Mazibuko and Others v Likusasa Engineering and Contracting (Pty) Ltd (D80/98) [1998] ZALC 87 (27 October 1998)

Mazibuko and Others v Likusasa Engineering and Contracting (Pty) Ltd (D80/98) [1998] ZALC 87 (27 October 1998)

The court found that the applicants, except for David Noel, participated in unprotected industrial action on 5 November 1997 and failed to comply with a clear ultimatum to return to work. The respondent followed a fair procedure by issuing repeated warnings and ultimatums, and the duration of the final ultimatum was reasonable in light of the history of prior strikes and warnings. There was no evidence of legitimate justification for the strike, nor any attempt by the strikers to comply with the Labour Relations Act. David Noel, however, did not participate in the strike, informed management of his intention to go home, and should not have been treated as a striker. His dismissal was...

Citation
[1998] ZALC 87
Parties
Applicant: Mr Cyril George Gangerdine; Applicant: David Noel; Applicant: Stanton Payne; Applicant: Timothy Shezi; Applicant: Victor Mazibuko; Applicant: Desmond Payne; Respondent: Likusasa Engineering and Contracting (Pty) Ltd
Court
Labour Court
Jurisdiction
South Africa
Judgment Date
27 October 1998
Case Number
D80/98
Procedural Posture
Unfair Dismissal Application / Judgment
Outcome
The dismissal of the applicants, except for David Noel, was found to be fair. David Noel's dismissal was found to be unfair.
Judges
Mlambo
Legal Topics
Unfair Dismissal, Unprotected Strike, Procedural Fairness, Substantive Fairness, Reinstatement, Compensation
Labour Law Unfair Dismissal Unprotected Strike Procedural Fairness Substantive Fairness Reinstatement Compensation

Case Brief

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Parties

Mr Cyril George Gangerdine

Applicant

David Noel

Applicant

Stanton Payne

Applicant

Timothy Shezi

Applicant

Victor Mazibuko

Applicant

Desmond Payne

Applicant

Likusasa Engineering and Contracting (Pty) Ltd

Respondent

Procedural Posture

Unfair Dismissal Application / Judgment

Legal Issues

  1. 1 Whether the dismissal of the applicants for participation in unprotected industrial action was substantively and procedurally fair.
  2. 2 Whether David Noel was correctly included among the dismissed strikers.
  3. 3 Whether the respondent followed a fair procedure in effecting the dismissals.

Ratio Decidendi

The court found that the applicants, except for David Noel, participated in unprotected industrial action on 5 November 1997 and failed to comply with a clear ultimatum to return to work. The respondent followed a fair procedure by issuing repeated warnings and ultimatums, and the duration of the final ultimatum was reasonable in light of the history of prior strikes and warnings. There was no evidence of legitimate justification for the strike, nor any attempt by the strikers to comply with the Labour Relations Act. David Noel, however, did not participate in the strike, informed management of his intention to go home, and should not have been treated as a striker. His dismissal was...

Court Disposition

The dismissal of the applicants, except for David Noel, was found to be fair. David Noel's dismissal was found to be unfair.

Orders

  • The dismissal of the applicants save for David Noel was not unfair.
  • David Noel is reinstated in the respondent’s employ on such terms as presently prevail to Noel’s job category.