DPD Laser Logistics (Pty) Ltd v Democratic True Revolutionary Union of South Africa (DETRUSA) and Others (2024/133059) [2024] ZALCJHB 478 (27 November 2024)

SAFLII Note: Certain personal/private details of parties or witnesses have been redacted from this document in compliance with the law and SAFLII Policy

FLYNOTES: LABOUR – Strike – Interdict – Real issues in dispute considered – Demands relating to suspension and then investigation of management employee –

Selective application of discipline (inconsistency) – Constitutes unlawful demand – Employer required to act

unlawfully to adhere to demand – Rights dispute susceptible to arbitration – Strike action not competent or permitted – Strike unprotected – Respondents interdicted and restrained – Labour Relations Act 66 of 1995, s 68(1).

THE LABOUR COURT OF SOUTH AFRICA, JOHANNESBURG

Reportable

Case no: 2024 – 133059

In the matter between:

DPD LASER LOGISTICS (PTY) LTD Applicant and DEMOCRATIC TRUE REVOLUTIONARY UNION OF SOUTH AFRICA (DETRUSA) First Respondent INDIVIDUAL RESPONDENTS WHOSE NAMES APPEAR ON ANNEXURE “A” Second to Further Respondents

Heard: 21 November 2024

Delivered: 27 November 2024

This judgment / reasons were handed down electronically by circulation to the parties' legal representatives by email. The date and time for hand-down is deemed to be 27 November 2024

Summary: Urgency – principles considered – application satisfying requirements of urgency – matter considered as one of urgency

Strike – real issues in dispute considered – demands relating to suspension and then investigation of management employee – constitutes unlawful demand – employer required to act unlawfully to adhere to demand – strike action not competent / permitted – strike unprotected

Strike – demand relating to selective application of discipline (inconsistency) – issue concerns consideration of fairness in unfair dismissal disputes – rights dispute susceptible to arbitration / adjudication under LRA – s 65(1)(c) applicable – strike unprotected

Interdict – principles stated – prima facie right shown – no alternative remedy – prejudice shown – balance of convenience favours applicant – rule nisi granted – strike interdicted

JUDGMENT: REASONS

SNYMAN, AJ

Introduction

[1] This matter came before me on 21 November 2024 as an application brought by the applicant to interdict strike action by the respondents, which commenced on 18 November 2024. The application was brought in terms of Section 68(1) of the LRA.[1] The application was opposed by the respondents, who filed an answering affidavit.

[2] The matter was brought by the applicant, and then argued, on the basis of interim relief being sought by the applicant. That being the case, the applicant must show, as was said in National Council of SPCA v Openshaw[2], the following:

‘… (a) A prima facie right. What is required is proof of facts that establish the existence of a right in terms of substantive law; (b) A well-grounded apprehension of irreparable harm if the interim relief is not granted and the ultimate relief is eventually granted;

(c) The balance of convenience favours the granting of an interim interdict; (d) The applicant has no other satisfactory remedy. …'

[3] Having read the sets of affidavits in this case, and after considering argument presented in Court on 21 November 2024 by the parties, I made the following order:

‘A. Condonation is granted to the Applicant for non-compliance with the forms and service and time periods provided for in the Rules of Court, that same be dispensed with, and that this application be heard and finalised as an urgent application as contemplated in Rule 35, as read with Rule 38 of the Rules of the Labour Court.

B. Condonation is granted to the Applicant for non-compliance with Section 68(2) of the LRA, if necessary, and that bringing this application in a shorter period be permitted, insofar as it may be deemed necessary.

C. A rule nisi is issued calling upon the Respondents to appear and show cause on 6 February 2025 why a final Order should not be granted on the same terms as those set out in paragraph D below; and

D. Pending the return date, paragraphs D1 to D6 below, shall operate as an interim Order with immediate effect:

D1. An Order that the demands made by the First and Second to Further Respondents are unlawful, rendering the strike unprotected.

D2. An Order declaring the strike of the Respondents that commenced on 18 November 2024 at 08:00 as unprotected in terms of section 65(1)(c) of the LRA.

D3. Interdicting and restraining the First and Second to Further Respondents from participating in any unprotected strike.

D4. Interdicting the First and Second to Further Respondents from participating in any conduct in pursuance of the unprotected strike.

D5. Interdicting the First and Second to Further Respondents from encouraging, participating in, or promoting the unprotected strike.

D6. Ordering the First Respondent to publicly call upon the Second to Further Respondents, not to participate in any unprotected strike or any conduct in furtherance of such unprotected strike, and at all of the Applicant's business premises with the address details in prayer "I" below.

E. Any party affected hereby may anticipate the return date on 48 hours’ notice to all other parties.

F. The First and Second to Further Respondents must by no later than 10h00 on 25 November 2024 serve and file an affidavit demonstrating compliance in terms of the interim order.

G. Service of this Order shall be effected:

(a) By e-mail correspondence on the First Respondent’s head offices on the e-mail address a[...], w[...], and w[...], and by way of as well to the relevant union officials in terms of Rule 4 of the Rules of Court.

(b) By communicating the provisions of the Order to the Second to Further Respondents at such premises they find themselves by.

(c) By issuing copies of the Order and to be placed on the notice boards which the Second to Further Respondents have access to.

H. The First Respondent is ordered to publicly call upon the Second to Further Respondents, in the manner prescribed hereunder, not to participate in any unprotected strike or any conduct in furtherance of an unprotected strike.

I. The First Respondent is ordered to give effect to paragraph H above by means of –

(a) Public announcement via loud hailer to those members of the First Respondent who are present at the time, in such languages which are commonly used for communication at the following business premises of the Applicant:

1. Edenvale I Meadowdale - Growthpoint Industrial Estate, Unit 4[…], B[…] Street, Meadowdale, Edenvale.

2. Pretoria - Gate 3[…] B[…] Street, Waltloo

3. Polokwane – […] V[…] Street, Polokwane

4. Cape Town - Main Gate 2: 1[…] M[…] Road (Opposite SA Steelworks Gate 2).

5. Durban – 20 M[…] Drive, M[…] E[…].

(b) Distribution of any form or written communication, be it trade union leaflets, SMS's, email correspondence, or WhatsApp text messages, which will read:

“On 21 November 2024 the Labour Court issued an order declaring the planned strike to be unprotected and unlawful. We urge you not to embark on any strike and continue working. Should you require further explanation of the Court order, please approach your union official or direct line manager”.

J. The costs of the application is reserved for determination on the return date.

K. Written reasons for this order will be sent to the parties on 27 November 2024.’

[4] This judgment now constitutes the written reasons as contemplated by paragraph K of the order, above, starting with the issue of urgency, as this was placed in dispute by the respondents. For ease of reference, I will refer in this judgment to the first respondent, the Democratic True Revolutionary Union of South Africa as ‘DETRUSA’ and the second to further respondents as ‘the employees’.

