Automated Summary
Key Facts
The case involves 135 employees of Choppies South Africa who were dismissed for participating in a strike. The strike was called by the now-deregistered Workers Association Union (WAU) over a shift change in the Rustenburg branch and the suspension of a shop steward. The dispute was referred to the CCMA but unresolved, leading to a 48-hour strike notice. The court determined the strike was unprotected under the Labour Relations Act (LRA) as it was based on a grievance (suspension of a shop steward) not covered by the certificate of outcome. Dismissals were found substantively and procedurally fair for Rustenburg employees but substantively unfair for those in Koster, Lichtenburg, and Swartruggens. The court also dismissed claims from deceased employees due to lack of estate substitution.
Issues
- The court assessed the fairness of dismissals for employees participating in the unprotected strike. It found dismissals of Rustenburg applicants procedurally fair but substantively fair, while dismissals of Koster, Lichtenburg, and Swartruggens applicants were substantively unfair. Mr. Mabusela's dismissal was deemed both substantively and procedurally unfair due to procedural failures in his suspension and disciplinary process. Compensation and reinstatement were ordered based on these findings.
- The court determined whether the strike called by the Workers Association Union (WAU) was protected under the Labour Relations Act (LRA). Key factors included the alignment of the strike notice with the certificate of outcome from conciliation and adherence to section 64 procedures. The court concluded the strike was unprotected as the grievance in the notice (suspension of a shop steward) differed from the certificate's (unilateral shift changes), and the strike was not preceded by a valid certificate of outcome for the specific issue.
Holdings
- The dismissals of applicants from Koster, Lichtenburg, and Swartruggens were found substantively unfair, leading to compensation of three months' remuneration.
- The dismissals of Rustenburg applicants were determined to be substantively and procedurally fair.
- Claims of deceased employees not substituted by estates were dismissed.
- The dismissal of Itumeleng Lucas Mabusela was found to be both substantively and procedurally unfair. The court ordered his reinstatement with full retrospective pay.
Remedies
- The respondent must pay compensation equivalent to three months' remuneration to applicants from Koster, Lichtenburg, and Swartruggens within 14 days of this order.
- The respondent is ordered to reinstate Itumeleng Lucas Mabusela with full retrospective effect and pay his full back pay within 14 days of this order.
- The claims of deceased employees who were not substituted by the representatives of their estates are dismissed.
Legal Principles
- The court emphasized that the legality of a strike must be determined by the nature of the underlying dispute rather than the formalities of the strike notice. It concluded that the suspension of a shop steward constituted a dispute of right, not a mutual interest dispute, rendering the strike unprotected even though a certificate of outcome and 48-hour notice were issued for a different grievance.
- The court assessed the procedural fairness of the dismissals, noting that while applicants attended disciplinary hearings with union assistance, they chose not to participate. The court found the dismissals procedurally fair as the employer followed proper disciplinary procedures, and the applicants' non-participation did not invalidate the process.
- The employer was required to demonstrate that reinstatement was impractical. The court held that the respondent failed to provide evidence justifying the impossibility of reinstating Mr. Mabusela, particularly after citing SACCAWU v Woolworths, which mandates the employer to prove why reinstatement is not reasonably possible.
Precedent Name
- Trellicor (Pty) Ltd t/aTrellidor v National Union of Metal workers of SA (NUMSA) obo Mondli Mdwalane & Others
- Nkutha v Fuel Gas Installations (Pty) Ltd
- Ceramic Industries Ltd v t/a as Betta Sanitaryware v National Construction Building & Allied Workers Union (2)
- SACCAWU v Woolworths (Pty) Ltd
- Public Servants Association of South Africa v Minister of Justice & Constitutional Development and Others
- NUM obo Employees v CCMA
- Western Platinum Ltd v National Union of Mineworkers and Others
- Ramotsepane & Others v Barmont Truck Hire (Pty) Ltd
- Equity Aviation Services (Pty) Ltd v CCMA & Others
- SMCWU v Brano Industries (Pty) Ltd
Cited Statute
Labour Relations Act 66 of 1995
Judge Name
Baloyi AJ
Passage Text
- The strike was unprotected because the certificate of outcome on which the applicants are relying is about a unilateral change of conditions of employment, whilst the notice to strike raised a grievance of suspension of a shop steward.
- The dismissal of Itumeleng Lucas Mabusela is found to be substantively and procedurally unfair.
- The applicants' case, both on pleadings and oral evidence reveals an attempt to comply with relevant strike procedures in light of the referral of the dispute of unilateral change to terms and conditions of employment, followed by the issuing of the certificate, and the issuing of a 48 hours' strike notice.