Nemufulwi and Others v UNICA Iron & Steel (Pty) Limited (JS417/17) [2019] ZALCJHB 256 (13 September 2019)

Nemufulwi and Others v UNICA Iron & Steel (Pty) Limited (JS417/17) [2019] ZALCJHB 256 (13 September 2019)

The court found that applicants 1, 2, 4, 5, and 6 participated in an unprotected strike and committed acts of violence, including damaging company property and intimidating others. The evidence against them was largely unchallenged and corroborated by multiple witnesses. The respondent's disciplinary process was found to be procedurally fair for applicants 4, 5, and 6, but procedurally unfair for applicants 1 and 2 due to lack of evidence on procedural compliance. The respondent was not inconsistent in disciplining employees for acts of violence, as only those identified as perpetrators were charged. No mitigating factors or remorse were presented by the applicants. Dismissal was deemed...

Citation
[2019] ZALCJHB 256
Parties
Applicant: Samuel Nemufulwi; Applicant: Karabo Maswanganye; Applicant: Stephen Tshabalala; Applicant: Robert Makgoba; Applicant: Ivan Mojela; Applicant: Thabiso Mokondo; Applicant: Polite Kola; Applicant: Baito Onkona; Applicant: Issac Kotlolo Motsela; Applicant: Frans Shika; Applicant: Jim Thlongwani; Respondent: UNICA Iron & Steel (Pty) Limited
Court
Labour Court Johannesburg
Jurisdiction
South Africa
Judgment Date
13 September 2019
Case Number
JS417/17
Procedural Posture
Unfair Dismissal Application / Judgment After Trial
Outcome
Dismissal of applicants 1, 2, 4, 5, and 6 was substantively fair. Dismissal of applicants 4, 5, and 6 was procedurally fair. Dismissal of applicants 1 and 2 was procedurally unfair. Compensation awarded to applicants 1 and 2.
Judges
S Mabaso
Legal Topics
Unfair Dismissal, Procedural Fairness, Substantive Fairness, Unprotected Strike, Disciplinary Inconsistency, Compensation for Unfair Dismissal
Labour Law Unfair Dismissal Procedural Fairness Substantive Fairness Unprotected Strike Disciplinary Inconsistency Compensation for Unfair Dismissal

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Parties

Samuel Nemufulwi

Applicant

Karabo Maswanganye

Applicant

Stephen Tshabalala

Applicant

Robert Makgoba

Applicant

Ivan Mojela

Applicant

Thabiso Mokondo

Applicant

Polite Kola

Applicant

Baito Onkona

Applicant

Issac Kotlolo Motsela

Applicant

Frans Shika

Applicant

Jim Thlongwani

Applicant

UNICA Iron & Steel (Pty) Limited

Respondent

Procedural Posture

Unfair Dismissal Application / Judgment After Trial

Legal Issues

  1. 1 Whether the dismissal of applicants for participation in an unprotected strike and acts of violence was substantively and procedurally fair.
  2. 2 Whether the respondent applied discipline consistently to all employees involved in the strike.
  3. 3 Whether the applicants are entitled to reinstatement or compensation for unfair dismissal.

Ratio Decidendi

The court found that applicants 1, 2, 4, 5, and 6 participated in an unprotected strike and committed acts of violence, including damaging company property and intimidating others. The evidence against them was largely unchallenged and corroborated by multiple witnesses. The respondent's disciplinary process was found to be procedurally fair for applicants 4, 5, and 6, but procedurally unfair for applicants 1 and 2 due to lack of evidence on procedural compliance. The respondent was not inconsistent in disciplining employees for acts of violence, as only those identified as perpetrators were charged. No mitigating factors or remorse were presented by the applicants. Dismissal was deemed...

Court Disposition

Dismissal of applicants 1, 2, 4, 5, and 6 was substantively fair. Dismissal of applicants 4, 5, and 6 was procedurally fair. Dismissal of applicants 1 and 2 was procedurally unfair. Compensation awarded to applicants 1 and 2.

Orders

  • The dismissal of applicants 1, 2, 4, 5, and 6 by the respondent was substantively fair.
  • The dismissal of applicants 4, 5, and 6 was procedurally fair.