Urgency

[5] Urgent applications are governed by Rule 38. In considering Rule 8, the predecessor to the current Rule 38, the Court in Jiba v Minister: Department of Justice and Constitutional Development and Others[3] said:

‘Rule 8 of the rules of this court requires a party seeking urgent relief to set out the reasons for urgency, and why urgent relief is necessary. It is trite law that there are degrees of urgency, and the degree to which the ordinarily applicable rules should be relaxed is dependent on the degree of urgency. It is equally trite that an applicant is not entitled to rely on urgency that is self created when seeking a deviation from the rules.’

The same considerations, in my view, obviously apply to Rule 38.

[6] Another important consideration to be applied when deciding whether a matter is urgent, is the determination of whether an applicant would not be afforded substantial redress in due course, and the duty is on the applicant to provide proper reasons in support of such a case.[4] As succinctly described by the Court in Maqubela v SA Graduates Development Association and Others[5]:

‘Whether a matter is urgent involves two considerations. The first is whether the reasons that make the matter urgent have been set out and secondly whether the applicant seeking relief will not obtain substantial relief at a later stage. In all instances where urgency is alleged, the applicant must satisfy the court that indeed the application is urgent. Thus, it is required of the applicant adequately to set out in his or her founding affidavit the reasons for urgency, and to give cogent reasons why urgent relief is necessary. …’

[7] When considering urgency, it is not just about the interests of the applicant party, and the interests of the respondent party must also be considered. In particular in this regard, it must be considered what the prejudice the respondent may suffer if the matter is urgently disposed of. In Association of Mineworkers and Construction Union and Others v Northam Platinum Ltd and Another[6], the Court held as follows:

‘But it is not just about the applicant. Another consideration is possible prejudice the respondent might suffer as a result of the abridgement of the prescribed time periods and an early hearing …’

[8] In casu, and as said, the applicant is seeking relief in terms of section 68(1) of the LRA, which is to interdict strike action. In my view, it is clear that it would only be competent to seek such relief where the respondent parties have indicated their intention to embark upon strike action, or strike action has already started. Where it comes to the indication of the intention to embark upon strike action, this can only manifest itself once conciliation failed, or the 30 days failure to settle requirement in section 64(1) of the LRA has been fulfilled.[7] Before that point, protected strike action would not be permitted or competent, and as such there would be nothing to interdict. Obviously, in the case of unprotected strike action embarked upon without any adherence to section 64(1), the interdict application must be brought as expeditiously as possible after the strike has commenced.

[9] This is a case where DETRUSA did follow the provisions of section 64(1) of the LRA. In this context, conciliation failed on 11 November 2024, when the National Bargaining Council for the Road Freight and Logistics Industry (NBCRFLI), being the bargaining council having jurisdiction in this case, issued a certificate of failure to settle. As a result, DETRUSA gave the applicant notice on 15 November 2024 of its and the employees’ intention to embark upon strike action, which strike action was to commence on 18 November 2024. It is this notification that would establish the event contemplated by section 68(1), entitling the applicant to approach the Court as a matter of urgency for interdictory relief. The applicant acted accordingly and filed the application on 18 November 2024. This is clearly prompt action, pursued at the appropriate first opportunity.

[10] It also cannot be forgotten that in terms of section 68(2), the applicant would have to give 48 hours’ prior notice to DETRUSA of its intention to seek an interdict. It gave such notice the evening of 15 November 2024, after business hours, which could be interpreted as resulting in the application brought on 18 November 2024 being brought just short of the required 48 hours’

prior notice. The applicant sought condonation for any such non-compliance, which I am without hesitation willing to grant. In

fact, and honestly speaking, I do not think condonation is even necessary, as counting 48 hours from the late evening of 15 November

2024 until the application brought just after noon on 18 November 2024, is actually more than 48 hours’ prior notice. But it must be said that this is an added statutory impediment to applications such as the one in casu being brought immediately, and accounts for a 48 hours’ delay, which must thus be considered to be excusable where it comes to the issue of urgency.

[11] Where it comes to prejudice to the respondents, DETRUSA complained that it was only served with the application at 22h00 on 19 November 2021, which gave it only a day to answer, considering the application was set down for hearing on 21 November 2024. Whilst that may be so, the fact is that it did file an answering affidavit, and from this answering affidavit, it was clear that not much of the facts were in dispute. In any event, the applicant did not seek final relief, ameliorating prejudice to the respondents, as only an interim order (rule nisi) would be granted. This would afford the respondents a further opportunity to file an answering affidavit, and they are in any event entitled to anticipate such a rule nisi on 48 hours’ notice. As opposed to this, the prejudice to be suffered by the applicant as a result of an ongoing strike by the employees, would be as a matter of common sense and logic, manifest, and justifies urgent intervention to curtail the same.

[12] This only leaves the issue of whether the applicant can obtain substantive redress in the ordinary course. It clearly cannot. There is no other way to intervene in possibly unprotected strike action, other than by way of an urgent application to this Court. An application in the ordinary course will also serve no purpose, and could result in irreparable damage occurring before the matter is heard, considering the nature and effect of strike action. It is also in the interest of both parties to obtain some clarity on the legal position of the strike, which would be in doubt in such cases, so as to inform them of their appropriate courses of

action going forward.

[13] Considering all of the aforesaid, I am satisfied that the applicant has successfully demonstrated that all the requirements of urgency have been satisfied, and therefore I am inclined to hear this application as one of urgency. I will now commence deciding the application by first summarising the relevant background facts.

Background facts

[14] Fortunately, virtually all the facts necessary to consider in order to decide this case are either undisputed, or common cause. If there exist factual disputes, I will decide these on the basis of the principles as set out in the regularly referred to judgment of Plascon Evans Paints v Van Riebeeck Paints.[8] These principles are that the facts as stated by the respondents together with the admitted or undenied facts in the applicant’s

founding affidavit are used, unless the factual disputes raised are not real or genuine or the denials in the respondents’ version are bald or uncreditworthy, raise obviously fictitious disputes of fact, is palpably implausible, far-fetched, or so clearly untenable that the rejection of the same is justified.

[15] The applicant is in the business of logistics and related activities. Its principal place of business is at Meadowdale, Edenvale, Gauteng. It however conducts operations at a national level with depots situated in Durban, Polokwane, Cape Town, Mbombela and Pretoria. The employees are all employed by the applicant in various capacities, and are all members of DETRUSA. DETRUSA is a registered

trade union, recognised as a collective bargaining agent of the employees employed by the applicant.

[16] According to the applicant, it has a rocky relationship with DETRUSA, who according to the applicant does anything it can to challenge each and every disciplinary action the applicant may take in respect of its employees. The applicant has however specifically said that it accepts DETRUSA’s right to do so, as disruptive as it may be.

