SACCAWU and Other v Check One (Pty) Ltd (D826/2009) [2012] ZALCD 3; (2012) 33 ILJ 1922 (LC) (24 January 2012)

SACCAWU and Other v Check One (Pty) Ltd (D826/2009) [2012] ZALCD 3; (2012) 33 ILJ 1922 (LC) (24 January 2012)

The court found that the respondent did not apply selective discipline, as the applicants faced an additional charge of intimidation and threatening behaviour, which distinguished them from the other employees who only participated in the unprotected strike. The evidence of Mr Govender, who knew the applicants well and had multiple opportunities to observe their conduct, was accepted as credible and reliable. The applicants' denial of misconduct was found to be unconvincing, and the respondent's version was favoured on the balance of probabilities. The dismissal was held to be substantively fair, as the applicants were correctly identified as having committed the second misconduct and the...

Citation
[2012] ZALCD 3
Parties
Applicant: SACCAWU; Applicant: Nomfundo Nxumalo and Others; Respondent: Check One (Pty) Ltd
Court
Labour Court Durban
Jurisdiction
South Africa
Judgment Date
24 January 2012
Case Number
D826/2009
Procedural Posture
Unfair Dismissal Application / Trial
Outcome
Application dismissed; the dismissal of the nine applicants was substantively fair.
Judges
Cele
Legal Topics
Unfair Dismissal, Strike Misconduct, Selective Discipline, Intimidation, Organisational Rights, Disciplinary Procedure
Labour Law Unfair Dismissal Strike Misconduct Selective Discipline Intimidation Organisational Rights Disciplinary Procedure

Case Brief

Summary, issues, holding and outcome

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Parties

SACCAWU

Applicant

Nomfundo Nxumalo and Others

Applicant

Check One (Pty) Ltd

Respondent

Procedural Posture

Unfair Dismissal Application / Trial

Legal Issues

  1. 1 Whether the respondent applied discipline consistently to all employees involved in the strike.
  2. 2 Whether the applicants were dismissed for participating in an unprotected strike or for violent, threatening and intimidating behaviour.
  3. 3 Whether the applicants were correctly identified as having committed the alleged misconduct.

Ratio Decidendi

The court found that the respondent did not apply selective discipline, as the applicants faced an additional charge of intimidation and threatening behaviour, which distinguished them from the other employees who only participated in the unprotected strike. The evidence of Mr Govender, who knew the applicants well and had multiple opportunities to observe their conduct, was accepted as credible and reliable. The applicants' denial of misconduct was found to be unconvincing, and the respondent's version was favoured on the balance of probabilities. The dismissal was held to be substantively fair, as the applicants were correctly identified as having committed the second misconduct and the...

Court Disposition

Application dismissed; the dismissal of the nine applicants was substantively fair.

Orders

  • The application is dismissed on the basis that the dismissal of the nine applicants by the respondent was substantively fair.
  • No costs order is made.