Modise and others v Steve's Spar Blackheath (JA29/99) [2000] ZALAC 1; 2001 (2) SA 406 (LAC) (15 March 2000)

Modise and others v Steve's Spar Blackheath (JA29/99) [2000] ZALAC 1; 2001 (2) SA 406 (LAC) (15 March 2000)

The majority held that the respondent was obliged to observe the audi alteram partem rule before dismissing the appellants for participation in the strike. The audi rule applies to all dismissals under South African labour law, regardless of whether the strike is legal or illegal, and regardless of whether the employment is in the public or private sector. The respondent failed to provide the appellants or their union with a fair opportunity to make representations before dismissal. The issuing of an ultimatum alone does not satisfy the requirement of procedural fairness; a discussion with the union or representatives about the intended course of action is required. The strike, although...

Citation
[2000] ZALAC 1
Parties
Appellant: Modise and others; Respondent: Steve's Spar Blackheath
Court
Labour Appeal Court
Jurisdiction
South Africa
Judgment Date
15 March 2000
Case Number
JA 29/99
Procedural Posture
Civil Appeal / Appeal From Industrial Court Determination Under Labour Relations Act, 1956
Outcome
Appeal upheld. The industrial court's determination is set aside and replaced with an order of reinstatement for the appellants with six months' retrospective effect. Costs limited to reasonable disbursements incurred by the appellants.
Judges
R. M. M. Zondo, M. T. R. Mogoeng, J. H. Conradie
Legal Topics
Unfair Dismissal, Audi Alteram Partem, Strike Action, Procedural Fairness, Collective Bargaining, Retrospective Reinstatement
Labour Law Unfair Dismissal Audi Alteram Partem Strike Action Procedural Fairness Collective Bargaining Retrospective Reinstatement

Case Brief

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Parties

Modise and others

Appellant

Steve's Spar Blackheath

Respondent

Procedural Posture

Civil Appeal / Appeal From Industrial Court Determination Under Labour Relations Act, 1956

Legal Issues

  1. 1 Whether the respondent committed an unfair labour practice by dismissing the appellants for participation in a strike.
  2. 2 Whether the respondent was obliged to observe the audi alteram partem rule before dismissing the appellants.
  3. 3 Whether the strike was legal or illegal under the Labour Relations Act, 1956.

Ratio Decidendi

The majority held that the respondent was obliged to observe the audi alteram partem rule before dismissing the appellants for participation in the strike. The audi rule applies to all dismissals under South African labour law, regardless of whether the strike is legal or illegal, and regardless of whether the employment is in the public or private sector. The respondent failed to provide the appellants or their union with a fair opportunity to make representations before dismissal. The issuing of an ultimatum alone does not satisfy the requirement of procedural fairness; a discussion with the union or representatives about the intended course of action is required. The strike, although...

Court Disposition

Appeal upheld. The industrial court's determination is set aside and replaced with an order of reinstatement for the appellants with six months' retrospective effect. Costs limited to reasonable disbursements incurred by the appellants.

Orders

  • The appeal is upheld with costs limited to disbursements reasonably incurred by the appellants in pursuing the appeal.
  • The determination of the industrial court is set aside and replaced with a finding that the respondent's dismissal of the applicants named in the Modise group constituted an unfair labour practice.