[17] It appears that the real problem in this case is the dissatisfaction on the part of DETRUSA and the employees with the applicant’s Chief People Officer, Solly Mathebula (Mathebula). In this regard, a document called a ‘mass grievance’ was sent to the applicant on 2 July 2024. In this grievance document, it was stated that employees not in management where being disciplined for what was negligible infractions, whilst those employees in management positions were never disciplined for even serious transgressions. It was stated that the infractions by management employees were of such a serious nature that suspension was required, however nothing happened to them. It was demanded that the applicant apply its disciplinary code consistently to all employees. The grievance then specifically dealt with Mathebula. In this regard, it was demanded that Mathebula be suspended and investigated for a variety of alleged transgressions, which included intimidation, dishonesty, and hurtful conduct towards another employee.

[18] On 11 July 2024, the applicant answered this grievance. In this answer, it was crucial of the conduct of Wilfred Mogudi (Mogudi), the general secretary of DETRUSA, and accused him spreading false statements and disharmony. It questioned the authenticity of several of the signatories to the grievance. It was stated that all employees that were disciplined, were disciplined for proper substantive cause, and in a procedurally fair manner, and that no employee was exempted from the application of the disciplinary

code. It was disputed that there was any misconduct by Mathebula deserving of action.

[19] On 21 July 2024, DETRUSA sent a second mass grievance to the applicant. In this grievance document, specific demands were articulated. It was demanded that Mathebula be suspended and investigated, failing which a dispute will be pursued to the NBCRFLI. The applicant was given seven days to comply. In particular, it was alleged that Mathebula was guilty of intimidation, making derogatory and hurtful comments to some unidentified person, and making false statements. No particulars of these alleged transgressions were provided. The issue of the applicant allegedly only disciplining non-management employees was once again raised, and it was demanded that the applicant undertook not to selectively apply its disciplinary code, but meet out discipline in a consistent and fair manner applicable to all employees.

[20] According to the applicant, it investigated whether the complaints by DETRUSA and the employees about Mathebula were justified. It however found that the allegations levelled against Mathebula to be unfounded and without merit. In the answering affidavit, DETRUSA does not dispute that there was such an investigation, but contends that it was not a proper investigation, and it was not satisfied with the outcome, because the employees were not called to the investigation to present testimony.

[21] On 31 July 2020, DETRUSA referred a dispute the NBCRFLI, under case number RFBC74540 (the referral). In the referral, DETRUSA labelled the dispute as one of ‘mutual interest’. In the referral document itself, the dispute is contended to have arisen on 31 July 2024, and is described as: ‘This is a dispute regarding the selective application of the disciplinary code by the Respondent’. It is further recorded in the referral that: ‘Members wrote a grievance to the CEO demanding that Mr Solly Mathebula be suspended and investigated for disciplinary infractions’. The relief sought in terms of the referral was either an order by the NBCRFLI compelling the applicant to suspend Mathebula, or the issuing of a certificate for DETRUSA and its members to embark upon strike action. The referral concluded by describing, under the heading ‘special features’, that ‘The Respondent select to discipline but refuses to suspend and investigate Mr Solly Mathebula’.

[22] The dispute referred to the NBCRFLI was set down for conciliation on 19 August 2024, before arbitrator Eleanor Hambridge. Both parties attended the conciliation on such date. In the course of such conciliation, the applicant conveyed its views that the demands made by DETRUSA as purportedly being a mutual interest dispute were unlawful and not a mutual interest dispute. Needless to say, the matter could not be resolved, and on 26 August 2024, DETRUSA sent draft picketing rules to the NBCRFLI and the applicant.

[23] In a directive issued on 29 August 2024, arbitrator Hambridge directed the applicant to respond to the draft picketing rules by 4 September 2024, and if the parties could then not agree on picketing rules, the matter was to be set down again for the determination of picketing rules.

[24] Nonetheless, and on 2 September 2024, DETRUSA sent an e-mail to the NBCRFLI, in which it referred to the fact that the 30 days’ time limit under section 64() had passed, and that DETRUSA would now have no option but to give strike notice as contemplated by section 64(1)(b). It was pointed out that the demands made were ‘legal and reasonable’, because the applicant was unilaterally implementing its disciplinary code to dismiss employees en masse. It was demanded that the NBCRFLI deal with the matter. The applicant answered, through its attorneys, on 4 September 2024, disputing the lawfulness of the demands, and indicating that any strike action would be unprotected. DETRUSA was warned that if strike action was pursued, the applicant would seek an urgent interdict.

[25] The dispute was then set down on 20 September 2024 for the determination of picketing rules. In those proceedings, the applicant raised points in limine. It is not necessary to delve into all these points. Of importance in casu is that the applicant raised a point in limine that strike action in this case would not be competent, because the demands made by DETRUSA and the employees were unlawful. On 20 September 2024, arbitrator Hambridge then issued a directive, directing that the parties exchange written submissions on this

issue, with the applicant filing its objections in limine in writing by 26 September 2024, DETRUSA answering by 30 September 2024, and the applicant being entitled to reply by 3 October 2024.

[26] In a written ruling issued on 6 October 2024, arbitrator Hambridge dismissed the points in limine raised by the applicant. The only finding of importance in this ruling to the current case is her finding on the issue of the demands by DETRUSA and the employees being unlawful. Arbitrator Hambridge dismissed this point, because according to her, she was only required to conciliate this matter, and in that context, it would not be required of her to determine the real issue in dispute, as all disputes, no matter whether the dispute is a rights or interest dispute, are to be conciliated by the NBCRFLI. According to the arbitrator, only the Labour Court could decide whether the demands are lawful or unlawful. These findings are obviously correct. The arbitrator ruled that the matter once again be set down for the determination of picketing rules.

[27] The matter was again set down on 11 November 2024, and on that date, the conciliation proceedings and the issue of picketing rules were concluded, and a certificate of failure to settle was issued, recording the unresolved dispute was one of mutual interest.

[28] Having received the certificate of failure to settle, and on 15 November 2024, DETRUSA issued the applicant with a notice as contemplated by section 64(1)(b) of its and the employees’ intention to commence with strike action on 18 November 2024 at all the premises of the applicant. In this notice, the issues in dispute that would form the subject of the proposed strike action were specifically circumscribed. Effectively, two issued were identified therein. First, it was stated that the applicant’s management had unreasonably refused to comply with the applicant’s disciplinary code in that it failed to suspend and investigate Mathebula because of Mathebula’s ‘serious disciplinary infractions’, as they demanded. The second issue was the applicant’s alleged selective disciplining of employees.

