Mashaba v Telkom South Africa (JR375/12) [2018] ZALCJHB 3; (2018) 39 ILJ 1067 (LC) (11 January 2018)

Mashaba v Telkom South Africa (JR375/12) [2018] ZALCJHB 3; (2018) 39 ILJ 1067 (LC) (11 January 2018)

The court found that the applicant was dismissed primarily for exercising his trade union duties by distributing the dossier to CWU and COSATU officials, following an instruction from the union's provincial secretary. The evidence established that the dossier had become a CWU organisational document prior to its distribution by the applicant, and the recipients were within union structures. The manner of distribution did not amount to bad faith or remove the activity from the scope of protected union functions. The dominant reason for dismissal was the applicant's union activity, rendering the dismissal automatically unfair under section 187(1)(d) of the LRA. The court held that...

Citation
[2018] ZALCJHB 3
Parties
Applicant: Ezekiel Mashaba; Respondent: Telkom South Africa
Court
Labour Court Johannesburg
Jurisdiction
South Africa
Judgment Date
11 January 2018
Case Number
JR375/12
Procedural Posture
Review Application / Judgment After Trial
Outcome
The applicant's dismissal is declared automatically unfair under section 187(1)(d) of the LRA. The applicant is reinstated with effect from 11 January 2016, and the respondent is ordered to pay costs from the initiation of proceedings.
Judges
Nkutha-Nkontwana
Legal Topics
Automatically Unfair Dismissal, Trade Union Activities, Section 187 Lra, Shop Steward Rights, Protected Disclosure, Retrospective Reinstatement
Labour Law Automatically Unfair Dismissal Trade Union Activities Section 187 Lra Shop Steward Rights Protected Disclosure Retrospective Reinstatement

Case Brief

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Parties

Ezekiel Mashaba

Applicant

Telkom South Africa

Respondent

Procedural Posture

Review Application / Judgment After Trial

Legal Issues

  1. 1 Was the applicant's dismissal automatically unfair under section 187(1)(d) of the LRA for exercising trade union activities?
  2. 2 Did the applicant act in bad faith or outside the scope of protected union activities when distributing the dossier?
  3. 3 Is reinstatement with retrospective effect a just and equitable remedy in the circumstances?

Ratio Decidendi

The court found that the applicant was dismissed primarily for exercising his trade union duties by distributing the dossier to CWU and COSATU officials, following an instruction from the union's provincial secretary. The evidence established that the dossier had become a CWU organisational document prior to its distribution by the applicant, and the recipients were within union structures. The manner of distribution did not amount to bad faith or remove the activity from the scope of protected union functions. The dominant reason for dismissal was the applicant's union activity, rendering the dismissal automatically unfair under section 187(1)(d) of the LRA. The court held that...

Court Disposition

The applicant's dismissal is declared automatically unfair under section 187(1)(d) of the LRA. The applicant is reinstated with effect from 11 January 2016, and the respondent is ordered to pay costs from the initiation of proceedings.

Orders

  • The dismissal of Mr Mashaba on 21 September 2011 is declared automatically unfair in terms of section 187(1)(d) of the LRA.
  • Mr Mashaba is reinstated in his employment with Telkom with effect from 11 January 2016.