National Union of Metalworkers of South Africa obo Members v Bearing Man Group (Pty) Ltd t/a BMG and Others (JR2644/2018) [2021] ZALCJHB 414 (23 October 2021)

IN THE LABOUR COURT OF SOUTH AFRICA, JOHANNESBURG

Not reportable

Case No: JR 2644/2018

In the matter between:

NATIONAL UNION OF METALWORKERS OF

SOUTH AFRICA obo MEMBERS Applicant

and

BEARING MAN GROUP (PTY) LTD t/a BMG First

Respondent

COMMISSION FOR CONCILIATION, MEDIATION

AND ARBITRATION Second Respondent

COMMISSIONER M PHALA N.O Third

Respondent

Heard: 13 May 2021

Delivered: This judgment was handed down electronically by circulation to the parties' legal representatives by email and publication on the Labour Court’s website. The date and time for hand-down is deemed to be on 23 October 2021 at 20:00

JUDGMENT

TLHOTLHALEMAJE, J

Introduction and background:

[1] The applicant, NUMSA, representing its members (the employees), seeks an order reviewing and setting aside the arbitration award issued by the third respondent (Commissioner). NUMSA further seeks relief by way of either a substitution of that arbitration award, or that the dispute between it and the first respondent (BMG), be remitted to the second respondent, Commission for Conciliation Mediation and Arbitration (CCMA), to be heard de novo.

[2] The dispute before the Commissioner concerned the alleged unfair dismissal of the employees on 6 December 2017 on account of ‘engaging in unprotected strike action, and failing to adhere to a Court order’. The parties had agreed to have the dispute arbitrated in terms of section 141(1) of the Labour Relations Act[1] (LRA).

[3] It was not in dispute that the strike action in question was unprotected. It was triggered by a dispute surrounding payment of discretionary bonuses. The common cause facts as recorded by the parties in their pre-arbitration minutes are summarised as follows;

3.1 On 26 July 2017, BMG addressed a memorandum to the employees in terms of which its CEO advised them that the company was unable to pay the discretionary bonus at the end of 2017.

3.2 On 4 September 2017, BMG held a presentation to update all the employees on the sales performance and what is referred to as the ‘BMG tour’. It was indicated that the sales performance of BMG as at September 2017 were down by 7.6% since 2016.

3.3 Another memorandum dated 30 October2017 was sent to the employees in which they were informed that 50% of the 13th cheque will be paid in December 2017 and that the remaining 50% would be paid in April 2018 on condition that the budget was met at the end of March 2018. BMG had complied with this undertaking.

3.4 On 31 October 2017, the individual applicants sent a letter to BMG, complaining about the non-payment of the full 13th cheque. On 10 November 2017, BMG held another presentation for the logistics department in order to address the employees’

concerns.

3.5 After this presentation, the employees did not return to their workstations. Two members of BMG’s management team advised the employees through one of their representative, Mr Charles Mthembu, that should they not return to work within 15 minutes, their action will be deemed to be an unprotected strike action. The employees

subsequently complied.

3.6 Upon returning to work, NUMSA addressed correspondence to BMG to complain that its decision related to the 13th cheque constituted a unilateral change to the employees’ terms and conditions of employment. Further complaints followed on 14 November 2017 about the fact that a Mr Walter Mzizi of management was the one that had addressed the employees at the presentation about the non-payment of the bonuses.

3.7 On 15 November 2017, BMG notified the employees that the 50% will be paid in November instead of December, and warned that should employees embark on an unprotected strike action, such conduct will

be met with disciplinary action since loss of productivity could not be afforded if the budget was to be achieved for March 2018. On the same date, further correspondence was sent to NUMSA, warning that should the employees embark on an unprotected strike action, the employer would seek an interdict, issue ultimatums and take disciplinary action. On the same day and following the above correspondence, the employees embarked on an unauthorised picketing during their tea break in the morning.

3.8 On 16 November 2017, BMG’s attorneys of record sent correspondence to NUMSA indicating that an interdict would be sought the following day. Further correspondence was sent to the employees advising them that no meetings would take place on the company premises without permission.

