JSE-listed WBHO, one of the largest construction companies in South Africa, has been told to reinstate the workers who were fired for allegedly participating in an unlawful strike in 2017.
The Labour Appeal Court (LAC) in Johannesburg ruled that the dismissal was unfair and that the company should reinstate the workers. About 30 permanent employees were fired allegedly for participating in an unlawful strike on July 17, 2017.
This was after the workers on limited-duration contracts embarked on a protest, and demanded project bonuses that were paid to the permanent employees.
Members of the community also joined the strike.
Workers were prevented from tendering their service at the gate during the strike. The 30 workers said they could not heed the call to return to work as they were intimidated.
Bus drivers were also prevented from transporting the employees. They said there was unrest and hostility, and an environment where site management was no longer safe.
The company’s secretary Donna Msiska said WBHO was implementing the court judgment.
The Association of Mineworkers and Construction Union (Amcu) was the first applicant, while former employee Elias Mbatha and others were second applicants.
The ruling came after the workers challenged the Labour Court’s ruling which was in favour of WBHO.
The workers argued that the Labour Court Judge erred in making a finding that they participated in the strike action despite the evidence from the strike diary of AMCU, which supported the contention that they were intimidated by the striking employees.
The employees said the strike diary evidence was undisputed and never challenged, adding that the contents were never placed in dispute.
AMCU said the strike diary was crucial because it recorded that the bulk of employees stayed away as they were intimidated. The union said the information in the strike diary exonerated the employees from any participation.
The union further said that the workers were threatened and wanted to tender their services. Their non-participation was crucial to the substantive fairness of the dismissal.
“Even if they deliberately stayed away from work, it would be folly to accuse the appellants (employees) of being on strike,” read the papers, adding that “the Judge erred by making a finding that the workers participated in the strike action despite the evidence that there were no specific factual links between the alleged unlawful conduct and the individual employees.
“The court’s misdirection is a significant, unjustified and unconstitutional inroad into the right to assemble, demonstrate, picket and petition as the catered form in terms of section 17 of the Constitution and into the right to strike in terms of section 23(2)(c) of the Constitution. The appellants were intimidated to be among the striking employees but never participated in the unlawful conduct.”
Amcu said it was unlawful, unconstitutional, and irrational to suggest that the workers were participants of an “unprotected strike” for the simple reason that WBHO failed dismally to show that they participated in the unlawful strike.
The association said the judge also erred and failed to make findings consonant with the ends of justice as the workers were permanent employees, and not local people and part of the local employees with their demands as they were already enjoying the benefits.
“It should, we submit, be clear by now that the Labour Court misconceived the case before it. This case is not about whether a group of employees can be found guilty of misconduct for participation in a strike action based on the actions of a subset of unnamed individuals within it.
“It is about whether a group of employees can, based on their conduct, more likely to have committed the impugned unlawfully and that conduct has been committed by other people in a much larger group, simply on the basis that the employees did attend the hearing, which they were not made aware of,” Amcu said.
Amcu said the Labour Court also erred when it failed to appreciate that the workers never participated in the strike and were fired without being invited for a disciplinary inquiry.
The union said the fact that the workers were denied entry also meant denied access to the premises of WBHO, and thus access to render their services.
The threats of violence and intimidation, to a great extent, precluded most of the employees from gaining access to the company’s premises to render their services.
“The restrictive approach adopted by the learned judge is not compatible with the constitutional rights and interests that are at stake in this matter, as he forewent or foregone the aspect that the National Union of Mineworkers (NUM) had taken responsibility for the strike, and the workers were not members of NUM, and some were even non-unionised. That again destroys the court's remaining form of reasoning, as the workers have always maintained their innocence,” read the papers.
The LAC said the dismissal of the 30 employees was automatically unfair. The court ordered WBHO to reinstate the individual workers on terms and conditions of employment not less favourable to them in terms and conditions that governed them when they were dismissed in 2017.
manyane.manyane@inl.co.za