National Union of Public Service & Allied Workers and Others v National Lotteries Board

The National Union of Public Service & Allied Workers (NUPSAW), acting on behalf of Mani and nine other employees of the National Lotteries Board, was dissatisfied with the performance of the Board’s CEO. During a conciliation process under the Labour Relations Act 66 of 1995 (LRA) concerning the union’s request for disclosure of the CEO’s employment contract, the union submitted a letter to the Board listing serious complaints about the CEO’s performance. This letter was leaked to the media. Subsequently, employees signed and submitted a petition demanding that the CEO resign or be dismissed and stating that they would not continue working in the same building with him after a specified date. The Board charged the employees with insubordination, disrespectful behaviour, and bringing the employer and CEO into disrepute. After a disciplinary inquiry, employees who did not offer an unconditional apology were dismissed. The Labour Court and Supreme Court of Appeal upheld the dismissals. The union appealed to the Constitutional Court.

Leave to appeal was granted; the appeal was upheld; the orders of the Labour Court and Supreme Court of Appeal were set aside; the dismissal of the applicant employees was declared automatically unfair; the employees were ordered to be reinstated retrospectively on no less favourable terms; and the respondent was ordered to pay costs in all courts.

This case clarifies the scope of protection afforded to employees and trade unions under the Labour Relations Act when engaging in lawful union activities during conciliation. It affirms that strong criticism of management and advice concerning resignation or separation packages, expressed in the context of collective labour processes, does not necessarily amount to insubordination. The judgment strengthens protection against automatically unfair dismissal and delineates the relationship between labour rights and constitutional freedoms.