NEHAWU obo Mpahle and Others v Department Of Health (Free State) (JS437/2007) [2014] ZALCJHB 221 (23 June 2014)

NEHAWU obo Mpahle and Others v Department Of Health (Free State) (JS437/2007) [2014] ZALCJHB 221 (23 June 2014)

The court found that the applicants, as shop stewards, participated in and supported an unprotected strike in an essential service, obstructing hospital operations and influencing other employees to join the action. Their conduct was not merely to welcome the Premier but was aimed at pursuing a grievance outside established dispute resolution mechanisms. The evidence showed that the applicants did not attempt to curtail the disruptive activity or encourage a return to work, and their leadership roles contributed to the participation of others. The employer acted consistently in sanctioning shop stewards differently due to their leadership and incitement. The disciplinary process was found...

Citation
[2014] ZALCJHB 221
Parties
Applicant: NEHAWU obo Mpahle and 4 Others; Respondent: Department Of Health (Free State)
Court
Labour Court Johannesburg
Jurisdiction
South Africa
Judgment Date
23 June 2014
Case Number
JS437/2007
Procedural Posture
Unfair Dismissal Application / Trial Judgment
Outcome
Dismissal of the applicants was both procedurally and substantively fair.
Judges
Lagrange
Legal Topics
Unprotected Strike, Essential Service, Shop Steward Dismissal, Procedural Fairness, Consistency of Sanction, Recusal of Chairperson
Labour Law Unprotected Strike Essential Service Shop Steward Dismissal Procedural Fairness Consistency of Sanction Recusal of Chairperson

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Parties

NEHAWU obo Mpahle and 4 Others

Applicant

Department Of Health (Free State)

Respondent

Procedural Posture

Unfair Dismissal Application / Trial Judgment

Legal Issues

  1. 1 Whether the applicants participated in an unprotected strike in an essential service.
  2. 2 Whether the applicants influenced or incited other employees to participate in the strike.
  3. 3 Whether the dismissals were substantively and procedurally fair.

Ratio Decidendi

The court found that the applicants, as shop stewards, participated in and supported an unprotected strike in an essential service, obstructing hospital operations and influencing other employees to join the action. Their conduct was not merely to welcome the Premier but was aimed at pursuing a grievance outside established dispute resolution mechanisms. The evidence showed that the applicants did not attempt to curtail the disruptive activity or encourage a return to work, and their leadership roles contributed to the participation of others. The employer acted consistently in sanctioning shop stewards differently due to their leadership and incitement. The disciplinary process was found...

Court Disposition

Dismissal of the applicants was both procedurally and substantively fair.

Orders

  • The dismissal of Messrs T J Mphale, M J Phukuntse and Ms M Masama for participating in unprotected strike action in an essential service and for influencing other employees to do so is upheld as procedurally and substantively fair.
  • No order as to costs.