Transport and Allied Workers Union of South Africa obo MW Ngedle and 93 Others v Unitrans Fuel and Chemical (Pty) Limited

Unitrans Fuel and Chemical (Pty) Ltd dismissed 94 employees on 2 November 2010 following their participation in strike action. The employees, members of TAWUSA, had raised disputes concerning wage discrepancies between employees on different contracts and the unilateral reduction of wages of seven former Shell contract employees. Earlier litigation before the Labour Court and Labour Appeal Court had determined that two of the union’s demands (coupling allowance and provident fund administration) were impermissible, but that the wage discrepancy and wage cut demands were permissible subjects of strike action. After further strike notices and negotiations, Unitrans contended that TAWUSA expanded the wage discrepancy demand into one with cost implications, rendering the strike unprotected. Despite ultimatums, the workers did not return to work and were dismissed. The Labour Court and Labour Appeal Court upheld the dismissals as fair. TAWUSA approached the Constitutional Court.

Leave to appeal was granted; the appeal was upheld; the orders of the Labour Court and Labour Appeal Court were set aside; the dismissals were declared automatically unfair; Unitrans was ordered to reinstate all dismissed employees retrospectively to 2 November 2010 on no less favourable terms; Unitrans was ordered to pay costs in all courts.

The case clarifies the effect of impermissible demands on the protected nature of strike action in South African labour law. It affirms that a strike does not automatically become unprotected merely because unlawful demands are pursued alongside lawful ones, particularly where employees strike in solidarity. The judgment strengthens constitutional protection of the right to strike and provides guidance on automatically unfair dismissals arising from strike participation.