Sithole and Others v NI-DA Transport (Pty) Ltd; Fakude and Others v NI-DA Transport (Pty) Ltd (D938/08; D795/09) [2013] ZALCD 20 (1 March 2013)

Sithole and Others v NI-DA Transport (Pty) Ltd; Fakude and Others v NI-DA Transport (Pty) Ltd (D938/08; D795/09) [2013] ZALCD 20 (1 March 2013)

The respondent failed to discharge its onus to prove the fairness of the dismissals. No substantive evidence was led regarding the alleged misconduct, the disciplinary process, or the appropriateness of dismissal as a sanction. The respondent's witnesses provided only vague generalities and did not address the specific circumstances of each applicant's dismissal. The Code of Good Practice requires consideration of mitigating and aggravating factors before dismissal for strike-related misconduct, which the respondent ignored. The applicants established that they were dismissed, and the respondent failed to prove fairness, both procedurally and substantively. Consequently, the dismissals...

Citation
[2013] ZALCD 20
Parties
Applicant: Mbekeni W Sithole; Applicant: Jacob Bert Khanye; Applicant: Bheki C Mmola; Applicant: Thulasizwe Simon Ngwenya; Applicant: Mboniseni Andries Fakude; Applicant: Ephraim Ndabayakhe Chonco; Applicant: Themba Zwane; Respondent: NI-DA Transport (Pty) Ltd
Court
Labour Court Durban
Jurisdiction
South Africa
Judgment Date
1 March 2013
Case Number
D938/08; D795/09
Procedural Posture
Unfair Dismissal Application / Trial and Judgment
Outcome
The applications are granted. The dismissals of the applicants in both matters were substantively and procedurally unfair.
Judges
D H Gush
Legal Topics
Automatically Unfair Dismissal, Procedural Fairness, Substantive Fairness, Trade Union Activity, Unprotected Strike, Reinstatement
Labour Law Automatically Unfair Dismissal Procedural Fairness Substantive Fairness Trade Union Activity Unprotected Strike Reinstatement

Case Brief

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Parties

Mbekeni W Sithole

Applicant

Jacob Bert Khanye

Applicant

Bheki C Mmola

Applicant

Thulasizwe Simon Ngwenya

Applicant

Mboniseni Andries Fakude

Applicant

Ephraim Ndabayakhe Chonco

Applicant

Themba Zwane

Applicant

NI-DA Transport (Pty) Ltd

Respondent

Procedural Posture

Unfair Dismissal Application / Trial and Judgment

Legal Issues

  1. 1 Whether the dismissals of the applicants were procedurally and substantively unfair.
  2. 2 Whether the dismissals were automatically unfair due to discrimination based on union activity or pro-union conduct.

Ratio Decidendi

The respondent failed to discharge its onus to prove the fairness of the dismissals. No substantive evidence was led regarding the alleged misconduct, the disciplinary process, or the appropriateness of dismissal as a sanction. The respondent's witnesses provided only vague generalities and did not address the specific circumstances of each applicant's dismissal. The Code of Good Practice requires consideration of mitigating and aggravating factors before dismissal for strike-related misconduct, which the respondent ignored. The applicants established that they were dismissed, and the respondent failed to prove fairness, both procedurally and substantively. Consequently, the dismissals...

Court Disposition

The applications are granted. The dismissals of the applicants in both matters were substantively and procedurally unfair.

Orders

  • The respondent is ordered to reinstate the applicants in both matters retrospectively to the date of their dismissal.
  • Back pay due to the applicants is to be calculated in accordance with the minimum wages determined by the Bargaining Council for the Road Freight Industry for the period from dismissal to the date of reporting for duty.