[29] The applicant received the aforesaid strike notice at around 17h00 on 15 November 2024. Through its attorneys, it immediately sent notice to DETRUSA at 18h21 that same evening. In this notice, the applicant repeated its previous assertions as to why it considered the demands by DETRUSA and the employees to be unlawful. It demanded a written undertaking by 08h00 on 18 November 2024 that the strike action not be proceeded with, failing which the Labour Court would be approached, seeking an urgent interdict. The notice also recorded that such notice constituted the prior notice of the intention to seek an interdict, as contemplated by section 68(2)

of the LRA.

[30] The current application then followed on 18 November 2024, which, as said, was opposed by DETRUSA. In the founding affidavit, the applicant has based its case on two contentions, as dealt with above. First, it contends that the issue in dispute concerning the demand to suspend and investigate Mathebula was an unlawful demand, and thus strike action was unlawful. Second, it contends that the demand pertaining to selective application of discipline was a rights issue, subject to arbitration or adjudication, and thus strike action was prohibited by virtue of section 65(1)(c) of the LRA.

[31] In the answering affidavit DETRUSA accepted and confirmed that its main demand forming the subject matter of the strike action was that Mathebula must be suspended and investigated for allegations of misconduct. It also similarly confirmed that the second issue was the complaint that the applicant was selectively applying its disciplinary code to employees, but not to management members.

[32] In this instance, it was ultimately undisputed that DETRUSA had complied with all the pre-requisite procedural requirements in Section 64(1) of the LRA, so as to enable the right to strike to accrue to it and the employees. In its letter sent to DETRUSA on 15 November 2024 concerning the strike notice, the applicant initially took issue with the issue of the 48 hours’ notice, contending that the count of hours should not include the weekend of 16 and 17 November 2024. But that view was obviously wrong, as time limits under the LRA are determined on the basis of the civil method of calculation, which includes week ends. The applicant however came to other insights, and did not dispute this issue in the founding affidavit. Similarly, and considering what is contained in the founding affidavit and the answering affidavit, the issues of irreparable harm and balance of convenience were not really in dispute. What the respondents took issue with was the issue of the applicant’s prima facie right to the relief sought and the unavailability of a suitable alternative remedy, which I will turn to next.

Analysis

[33] It is true that the right to strike is a Constitutionally enshrined right, given effect to in the LRA.[9] In terms of section 64(1) every employee has the right to strike for the purpose of remedying a grievance or resolving a dispute in respect of any matter of mutual interest.[10] As such, and as a matter of principle, this right should not be unduly or inappropriately limited, and limitation must be strictly

determined on the basis of what is specifically provided for in the LRA. In National Union of Metalworkers of SA and Others v Bader Bop (Pty) Ltd and Another[11] the Court said:

‘… Prohibiting the right to strike in relation to a demand that itself relates to a fundamental right otherwise not protected as a matter of right in the legislation would constitute a limitation of the right to strike in s 23 …

… Where employers and unions have the right to engage in collective bargaining on a matter, the ordinary presumption would be that both parties would be entitled to exercise industrial action in respect of that matter. There is nothing in s 64 or 65

suggesting that there is a limitation on the right to strike in this regard. …’

[34] What is often misunderstood is that a matter of mutual interest is not necessarily limited to an issue of interest. A matter of mutual interest can encompass both what is commonly known as a rights dispute and an interest dispute, as both can legitimately form the subject matter of a demand by a trade union. Therefore, and at a conceptual level, even a dispute of right would qualify to be susceptible to protected strike action pursuant to a demand by a trade union.[12] In Department of Home Affairs and Another v Public Servants Association and Others[13] the Court pertinently held:

‘What constitutes a matter of mutual interest is not defined in the LRA. The term ‘serves to define the legitimate scope of matters that may form the subject of collective agreements, matters which may be referred to the statutory dispute-resolution mechanisms, and matters which may legitimately form the subject of a strike or lock-out’. ‘Interest’ and ‘rights’ disputes are both matters of mutual interest. …’

[35] Therefore, and no matter what the nature of the dispute, the default position is that strike action is allowed, unless specifically prohibited by the LRA. The LRA regulates this right to strike in two ways, being a substantive limitation and a procedural limitation. The procedural limitation is that full compliance with the requirements in section 64(1) must occur, before any strike on any dispute is allowed. The substantive limitation is that the issue in dispute forming the subject matter of the proposed strike action is not one that is prohibited by any of the provisions of section 65 of the LRA. In Vodacom (Pty) Ltd v Communication Workers Union[14] the Court held as follows:

‘Section 65 sets out limitations on the right to strike or recourse to lock-out which have to be read together with s 64. In short no matter that there has been compliance with s 64, the LRA limits a right to strike, such that if the strike reaches one of the limitations in terms of s 65, it is an unlawful strike, notwithstanding compliance with procedures under s 64. …’

[36] The substantive limitations to the right to strike in section 65 of the LRA are defined by way of specific reference to what is called the ‘issue in dispute’ forming the subject matter of the strike, which includes a demand.[15] Importantly this includes that strike action is not permitted where the person is bound by a collective agreement that prohibits a strike in respect of the issue in dispute or requires the issue in dispute to be referred to arbitration,[16] the issue in dispute is one that a party has the right to refer to arbitration or to the Labour Court in terms of the LRA or any employment law,[17] or if the person is bound by any arbitration award or collective agreement that regulates the issue in dispute.[18] Finally, and although not specifically said in section 65, the issue in dispute must not concern a demand that is unlawful.[19]

[37] In order to determine whether an issue in dispute falls within the parameters of these limitations, it is essential to determine what the true or real nature of this issue in dispute would be, no matter how any of the parties may have sought to describe or label the dispute. In Coin Security Group (Pty) Ltd v Adams and Others[20] the Court said:

'It is the court's duty to ascertain the true or real issue in dispute (Ceramic Industries Ltd t/a Betta Sanitaryware v National Construction Building Workers Union & others (2) (1997) 18 ILJ 671 (LAC) and Fidelity Guards Holdings (Pty) Ltd v Professional Transport Workers' Union & others (1) (1998) 19 ILJ 260 (LAC)). In conducting that enquiry a court looks at the substance of the dispute and not the form in which it is presented (Fidelity at 269G-H; Ceramic at 678C). The characterization of a dispute by a party is not necessarily conclusive (Ceramic at 677H-I; 678A-C). ….’

And in Pikitup (SOC) Ltd v SA Municipal Workers Union on behalf of Members and Others[21] it was held that:

‘… It is our duty to look at the true nature of the dispute and not the manner in which it has been packaged by the employees …’.

[38] As to what must be considered by the Court when establishing the true or real issue in dispute, the Court in TSI Holdings (Pty) Ltd and Others v National Union of Metalworkers of SA and Others[22] articulated the following:

‘The purpose of the concerted refusal to work must be determined in the light of all the conduct of the respondents. This includes what the respondents wrote in the referral of the dispute to conciliation and in the strike notice where these can shed light on such purpose. In the form used for the referral of the dispute to conciliation there is a space where the form required the respondents to state what they desired as an outcome of the conciliation process.

