Southern African Clothing and Textile Workers Union and Others v Agri Poultry (Pty) Ltd ta Daybreak Farm and Others (JS751/22) [2025] ZALCJHB 304 (24 July 2025)

THE LABOUR COURT OF SOUTH AFRICA, JOHANNESBURG

Reportable

case No: JS 751/22

In the matter between:

SOUTHERN AFRICAN CLOTHING

AND TEXTILE WORKERS UNION

First applicant

AGRICULTURAL FOOD

AND GENERAL WORKERS UNION

Second applicant

KUNENE B &189 OTHERS

Third and Further applicants

And

AGRI POULTRY(PTY) LTD

t/a DAYBREAK FARM

Respondent

Heard on: 23 Oct 2023 to 03 November 2023; 25 March 2024 to 29 March 2024;

24 June 2024 to 28 June 2024 and 31 July 2024.

Delivered: 24 July 2025

Delivered: This judgment was handed down electronically by circulation to the parties via email and uploading onto the Labour Court website. The date for hand-down is deemed to be 24 July 2025.

JUDGMENT

MAHALELO, AJ

Introduction

[1] This judgment relates to the dismissal by the respondent of the third and further applicants. The applicants submited that their dismissal was unfair and seek full retrospective reinstatement. The respondent in turn submitted that the dismissal was fair, and request that the claim be dismissed with costs.

[2] By way of preliminary issues, the statement of claim launching this case was delivered on 1 November 2022. The trial first commenced in the week of 22 October 2023 and was postponed a few times. All in all, the trial lasted for a period of about 30 days.

[3] After the statement of claim was filed, the respondent reinstated 32 individual applicants. At the outset of the trial, it was indicated that the dispute in respect of the 32 applicants who have been reinstated was withdrawn and a notice to that effect was filed. During the course of the trial, it emerged that several other individual applicants were erroneously listed twice. The final list of applicants which excluded the withdrawn and duplicated applicants was handed up and marked as schedule “A”.

Background Facts

[4] The respondent is a poultry producer which conducts its business in various aspects of chicken production. The individual applicants were all employed by the respondent in its operations which involved the processing of chicken, including the slaughtering and further processing thereof. The respondent operates on a 24 hour basis with a day shift starting from 6h00 to 15h45 and the night shift starting from 16h15 to 2h00. The day and night shifts work on a rotational basis in teams referred to as Shift 1 and 2. In

the morning shift chickens are received at approximately 6h00. From there the chickens are processed through the various departments in the production line and are finally packaged and frozen.

[5] In its business the respondent pays its employees fortnightly. It pays an annual bonus or 13th cheque in mid-December of every year. At midnight on 14 December 2021, the respondent processed the bonus payments for its employees. The night shift employees were working at this time and received notification on their cell phones. The amount paid appeared to be less than what the employees expected. They were not happy with the amount deducted from their 13th cheque.

[6] Mr Kunene a shop steward for the South African Clothing and Textile Workers Union (SACTWU) engaged the on-duty shift supervisor Mr Desmond Sibanyoni regarding the issue. Sibanyoni testified that Kunene approached him and expressed the employees’ unhappiness about the deductions on their 13th cheque. He advised Kunene to approach the company’s payroll officer, Mr Brendan Adams to enquire about the deductions in the bonus payments and convey Adam's response to the employees at the following night shift.

[7] On the morning of the 15 December 2021, Mr Kunene returned to the respondent’s premises. He testified that he arrived at approximately 7h00 and at that time the employees had already commenced on a work stoppage. The morning shift had commenced at 6h00 and by 6h15 they had left their workstations. Mr Johannes Mngoma, a team leader at the respondent, testified that by 6h15 the employees had left their workstations and were refusing to work. He accordingly went to the receiving department and instructed the team leader Ms Samantha Mangaliso to stop the production. He testified that he instructed that production be stopped because if the employees were not working the chickens would be left unattended.

[8] On that same morning of 15 December 2021, Mr Kunene met with Mr Dlamini and several other shop stewards, including Mr Sipho Masilela, another SACTWU shop steward, and Mr Ndlovu a shop steward for AFGWU. Mr Dlamini requested that the shop stewards engage with the employees to encourage them to return to work. The shop stewards reported back to Mr Dlamini that the employees said that they would not return back to work until the deductions on their salaries have been fully explained.

