The title of this email note would appear to be an obvious truism, but it was one that recently came to hurt an employer resulting in the reinstatement some four years later of 17 employees dismissed for allegedly participating in an unprotected strike.
The Transnet National Ports Authority had dismissed 17 employees for participating in an unprotected strike. The Labour Appeal Court in NUMSA v Transnet National Ports Authority found that the employees whom the Ports Authority claimed had participated in the strike had not done so and ordered their reinstatement.
The events around the strike began with a gathering of employees in the mess hall at the start of their shift. This is where the employees ordinarily met at the start of the shift to receive their instructions and to eat their meals. The employees gathered as usual and then the crews who manned the tug boats refused to leave the mess hall to commence their duties.
On the evidence presented at the trial, the employees who worked on the docks to secure the ships did adhere to the instruction to commence working and went to the dock they were instructed to go to, but they could not perform their work because there were no tug boats to bring the ships to dock. Other employees did not refuse to go to their workstations but requested assurances from the Ports Authority that it was safe for them to do so. No response was received to this request.
The Ports Authority then proceeded to discipline all employees who were on shift that day and dismissed those who had final written warnings for participating in unprotected industrial action.
The 17 employees who challenged the fairness of their dismissals were part of the crews who had reported for work but could not perform their work or had requested assurance that it was safe for them to do so.
Based on the evidence presented, the Labour Appeal Court found that the Ports Authority had failed to prove that these employees had joined or participated in the unprotected strike action. They therefore could not be guilty of the misconduct for which they were dismissed.
The Ports Authority had also not held individual disciplinary hearings as required by their policy but had rather directed the employees to make a collective written representation on why they should not be dismissed. The Labour Appeal Court held that there was nothing procedurally unfair about this, even where the employer's policy provided that individual disciplinary hearings should be held.
Confirmation from the Labour Appeal Court that such a procedure is fair is extremely good news. However, the lesson to learn, or point to remember, is that where an employer follows such a truncated procedure, you need to be sure that you have proper and conclusive evidence to show that the employees actually committed the misconduct they are being dismissed for.
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