ConCourt grants 65 Dunlop employees leave to appeal 2012 dismissal

2019-06-28 19:29
The Constitutional Court. (Lizeka Tandwa, News24)

The Constitutional Court. (Lizeka Tandwa, News24)

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The Constitutional Court (ConCourt) has granted 65 Dunlop employees, who were unfairly dismissed after a 2012 strike at the company, leave to appeal their dismissal. 

It held that an employer "may not dismiss an employee for participating in a protected strike or for any conduct in contemplation or furtherance of a protected strike".

Dunlop employees had embarked on a weeks-long protected strike from August 22, 2012. The picket was met with several allegations of violence, intimidation and damage to property. A month later, on September 26, the company dismissed the employees who were on strike. 

While the 65 employees were not positively and individually identified as having been present when the alleged violence was committed during the strike, they were, however, also dismissed for "derivative" misconduct. 

The National Union of Metalworkers of South Africa (Numsa) disputed the employee's dismissals, basing its argument on fairness. They were reinstated. 

The Labour Court (LC) and Labour Appeal Court (LAC) had, however, held that the employees, although they were said to have not been positively and individually identified, as part of the strike, had a duty to aid the employers by identifying those who were part of it. 

The courts also held that by remaining silent, the employees were guilty of derivative misconduct. 

The LC then set aside the arbitration award that was handed down and the Labour Appeals Court confirmed the order. 

This saw Numsa approaching the ConCourt seeking leave to appeal the order, arguing that both the courts (the LC and LAC) had incorrectly defined derivative misconduct by setting obligations on striking workers to tell on their colleagues even if they had no evidence to prove who took part in the strike. 

However, Dunlop counter-argued that the dismissals were procedurally fair, because of the circumstances of the strike. 

The ConCourt, in a unanimous decision delivered by Justice Johan Froneman, held that it would be wrong to use the duty to disclose as an easier means to dismiss employees, rather than dismissing them for being individually present in the strike and participating in the violence. 

It also held that the dismissal of an employee under the Labour Relations Act was unfair if the employer failed to prove that the reason for the dismissal was a good reason related to the employee's conduct or capacity, or the employer's operational requirements. 

"In a similar vein, an employee may forfeit the immunity for participating in a protected strike or for any conduct in contemplation or in furtherance of a protected strike and may be fairly dismissed for a reason relating to the employee's conduct or for a reason based on the employer's operational requirements," Justice Froneman's judgment read. 

The ConCourt also ruled that for an employer to impose a unilateral obligation on an employee to disclose information to an employer about the participation of a co-employee in misconduct in a protected strike would be akin to imposing a fiduciary duty on them.

In the context of a strike, the imposition of a unilateral duty to disclose would undermine the collective bargaining power of workers by requiring decisive action in the interests of the employer without any concomitant obligation on the part of the employer to give something, the judgment further stated.

It added that in the context of a strike, the employer's reciprocal duty of good faith would require, at the very least, that employees' safety should be guaranteed before expecting them to disclose information on misconduct by their colleagues.

The ConCourt further cautioned that a duty to disclose might have an impact on the right to strike and that the fact that the strike had turned violent did not mean there was no longer the right to strike.

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Read more on:    labour court  |  dunlop  |  strikes
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