3.9 On 17 September 2017, the employees embarked on an unprotected strike action. The first ultimatum was issued at about 10:00 on the same day advising the employees to return to work. Some did, whilst

the others persisted with the strike. NUMSA was then advised of the unprotected strike, and BMG’s intention to approach this Court on an urgent basis.

3.10 The Court order was indeed obtained on the same day, which was served on NUMSA and the employees, together with copies of a final ultimatum, which required the employees to return to work at 08h00 on 20 November 2017.

3.11 On 20 November 2017, and when the ultimatum was not adhered to, the employees were suspended and issued with notices to attend disciplinary enquiries, which were then held over five days between 22 and 27 November 2017. Following the disciplinary enquiries, 227 employees were dismissed.

[4] After a dispute was referred to the CCMA and when it could not be resolved, the matter came before the Commissioner. In the amended pre-arbitration minute, the Commissioner was called upon to decide the facts in dispute, and also the fairness of the termination of the employees’ employment for participation in a strike that did not comply with the provisions of Chapter IV of the LRA.

[5] At the arbitration proceedings, BMG called three witnesses, whilst NUMSA in turn called no less than eight witnesses. Before the Commissioner were 174 employees who were dismissed. In the light of the narrow ground of review raised by NUMSA, it is not necessary for our purposes at this stage to summarise the evidence led at the proceedings and the disputes of fact. The Commissioner however having had regard to the evidence led and the applicable legal prescripts, came to the following findings and conclusions;

5.1 In the light of the common cause fact that the employees had embarked on an unprotected strike action on 17 November 2018, there was no substance to their contention that they had merely assembled on that day, as they thought that there was going to be a meeting where they were to be addressed.

5.2 To the extent that there was an unprotected strike, the issue to be determined was whether the dismissal of the employees was substantively fair in the light of the factors to be considered under Item 6 of the Code of Good Practice: Schedule 8[2] as contained in the LRA.

5.3 The decision of the employees to embark on the unprotected strike action was a violation of their contractual obligations.

5.4 Even though there was no evidence to suggest that the employees had sought guidance from NUMSA prior to embarking on the strike, their decision was irrational in the light of the alternative routes available to them. Furthermore, the employees made no attempt whatsoever to comply with the provisions of the LRA.

5.5 The strike could not have been in response to any unjustified conduct on the part of BMG as there were various announcements and discussions surrounding the non-payment of bonuses and the reasons in that regard. Since the bonuses were ordinarily paid at the end of November, there was no dispute at the time of the strike as the payment date was not due, and thus the employees could have waited for month-end to consider their options.

5.6 The first and second ultimatums were only issued once it became apparent that the employees would not go back to work. There was further no substance to the allegations that they could not have been aware of the Court order, since video evidence demonstrated that the employees collected the copies thereof after they were served on them, and placed them on the feet of management officials whilst the other employees cheered loudly.

5.7 There was no substance to the employees’ allegations that they were at any stage prevented from reporting for duty on 20 November 2017, since they came to the premises with no intention to report for duty on that day, but to continue with the strike. They thus failed to heed the ultimatum, which had advised them that disciplinary action would be taken. In the circumstances, their dismissal was substantively fair.

5.8 In regards to procedural fairness, even though there was no obligation to convene disciplinary enquiries, BMG had nevertheless done so, making the dismissal procedurally fair.

The grounds of review and submissions:

[6] In seeking a review, NUMSA in its founding affidavit relied on a single ground, being that the Commissioner allegedly committed misconduct by failing to apply his mind to the facts, and disregarding relevant evidence. NUMSA contest the manner in which the Commissioner dealt with the evidence in regards to;

6.1 Whether the employees had since 18 November 2017, intended to comply with the ultimatum, but were however prevented from reporting for duty;

6.2 Whether there was evidence to demonstrate the basis upon which BMG had anticipated that the employees were not going to comply with the ultimatum, whilst its witness, Mr Anton Kritzinger had demonstrated his pre-determined decision to dismiss the employees prior to the expiry of the time period set out in the ultimatum;

6.3 Whether the employees were afforded an opportunity to comply with the ultimatum on 20 November 2017, and whether BMG was unwilling to entertain their bona fide attempts to tender their services.

