Authored by Heidi Davis.
In Association of Mineworkers and Construction Union and Others v Northern Coal, the Labour Court found that the dismissal of employees who participated in an unprotected strike triggered by a payroll error was substantively unfair. The judgment reminds employers that dismissal is not automatically an appropriate sanction for participation in an unprotected strike, the facts will dictate whether dismissal was fair in the circumstances.
The employees were colliery workers scheduled for a night shift. At shift commencement, they received pay slips reflecting approximately 30% shortfalls due to erroneously excluded overtime. They engaged in a peaceful work stoppage pending confirmation that the errors would be rectified. Upon receiving such confirmation, they commenced their duties. They were dismissed because the employer's disciplinary code prescribed dismissal as the recommended sanction for participating in an unprotected strike.
The court accepted that the workers were guilty of participating in an unprotected strike. However, drawing on the Labour Appeal Court case of NUM v CCMA and the Labour Court case of Twin Steel, the court emphasised that the fairness inquiry for dismissals in these circumstances is multi-factorial and requires consideration of the seriousness of the contravention of Labour Relations Act, 1995 (the LRA) , attempts made to comply with the LRA, and whether the strike was in response to unlawful, unfair, or unreasonable conduct by the employer.
In finding the dismissal substantively unfair, the court considered that: the strike was triggered by the employer's own payroll error which would have been financially devastating for the workers; the strike was spontaneous and short-lived, with workers commencing their duties once assured of rectification of the error; management prolonged the stoppage by insisting on addressing the issue through the shift supervisor rather than directly with the affected employees; the strike was entirely peaceful with no breakdown in trust; and the operational impact was minimal.
The court found that despite procedural non-compliance with the LRA, the workers’ actions upheld the LRA’s values regarding collective bargaining and speedy dispute resolution. The court confirmed that, whilst participation in an unprotected strike is never justifiable, whether dismissal is a justifiable sanction is a separate question. The unprotected nature of the strike is not a licence to dismiss without careful consideration of the surrounding circumstances.
The judgment reinforces several important principles for employers. Firstly, dismissal is not a default sanction. Employers must assess whether dismissal is a proportional sanction to the misconduct. Secondly, an employer's own conduct is relevant and where the employer's error triggers an unprotected strike, this weighs against dismissal. Employers must take precautions to avoid such errors and address them swiftly and efficiently should they arise. Thirdly, a blanket application of disciplinary codes which prescribes dismissal as the sole sanction for participation in any unprotected strike exposes employers to unfair dismissal findings and costly reinstatement orders. A context-sensitive approach is always required when imposing sanctions and deviation from the recommended sanction within the disciplinary code may be necessary.