What is said in the strike notice is particularly important because it will probably reflect the views of the union or the strikers at the time that they were notifying the employer of the commencement of their strike …’

[39] Similarly, the Court in City of Johannesburg Metropolitan Municipality v SA Municipal Workers Union and Others[23] held that:

‘The issue in dispute in relation to a strike (in these proceedings, the demands made by the union) is to be ascertained from the relevant facts. These include the referral form, any relevant correspondence, the negotiations between the parties and the affidavits filed in this court’.

[40] The issues in dispute in casu is straight forward. They are clearly defined in the correspondence exchanged between the parties beforehand, the grievances submitted by DETRUSA, the dispute referral by DETRUSA to the NBCRFLI, the events that took place in the course of conciliation proceedings at the NBCRFLI, and finally the strike notice itself. In fact, as succinctly described by DETRUSA in the answering affidavit: ‘… We submit that the dispute was in the clearest of terms about the fact that the Applicant had refused to apply its disciplinary code provisions selectively by not suspending and investigating Solly Mathebula for disciplinary infractions …’ (sic). In a nutshell, the issues in dispute are founded on two demands. The first demand was that Mathebula be suspended and investigated for what is broadly said to be misconduct. The second demand was that the applicant cease applying its own disciplinary code selectively. The question now simply is whetehr either of these two demands (issues in dispute) would resort within the confined of where strike action has been prohibited under the LRA.

[41] I will first deal with the demand that Mathebula be suspended and investigated. In my view, this would be an unlawful demand, for the reasons to follow, starting with the applicable legal provisions. In this respect, the Court in TSI Holdings supra provided some guidance. In that judgment, the Court was prepared to assume that employees were entitled to embark upon strike action in support of a demand that the employer dismiss an employee fairly.[24] The Court went further and provided an example of what dismissing ‘fairly’ would mean, where the Court had the following to say:

‘… In this regard I have in mind the case of an employee who has been charged with, and found guilty of, misconduct that is sufficiently serious to render his dismissal fair but whom the employer decides not to dismiss. Let us say that employees found guilty of fraud have consistently been dismissed in a particular company for many years but in one case the employer decides that in a particular case he will not dismiss the employee because of some unacceptable reason such as that he is white and the others who had been dismissed for similar offences were black. Let us assume that the loss resulting from such fraud for the employer is a million rand. It seems that in such a case, if the employee was guilty of such serious misconduct that would, quite clearly, be a fair

reason for his dismissal. In such a case it may well be that, if there was a disciplinary enquiry and such employee was found guilty

of such serious misconduct but was not dismissed on such unacceptable grounds as racist grounds, a demand that the employer dismiss such employee cannot be said to be a demand for the employer to act unfairly. …’

[42] The Court in TSI Holdings had particular regard to the fact that the employee sought to be dismissed by virtue of the demand had a right in terms of the provisions of the LRA not be unfairly dismissed, and that to dismiss such employee pursuant to such demand may well violate that

right.[25] Importantly, the Court reasoned, in the context of the example of a demand for a ‘fair dismissal’ described above, as follows:[26]

‘If we were to conclude that Mr van Zyl's dismissal, as demanded by the respondents, would have been a fair dismissal and, therefore, would not have violated his right not to be dismissed unfairly, it would have been necessary that there be sufficient evidence before us that Mr van Zyl was guilty of making the racist remarks he is alleged to have made. On the evidence before us we cannot make such a finding because not only is there no admissible evidence before us that Mr van Zyl made those remarks but also the respondents have not in their papers approached this matter on the basis of making out a case before the court a quo, and, therefore, before us as well, that there is enough evidence to suggest that Mr van Zyl is guilty of making the offensive remarks.’

[43] It follows that the duty would be on the trade union and employee parties (members) making the demand for the dismissal of a particular employee, to place sufficient evidence before the Court to satisfy the Court that there is a proper substantive reason for dismissing the employee, and that the requirements of procedural fairness will be met. In short, these parties must provide evidence to show that the demanded dismissal, if perpetrated, would be substantively and procedurally fair, as contemplated by the LRA. If no such evidence is placed before Court, then it must be accepted, as described in TSI Holdings supra:[27]

‘… we must approach the matter on the basis that there is no evidence before us that, if the appellant had dismissed Mr van Zyl as demanded by the respondents, it would have been able to prove that he had made the remarks and that there was a fair reason for his dismissal based on his conduct. This leads inevitably to the conclusion that the appellant would have dismissed Mr van Zyl unfairly if it had complied with the respondents' demand. Such a dismissal would have been a violation of Mr van Zyl's right not to be unfairly dismissed that is provided for in s 185(a) of the Act in that there would have been no fair reason for his dismissal.

The above scenario shows, in my view, beyond any doubt that the demand such as the one made by the respondents to the appellant in this case falls outside the category of demands that can be supported by a concerted refusal to work, retardation or obstruction of work envisaged in the definition of the word 'strike' in s 213 of the Act. … Accordingly, it seems to me that the purpose of the concerted refusal to work or retardation or obstruction of work contemplated in the definition of the word 'strike' in s 213 of the Act cannot be conduct that would constitute a violation of the right not to be dismissed unfairly provided for in s 185 read with s 188 of the Act.’

[44] The Constitutional Court in National Union of Public Service and Allied Workers on behalf of Mani and Others v National Lotteries Board[28] came to consider the reasoning in TSI Holdings relating to unlawful demands for dismissal of employees in the context of the demands being used as a basis for strike action. The Court said that:[29]

‘… Provided that his dismissal would be substantively and procedurally fair and the requirements of s 64 of the LRA had been complied with, a work stoppage in support of the demand would be a protected strike in terms of the LRA. In such a case the dispute between the parties would not be the disclosure dispute. It would be whether or not the CEO should be dismissed because, for example, of serious misconduct or poor performance or his anti-union attitude. In TSI Holdings the Labour Appeal Court left the question open whether a work stoppage in support of a demand for the dismissal of a manager or co-employee would be protected where the dismissal would not infringe the relevant co-employee's or the manager's right not to be dismissed unfairly.’

[45] The ultimate point seems clear. For a trade union and / or employees to demand that an employee be dismissed, and this demand then forms the basis of contemplated strike action, it is my view that it would principally not be a lawful demand, as it would require the employer to contravene the provisions of the LRA. It is only where the trade union and / or the employees demand that the employee be fairly dismissed, and then substantiates this demand by producing sufficient evidence that there is a proper substantive reason to dismiss the employee, that it could be argued that the demand would not be unlawful and strike action would be permitted. Such a case must be clearly made out before Court.