[9] Mr Adams of payroll arrived at the company between 8h30 and 9h00. Mr Dlamini testified that by 10h30 the employees’ pay slips had been printed and the shop stewards were distributing them to each employee. The employees became aware that the deduction from the bonus payment was attributable to tax. They advised that they did not understand why such a substantial amount was paid over

to tax and requested an explanation from management. They indicated that until the explanation was proffered and the issue resolved, they would not return to work. The shop stewards engaged Mr Adams on the issue. He directed them to a memorandum affixed to the notice board outside his office explaining the tax deductions. Mr Kunene testified that the shop stewards could not make sense of the memorandum and requested Mr Adams to address the employees in the canteen. Mr Adams declined. The shop stewards returned to the canteen to address the employees. They explained to them that they engaged Mr Adams, but still they did not understand how the tax deductions were calculated. According to Mr Kunene the employees insisted that they would not return to work until the deductions were fully explained to them.

[10] Throughout the morning of 15 December 2021 the shop stewards would engage with management and go and report to the workers and back to management. At this point, Mr Mdluli of the respondent, upon realizing that the parties were not reaching any solution, communicated with the first applicant’s union official, Mr Makhene through emails. He requested that Makhene attend at the company premises to assist in resolving the strike. At the same time the shop stewards also contacted Mr Makhene telephonically. He advised that he would attend in the early afternoon of the same day.

[11] Mr Makhene arrived at the respondent in the afternoon. Upon engaging with the shop stewards, he proposed to Mr Mdluli that the respondent should investigate the deductions to verify whether they were correctly calculated. In the meantime, the respondent should advance half the deducted amount to the employees as a loan to be repaid to the respondent if the deductions were correctly calculated. Mr Makhene later presented that proposal in writing to Mr Mdluli. Unfortunately, the respondent did not accept the proposal, the reason being that it would be illegal not to deduct tax from the employees and pay it over to SARS.

[12] At this point, the day shift employees began leaving the premises and the night shift employees were arriving for their shift. The night shift employees, upon learning that the day shift employees were not working, decided to continue the strike in solidarity and to similarly demand a full explanation for the deductions. The employees continued with the strike on the following day, 16 December 2021. The employees did not report for duty on 16 and 18 December 2021. They said that they did not report for duty because 16 December 2021 was a public holiday and 18 December 2021 was a Saturday. They say that although they might have been rostered

for duty, it was not compulsory for them to report for duty on public holidays and weekends. The 19 of December 2021 was a Sunday, with the employees only reporting for duty on Monday, 20 December 2021.

[13] On 4 January 2022, the company charged 665 employees whose shifts fell over the period of the strike with participation in the unprotected industrial action. All the charged employees were not suspended pending the outcome of the disciplinary process. All the employees pleaded guilty to this charge. The charge of participation in an unprotected industrial action related to the employees participation therein on 15, 16 and 18 December 2021. In addition, four employees who were SACTWU shop stewards were charged with the second charge of incitement/encouragement to participate in unlawful/unprotected industrial action. They pleaded not guilty to the second charge of incitement.

[14] On 22 June 2022 the disciplinary hearing chairperson delivered his outcome. He accepted the 665 employees guilty plea in respect of participation in the unprotected strike action for the 3 days. In addition he found three of the four SACTWU shop stewards guilty of the charge of incitement. On or about the same day, the disciplinary hearing chairperson delivered his outcome on the sanction. He recommended that all 665 employees be summarily dismissed for participating in the unprotected strike. He further recommended dismissal for the three shop stewards found guilty on the charge of incitement.

[15] The basis upon which the individual applicants were selected for dismissal is central to these proceedings. From the 665 employees who were recommended to be dismissed the respondent dismissed only 225 employees. The respondent’s case is that despite the chairperson’s recommendation, it did not wish to dismiss all the employees. Mr Mdluli and Mr Mahasha who both testified for the respondent stated that despite the recommendations of the chairperson of the disciplinary

proceedings, the respondent decided to review the disciplinary records of those employees who had been found guilty of misconduct, and to dismiss only those whose records reflected existing final written warnings for prior misconduct. In accordance with this criteria, the respondent had subsequently reinstated 32 of the 225 employees who it subsequently realised did not have final written warnings.

[16] SACTWU and AFGWU referred an unfair dismissal dispute in respect of the individual applicants to the Commission for Conciliation, Mediation and Arbitration (CCMA). The dispute was unsuccessfully conciliated. The dispute was then referred to this court for adjudication in terms of section 191(5)(b)(iii) of the Labor Relations Act[1] (LRA).

