NTM obo Shadrack Molema & 224 Others v Botselo Holdings (Pty) Ltd

The National Transport Movement (NTM) union acted on behalf of 225 employees dismissed by Botselo Holdings (Pty) Ltd for participating in an unprotected strike in March 2016. The dispute arose after the union, which had minority representation, demanded wage negotiations despite the recognition agreement limiting wage bargaining to majority unions. The union referred a refusal-to-bargain dispute to the CCMA prematurely, which was dismissed for lack of jurisdiction. Despite this, the union gave notice of strike action. The employer warned that the strike would be unprotected and obtained two Labour Court orders declaring the strike unprotected and interdicting further participation. Over a period of 12 days, the employer issued six ultimatums instructing employees to return to work. The employees ignored all ultimatums and court orders, barricaded the workplace, and continued striking. On 26 March 2016, after the final ultimatum expired, the employer dismissed the employees without holding disciplinary hearings but afforded them a right of appeal. Only five employees submitted individual appeals and were reinstated.

The dismissals were found to be procedurally unfair but substantively fair. No compensation was awarded to the employees.

This judgment reinforces South African labour law principles that even in cases of prolonged, defiant unprotected strikes and contempt of court orders, employers are generally required to observe procedural fairness, including the audi alteram partem rule, before dismissal. It also confirms that where misconduct is extreme, compensation for procedural unfairness may be denied.