[7] In opposing the application, BMG’s contentions were that 200 out of a workforce of 2000 employees engaged in a highly damaging unprotected strike, which caused losses in excess amount of R5m. This was in circumstances where the issue of bonuses had been discussed since July 2017, and further where the employees had no contractual right to the bonus. In any event, BMG had paid the bonus as promised in accordance with the previous discussions held with the employees and various prior correspondence.

[8] BMG further contends that the dismissals were preceded by attempts to prevent the strike, including repeatedly contacting the union, issuing ultimatums and even obtaining a Court order. All of these attempts were however ignored by both NUMSA and the employees

[9] In regards to the events of 20 November 2017, BMG’s contention was that despite the final ultimatum, there was still non-compliance. It was submitted that when a NUMSA official eventually arrived in the morning of 20 November 2017 and had a meeting with management, he had suggested that a final written warning be issued to the employees, whilst he tried to get them to resume their normal duties. According to BMG, as at 08h00 on the day in question, the employees were still on strike, having had the entire weekend to reflect on the consequences of their actions.

The test on review and evaluation:

[10] The test on review is whether the result was unreasonable, or put differently, whether the decision that the arbitrator arrived at is one that falls within a band of decisions a reasonable decision maker could come to on the available material[3]. In the light of factors raised in respect of the narrow grounds of review, in Anglo Platinum (Pty) Ltd (Bafokeng Rasemone Mine) v De Beer and Others[4], it was held that the reviewing court must consider the totality of evidence with a view of determining whether the result is capable of justification, and that unless the evidence viewed as a whole causes the result to be unreasonable, errors of fact and the like are of no consequence and do not serve as a basis for a review[5]. It has also been reiterated that the result will be unreasonable if it is entirely disconnected with the evidence, unsupported by any evidence, and involves speculation by the arbitrator[6]

[11] Since NUMSA had contended that BMG had misconstrued the purpose of the final ultimatum, and further that the Commissioner had either failed to consider or have regard to the evidence in regards to whether the final ultimatum issued on 17 November 2017 was complied with or not, the principles stated in AMCU obo Rantho and Others v SAMANCOR Western Chrome Mines[7] (Amcu) needs consideration. These are summarised as follows;

i. The object of an ultimatum is to give striking employees the opportunity to reconsider their action. It must, therefore, be clear and unambiguous and give the employees sufficient time to reflect[8].

ii. Where illegally striking employees obey an ultimatum and return to work within the stipulated time, the employer will not be entitled to dismiss them, and that to hold otherwise would render the purpose of an ultimatum nugatory [9].

iii. Our law regards an ultimatum by the employer as a waiver of the right to dismiss for the period of its duration. A party who has once approbated (waived a right arising under the contract, including the right to terminate it) cannot thereafter reprobate (seek to enforce that right). If the employees refuse to return to work, the waiver implicit in the ultimatum will lapse. But if they comply with the ultimatum, the employer is ordinarily precluded from dismissing the employees for the act of striking, but not necessarily for other misconduct committed during the strike.

iv. Where an employer after issuing an ultimatum wishes to reverse or amend the terms of the waiver prior to it expiring, it may do so in appropriate circumstances provided it has a good reason and gives the striking workers timeous notice of the change to prevent them from being unfairly prejudiced thereby[10]

[12] For the purposes of the enquiry as set out in AMCU, it ought to be concluded and accepted that on the evidence of Mr Antony Kritzinger, BMG’s General Manager Facilities, the copies of the ultimatums and the Court order, were issued to the employees at 16h15 on 17 November 2017, served on NUMSA, and further placed on all entrances to the premises and on notice boards at the workstations. Upon receipt of the said copies, the employees had after reading them, instead collected them, and then placed them at Kritzinger’s feet in the presence of other management officials to the approval of striking employees. Some of the copies were torn up. The employees therefore had the whole weekend from 17 – 20 November 2017 to reflect on the contents of the final ultimatum, on what was required of them, and to act accordingly. NUMSA equally had an opportunity to convince its members during that period to consider their stance, and the evidence demonstrated that despite receipt of the Court order and the final ultimatum, it took no steps whatsoever until 20 November 2017.