[17] The aforesaid constitutes the background against which this matter is to be decided. It is common cause between the parties that the individual applicants participated in the strike. The fact that the strike was unprotected is also common cause. What is in dispute between the parties is whether or not:

17.1 The strike was provoked by the respondent by deducting tax on the 13 cheque of the employees.

17.2 Whether the strike was for a limited duration

17.3 Whether the three shop stewards were guilty of incitement

17.4 Whether the respondent served ultimatums on the striking employees, and

17.5 Whether the respondent applied discipline inconsistently.

[18] The applicants contended that although the individual applicants took part in the unprotected strike action, dismissal was an inappropriate sanction.

[19] Section 68 (5) of the LRA provides that:

‘Participation in a strike that does not comply with the provisions of this Chapter, or conduct in contemplation or in furtherance of that strike, may constitute a fair reason for dismissal. In determining whether or not the dismissal is fair, the Code of Good Practice: Dismissal in Schedule 8 must be taken into account.’

[20] Item 6(1) of Schedule 8: Code of Good Practice: Dismissal (the Code) provides as follows:

“(1) Participation in a strike that does not comply with the provisions of Chapter IV is misconduct. However, like any other act of misconduct, it does not always deserve dismissal. The substantive fairness of dismissals in these circumstances must be determined in the light of the facts of the case, including –

a) the seriousness of the contravention of this Act;

b) attempts made to comply with this Act; and

c) whether or not the strike was in response to unjustified conduct by the employer.”

[21] Section 68 (5) of the LRA and item 6 (1) of the Code set the parameters for the considerations affecting the substantive fairness of dismissals for participation in an unprotected strike action. Participation in an unprotected strike is unacceptable conduct and a serious breach of the employees’ employment contracts. Once participation in an unprotected strike is established it falls on the employees to provide an acceptable explanation for it.

[22] When determining the appropriate sanction, the court must take into account all surrounding circumstances. Where a particular factor or circumstance is especially instructive on the effect of the misconduct on the trust relationship, significant weight and consideration should be afforded to that factor. Accordingly, in this matter, the respondent bears the onus to prove that (1) the three individual employees dismissed for incitement actually incited the strike and (2) dismissal is an appropriate sanction against the individual applicants for participating in the strike.

[23] I will now turn to deciding the merits of the matter by answering the issues in dispute identified above. I will start by answering whether the three shop stewards were guilty of incitement and whether their resultant dismissal was substantively fair.

[24] Shop stewards are subject to the employer’s disciplinary authority while they act as intermediaries between the employer and union members. While shop stewards cannot claim special privileges arising out of their role as employees, the performance of their duties as such cannot in itself constitute a disciplinary offence, and they must have committed an act normally categorised as misconduct for any disciplinary action against them to be

justified.[2] The basis for the selection of the three shop stewards for dismissal, as I noted above, is an alleged incitement or encouragement of the employees to take part in the unprotected strike. In the context of an unprotected strike, incitement is committed if the accused employee/s “reached and sought to influence the mind” of other employees to participate in an unprotected strike.[3] For an employee to be found guilty of incitement evidence must be led which demonstrates that the employee indeed sought to influence and or raise the minds of his or her fellow employees to commit the unlawful strike action.

[25] Mr Moshoeshoe is one of the shop stewards who was dismissed for incitement. The respondent did not lead any evidence about him and his alleged misconduct in this regard. The respondent therefore did not discharge the burden of proof that Mr Moshoeshoe was guilty of inciting the strike.

[26] The second employee who was found guilty of incitement and dismissed was Mr Kunene. The evidence led against him in this regard was speculative. Mr Dlamini and Mr Mahasha testified that they suspected that Mr Kunene was responsible for inciting the strike because he attended at the company’s pemises on the morning of 15 December 2021 outside of his shift. This was the basis for concluding that Mr Kunene incited the strike. During the trial, it was put to Mr Dlamini and Mr Mahasha that Mr Kunene attended at the company’s premises on 15 December 2021 because he was directed to do so by Mr Sibanyoni and the night shift employees. Mr Sibanyoni confirmed in his testimony that he advised Mr Kunene to attend at the company’s premises on 15 December 2021 to discuss the deductions with Mr Adams. Mr Kunene confirmed that this was the reason for his attendance at the company’s premises on 15 December 2021. On this score, Mr Dlamini confirmed that Mr Kunene only arrived at the company’s

premises after the strike had commenced. Similarly, Mr Kunene testified that by the time he arrived at the premises, the strike had commenced for some time already. It seems impossible that Mr Kunene would have incited the strike as he was absent at the time when the strike could have been incited. No version to the contrary was put to Mr Kunene or advanced by the respondent with regard to this. It does not appear to the court that Mr Kunene would have been the cause of the strike because even Mr Dlamini accepted that Mr Kunene and the other shop stewards conveyed management’s position to the employees and in return conveyed the employees’ response to management. Another witness for the respondent Mr Mahasha also testified that the shop stewards including Mr Kunene encouraged the employees to return to work. On the facts before court the respondent has failed to prove that Mr Kunene was guilty of the charge of incitement.

