Case Law Alert
When would participation in an unprotected go-slow justify dismissal?
Being unhappy with line management’s refusal to negotiate at shop floor level about a salary increase and incentive bonus, employees went on a go-slow reducing production per operator per shift to 15 units instead of 35 units. The proper process for resorting to industrial action was not followed which resulted in the go-slow being unprotected and unlawful.
Despite attempts by shop stewards and NUMSA officials to convince the employees of the wrongness and consequences of their action, the employees who still persisted with the go-slow were dismissed after not returning to full production after an extended final ultimatum (a formal warning to stop the industrial action and return to work/full production in order to avoid being dismissed).
While it was not disputed that the go-slow was unprotected, that participation amounted to misconduct, that all employees concerned were made aware of the consequences of their behaviour and that fair procedure was followed by management, NUMSA disputed the substantive fairness (the reason for the action taken) of the dismissal on the following grounds:
- The go-slow was provoked by management.
- Assistant operators deserved to be treated differently from operators.
- Action taken against employees were inconsistent.
- Dismissal was a too harsh a sanction to impose.
The Labour Court found that, all facts and circumstances considered, dismissal was an appropriate sanction to impose.
After the court considered all the evidence that could be proven, its conclusion was that:
- the go-slow was not provoked by line management.
- the assistant operators indicated throughout that they were part of the go-slow and therefore they deserved no special treatment.
- there were justifiable reasons as to why certain operators and assistant operators were not disciplined, therefore there was no inconsistency.
This left the court to decide whether dismissal was an appropriate sanction in the circumstances, which is the focus this case law alert places on the matter.
As part of procedural fairness where dismissal for participation in unprotected industrial action is considered, the issuing of ultimata is required. In this case a first ultimatum was followed by two final ultimata, before dismissal became the only reasonable course of action left.
Bearing in mind that issuing an ultimatum prior to dismissal in case of unprotected industrial action is necessary, the court considered what the purpose and consequence of an ultimatum is, referring to what was said in this regard in the LAC-case: AMCU obo Rantho and others v Samancor Western Chrome Mines.
In this case it was said that the purpose of an ultimatum is to put the negotiation process back on track and if this is achieved, dismissal should normally not be appropriate.
It also said that an ultimatum is regarded by our law as a waiver of the right to dismiss for the duration of the ultimatum. See passages 26 & 27 of the AMCU-case
Where employees participating in unprotected industrial action is made aware of the consequences of not obeying the ultimatum and persists with industrial action, they should not be surprised to find themselves dismissed.
The appropriateness of the dismissal of those employees who persisted in participating in the unprotected go-slow is justified in view of:
- The fact that the go-slow was unprovoked.
- The action taken against employees was even-handed and consistent.
- Employees had the opportunity to avoid being dismissed by obeying the ultimata issued, but they failed to comply, being fully aware of the consequences.
- The fact that the employees concerned continued to enjoy being fully paid during the go-slow, while the employer suffered serious losses due to sub-standard production, unreasonably disturbed the collective bargaining balance. This unfairness associated with a go-slow was referred to in the case: National Union of Metalworkers of SA v Henred Fruehauf Trailers (Pty) Ltd. See extract from NUMSA v Henred Fruehauf-case
Although the go-slow in this case was unprotected against dismissal, dismissal still has to be arrived at fairly in terms of procedure and reason. The issuing of an ultimatum is like throwing out a lifebuoy to someone who is drowning. It is the right thing to do, but if this escape route is not followed or utilised, it may cause the employees concerned to suffer the consequence of dismissal.