The Labour Appeal Court had to consider whether an employer is entitled to dismiss employees that comply with the terms of an ultimatum or whether such compliance constitutes a waiver of the right to dismiss.
First Illegal strike: AMCU members participated in an unprotected strike during May 2013. Samancor, the employer, issued a final written warning to these striking employees. The warning was valid for 12 months.
Second Illegal strike: AMCU members again participated in an unprotected strike on 25 November 2013. The employer issued an ultimatum to return to work, which the striking employees complied to.
Dismissal: Samacor then dismissed all employees who participated in this unprotected strike.
Settlement Agreement: Samacor and AMCU entered into a settlement agreement to reinstate all AMCU members who had not participated in the strike on 25 November 2013 or were not on final written warning for participating in an unprotected strike.
Dispute: = Those employees who were on a final written warning and were not reinstated, lodged a dispute claiming unfair dismissal.
The Labour Court: Found that the dismissal of AMCU members for participating in an unprotected strike was substantively and procedurally fair.
The Labour Appeal Court (LAC) found: That an employer may not dismiss illegally striking employees who obey to an ultimatum to return to work within the stipulated time. An ultimatum by the employer is a waiver of the employers right to dismiss for the period of its duration.
The LAC – on the content of ultimatums: 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.’
Conclusion:
An illegally striking employee may not be dismissed if he/she obeys an ultimatum to return to work within the stipulated time. An ultimatum must be in clear and unambiguous terms and should state what is required of the employees and what sanction will be imposed if they do not comply with the ultimatum.
About the Author:
Andre Symington started his career as Legal Advisor with SEESA in 2009 at the Bloemfontein Branch and is currently situated in SEESA’s Bethlehem offices. He obtained his LLB degree from the University of the Free State.
References:
Association of Mineworkers and Construction Union obo Rantho and others v Samancor Western Chrome Mines [2021] 3 BLLR 236 (LAC) (1 October 2020.