Dhlamini and Others v Mosego Home t/a New Takalani (JS 544/16) [2018] ZALCJHB 363 (9 November 2018)

Dhlamini and Others v Mosego Home t/a New Takalani (JS 544/16) [2018] ZALCJHB 363 (9 November 2018)

The court found that the applicants were dismissed solely for participating in a protected strike, which is expressly prohibited as grounds for dismissal under section 187(1)(a) of the Labour Relations Act. No evidence was presented to justify their dismissal or to oppose reinstatement. The court was satisfied, based on the uncontested evidence and the statutory protection afforded to employees participating in protected strikes, that the dismissal was automatically unfair and that reinstatement was the appropriate remedy.

Citation
[2018] ZALCJHB 363
Parties
Applicant: Busisiwe Dhlamini & 19 Others; Respondent: Mosego Home t/a New Takalani
Court
Labour Court Johannesburg
Jurisdiction
South Africa
Judgment Date
9 November 2018
Case Number
JS 544/16
Procedural Posture
Default Judgment / Judgment After Failure to File Response; Application for Default Judgment
Outcome
Applicants' dismissal was declared automatically unfair; reinstatement ordered.
Judges
Z Lallie
Legal Topics
Automatically Unfair Dismissal, Protected Strike, Reinstatement, Labour Relations Act, Default Judgment
Labour Law Automatically Unfair Dismissal Protected Strike Reinstatement Labour Relations Act Default Judgment

Case Brief

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Parties

Busisiwe Dhlamini & 19 Others

Applicant

Mosego Home t/a New Takalani

Respondent

Procedural Posture

Default Judgment / Judgment After Failure to File Response; Application for Default Judgment

Legal Issues

  1. 1 Whether the applicants' dismissal for participating in a protected strike was automatically unfair.
  2. 2 Whether the applicants are entitled to reinstatement as a remedy for their dismissal.

Ratio Decidendi

The court found that the applicants were dismissed solely for participating in a protected strike, which is expressly prohibited as grounds for dismissal under section 187(1)(a) of the Labour Relations Act. No evidence was presented to justify their dismissal or to oppose reinstatement. The court was satisfied, based on the uncontested evidence and the statutory protection afforded to employees participating in protected strikes, that the dismissal was automatically unfair and that reinstatement was the appropriate remedy.

Court Disposition

Applicants' dismissal was declared automatically unfair; reinstatement ordered.

Orders

  • The applicants' dismissal on 3 and 9 March 2016 was automatically unfair.
  • The respondent is ordered to reinstate the applicants with retrospective effect to the date of their dismissal within 5 days of the applicants tendering their services to the respondent.