[46] But the kinds of demands that could be considered to be unlawful in the context of prohibiting strike action on the same, is not only limited to demands for the dismissal of employees. In Vector Logistics (Pty) Ltd v National Transport Movement and Others[30] the Court held that a demand by a trade union that employees must be paid for lunch hours the employees contended they never took because they continued working, would mean that employer, in order to accede to this demand, would be acceding to a nine hour working day without a lunch break which would be breach of s 14(1) of the Basic Conditions of Employment Act (BCEA)[31], and thus would be unlawful. The Court held that protected strike action could not be undertaken in pursuit of such an unlawful demand. In Government Printing Works v PSA[32] the Court accepted that strike action in support of a demand of a salary framework that differs from the framework applicable in the public service would be unlawful because such a demand would be contrary to a legislated structure.

[47] Closer to the demand by DETRUSA and the employees that Mathebula be suspended, is the judgment in Calgan Lounge (Pty) Ltd v National Union of Furniture and Allied Workers of SA and Others[33] where it was held:

‘It is trite that to simply demand the removal of a member of management without proper cause and fair process is an unlawful demand, and certainly to demand from an employer to simply in effect expel a majority recognised trade union flies in the face of the right of freedom of association and chapter III of the LRA. This kind of demand relating to the first respondent can only be seen as anti-union activity which is expressly prohibited by the LRA. …’

And in Walsh v Superintendent General: Eastern Cape Department of Health and Others[34] the Court similarly said:

‘In the present instance, none of the demands for the applicant’s removal from office remotely suggest that he should be afforded the benefit of fair process prior to his removal. On the contrary, what the unions demanded was the applicant’s forcible removal. Further, the unions and their members in fact resorted to violence to further this end, to the extent that this court was required to intervene. In the circumstances, the unions’ demand that the applicant be removed from his position as CEO of the hospital without due process was thus unlawful. …’

[48] So, what do we then have in casu? On the facts, there is a consistent and repeated demand by DETRUSA and the employees that Mathebula must be suspended, without more. This demand does not include that he must be suspended fairly. The demand is that he must simply be suspended, without any pending disciplinary proceedings. And to make it worse, other than some bald contentions of Mathebula allegedly intimidating employees, acting dishonestly and making hurtful statements, no evidence whatsoever is provided to support these contentions. In fact, there is no particularity provided of these allegations of misconduct on the part of Mathebula. Accordingly, and as matters stand, there is no basis in fact upon which I am able to decide whether suspending Mathebula would be fair. In the absence of a proper substantive cause for the suspension of Mathebula being shown by DETRUSA and the employees to exist, I must accept that to simply suspend him would be unfair, rendering the demand that he must be suspended unlawful, and strike action in support of the same is prohibited.

[49] DETRUSA sought to argue that to demand that someone be suspended is of little moment or consequence, where it comes to the rights of individual employees. In short, and as far as DETRUSA was concerned, the suspension and then investigation of Mathebula would not violate the rights of Mathebula under the LRA. As explained by DETRUSA’s representative: ‘we are not asking that he be dismissed, only suspended’, and there would be nothing wrong with doing only this. But this reasoning is misconceived, and simply wrong. Section 185 of the LRA does not only relate to the right not to be unfairly dismissed. It also specifically provides that every employee has the right not be subjected to an unfair labour practice.[35] In turn, and in section 186(2)(b), an unfair labour practice is defined as meaning: ‘… any unfair act or omission that arises between an employer and an employee involving - … the unfair suspension of an employee or any other unfair disciplinary action short of dismissal in respect of an employee …’ (emphasis added). It is in my view undeniable that to simply suspend an employee without proper substantive cause or reason, and simply based on a demand by a trade union and / or employees, would be an unfair labour practice. So, and no matter how much DETRUSA attempts to diminish the impetus of the demand, the fact remains that they are demanding that the applicant violate the LRA. That is an unlawful demand.

[50] But applying the dicta in TSI Holdings supra and National Lotteries Board supra, it could still possibly be said that the demand by DETRUSA and the employees that Mathebula be suspended and then investigated is a lawful demand, provided it was actually shown by them to be fair. In this context, they would have to substantiate the allegations of misconduct allegedly committed by Mathebula which would need to be investigated, and this in turn would justify the suspension of Mathebula as a holding operation pending the completion of such an investigation.[36] It would also need to be shown that Mathebula would not be prejudiced as a result. In this respect, bald and general statements or assertions, without substantiation or particularity, is wholly insufficient for this Court to be convinced that the demanded suspension would be fair, as a holding operation. In Long v SA Breweries (Pty) Ltd and Others[37], the Court approved of the following finding made in the Labour Court:

‘In determining whether the precautionary suspension was permissible, the Labour Court reasoned that the fairness of the suspension is

determined by assessing first, whether there is a fair reason for suspension and secondly, whether it prejudices the employee …’

[51] The judgment in National Lotteries Board supra is in my view an apposite example of where the demand made would qualify as being a lawful demand, in instances where the demand requires action to be taken by an employer against an employee. In National Lotteries Board, it was argued that the trade union demanded the dismissal of the CEO. The following dictum from the judgment is instructive, pursuant to which the Court concluded that the demand was lawful:[38]

‘… As mentioned, the union and the employees gave the respondent their strong advice or recommendation that it should offer the CEO

a suitable separation package in return for his resignation failing which their strong recommendation was that the CEO be

relieved of his duties. It is also important to point out that in the petition this was not put as a demand. The recommendation that the CEO be relieved of his duties was an alternative recommendation in case the respondent made the offer to the CEO but no agreement was reached involving his resignation. …’

The Court also considered that these recommendations were part of an agreed conciliation process relating to this issue.[39]

[52] Comparing the aforesaid example to the case in casu, what DETRUSA put forward was not a recommendation. It was a clear and unequivocal demand, which was, in short, suspend Mathebula or else. The demand was repeated and pressed home, despite all the efforts by the applicant to bring DETRUSA to other insights. It did not matter to DETRUSA on what basis Mathebula would be suspended, as long as he was suspended. The issue was not negotiable. The allegations of misconduct on the part Mathebula were vague, general and completely unsubstantiated. No particularity thereof was provided, and the reference that was made to hurtful statements allegedly being made by Mathebula did not even identify to whom this was made. This approach persisted in the answering affidavit, which was similarly completely lacking in the requisite substantiation and particularity. For Mathebula to be suspended in these circumstances pursuant to such demand, in my conclusion, is an unlawful demand. As such, any strike action in pursuit of the same would be unprotected.