[13] The next enquiry is whether the final ultimatum[11] was in clear and unambiguous terms. I did not understand from NUMSA’s case that there was any ambiguity arising from the terms of the ultimatum. It was clear that the employees were afforded until 08h00 on Monday morning of 20 November 2017, to return to work. Furthermore, the employees were informed that BMG intended to issue them with notices to attend a disciplinary enquiry in the light of the seriousness of the misconduct in question. In this regard, Kritzinger’s evidence when under cross-examination was clear in explaining the purpose of that ultimatum. His response was the ultimatum was meant for employee to return to work, and for the company to exercise its right to impose disciplinary action[12]. Kritzinger further added that the purpose was not merely to enforce discipline but to get employees back to work[13].

[14] To the extent that it may be argued that there was ambiguity in the final ultimatum, this cannot however be so in the light of the

clearly distinguishable facts from those in AMCU. In the latter case, the employer had in its ultimatum, expressly reserved the right to take disciplinary action for participation in the strike and for other misconduct committed during

the strike, which provision as the Labour Appeal Court (LAC) found, introduced a measure of ambiguity[14]. In this case however, the ultimatum was clear, it sought the employees to comply with the ultimatum, and to further be subjected

to disciplinary enquiries. There was thus no choice as was the case in AMCU. Thus, whether the employees complied with the ultimatum or not, BMG retained the right to discipline them, for the misconduct in question, and not for non-compliance with the ultimatum.

[15] The question whether the employees had evinced an intention to return to work as early as 18 November 2017 and had in fact done so, but were however prevented from reporting for duty, takes NUMSA’s case no further. This is so in that on Kritzinger’s evidence, prior arrangements had been on 17 November 2017 by compiling a list of employees scheduled to be on duty the next day which was on Saturday. This was normal practice at the workplace. Thus, since the other employees were on strike, and even if they came to work on the Saturday of 18 November 2017, they were not scheduled to work on that day, as it was not a normal working day. There was therefore nothing untoward in refusing the service of those employees who were on strike, and who had suddenly reported for duty on 18 September 2017, when they were not scheduled to be at work on that day.

[16] There can further be no merit in NUMSA’s contentions that some (unidentified) employees who were on strike were nonetheless

scheduled to be on duty on 18 November 2017. It would not have made sense for the BMG to schedule employees who were on strike in any event, whilst not knowing whether they would report for duty or not.

[17] The primary dispute is whether the employees had indeed returned to work on 20 November 2017 at 08h00 in compliance with the ultimatum but were prevented from returning to work. Even though the non-compliance with the ultimatum was not the reason for the dismissal, to the extent that it can be said that BMG was not entitled to dismiss the employees in the light of the approach in AMCU as stated elsewhere in this judgment, the issue is whether they had complied with the ultimatum, even if BMG had warned them that they were still to be issued with notices to attend a disciplinary enquiry.

[18] It will be recalled that in accordance with what was stated in AMCU, BMG would not have been entitled to dismiss where there was compliance with the ultimatum on 20 November 2017. However,

if they had not, the waiver implicit in the ultimatum would have lapsed.

[19] The evidence of Kritzinger and NUMSA’s own witness and official, Mr Phuthi Phahlahla in regards to the evidence of 20 November 2017 is determinative of the issue whether there was compliance with the ultimatum. NUMSA’s contention was always that the employees had reported at the premises with the intention of rendering their services, but that they were prevented from doing so.

[20] The evidence of Kritzinger however was that on that day, employees who came to report for duty went through the turnstiles, and to their workstations. Other employees even arrived at the workplace in their private vehicles and were allowed to park in the premises but subsequently went back to the outside of the premises to join the strikers who were gathered outside of the workplace. Other employees also went into the premises, proceeded to their locker-rooms, retrieved whatever items they needed, and then returned to join the other employees gathered outside the workplace. He testified that there was therefore no intention on the employees’ part to return to work.

