Pailpac (Pty) Ltd v De Beer N.O and Others (DA 12/2018) [2021] ZALAC 3; (2021) 42 ILJ 1038 (LAC); [2021] 6 BLLR 570 (LAC) (1 March 2021)

Pailpac (Pty) Ltd v De Beer N.O and Others (DA 12/2018) [2021] ZALAC 3; (2021) 42 ILJ 1038 (LAC); [2021] 6 BLLR 570 (LAC) (1 March 2021)

The Labour Appeal Court found that the evidence established the dismissed employees were aware or could reasonably have been expected to be aware of the rule prohibiting the carrying or wielding of weapons during the strike. The rules were posted at locations regularly accessed by employees, and they were aware of their obligation to read such notices. The arbitrator's finding to the contrary was not reasonable on the evidence. The employees contravened both the revised disciplinary code and picketing policy by carrying, wielding, or brandishing weapons in a manner that created a hostile and intimidatory atmosphere. The breach of the rule, coupled with the harm and intimidation caused,...

Citation
[2021] ZALAC 3
Parties
Appellant: Pailpac (Pty) Ltd; Respondent: Lisa Williams De Beer N.O; Respondent: Metal and Engineering Industries Bargaining Council; Respondent: National Union of Metal Workers of South Africa; Respondent: Mduduzi Shezi; Respondent: Mbuso Shabane; Respondent: Mirriam Ngalimane; Respondent: Khulekani Msane; Respondent: Linda Masuku; Respondent: Tholisile Ngcobo; Respondent: Mthandeni Mtolo; Respondent: Bonke Tolbadi
Court
Labour Appeal Court
Jurisdiction
South Africa
Judgment Date
1 March 2021
Case Number
DA 12/2018
Procedural Posture
Labour Appeal / Appeal From Labour Court Judgment Dismissing Review of Arbitration Award
Outcome
Appeal upheld; arbitration award set aside and substituted with a finding that the dismissals were substantively fair.
Judges
Phatsoane, Kathree-Setiloane, Savage
Legal Topics
Strike Misconduct, Dismissal for Misconduct, Disciplinary Code, Picketing Policy, Substantive Fairness, Knowledge of Workplace Rules
Labour Law Strike Misconduct Dismissal for Misconduct Disciplinary Code Picketing Policy Substantive Fairness Knowledge of Workplace Rules

Case Brief

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Parties

Pailpac (Pty) Ltd

Appellant

Lisa Williams De Beer N.O

Respondent

Metal and Engineering Industries Bargaining Council

Respondent

National Union of Metal Workers of South Africa

Respondent

Mduduzi Shezi

Respondent

Mbuso Shabane

Respondent

Mirriam Ngalimane

Respondent

Khulekani Msane

Respondent

Linda Masuku

Respondent

Tholisile Ngcobo

Respondent

Mthandeni Mtolo

Respondent

Bonke Tolbadi

Respondent

Procedural Posture

Labour Appeal / Appeal From Labour Court Judgment Dismissing Review of Arbitration Award

Legal Issues

  1. 1 Whether the dismissed employees knew or could reasonably have been expected to be aware of the rule prohibiting carrying or wielding weapons during a strike.
  2. 2 Whether the dismissed employees contravened the relevant workplace rules and picketing policy.
  3. 3 Whether dismissal was a substantively fair sanction for the misconduct.

Ratio Decidendi

The Labour Appeal Court found that the evidence established the dismissed employees were aware or could reasonably have been expected to be aware of the rule prohibiting the carrying or wielding of weapons during the strike. The rules were posted at locations regularly accessed by employees, and they were aware of their obligation to read such notices. The arbitrator's finding to the contrary was not reasonable on the evidence. The employees contravened both the revised disciplinary code and picketing policy by carrying, wielding, or brandishing weapons in a manner that created a hostile and intimidatory atmosphere. The breach of the rule, coupled with the harm and intimidation caused,...

Court Disposition

Appeal upheld; arbitration award set aside and substituted with a finding that the dismissals were substantively fair.

Orders

  • The appeal is upheld with costs.
  • The arbitration award of the first respondent, dated 19 June 2015, is reviewed and set aside and substituted with the following award: (a) The review succeeds with costs. (b) The dismissal of the fourth to eleventh respondents is substantively fair.