The appellant was a manufacturing company in the engineering industry. In August 1992, 25 of the appellant's hourly-paid employees, all NUMSA members, joined a national strike in the steel and engineering industry. On 25 August 1992, Myburgh J granted an interim interdict declaring the strike illegal. On 26 August, the appellant distributed a memorandum calling striking workers to return to work by 7 am on 28 August, failing which they would be dismissed. Only 12 workers arrived by the stipulated time. The remaining 13 employees were dismissed, and 6 of those who arrived but left to attend a NUMSA meeting at Hunter's Field Stadium were also dismissed. The meeting was called to consider the National Strike Committee's recommendation that workers return on Monday 31 August. All 19 dismissed employees reported for work on 31 August but were told they had been dismissed. NUMSA applied to the Industrial Court for a declaration of unfair labour practice, compensation, and reinstatement. The Industrial Court found the dismissals were not unfair, but the Labour Appeal Court reversed this on appeal, finding the dismissals constituted unfair labour practice and ordering reinstatement and compensation.
The appeal was dismissed with costs. The order of the Labour Appeal Court was upheld with amendments: (1) dates in the LAC order were updated; (2) a new paragraph was added providing for deduction from amounts owing to workers of remuneration earned through employment from date of dismissal until recommencement with the appellant; (3) provision was made for arbitration under IMMSA in case of disputes regarding remuneration earned during the applicable period.
A dismissal will not necessarily be fair merely because a fair ultimatum is not complied with. Before implementing an ultimatum and dismissing employees, an employer must give careful consideration to new facts that may have arisen or circumstances that may have developed since the issue of the ultimatum, and must consider how the employees responded to the call to return to work. Dismissal is a drastic step and a 'course of last resort'. An employer who adopts an inflexible and intransigent attitude, deciding that a deadline is 'cast in stone' before it is even issued, and who refuses to consider significant developments occurring after the ultimatum was issued, acts unfairly in dismissing employees who fail to meet the deadline. The need for an employer to act with restraint may be even more important in cases of mass dismissals where the job security of a large number of workers is at stake.
The Court observed that it would be unwise and undesirable to lay down any universally applicable test for deciding what is fair in unfair dismissal cases (citing Vetsak), noting that fairness is an elusive concept but unfair conduct can often be recognized when the concept is applied to specific facts. The Court commented on the problem of unnecessary documentation being included in the record on appeal, noting that while the explanation would be accepted in this case, future instances might result in punitive costs orders against offending parties or their attorneys. The Court noted that it is not sufficient for attorneys merely to attempt to reach agreement on what parts of the record should be excluded. The Court also observed that fairness must be considered from the viewpoint of both parties to a dispute, which is fundamental to achieving one of the objectives of the LRA - the preservation of labour peace.
This case is significant in South African labour law for establishing important principles regarding the fairness of dismissals following ultimatums to striking workers. It clarifies that the fairness of an ultimatum and the fairness of dismissals pursuant to that ultimatum must be assessed separately. The judgment emphasizes that employers must exercise flexibility and consider new facts and changed circumstances that arise after an ultimatum is issued, particularly in the context of mass dismissals. The case reinforces the principle that dismissal is a 'course of last resort' and that employers cannot adopt rigid, inflexible approaches that close their minds to developing circumstances. It provides guidance on the duty of employers to act reasonably and with restraint, particularly where there are indications that employees may return to work within a reasonable timeframe. The case is part of a series of judgments arising from the August 1992 national strike that shaped South African labour jurisprudence in the period before the current Labour Relations Act 66 of 1995.