Labour Court reinstates workers dismissed during unprotected strike

Employees who were unfairly dismissed after participating in an unprotected strike will be reinstated following a Labour Court ruling. 

The 23 employees were joined in their legal battle by their trade union, the National Union of Mineworkers (NUM), when they went up against their employer, Baseline Civil Contractors.

The Labour Court also ruled that the employees be compensated with 16 months' back pay arising from their retrospective reinstatement.

The workers contested the fairness of their dismissals for allegedly participating in an unprotected strike on December 9, 12, 13, and 14, 2022, and for gross insubordination in failing to comply with lawful instructions in the form of ultimatums to return to work.

They conceded that they participated in the strike; however, when they returned to the Stellenbosch work site on December 12, 2022, they were locked out and were subsequently dismissed on January 23, 2023. 

Enquiries to the company’s lawyers were unanswered by deadline.

Western Cape regional secretary for NUM, Mlondolozi Limaphi, welcomed the ruling. 

"The court has agreed that the employees were provoked in the decision they made. As a trade union, it was important for us to fight alongside our members for this victory. The court found that they were unfairly dismissed, and we are happy with the outcome," said Limaphi. 

The strike was instigated by the employer’s decision to change the dates of paying an incentive bonus and to pay this in two parts.

The employees alleged the strike was a response to unjustified conduct by the employer.

The incentive was an annual attendance bonus, which provided for a reduction in the bonus for unauthorised absenteeism. Since 2017, it has been paid in mid-December before employees commenced taking their annual leave.

The employees were aggrieved by the change of payment date as it caused uncertainty and confusion, and upset their financial plans.

The company rebutted that the alteration of the bonus payment was justified and was communicated to the employees and that there was no provision in the collective agreement stating when the bonus had to be paid out. 

According to the company director, they suffered significant financial loss in the region of R6.5 million due to the three-day strike.

"The company noticed that in the previous two years, following the payment of the bonus, a lot of unauthorised absenteeism had taken place in the last two weeks of the year. This resulted in an overpayment of the bonus to staff who had been absent without authority before their leave commenced," court documents read.

"Consequently, in 2022, it decided to pay the bonus only on 23 December instead of the usual mid-December date, so it could adjust the bonus to account for any unauthorised absenteeism in the run-up to the shutdown."

Labour Court Judge, Robert Lagrange, said: "Unprotected strike action is a serious form of misconduct because it is intended to harm the business of the employer, and the impact of concerted collective action typically has a much greater prejudicial impact on an employer than individual acts of misconduct. 

"Further, it undermines the principle of not resorting to economic force without first trying to settle a dispute by means of consultation or negotiation and without using the conciliation machinery of the Labour Relations Act (LRA). Nonetheless, the mere fact that employees embark on unprotected industrial action does not automatically mean that a dismissal for such misconduct is invariably fair."

Judge Lagrange said it was obvious that no strike would have taken place had Baseline not decided to alter the timing of the bonus payment. He said he did not think that the dismissal was a fair sanction, even though it warranted a serious disciplinary sanction.

Judge Lagrange ruled that a final written warning valid for 12 months is a sufficient sanction for the misconduct.

"(The company’s) decision to alter the payment date to coincide with the other remuneration payments made on 23 December 2022 was taken only a week before the shutdown and was only conveyed to the employees a day later. Baseline failed to consult with the union or shop stewards beforehand about its intentions, but presented it as a fait accompli (undeniable fact) to workers," said Judge Lagrange. 

Cape Times