[27] Mr Masilela was the last shop steward who was found guilty and dismissed for inciting the unprotected strike action. The alleged misconduct is based on the testimony of Mr Dlamini that on 15 December 2021 at approximately 06h15 he was called by Mr Mngoma who informed him that Mr Masilela had stopped the hangers at the receiving department and instructed the employees to leave their works stations. Apart from this evidence being hearsay, Mr Mngoma testified that Mr Masilela did not stop the hangers at the receiving department, but rather Mr Mngoma instructed Mangaliso to stop the hangers as the employees had already refused to work. He did not implicate Masilela or even imply that Masilela was responsible for instigating the strike.

[28] The version proffered by the respondent’s witnesses on this charge is inconsistent with the suggestion that the three shop stewards incited the strike. The respondent has failed to discharge its onus in this regard and the dismissal of the three shop stewards for incitement is substantively unfair.

Were the individual applicants provoked?

[29] As indicated above, it was common cause that the individual applicants participated in the unprotected strike action for a period of three days to which they pleaded guilty. This clearly constituted admitted misconduct for which dismissal may well be appropriate. Section 68(5) of the LRA, as well as schedule 8 deals with the issue of substantive fairness when it comes to dismissals for participation in unprotected strike action, quoted above, as well as item 6(2) which reads:

‘(2) Prior to dismissal the employer should, at the earliest opportunity contact a trade union official to discuss the course of action it intends to adopt. The employer should issue an ultimatum in clear and unambiguous terms that should state what is required of the employees and what sanction will be imposed if they do not comply with the ultimatum. The employees should be allowed sufficient time to reflect on the ultimatum and respond to it, either by complying with it or rejecting it. If the employer cannot reasonably be expected to extend these steps to the employees in question, the employer may dispense with them.’

[30] The applicants have pleaded that the individual applicants were provoked by the respondent into striking. The applicants have said that the provocation is based on the substantial and unexplained deductions

from their bonus payments. I find it very hard to believe on the evidence presented before me that the individual applicants were

provoked. The deductions from their bonuses by the respondent were for purposes of paying over income tax to SARS.

[31] The concept provocation requires at least some form of wrongful conduct or mala fides or material breach of employment conditions or employment contract by the employer or its representatives. In my view, it cannot be said that where an employer implement tax deductions in the salaries of employees, this could be seen to be provocation of the employees. In short, some wicked behaviour on the part of the employer is necessary. An example of the kind of conduct that could be seen to constitute such wicked behaviour can be found in National Union of Metalworkers of South Africa and others v Pro Roof Cape (Pty) Ltd[4]. In this judgment, the court held that the employer’s failure to pay significant amounts in renumeration due to employees “contributed significantly to a loss of trust in its industrial relations with its workforce”[5]. Further, the court also considered the fact that once the dispute reared its head, the employer chose to deal with the matter in a dismissive fashion, breached an agreement it reached with a union and never had the intention to pay the amounts concerned, despite saying it would. The court described these actions of the employer as being nothing less than provocative[6] and reprehensible.[7]

[32] Embarking on a full blown industrial action which action was unprotected, in circumstances where the deduction was lawful and mandatory and all reasonable steps taken to explain the deduction by giving pay slips and rendering an explanatory memorandum is in my view, wholly unreasonable and unjustified. The individual applicants were steadfast in their refusal to work despite the fact that they were fully aware that they would receive another payment in the form of their monthly wages a mere 48 hours after their 13th cheque was paid. Any reasonable person considering these facts would conclude that there was no real provocation from the respondent which led to the unprotected strike action of the individual applicants. Based on the facts, it is my conclusion that the respondent did not provoke the individual applicants. The strike of the individual applicants was not based on any unjustified conduct by the respondent.

The duration of the strike

[33] The charge of participation in the unprotected strike action to which the individual applicants pleaded guilty stated that the strike action took place on 15, 16 and 18 December 2021. From the evidence led during the trial, it became apparent that the strike continued for at least three days. It cannot therefore be accepted that the strike was for a limited duration.

[34] The individual applicants, including the three shop stewards participated in the unprotected strike and were dismissed for participation. The crucial question is therefore whether the individual applicants were fairly dismissed for participating in the unlawful strike. They contended that the dismissal of all of the individual applicants was unfair since it had been effected in breach of what has become known as the ‘parity principle’ coupled with the fact that the respondent failed to issue clear and unambigious ultimatums to the striking employees.

