In the case of N Msomi & 273 others v Capacity, Transman, Capital Outsourcing and Edcon Case No D659-15 Labour Court the principle of fair dismissal – as a result of strike action – was dealt with.
The employees conceded that they were engaged in unprotected strike action on 3 December 2014. Their case is that the sanction of dismissal was unfair because:
- They were provoked into striking,
- The strike was of limited duration (from 10h00 to 15h30 on 3 December 2014) and peaceful and,
- The ultimatums were not explained to them.
Their case on provocation was that on 3 December they requested printouts of the bonuses that were to be paid to the employees. The employer was then given until 10h00 to hand over the printouts, failing which employees would start striking. When the ultimatum was not met, they went on strike.
On 4 December, they tendered their services but the clock-in system had been de-activated. It was not disputed that the employees went on a series of unprotected strikes in October and on 4 November 2014, and that they received ultimatums which recorded that their conduct could lead to dismissal.
The probabilities favoured the employer’s version that, ordinarily, the schedules would only be prepared during the first week of December, and that they undertook to provide the bonus reports by Friday, 5 December 2014.
Lt was not disputed that three ultimatums were issued on 3 December calling on the employees to return to work and warning them that they could face disciplinary action or dismissal. They did not comIy with the ultimatums and eventually left the premises at 15h30
It is also clear from photographs submitted by the employer that the employees had placed the notices on the notice boards.
lt is common cause that no striker informed any representative of the employer that the strike was over and/or that they intended working. Violence occurred in the afternoon of 4 December 2014, when stones were thrown at cars driven by the management and this caused damage to the vehicles. The employees were, however, not dismissed for violence and the issue of violence would only be relevant in considering the relief of reinstatement in the event of substantive unfairness being found.
The Labour Court concluded that the conduct of the employees rendered the employment relationship intolerable and dismissal was the only appropriate sanction.
The strike was not in response to unjustified conduct by the employer. The employees knew that because it was the employer’s annual practice the bonus information would be made available to them individually in due course. ln addition, their representatives were told on 2 December that the information would be there by 5 December.
The employees have shown a propensity to strike on the spur of the moment. ln the space of two months they had embarked upon six unprotected strikes. The strikes took place despite undertaking to report back in order to provide relevant information meetings being put in place to discuss grievances.
This was the busiest time of the year leading to Edcon’s summer peak and the dismissal was found to be fair.