[53] This brings me to the demand relating to inconsistency. In this respect, the issue in dispute as articulated and as appears from the facts, is that the applicant allegedly applies its disciplinary code inconsistently. It would allegedly discipline and dismiss the members of DETRUSA, but would not take disciplinary action against management members who transgressed. I have little hesitation in coming to a conclusion that this is not a strikable issue, on the basis I will now set out.

[54] The Code of Good Practice in the LRA provides for consistency as a consideration in deciding the issue of the fairness of the sanction

of dismissal.[40] This consideration applies where the employee was charged with misconduct, and was properly found guilty of the same, but in deciding whether dismissal for this would be appropriate the issue would be that dismissing the employee for such misconduct would be inconsistent with the sanction imposed by the employer for similar and related misconduct in the past, in respect of other employees, or where other employees were not even disciplined.[41] Where instances of inconsistency are raised as a defence to dismissal as an appropriate sanction, this would form part of the value

judgment that must be exercised in deciding whether dismissal is fair.[42] In National Union of Mineworkers on behalf of Botsane v Anglo Platinum Mine (Rustenburg Section)[43] the Court held as follows:

‘The idea of inconsistency in employee discipline derives from the notion that it is unfair that like and like are not treated alike. The core of this 'factor' in the application of employee discipline (it would be a misconception to call it a principle) is the rejection of capricious or arbitrary conduct by an employer.

It has application in two respects. Mainly, it is a recognition of the unfairness of the condemnation of one person for genuine misconduct when another indistinguishable case of misconduct by another person is condoned. The second application is the recognition of the unfairness that results when disparate sanctions are meted out for indistinguishable misconduct to different persons.’

[55] What emerges from the aforesaid is in my view clear. Inconsistency is an element of fairness when deciding whether the dismissal of an employee is fair. As said in Bidserv Industrial Products (Pty) Ltd v Commission for Conciliation, Mediation and Arbitration and Others[44]: ‘… Inconsistency is a factor to be taken into account in the determination of the fairness of the dismissal but by no means decisive of the outcome on the determination of reasonableness and fairness of the decision to dismiss. …’. This in turn means that it is an issue that must be determined when an arbitrator or a Judge is called upon to decide whether the dismissal of an employee is substantively fair. In no uncertain terms, it is a rights issue, that must be decided by way of

arbitration or adjudication under the LRA, and strike action is not permitted in respect of the same.[45] As section 65(1)(c) makes clear: ‘No person may take part in a strike or a lock-out or in any conduct in contemplation or furtherance of a strike or a lock-out if — ... the issue in dispute is one that a party has the right to refer to arbitration or to the Labour Court in terms of this Act or any other employment law.’

[56] DETRUSA has in any event failed to make out any case of the existence of inconsistency in this instance. The whole case of inconsistency is again founded on making bald, unsubstituted and general allegations. DETRUSA would have to make out a case, for example, that a particular employee was charged with particular misconduct and then dismissed, whilst another employee, that committed the same, similar or related misconduct, was not disciplined or dismissed. It would also have to show that the conduct of the applicant in so differentiating was arbitrary or mala fide. In short, a case of inconsistency is an individual and fact specific dispute, which is why it can only be resolved or determined by way of adjudication or arbitration. It is simply not a strikable issue.

[57] DETRUSA raised a side issue that they were entitled to strike by virtue of the certificate of failure to settle issued on 11 November 2024. This contention can be swiftly disposed of. It is now trite that a certificate of failure to settle issued by the CCMA or applicable bargaining council is not a ruling, or determination of the dispute, and is nothing more than a recordal that the dispute remains unresolved.[46] As said in Helderberg International Importers (Pty) Ltd v McGahey NO and Others[47]:

‘I align myself with the conclusions reached in the Bombardier judgment, as have a number of other decisions in this court, that a certificate of outcome has no legal significance beyond a statement that the dispute referred to conciliation has been conciliated and was resolved or remained unresolved, as the case may be. …’

[58] And finally, DETRUSA argued that the applicant has some or other alternative remedy at its disposal. What this remedy may be is unclear. DETRUSA suggested a damages claim. But this suggestion is not a viable proposition, to the extent that it is not an alternative remedy at all. A damages claim can hardly undo the damage that is done following a protracted strike, in particular in the context where such strike should not have happened in the first place. The strike may irretrievably damage the business of the applicant, and this no damages claim could cure. And often damages claims are difficult to prove. In this instance, prevention of damage is the key, hence the clear provisions of section 68(1) of the LRA allowing for an interdict. The applicant, rationally and reasonably speaking, has no alternative remedy open to it.

[59] In sum, I am thus satisfied that the applicant has succeeded in illustrating a prima facie right to the relief it seeks. The issues in dispute forming the subject matter of the strike action at the applicant, by DETRUSA and its membership, would be unprotected, because the provisions of sections 65(1)(c) find application, and / or the demand articulated as basis for the strike would be unlawful.

Conclusion

[60] As stated above, the issues of prejudice and balance of convenience was not really in contention. Added to that, the applicant has established the existence of a prima facie right to the relief sought, and realistically has no alternative remedy at its disposal to stop the strike. The application must therefore succeed, and the applicant be granted the relief sought in its notice of motion.

Costs

[61] This only leaves the issue of costs. The parties have an ongoing relationship with one another. Whilst I do believe the approach

adopted by DETRUSA was ill-conceived, I do not think it was mala fide. One can understand the frustration of a trade union with a particular manager in certain cases, just as one can understand the frustration management may have with a particular trade union official. It comes with the territory. But this does not, generally speaking, justify strike action. DETRUSA was misguided in its approach to the matter. I consider that there is still an underlying dispute between the parties that needs to be finally resolved, and I consider that mulching a party with costs would only serve to place further strain on the relationship in this context. Finally, I am guided by the judgment in Zungu v Premier of the Province of Kwa-Zulu Natal and Others[48] where it comes to the issue of costs in employment disputes. Exercising the wide discretion I have in terms of section 162(1) of the LRA, I believe that this is a case where no costs order would be appropriate.

Order

[62] It is for all the reasons as set out above, that I made the order as set out in paragraph 3 of this judgment, supra.

S Snyman

Acting Judge of the Labour Court of South Africa

Appearances:

For the Applicant: Mr L W Dixon of Dixon Attorneys For the Respondents: Mr W Mogudi of DETRUSA

[1] Labour Relations Act 66 of 1995.

[2] [2008] ZASCA 78; 2008 (5) SA 339 (SCA) at para 20. See also Eriksen Motors (Welkom) Ltd v Protea Motors, Warrenton and Another 1973 (3) SA 685 (A) at 691B-E.

[3] (2010) 31 ILJ 112 (LC) at para 18.

[4] Mojaki v Ngaka Modiri Molema District Municipality and Others (2015) 36 ILJ 1331 (LC) at para 17; East Rock Trading 7 (Pty) Ltd and Another v Eagle Valley Granite (Pty) Ltd and Others [2012] JOL 28244 (GSJ) at para 6.