The Ultimatums

[35] The applicants have placed in dispute that the responded issued the striking employees with ultimatums. They contended that the respondent did not issue any ultimatum therefore the dismissal of the individual applicants is substantively unfair.

[36] The issue of an ultimatum is dealt with in item 6(2) of the Code quoted above. Applying this provision, the court in Mndebele and others v Xstrator South Africa (Pty) Ltd t/a Xstrata Alloys (Rustenburg Plant)[8] said:

“The code does not suggest how the ultimatum should be distributed or require that it must be in writing. Furthermore, it states that the issuing of an ultimatum is not an invariable requirement. The purpose of an ultimatum is not to elicit any information or explanations from the employees but to give them an opportunity to reflect on their conduct, digest issues and if need be, seek advice before making the decision whether to heed the ultimatum or not. The ultimatum must be issued with the sole purpose of enticing the employees to return to work and should in clear terms, warn the employees of the folly of their conduct and that should they not desist from their conduct, they face dismissal. Because an ultimatum is akin to a final warning, the purpose of which is to provide for a cooling-off period before a final decision to dismiss is taken, the audi rule must be observed both before and ultimatum is issued and after it has expired…”

[37] An employer is only ever relieved of its duty to issue an ultimatum if it cannot reasonably be expected of him to do so. Only in those limited circumstances may it dispense with its duty to issue an ultimatum. Otherwise, it is obliged to do so, and any failure on its part in this regard renders the subsequent dismissal of striking employees procedurally and substantively unfair.

[38] What does the evidence in casu demonstrate: Mr Mdluli testified that he contacted the union official Mr Makhene representing the employees by way of email on the morning of 15 December 2021 and made several follow ups thereafter, with the hope that the union will intervene and contain the strike earlier. The shop stewards including Mr Mahasha also contacted Mr Makhene and requested that he attend at the company’s premises to resolve the strike. Mr Makhene advised that he would only be available to attend the company premises in the afternoon, which he then did. The company’s management kept on engaging with Mr Makhene and the shop stewards with the hope that the strike will be resolved. It is the respondent’s case that verbal ultimatums were given to the employees and every effort was made to advise the employees through the shop stewards that they were engaging in unacceptable behaviour which may result in disciplinary proceedings and dismissal. Mr Mahasha testified that apart from the engagement of the shop stewards and Mr Makhene with the employees no written ultimatums were issued because shortly after the employees were addressed by Mr Makhene, the day shift employees started leaving the company’s premises and the night shift staff followed, therefore, it was impossible to issue formal ultimatums.

[39] On this issue of ultimatums, it is important to note that the individual applicants pleaded guilty to the charge of participating in the unprotected strike for three days during the disciplinary hearing without raising the allegation that no ultimatums were issued. It is clear that the individual applicants accepted that the respondent had warned them of the consequences of their conduct and were prepared to accept the consequences of their conduct.

[40] In Association of Mine Workers and Construction Union and Others v Anglogold Ashanti Ltd[9], it was said:

“I also accept that at least once the strike action commenced AMCU national leadership, as represented by Mphahlele had sufficient information to have recognised the need to intervene even if the consequences of failing to bring the strike action to an end were not spelled out. In this regard, I think it is reasonable to acknowledge that while there is an obvious need for unambiguous and explicit communication

to striking workers about the employers intentions, it is sufficient for the purposes of seeking the unions assistance that it be advised of the unfolding events, and that its urgent assistance in resolving the situation is required.”

[41] The facts in casu are clearly in conformity with the above principle set out in Anglogold Ashanti. Mr Makhene as a trade union official was asked several times to intervene and he undertook to do so. He did try to persuade the

individual applicants to resume their work, but they were steadfast in their demand and he failed. The shop stewards engaged several times with the workers in relation to their conduct and the consequences thereof. In my view the employees were given a chance to reflect on their conduct and come to other insights. The explanations about the tax deduction was given to them through a memorandum that was published on the notice board. My view on this issue is that despite there being no formal ultimatums issued, the individual applicants were clearly appraised that what they were doing was misconduct and that they faced disciplinary action as a result. The first applicant as a trade union was properly consulted beforehand and given the opportunity to consult its members in order to persuade them to return to work. The individual applicants made a deliberate decision to continue with the strike despite the consequences.The applicants’s case of not receiving formal

ultimatums thus falls to be rejected.

Was there inconsistency?

