NTM obo Molema and Others v Botselo Holdings (Pty) Ltd (J1006/2016) [2019] ZALCJHB 347; (2020) 41 ILJ 701 (LC) (29 November 2019)

NTM obo Molema and Others v Botselo Holdings (Pty) Ltd (J1006/2016) [2019] ZALCJHB 347; (2020) 41 ILJ 701 (LC) (29 November 2019)

The court found that the dismissals were effected on 26 March 2016, in accordance with the final ultimatum, and not prematurely as alleged by the applicants. Although the company issued multiple ultimatums and obtained two court orders, it failed to hold a disciplinary hearing or provide the union with an opportunity to make representations prior to dismissal. The refusal of employees to accept documents and their disregard for ultimatums and court orders did not justify dispensing with the audi alteram partem requirement. The dismissals were therefore procedurally unfair. However, the strike was unprotected, the union failed to comply with statutory and contractual dispute procedures,...

Citation
[2019] ZALCJHB 347
Parties
Applicant: NTM obo Shadrack Molema & 224 Others; Respondent: Botselo Holdings (Pty) Ltd
Court
Labour Court Johannesburg
Jurisdiction
South Africa
Judgment Date
29 November 2019
Case Number
J1006/2016
Procedural Posture
Urgent Application / Judgment After Trial
Outcome
Dismissals were substantively fair but procedurally unfair. No compensation awarded. No order as to costs.
Judges
BN Conradie
Legal Topics
Unprotected Strike, Procedural Fairness, Substantive Fairness, Compensation for Unfair Dismissal, Audi Alteram Partem, Disciplinary Hearing Requirements
Labour Law Unprotected Strike Procedural Fairness Substantive Fairness Compensation for Unfair Dismissal Audi Alteram Partem Disciplinary Hearing Requirements

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Parties

NTM obo Shadrack Molema & 224 Others

Applicant

Botselo Holdings (Pty) Ltd

Respondent

Procedural Posture

Urgent Application / Judgment After Trial

Legal Issues

  1. 1 Was the dismissal of the applicants effected on 25 or 26 March 2016 as per the ultimatum?
  2. 2 Were the applicants dismissed fairly in terms of procedure and substance?
  3. 3 Did the respondent act consistently in applying discipline?

Ratio Decidendi

The court found that the dismissals were effected on 26 March 2016, in accordance with the final ultimatum, and not prematurely as alleged by the applicants. Although the company issued multiple ultimatums and obtained two court orders, it failed to hold a disciplinary hearing or provide the union with an opportunity to make representations prior to dismissal. The refusal of employees to accept documents and their disregard for ultimatums and court orders did not justify dispensing with the audi alteram partem requirement. The dismissals were therefore procedurally unfair. However, the strike was unprotected, the union failed to comply with statutory and contractual dispute procedures,...

Court Disposition

Dismissals were substantively fair but procedurally unfair. No compensation awarded. No order as to costs.

Orders

  • The dismissal of the individual applicants was substantively fair but procedurally unfair.
  • The individual applicants are not entitled to any compensation in respect of their procedurally unfair dismissals.