[21] Kritzinger further confirmed that as at around 08h00 on 20 November 2017, management was already preparing notices of a disciplinary enquiry to be issued to those employees that had not complied with the final ultimatum, and when the striking employees remained outside of the gates, and refused to adhere to the ultimatum, they were then issued with notices of the disciplinary enquiry. He denied that the employees were prevented from reporting for duty, and that when Phahlahla met management, he had said during negotiations that he would go out and try to get the employees back to work.

[22] Phahlahla’s testimony was that when he arrived at the premises before 08h00 on 20 November 2017, he found the employees locked outside with security officers preventing them from accessing the premises. He however and another employee representative, Charles Mthembu, went inside the premises where they had a meeting with Ms Ruth Black, the Group HR Manager and one Antony, who had confirmed that the employees were indeed locked out, as they were to be charged. He alleged that the two had refused to let the employees into the premises to their work stations. He refuted Kritzinger’s contentions that he (Phahlahla) had during negotiations, told management that he would go outside and speak to the employees to come back to work.

[23] As already indicated, the Commissioner had concluded that the employees had not complied with the ultimatum, as on 20 November 2017, they only came to the premises and gathered outside, with no intention of reporting for duty. The Commissioner’s conclusions in my view cannot be faulted in circumstances where there was no reason to doubt Kritzinger’s evidence that if some employees came to the premises, went through the turnstiles and thereafter straight to their workstations, there was no reason to conclude that any of the employees had been prevented from reporting for duty. Furthermore, if those employees who had arrived at the workplace in their vehicles were allowed to park inside and had thereafter walked outside to join the strikers, it cannot be said that those employees intended to report for duty. Equally so, where some of the employees even went to the extent of gaining entrance unhindered into the premises, went to their locker rooms to retrieve their items and thereafter went out to join the strikers, clearly there was no basis for a conclusion to be reached that any of the employees were prevented from reporting for duty. It follows that even on the approach espoused in Amcu, the employees had not complied with the ultimatum, and there could therefore any waiver implicit in the final ultimatum had lapsed.

[24] The issue ultimately is the reason for the dismissal of the employees, and whether in line with the provisions of section 188(1)(a) of the LRA, the Commissioner had establish whether that reason was fair. It will be recalled that the allegations against the employees were ‘engaging in unprotected strike action, and failing to adhere to a Court order’, and that what the Commissioner was called upon to decide the facts in dispute, and the fairness of the termination of the employees’ employment for participation in a strike that did not comply with the provisions of Chapter IV of the LRA.

[25] The charge related to failing to adhere to a Court order ought to be swiftly disposed of. This is so in that the Commissioner did not specifically deal with it and correctly so. Failing to obey a Court order ordinarily implies that the authority of the Court has been undermined, and the obvious remedy would be to institute contempt proceedings. I therefore find difficulty in appreciating such a charge against employees in the light of the obvious remedy.

[26] There can be no debates about the unprotected nature of the strike action embarked upon by the employees. The issue is whether the Commissioner’s conclusions in regards to the fairness of the termination of the employees’ employment for participation in a strike that did not comply with the provisions of Chapter IV of the LRA.

[27] It has long been made clear that in determining the appropriateness of a dismissal as a sanction for striking workers’ conduct,

consideration must be given to whether a less severe form of discipline would have been more appropriate, as dismissal is the most

severe sanction available. It was also reiterated that an illegal strike has been recognised by our courts to constitute serious and unacceptable misconduct by workers[15].

[28] In this case, and in consideration of the provisions of Item 6 of the Code of Good Practice, there is no doubt that the nature of the contravention of this Chapter IV was indeed serious, and NUMSA’s contentions that BMG did not quantify or demonstrate its loses is without merit. I fail to appreciate how a failure to render services when employees are expected to be working, can possibly be said to have no effect at all on the employer’s business.

[29] Furthermore, the seriousness of the misconduct ought to be assessed against the unreasonableness of the employees in the face of various explanations regarding the bonus, and their propensity to down tools at a whim as illustrated in the common cause facts as captured in the pre-arbitration minutes. From as far as July 2017 and after numerous consultations, correspondence and memos, the employees were made fully aware of the constraints experienced by BMG in paying the full bonuses. Notwithstanding, the employees sought to find every conceivable excuse to express their dissatisfaction in various ways, including withholding their labour. Thus, at no stage were there any attempts made at complying comply with the provisions of the LRA.