[42] The individual applicants, including the three shop stewards participated in the unprotected strike and were dismissed for participation. The crucial question is therefore whether the individual applicants were fairly dismissed for participating in the unlawful strike. As mentioned, they contended that the dismissal of all of the individual applicants was substantively unfair since it had been effected inconsistently in breach of the ‘parity principle’ in that the respondent subsequently did not dismiss employees who were part of the group who the disciplinary chairperson had recommended be dismissed.

[43] Item 3(6) of the Code of Good Practice: Dismissal provides that:

“The employer should apply the penalty of dismissal consistently with the way in which it has been applied to the same and other employees in the past and consistently as between two or more employees who participate in the misconduct under consideration.”

[44] The parity principle requires that like cases be treated alike which is an element of disciplinary fairness. It applies where there are two or more employees engaged in the same or similar conduct at the same time but only one or some of them are disciplined or where different penalties are imposed. Unfairness flows from the principle that like cases should, in fairness, be treated alike.[10] In Reckitt & Colman (SA) (Pty) Ltd v CWIU and others[11] the Court held that there is a difference between cases where employees are arbitrarily selected for discipline and cases in which an employer selects for discipline from a mass of workers only those against whom it has evidence.

[45] The other context is where historical inconsistency is raised as a basis to challenge the fairness of the sanction of dismissal.[12] In this instance, there would be no dispute that what the employee was charged with was indeed valid and proper to constitute misconduct, of which the employee is guilty. However, the issue would be that the dismissal of the employee for such misconduct is inconsistent with the sanction imposed by the employer for similar and related misconduct, in the past, in respect of other employees. In Southern Sun Hotel Interests (Pty) Ltd v Commission for Conciliation, Mediation and Arbitration and Others,[13] the Court in this context said:

‘The courts have distinguished two forms of inconsistency - historical and contemporaneous inconsistency. The former requires that an employer apply the penalty of dismissal consistently with the way in which the penalty has been applied to other employees in the past; the latter requires that the penalty be applied consistently as between two or more employees who commit the same misconduct. A claim of inconsistency (in either historical or contemporaneous terms) must satisfy a subjective element - an inconsistency challenge will fail where the employer did not know of the misconduct allegedly committed by the employee used as a comparator (see, for example, Gcwensha v CCMA & others [2006] 3 BLLR 234 (LAC) at paras 37-38). The objective element of the test to be applied is a comparator in the form of a similarly circumstanced

employee subjected to different treatment, usually in the form of a disciplinary penalty less severe than that imposed on the claimant’.

[46] It was conceded by Mr Mdluli during cross examination that employees who participated in previous unprotected strike action at the company were not disciplined at all for participation in the unprotected strike. The applicant, however, does not pursue this point but only note the historical inconsistency in this regard.The present case is therefore concerned with contemporaneous inconsistency.

[47] It is not uncommon that in the context of an unprotected strike, the employer inconsistently dismisses only some striking employees for one reason or the other. As was held in the judgment of Cape Town City Council v Masitho and others[14] that:

“There may be valid grounds in a particular case to distinguish one employee from another, albeit that they have engaged in the same conduct on the basis of their respective records or on the basis of other material factors. But in the absence of material distinguishing

features equity would generally demand parity of treatment …

Where two employees have committed the same wrong and there is nothing else to distinguish them, I can see no reason why they ought not generally to be dealt with in the same way, and I do not understand the decision in that case to suggest the contrary. Without that, employees will inevitably, and in my view justifiably, consider themselves to be aggrieved in consequence of at least a perception of bias.”

[48] The established jurisprudence as regards the parity principle is therefore unambiguous. Where two or more employees engaged in the same misconduct at the same time, including and especially in the context of an unprotected strike, and there is nothing to distinguish one employee from the other, the employer must apply the penalty of dismissal consistently. In the Labour Appeal Court’s own words, failure to do so renders the dismissal arbitrary and absurd, and ultimately, substantively unfair.[15]

[49] In this case, in deciding whether the dismissal of the individual applicants was fair the individual applicants can be categorized in two groups. First, those employees who were dismissed for participating in the unprotected strike action but did not have final wirtten warnings or a disciplinary record. Second, those employees in respect of whom the company has adduced final written warnings. The position in relation to the former is addressed first.

[50] The company's witnesses testified that approximately 665 employees participated in the unprotected strike in question. The disciplinary hearing chairperson recommended that all 665 employees be dismissed. The company, however, diverged from this recommendation and dismissed those employees of the 665 who had been issued with valid final written warnings previously. According to the company’s witnesses, this was the criteria utilized by the company to determine which employees to retain in employment and which employees to dismiss. On this basis, the company ultimately only dismissed 225 employees. After this case was instituted the company subsequently reistated 32 of the 225 employees. These were the employees who the company realized did not have valid final written warnings. As a result, the list of individual applicants accordingly reduced to 190 employees.

