CCT75/13

[2014] ZACC 10

2014 (3) SA 544 (CC)

2014 (6) BCLR 663 (CC)

[2014] 7 BLLR 621 (CC)

(2014) 35 ILJ 1885 (CC)

Zondo J Majority judgment

Froneman J separate judgment

Dambuza J separate judgment

19 November 2013

10 April 2014

http://hdl.handle.net/20.500.12144/3734

Application for leave to appeal against a judgment of the SCA: National Union of Public Service and Allied Workers (NUPSAW) obo Mani and Others v National Lotteries Board (576/2012) [2013] ZASCA 63; [2013] 8 BLLR 743 (SCA); (2013) 34 ILJ 1931 (SCA) (24 May 2013). The case was previously heard in the Johannesburg Labour Court: NUPSAW obo Mani v National Lotteries Board (JR953/2008) [2011] ZALCJHB 199 (3 February 2011).

Employees‘ advice that CEO be given a separation package in return for resignation – not demand for dismissal of CEO – advice can be accepted or rejected – statement by employees that they cannot bear to be in the same building with CEO and that employer to ensure that certain day is his last day in employer‘s employ – advice to give him separation package – publication of complaints – lawful activities in terms of section 4(2)(a) of the Labour Relations Act 66 of 1995 and made in pursuit of conciliation process – not insubordination and disrespectful behaviour – dismissal – dismissal automatically unfair – fully retrospective reinstatement and costs. An application appealing the decision of the Supreme Court of Appeal to uphold a decision by the Labour Court which found that a decision by the National Lotteries Board (NLB) to dismiss 10 employees was substantively and procedurally fair. The 10 dismissed employees were members of the National Union of Public Service and Allied Workers Union (NUPSAW). They were dismissed after a finding in a disciplinary hearing that they were guilty of insubordination and bringing their employer into disrepute. NUPSAW challenged the dismissals on the grounds that they were automatically unfair in terms of section 187 of the Labour Relations Act (the Act) and in the alternative they were unfair in terms of section 188 of the Act. The Labour Court and the Supreme Court of Appeal both rejected these grounds finding that the employees were guilty of insubordination and bringing their employer into disrepute and their dismissals were fair. The Constitutional Court in the majority judgment overturned the decisions of the Labour Court and the Supreme Court of Appeal finding that the dismissals were automatically unfair. Zondo J writing for the majority held that the employees were in pursuit of an ongoing statutory-conciliation process, and were exercising their rights to participate in collective bargaining. As a result he found that they were participating in the lawful activities of their union. A dissenting judgment found that the dismissals were procedurally and substantively fair. It disagreed with the majority finding that the activities of the employees amounted to lawful union activities. The minority held that the decision to dismiss the employees pursuant to a disciplinary hearing was correct as the employees were guilty of insubordination and bringing the name of the employer into disrepute. This was not protected by the Act. A further dissenting judgment agreed that the employees’ activities were not lawful union activities. However, it differed in finding that while the dismissals were not automatically unfair, they were nonetheless unfair in terms of section 188 of the Act. Majority: Zondo J (Moseneke ACJ, Jafta J, Madlanga J, Mhlantla AJ, Nkabinde J) Minority: Froneman J (Cameron J, Skweyiya ADCJ) Dissent: Dambuza J