Phora and Another v MEC Department of Health Gauteng (JS587/14) [2018] ZALCJHB 342 (12 October 2018)

Phora and Another v MEC Department of Health Gauteng (JS587/14) [2018] ZALCJHB 342 (12 October 2018)

The court found that the dismissal of the applicants was both procedurally and substantively unfair. The respondent failed to apply discipline consistently, as other employees involved in the same unprotected strike were issued final written warnings and reinstated, while the applicants were summarily dismissed without disciplinary hearings. The evidence did not support the allegations that the applicants incited the strike or intimidated other workers. The respondent provided no justification for treating the applicants differently or for failing to hold disciplinary hearings. The court held that the applicants should be reinstated with back pay, as there was no evidence militating...

Citation
[2018] ZALCJHB 342
Parties
Applicant: KM Phora; Applicant: DM Tladi; Respondent: MEC: Department of Health: Gauteng
Court
Labour Court Johannesburg
Jurisdiction
South Africa
Judgment Date
12 October 2018
Case Number
JS587/14
Procedural Posture
Labour Dismissal Application / Judgment After Trial
Outcome
Applicants' dismissal declared substantively and procedurally unfair; reinstatement with 24 months back pay ordered.
Judges
P Nkutha-Nkontwana
Legal Topics
Unprotected Strike, Inconsistent Discipline, Procedural Fairness, Substantive Fairness, Reinstatement, Essential Services
Labour Law Unprotected Strike Inconsistent Discipline Procedural Fairness Substantive Fairness Reinstatement Essential Services

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Parties

KM Phora

Applicant

DM Tladi

Applicant

MEC: Department of Health: Gauteng

Respondent

Procedural Posture

Labour Dismissal Application / Judgment After Trial

Legal Issues

  1. 1 Whether the dismissal of the applicants for participating in an unprotected strike was substantively and procedurally fair.
  2. 2 Whether the respondent applied discipline consistently in sanctioning the applicants compared to other employees.
  3. 3 Whether the respondent complied with the Labour Relations Act Schedule 8 Code of Good Practice: Dismissal when summarily dismissing the applicants.

Ratio Decidendi

The court found that the dismissal of the applicants was both procedurally and substantively unfair. The respondent failed to apply discipline consistently, as other employees involved in the same unprotected strike were issued final written warnings and reinstated, while the applicants were summarily dismissed without disciplinary hearings. The evidence did not support the allegations that the applicants incited the strike or intimidated other workers. The respondent provided no justification for treating the applicants differently or for failing to hold disciplinary hearings. The court held that the applicants should be reinstated with back pay, as there was no evidence militating...

Court Disposition

Applicants' dismissal declared substantively and procedurally unfair; reinstatement with 24 months back pay ordered.

Orders

  • The dismissal of Messrs Phora and Tladi is substantively and procedurally unfair.
  • Messrs Phora and Tladi are reinstated with 24 months back payment from the date of this order.