[51] In the course of the trial, it was established that a further 125 of the 190 remaining individual applicants also did not have final written warnings. A list of the 125 individual applicants without final written warnings was marked Schedule “B”. For these employees, the company was put to prove the valid final written warnings in line with the criteria it applied when determining which of the 665 employees to dismiss. The company was not able to do so for the 125 employees. Both Mr Mdluli and Mr Mahasha conceded that no evidence has been placed before the court to prove that the 125 individual applicants were issued with final written warnings. Mr Mahasha accepted that there is no record that these 125 individual applicants had any disciplinary record whatsoever. Apart from the failure of the respondent to prove that the 125 individual applicants had final written warnings, in the disciplinary hearing outcome, the chairperson recorded that of the 665 employees who participated in the strike, only 72 of them had final written warnings, and Mr Mahasha and Mr Mdluli confirmed that this is correct.

[52] In the result, the respondent has failed to discharge its onus in respect of the criteria it adopted to dismiss the 125 individual applicants. It arbitrarily dismissed them even though they did not have final written warnings or any disciplinary record whatsoever. There was no basis to differentiate them from the other employees who the company did not dismiss, or the 32 employees who the company subsequently reinstated because they did not have any record of final written warnings. That differentiation is arbitrary and absurd and the dismissal of the 125 individual applicants is substantively unfair.

[53] With regards to employees with final written warnings, of the 190 individual applicants, the company discovered final written warnings for 65 of the individual applicants. A list of these 65 individual applicants is marked Schedule “C”. The applicants contended that the dismissal of the 65 individual applicants with final written warnings is unfair for two reasons. First, although the company discovered final written warnings for these 65 individuals, the final written warnings were not valid as contemplated in the company's criteria for dismissal. Second, the dismissal is inconsistent as there are several other employees against whom the company had issued similar final written warnings who also participated in the strike but were not dismissed.

[54] I do not agree with the applicants on why they say the dismissal of the individual applicants with expired final written warning is unfair. As stated in Cape Town City Council v Masitho,[16] there may be valid grounds in a particular case to distinguish one employee from another, albeit that they have engaged in the same conduct on the basis of their respective records. However, on the second basis I find that the

company differentiated between the employees when it dismissed the 65 individual applicants because they had final written warnings for the following reasons: The evidence before court discloses that there are other 18 employees against whom the company issued final written warnings, exactly as with the 65 individual applicants listed in schedule C who participated in the strike, but were not dismissed. If the company did not dismiss these 18 employees then there is no reason for it to dismiss the 65 individual applicants listed in schedule C. The company discovered final written warnings against these 18 employees. These final written warnings, as with the 65 individual applicants, had also expired. It was undisputed that these 18 employees had final written warnings issued against them previously and participated in the strike in question but were not dismissed. Mr Dlamini confirmed that Alfred Nkosi one of the 18 employees had a final written warning and participated in the strike in question but was not dismissed, Mr Mngoma confirmed the same in respect of Benedict Molapo.

[55] The 18 employees are in the exact same position as the 65 individual applicants. The company issued final written warnings against both the 18 employees and the 65 individual applicants. The final written warnings issued against both groups were for the same misconduct but had expired by the time of the strike. The only difference between the two groups is that the company dismissed the 65 individual applicants, but did not dismiss the 18 employees. The differentiation renders the dismissal of the 65 individual applicants substantively unfair.

Remedy

[56] This brings me to the consideration of an appropriate remedy. The applicants have indicated that they wish to return to work. Section 193 (1) of the LRA provides that where it is found that a dismissal is unfair a court or an arbitrator may order reinstatement or re-employment from a date not earlier than the date of dismissal, or order the employer to pay compensation subject to the provisions of section 194. Section 193(2) states the primary remedy for an unfair dismissal and it provides that:

“The Labour Court or the arbitrator must require the employer to reinstate or re-employ the employee, unless-

(a) the employee does not wish to be reinstated or re-employed;

(b) the circumstances surrounding the dismissal are such that a continued employment relationship would be intolerable;

(c) it is not reasonably practicable for the employer to reinstate or re-employ the employee; or

(d) the dismissal is unfair only because the employer did not follow a fair procedure.”

[57] Where it is not reasonably practicable to order reinstatement or re-employment, compensation would be an appropriate remedy. This is so because reinstatement means placing the employees in the same positions and the conditions of service which existed prior to their dismissal.[17]

[58] As will be shown, the conduct of the individual applicants is one factor which weighs heavily against reinstatement or re employment. Had it not been for the different treatment which was accorded to them, this would have been a proper case where dismissal would have been an appropriate sanction.