[30] In circumstances where there had been countless discussions on the issue of bonuses, and where it was apparent that the bonuses were not a contractual right, and further in circumstances where notwithstanding its financial predicament BMG had made good on its promises, I fail to appreciate how it can possibly be said that the unprotected strike was in response to unjustified conduct on the part of BMG. Instead, it would appear that it was the employees who were looking for confrontation since July 2017 when the first announcements about the bonuses were made.

[31] There is further no doubt that NUMSA had at all material times prior to 20 November 2017, been made aware and asked to intervene. The numerous correspondence and ultimatums were equally sent to NUMSA, and it was common cause that at no stage until 20 November 2017, did it bother to respond to that correspondence or ultimatums. In the first ultimatum issued at 10h00 on 17 November, and the final ultimatum issued later in that afternoon, NUMSA was made aware of BMG’s concerns and the course of action it intended to adopt. As already indicated, at no point did NUMSA avail itself to discuss any of these issues with BMG until 20 November 2017 or prevail over its members. Equally so, an urgent application in regards to the strike action in question did not even propel NUMSA to take any action. Under those circumstances, it ought to concluded that there is no basis for any contention that NUMSA was not fully aware or advised of the unprotected strike action, and BMG’s intentions to take action against the employees.

[32] In the end, having had regard to the totality of evidence that was presented before the Commissioner, there is no basis for any conclusion to be reached that the result he had reached was in any manner disconnected with the evidence, or unsupported by any evidence, and/or involved speculation on his part. It therefore follows that in the light of the unprotected nature of the strike; the ultimatum issued to the employees which was clear and unambiguous, and nonetheless not complied with; the seriousness of the conduct in question; and most importantly, the unreasonable nature of the employees’ posture in regards to the issue of the bonus, I am satisfied that the Commissioner’s award falls within a band of reasonableness, and thus the review application ought to fail.

[33] I have further had regard to the requirements of law and fairness to the extent that BMG sought an order of costs. Inasmuch as it was contended on behalf of BMG that there is no working relationship with NUMSA, this however is not so. On its own version, BMG conceded that even if the parties did not have a recognition agreement, at the same time, NUMSA enjoyed rights under sections 12 and 13 of the LRA, and that its chosen representatives at the workplace had been engaged by management albeit even if only in disciplinary enquiries. This is not a case where the parties have no relationship at all. Furthermore, it cannot be said that NUMSA acted mala fide in bringing this application, especially given the number of employees involved. In the circumstances, it follows that a costs order is not warranted in this case.

[34] Accordingly, the following order is made;

Order:

1. The Applicants’ application is dismissed with no order as to costs.

Edwin Tlhotlhalemaje

Judge of the Labour Court of South Africa

Appearances:

For the Applicant: Mr. N A Moyo. NUMSA Legal Officer

For First Respondent: Mr. B MacGregor of MacGregor Erasmus Attorneys

[1] Act 66 of 1995, as amended

[2] 6. Dismissals and industrial action (1) Participation in a strike that does not comply with the provisions of Chapter is misconduct. However, like any other act of misconduct, it does not always deserve dismissal. The substantive fairness of dismissal in these circumstances must be determined in the light of the facts of the case, including- (a) the seriousness of the contravention of this Act; (b) attempts made to comply with this Act; and (c) whether or not the strike was in response to unjustified conduct by the employer. (2) Prior to dismissal the employer should, at the earliest opportunity, contact a trade union official to discuss the course of action it intends to adopt. The employer should issue an ultimatum in clear and unambiguous terms that should state what is required of the employees and what sanction will be imposed if they do not comply with the ultimatum. The employees should be allowed sufficient time to reflect on the ultimatum and respond to it, either by complying with it or rejecting it. If the employer cannot reasonably be expected to extend these steps to the employees in question, the employer may dispense with them.

