWU had complied with the penultimate ultimatum and still a decision
was taken to dismiss the employees despite such representations being
made. No evidence was led on the issuance of the second last and final
ultimatum. I have taken cognisance of email correspondence that the second
last and final ultimatum was sent by Ms Haywood on 6 April 2023 at 14H03,
however, no evidence was led on this.
Was the strike action unprotected, if so, was there an attempt to comply with Chapter
IV of the LRA
[83] The grievance that formed the demand of the plaintiffs is not an interests
dispute thus Chapter IV if the LRA is inapplicable. In the circumstances,
striking over a rights interest dispute renders the strike action unprotected.
[84] The parties had agreed to hold a grievance hearing to address the plaintiffs ’
demand. The hearing did not proceed – the reasons for this are unclear - the
demand. The hearing did not proceed – the reasons for this are unclear - the
plaintiffs did not make any averments regarding this hearing and Messrs Le
Roux and Boer were not present on 5 April 2023. That being said, there was
an attempt to deal with the grievance by agreeing to hold a grievance hearing
to resolve the employees’ dispute.
25
Was dismissal the appropriate sanction?
[85] That the plaintiffs participated in an unprotected strike does not automatically
warrant dismissal.
[86] The pre- trial minute records the date of the plaintiffs’ dismissal as 9 May
2023.49
[87] No evidence was led regarding the duration of the strike action on 5 April
2023 of Messrs. Moeng, Molapo and Mkansi and the effect of their strike
action on the operations Feltex. Adcorp Blu did not demonstrate the penalties
it had to pay, if any for the loss of production over the hours these plaintiffs did
not work. Likewise, no evidence was led on the impact of the failure by
Messrs. Chauke and Moloko to render services.
[88] The plaintiffs do not allege any provocation by Adcorp Blu.
50 In the premises,
the dismissal is substantively unfair.
[89] On Mr Boer’s evidence, Adcorp Blu blindly followed the instructions of Feltex
to dismiss the plaintiffs without hearing their side. It is common cause that no
disciplinary hearing was held prior to the plaintiff’s dismissal on 6 April 2023,
effective 9 May 2023. The plaintiffs were not provided with a fair opportunity to
state their case.
[90] In view of the aforegoing, the dismissal of the plaintiffs is both procedurally
and substantively unfair.
[91] Reinstatement is the primary remedy for dismissal unless the exceptions in
section 193(2) of the LRA are demonstrated. Adcorp has not indicated why
reinstatement is impracticable.
Costs
[92] In this Court, the general rule that costs follow the result does not apply. The
duration of this trial was unnecessarily extended by the parties devoting time
to issues that were not pleaded and Adcorp Blu supplementing it s trial bundle
49 Pleadings, pre-trial minute at para 4.2 on p 35.
50 Pleadings, pre-trial minute at para 17.5 on p 40.
26
midway. The requirements of the law and fairness indicate either party should
pay its own costs.
[93] In the premises, the following order is made:
Order
1. The dismissal of the plaintiffs is substantively and procedurally unfair.
2. The respondent is to reinstate the plaintiffs to their date of dismissal
being 9 May 2023.
3. The plaintiffs reinstated retrospectively in terms of order no. 2 above
are to report for duty at the offices of the defendant by no later than 4
May 2026.
4. Messrs. Paul Moeng, Koketso Molapo, Jabulani Mkansi, Thulani
Chauke and Ernest Mokoko are issued with a final written warning for
their participation in unprotected strike action on 5 April 2023.
5. Each party is to pay its own costs.
_______________________
M T M Phehane
Judge of the Labour Court of South Africa
27
Appearances:
For the plaintiffs: Mr SM Ntshaba, Mr. N. Voyi
of Ndumiso Voyi Associates Inc. Attorneys
For the defendant: Ms A. Dippenaar of Kirchmanns Incorporated.