[59] In my view, when granting the applicants a remedy, it is important to have regard to Section 23 of the Constitution for the Republic of South Africa, 1996, which provides that everyone has a right to fair labour practice. The right to fair labour practice applies to both the employer and employee.

[60] The individual applicants did not approach the courts with clean hands. They were particularly obstinate in their persistence with the unprotected strike action and it had the maximum adverse effects for the respondent. The industrial action was not for a short period, it lasted for three days. It was unprovoked, unwarranted and in pursuit of an entirely illegitimate demand. The damage ran into millions of rands and lots of wastage in terms of the product that had to be condemned and additional expenses that had to be incurred by the company during this time.

[61] It cannot also be disputed that the unprotected strike action took place over the busiest period for the respondent’s business and that maximized the effect of the harm caused by the individual applicants’ actions. The applicants participated in the unprotected industrial actions at the company previously which caused the company losses. The company acted leniently and did not dismiss them.

[62] More than four years have elapsed since the dismissal of the individual applicants. The probability is that their posts have been filled. Although we do not have evidence in this regard it is highly unlikely that a plant as big as Sundra would operate without these posts being filled; the individual applicants should thus not be allowed to benefit from their misconduct.

[63] The evidence presented suggests that the circumstances surrounding the dismissal of the applicants are such that a continued employment relationship would be intolerable, that it is not reasonably practicable for the employer to reinstate or re-employ the employees and that the dismissal of the applicants is unfair only because the employer did not follow a fair procedure.

[64] In these circumstances, justice and equity dictate that the employer should be ordered to pay compensation to each of the individual applicants, in the amount equivalent to 5 months (five) salary calculated at the rate they were earning as at the date of their dismissal.

Costs

[65] In terms of section 162 of the LRA, the Court has a wide discretion in awarding costs. The Constitutional Court has recently reiterated in Zungu v Premier of the Province of KwaZulu-Natal and others,[18] that costs orders should be made in accordance with the requirements of the law and fairness. I have considered that the first and second applicants and the respondent may have a continuing relationship. Therefore, in this

matter, the requirements of law and fairness dictate that there should be no order as to costs.

[66] For all the aforegoing reasons, the following order is made:

Order

1. The dismissal of the individual applicants is found to be substantively unfair.

2. The respondent is ordered to pay to the individual applicants (Listed in Annexure “B and C”) compensation equivalent to 5(Five) months salary calculated at their rate of remuneration as at the date of dismissal.

3. There is no other is to costs.

MB Mahalelo

Acting Judge of the Labour Court of South Africa

Appearances:

For the Applicant: Mr. J. Phillips

Instructed by Cheadle Thompson & Haysom

For the Respondent: Adv L. Steenkamp

Instructed by: VZLR Attorneys

[1] Act 66 of 1995, as amended.

[2] See: J Grogan Dismissal, Discrimination and Unfair Labour Practices (Juta. & Co Ltd, Cape Town) 2005 at 390-1.

[3] See: Albion Services CC V CCMA and others [2016] JOL 36832 (LC).

[4] (2005) 26 ILJ 1705 (LC).

[5] Ibid at para 31.

[6] Id fn 5 at para 31.

[7] Id fn 5 at para 34.

[8] (2016) 37 ILJ 2610 (LAC) at para 27

[9] (2016) 37 ILJ 2320 (LC) at para 237.

[10] National Union of Metalworkers of SA and Others v Henred Fruehauf Trailers (Pty) Ltd (1994) 15 ILJ 1257 (A) at 1264A-D: National Union Of Mineworkers obo Botsane v Anglo Platinum Mine (Rustenburg Section) (2014) 35 ILJ 2406 (LAC) at para 25.

[11] (1991) 12 ILJ 806 (LAC).

[12]See: Schedule 8 Item 3(6).

[13] (2010) 31 ILJ 452 (LC) at para 10. (‘Southern Sun Hotel’)

[14] (CA9/1999) [2000] ZALAC 15 (28 June 2000) at p 5 and 6.

[15] See: Cape Town City Council v Masitho (2000) 21 ILJ 1957 (LAC) and CEPPWAWU v Metrofile (Pty) Ltd (2004) 25 ILJ 231 (LAC).

[16] Id fn 15.

[17] Equity Aviation Services (Pty) Ltd v Commission for Conciliation, Mediation and Arbitration and Others [2008] ZACC 16; 2009 (1) SA 390 (CC) (Equity Aviation) at para 36.

[18] (2018) 39 ILJ 523 (CC) at para 24.