Numsa wins ConCourt appeal against dismissal of KZN company workers

Note from editor: We incorrectly reported that the company concerned was Dunlop Tyres, instead of Dunlop Mixing and Technical Services (Pty) Ltd. We apologise for any inconvenience caused as a result. 

The National Union of Metalworkers of South Africa (Numsa) has won its appeal in the Constitutional Court against the unfair dismissal of 65 workers at Dunlop Mixing and Technical Services (Pty) Ltd in KwaZulu-Natal almost seven years ago.

Judgment was handed down on Friday.

The workers were dismissed after a month-long strike by 200 workers at Dunlop Mixing and Technical Services (Pty) Ltd which started in August 2012 and was plagued by violence. The workers were taken through a disciplinary process and dismissed on the basis of alleged misconduct, violence and intimidation.  

But Numsa challenged the fairness of the dismissals on the basis that 65 workers who had not been individually identified as part of the strike, were dismissed because of “derivative misconduct”.

“This is defined as a situation where an employee who has knowledge of wrongdoing towards his or her employer subsequently fails to disclose such knowledge to their employer. It is also known as ‘snitching’. We took the matter up through arbitration, and they were reinstated,” explained Numsa spokesperson Phakamile Hlubi-Majola.

But Dunlop Mixing and Technical Services (Pty) Ltd was unhappy with the outcome, she said, and took the matter on review at the Labour Court. The decision was overturned and workers were dismissed.

“Numsa appealed the decision to the Labour Appeals Court because we believed the decision was unfair, but unfortunately the LAC upheld this decision. We then appealed to the Constitutional Court, and finally, we won the appeal at the Apex court.

“As Numsa we argued that the decision to fire workers who did not participate in violence, and were not even confirmed to have been there when it took place, was unfair, and unconstitutional. Dunlop based its decision to dismiss them on the basis that because they participated in the strike, they had information which could help the company in its investigations, but they did not disclose. Dunlop argued that they should have come forward, on the principle of good faith, and disclosed information to management on the alleged perpetrators of violence.

“We argued that even if an inference of presence at the scenes of violence could be drawn, no derivative misconduct was established. Dunlop management also had a reciprocal duty to at the very least, guarantee their safety before expecting them to come forward and disclose information or exonerate themselves. This was not done.

"The Justices of the Constitutional Court found that the duty to disclose can never be unilateral. In the written Judgement, the Justices stated that it must be, ‘accompanied by a reciprocal, concomitant duty on the part of the employer to protect the employee’s individual rights, including the fair labour practice right to effective collective bargaining. In the context of a strike, an employer’s reciprocal duty of good faith would require, at the very least, that employees’ safety should be guaranteed before expecting them to come forward and disclose information or exonerate themselves. Circumstances would truly have to be exceptional for this reciprocal duty of good faith to be jettisoned in favour of only a unilateral duty on the employee to disclose information."

“It was on this basis that leave to appeal was granted, and the decisions of the both the Labour Court and the Labour Appeal Court decision have been set aside. This is a victory for our members, and also for all workers involved in strikes. In terms of this judgment, it means that employers can no longer simply dismiss workers for refusing to ‘snitch’ or ‘rat’ on their comrades, if violence erupts at a strike,” said Hlubi-Majola.

The victory meant that the workers were now eligible to be immediately reinstated, and that they could claim seven years’ back pay, she added.