[2] 6. Dismissals and industrial action

(1) Participation in a strike that does not comply with the provisions of Chapter is misconduct. However, like any other act of misconduct, it does not always deserve dismissal. The substantive fairness of dismissal in these circumstances must be determined in the light of the facts of the case, including-

(a) the seriousness of the contravention of this Act;

(b) attempts made to comply with this Act; and

(c) whether or not the strike was in response to unjustified conduct by the employer.

(2) Prior to dismissal the employer should, at the earliest opportunity, contact a trade union official to discuss the course of action it intends to adopt. The employer should issue an ultimatum in clear and unambiguous terms that should state what is required of the employees and what sanction will be imposed if they do not comply with the ultimatum. The employees should be allowed sufficient time to reflect on the ultimatum and respond to it, either by complying with it or rejecting it. If the employer cannot reasonably be expected to extend these steps to the employees in question, the employer may dispense with them.

[3] Gold Fields Mining South Africa (Pty) Ltd (Kloof Gold Mine) v Commission for Conciliation, Mediation and Arbitration and Others (2014) 35 ILJ 943 (LAC) at para 14

[4] (2015) 36 ILJ 1453 (LAC)

[5] At para 12

[6] Herholdt v Nedbank Ltd (COSATU as amicus curiae) [2012] BLLR 1074 (SCA) paras 12 and 13.

[7] (JA62/19) [2020] ZALAC 46; (2020) 41 ILJ 2771 (LAC); [2021] 3 BLLR 236 (LAC)

[8] At para 25

[9] At para 26

[10] At para 27

[11] Annexure ‘NM2’ to the Review Bundle, which states; FINAL ULTIMATUM – UNPROTECTED INDUSTRIAL ACTION The company refers to the ultimatum given to you this morning in terms of which you have refused to return to your duties for virtually the entire day and continue to engage in the unprotected strike action. This has caused substantial financial loses to the business. The company has obtained a Labour Court Order, a copy attached declaring the strike unprotected and requiring you to return to work. In the circumstances, you are hereby given until Monday morning, 8am to return to work. Please note that in the light of the seriousness of the misconduct, you will be given a notice to attend an enquiry’

[11] Annexure ‘NM2’ to the Review Bundle, which states;

FINAL ULTIMATUM – UNPROTECTED INDUSTRIAL ACTION

The company refers to the ultimatum given to you this morning in terms of which you have refused to return to your duties for virtually the entire day and continue to engage in the unprotected strike action.

This has caused substantial financial loses to the business.

The company has obtained a Labour Court Order, a copy attached declaring the strike unprotected and requiring you to return to work.

In the circumstances, you are hereby given until Monday morning, 8am to return to work.

Please note that in the light of the seriousness of the misconduct, you will be given a notice to attend an enquiry’

[12] See Transcribed record at p 231 at lines 1 - 3

[13] At p232 at lines 4 - 9

[14] At para 29. See also at para 13 where it was observed; ‘The ultimata gave the workers a choice. They had to return to work at the stipulated times or, alternatively, if they intended not to return to work at those times, they could provide reasons as to why Samancor should not issue another final ultimatum requiring them to return to work. They were warned that if they did not heed the final ultimatum, they would then be dismissed. One may reasonably deduce from the terms in which they were framed that the two ultimata were preliminary in nature; with the threat of dismissal likely to be realised only after non-compliance with an intended further (and final) ultimatum.’

[14] At para 29. See also at para 13 where it was observed;

‘The ultimata gave the workers a choice. They had to return to work at the stipulated times or, alternatively, if they intended not to return to work at those times, they could provide reasons as to why Samancor should not issue another final ultimatum requiring them to return to work. They were warned that if they did not heed the final ultimatum, they would then be dismissed. One may reasonably deduce from the terms in which they were framed that the two ultimata were preliminary in nature; with the threat of dismissal likely to be realised only after non-compliance with an intended further (and final) ultimatum.’

[15]See Transport and Allied Workers Union of South Africa obo Ngedle and Others v Unitrans Fuel and Chemical (Pty) Ltd Limited [2016] ZACC 28; 2016 (11) BCLR 1440 (CC); [2016] 11 BLLR 1059 (CC); (2016) 37 ILJ 2485 (CC) at para 50