[5] (2014) 35 ILJ 2479 (LC) at para 32. See also Transport and Allied Workers Union of SA v Algoa Bus Co (Pty) Ltd and Others (2015) 36 ILJ 2148 (LC) at para 11.

[6] (2016) 37 ILJ 2840 (LC) at at para 26. See also IL & B Marcow Caterers (Pty) Ltd v Greatermans SA Ltd and Another 1981 (4) SA 108 (C) at 113D-114C.

[7] See sections 64(1)(a)(i) and (ii) of the LRA.

[8] [1984] ZASCA 51; 1984 (3) SA 623 (A) at 634E 635C. See also Jooste v Staatspresident en Andere 1988 (4) SA 224 (A) at 259C – 263D; National Director of Public Prosecutions v Zuma [2009] ZASCA 1; 2009 (2) SA 277 (SCA) at paras 26 – 27; Molapo Technology (Pty) Ltd v Schreuder and Others (2002) 23 ILJ 2031 (LAC) at para 38; Thebe Ya Bophelo Healthcare Administrators (Pty) Ltd and Others v National Bargaining Council for the Road Freight Industry and Another 2009 (3) SA 187 (W) at para 19.

[9] Section 23(2)(c) of the Constitution, 1996, reads: ‘Every worker has the right- … to strike.’

[10] See the definition of a ‘strike’ in section 213 of the LRA.

[11] (2003) 24 ILJ 305 (CC) at para 35.

[12] In Vanachem Vanadium Products (Pty) Ltd v National Union of Metalworkers of SA and Others (2014) 35 ILJ 3241 (LC) at para 16, the Court said: ‘… It is clear from the statutory framework that all interest disputes (broadly, disputes about the creation of new rights) and rights

disputes (broadly, disputes about the interpretation and application of existing rights) are subsets in the broader category of disputes about matters of mutual interest. In other words, all interest disputes constitute disputes about matters of mutual interest, but not all disputes about matters of mutual interest are interest disputes …’.

[13] (2017) 38 ILJ 1555 (CC) at para 17. See also Pikitup (SOC) Ltd v SA Municipal Workers Union on behalf of Members and Others (2014) 35 ILJ 983 (LAC) at paras 54 – 56.

[14] (2010) 31 ILJ 2060 (LAC) at para 10.

[15] The applicable definition is: ‘'issue in dispute', in relation to a strike or lock-out, means the demand, the grievance, or the dispute that forms the subject matter of the strike or lock-out’

[16] Section 65(1)(a) and (b).

[17] Section 65(1)(c).

[18] Section 65(3)(a).

[19] Pikitup (supra) at para 33; TSI Holdings (Pty) Ltd and Others v National Union of Metalworkers of SA and Others (2006) 27 ILJ 1483 (LAC) at para 48; Vector Logistics (Pty) Ltd v National Transport Movement and Others (2018) 39 ILJ 1653 (LC) at para 17.

[20] (2000) 21 ILJ 924 (LAC) at para 15.

[21] (2014) 35 ILJ 983 (LAC) at para 47. See also Unitrans Supply Chain Solutions (Pty) Ltd v SA Transport and Allied Workers Union and Others (2014) 35 ILJ 265 (LC) at para 9.

[22] (2006) 27 ILJ 1483 (LAC) at paras 29 and 31. See also Unitrans (supra) at para 11.

[23] (2009) 30 ILJ 2064 (LC) 2069G-H. See also SATAWU v Coin Reaction (2005) 26 ILJ 1507 (LC) at 1512D.

[24] Id at para 39.

[25] Id at para 40.

[26] Id at para 43.

[27] Id at paras 47 – 48.

[28] (2014) 35 ILJ 1885 (CC).

[29] Id at para 129.

[30] (2018) 39 ILJ 1653 (LC) at para 17.

[31] Act 75 of 1997 (as amended).

[32] 2023 JDR 2369 (LC) at para 28.

[33] (2019) 40 ILJ 342 (LC) at para 37.

[34] (2019) 40 ILJ 1328 (LC) at para 84.

[35] Section 185(b) of the LRA.

[36] See Member of the Executive Council for Education, North West Provincial Government v Gradwell (2012) 33 ILJ 2033 (LAC) at para 44; Mashego v Mpumalanga Provincial Legislature and Others (2015) 36 ILJ 458 (LC) at para 12; Madzonga v Mobile Telephone Networks (Pty) Ltd [2016] JOL 37300 (LC) at para 56.

[37] (2019) 40 ILJ 965 (CC) at para 25.

[38] Id at para 168

[39] Id at para 170.

[40] See Schedule 8 Item 3(6) which reads: ‘The employer should apply the penalty of dismissal consistently with the way in which it has been applied to the same and other employees in the past, and consistently as between two or more employees who participate in the misconduct under consideration.’

[41] See Southern Sun Hotel Interests (Pty) Ltd v Commission for Conciliation, Mediation and Arbitration and Others (2010) 31 ILJ 452 (LC) at para 10.

[42] SA Commercial Catering and Allied Workers Union and Others v Irvin and Johnson Ltd (1999) 20 ILJ 2302 (LAC) at para 29; Absa Bank Ltd v Naidu and Others (2015) 36 ILJ 602 (LAC) at paras 36 – 37; Consani Engineering (Pty) Ltd v Commission for Conciliation, Mediation and Arbitration and Others (2004) 25 ILJ 1707 (LC) at para 19.

[43] (2014) 35 ILJ 2406 (LAC) at paras 25 – 26. See also Mtshwene v Glencore Operations SA (Pty) Ltd (Lion Ferrochrome) (2019) 40 ILJ 507 (LAC) at para 24.

[44] (2017) 38 ILJ 860 (LAC) at para 31

[45] See CSS Tactical (Pty) Ltd v Security Officers Civil Rights & Allied Workers Union and Others (2015) 36 ILJ 2764 (LAC) at para 17; Mawethu Civils (Pty) Ltd and Another v National Union of Mineworkers and Others (2016) 37 ILJ 1851 (LAC) at paras 19 and 21.

[46] See Bombardier Transportation (Pty) Ltd v Mtiya NO and Others (2010) 31 ILJ 2065 (LC) at para 14. See also Mbele and Others v Chainpack (Pty) Ltd and Others (2016) 37 ILJ 2107 (LC) at paras 31 – 32; SA Post Office Ltd v Moloi NO and Others (2012) 33 ILJ 715 (LC) at para 37; Cook4life CC v Commission for Conciliation, Mediation and Arbitration and Others (2013) 34 ILJ 2018 (LC) at paras 8 – 9.

[47] (2015) 36 ILJ 1586 (LAC) at para 11.

[48] (2018) 39 ILJ 523 (CC) at para 25.