This tension plays itself out in the workplace through both protected and unprotected strikes, as employees attempt to twist the economic arm of their employers. It is trite that those employees who engage in unprotected strikes face the risk of being subjected to disciplinary hearings which may lead to their dismissals.
It does happen in such disciplinary proceedings, that some employees are subjected to disciplinary hearings and others are not. The choice between which employees to discipline and not discipline often is determined by the employees’ response to ultimatums issued by the employer.
In Numsa Obo Dumisani Maseko and 47 Others v AMT Africa Recruitment (Pty) Ltd1 the Labour Court was seized with the question of whether there was inconsistent application of discipline when a number of operators who participated in the go slow but did not receive any form of sanction at all.
The Argument of Inconsistent Application of Discipline in Misconducts Related to Strikes
The employees were employed by the Respondent as operators and assistant operators at a site in Nigel where D B Thermal (Pty) Ltd produced machinery and parts to be used at the Kusile Power Station. The employees had to produce a minimum of 35 tubes per machine shift. Each operator worked on a machine in a team with an assistant operator to assist the pipe the tubes were made from.
The Respondent operated with three shifts. On 23 May 2012, it became apparent that shifts 2 and 3 had embarked upon a go slow as they produced only 20 tubes per operator per shift, as opposed to the minimum target of 35 tubes per shift. Prior to 23 May 2012, the production was satisfactory.
On 24 May 2012, ultimata were issued to Shifts 2 and 3. On 25 May 2012, the ultimata were also issued to the employees working Shift 1. It was made clear that employees who failed to heed the final ultimatum and who continued to participate in the unprotected go slow, may be dismissed.
The employees did not heed the warning and continued with their unprotected strike. The final ultimatum was to expire on 25 May 2012 but was extended to 28 May 2012. The employees did not accede to the request to cease with their unprotected go slow.
On 29 May 2012, the employees were suspended and disciplinary proceedings were initiated against them. They were charged for participating in an unprotected strike and their failure to produce the minimum number of tubes per shift, notwithstanding numerous requests and ultimata being issued to them.
In arguing that there was an inconsistency in the application of the sanction, the employees argued that operators and assistants ought to be treated equally for purposes of an assessment of the sanction imposed upon them. They argued further that there were other employees who participated in the strike but were not disciplined at all.
Prinsloo J cited SA Commercial and Allied Worker’s Union v Irvin and Johnson Ltd2 wherein the Labour Appeal Court held that:
“in my view too great an emphasis is quite frequently sought to be placed on the ‘principle’ of disciplinary consistency, also called the ‘parity principle’ (as to which see Grogan Workplace Law (4ed) at 145 and Le Roux & Van Niekerk The SA Law of Unfair Dismissal at 110). There is really no separate ‘principle’ involved. Consistency is simply an element of disciplinary fairness. Every employee must be measured by the same standard.”
Judge Prinsloo held that there was no merit to the employee’s inconsistency challenge. The Company had issued a final ultimatum to the striking employees, operators and assistants were instructed to stop the go slow and return to full production during their shift on 28 May 2012 or face the termination of their employment. The employees who did not return to full production were suspended, notified of a disciplinary hearing and subsequently dismissed.
Importantly, those who were subjected to disciplinary hearings were those who did not heed the final ultimatum. The employees who were not at work on 28 May 2012 proceeded with full production upon their return to work.
There were accordingly valid grounds to distinguish the conduct of employees who heeded the ultimatum and returned to full production. Assistants who were absent on 28 May 2012 could not be dismissed because they could not meet the minimum required production of 35 tubes per shift without an operator.
The Learned Judge found further that in a number of authorities, the Courts have accepted instances where employees participated in industrial action and some heeded an ultimatum and others not, that the failure to heed an ultimatum, which results in dismissal, was a legitimate basis for differentiation.
The Judge reiterated the principle that the purpose of the ultimatum was to put the employees on terms and that the employees were made aware of the fact that a refusal to abide by the ultimatum and to return to duty would result in disciplinary action and accordingly, disciplining them would not be acting inconsistently.
The purpose of an ultimatum is to advise employees of the unlawful of their strike and allow them an opportunity to reflect on their conduct and the consequences of failing to heed the call to return to work. If it achieves that purpose, dismissal would not follow. In casu, the Respondent did not dismiss the employees who heeded the ultimatum and who resumed full production. The purpose of the ultimatum was achieved.
The employees were well aware of the fact that they would face dismissal, should they fail to comply with the ultimatum. They persisted with their go slow, in the face of a threat of dismissal, and when dismissal followed, as they knew it would, they claimed unfairness and inconsistency because others who had complied had not been disciplined. This was opportunistic and far-fetched, the Judge found.
1 Case No. JS1176/2012, 21 September 2022 (Reportable)
2 (2015) 36 ILJ 602 (LAC) at Para 36