County Fair Foods (Epping), a division of Astral Operations Ltd v Food and Allied Workers' Union and Others

County Fair Foods informed staff that annual discretionary bonuses would not be paid due to its financial position after several communiqués from August to November 2010. On 15 December 2010, over 200 employees embarked on an unprotected strike demanding bonuses. Three ultimatums were issued. 64 employees returned to work on 15 December 2010 and signed a comeback document with an undertaking to desist and received a final written warning. 58 employees returned on 17 December 2010 following a final ultimatum (extended by 30 minutes) and also signed the comeback document. The remaining 120 respondent employees failed to comply with the final ultimatum despite its extension. County Fair instituted a lock-out. The respondent employees returned to work on Monday 20 December 2010, signed the comeback document but were suspended pending disciplinary hearings. They were dismissed on 3 January 2011 for misconduct.

• Whether the dismissal of employees who participated in an unprotected strike was substantively fair
• Whether a valid reason existed for differentiating between employees who complied with the final ultimatum and those who did not
• Whether dismissal was an appropriate sanction when compared to the final written warning given to employees who returned earlier
• Whether reinstatement was appropriate in the circumstances
• Application of the Code of Good Practice: Dismissal (Schedule 8 to the LRA) to unprotected strike action
• Whether the employer was entitled to treat employees differently based on their response to ultimatums

The appeal succeeded with costs. The order of the Labour Court was set aside and substituted with an order that the dismissal of the applicants was fair.

The binding legal principles established are: (1) Participation in an unprotected strike constitutes serious misconduct that may warrant dismissal. (2) An employer may legitimately differentiate between employees engaged in the same strike action based on their response to clear ultimatums to return to work. (3) Failure to comply with a final ultimatum without bona fide justification constitutes a material distinguishing feature that permits differential treatment of strikers. (4) In determining fairness of dismissal for unprotected strike action under section 68(5) of the LRA and the Code of Good Practice (Schedule 8, items 6 and 7), relevant factors include: the seriousness of the contravention; attempts to comply with the LRA; whether the strike was in response to unjustified employer conduct; the timing of the strike (e.g., during critical business periods); compliance with ultimatums; remorse shown; and conduct at disciplinary hearings. (5) Disciplinary consistency requires that like cases be treated alike within reasonable bounds, but material factual differences in individual conduct can justify different sanctions. (6) The fact that a strike continued for only a short additional period (1½ days) does not make dismissal unfair when other aggravating factors are present.

The Court made observations about the balance required between employer and employee interests under the constitutional right to fair labour practices in section 23(1) of the Constitution, quoting NEHAWU v University of Cape Town that care must be taken to accommodate these interests. The Court also noted that while the employer suffered economic harm from the strike, this was chiefly experienced in the first 1½ days and was attributable to all striking employees, not just the respondents. The Court observed that employees made untruthful contentions at the disciplinary enquiry (claiming they seldom read notices, were unaware the strike was unprotected, no ultimatum was given, etc.) which undermined the trust relationship with the employer. The Court noted that the lock-out instituted by the employer did not prevent employees from returning to work and did not preclude the employer from taking disciplinary action despite partial compliance with lock-out demands.

This case is significant in South African labour law as it clarifies the principles applicable to the dismissal of employees for participation in unprotected strike action. It establishes that employers may legitimately differentiate between employees who comply with ultimatums to return to work and those who do not, even when they engaged in the same initial misconduct. The judgment emphasizes that while participation in an unprotected strike does not always deserve dismissal, failure to comply with a clear and fair ultimatum, particularly during a critical business period and without bona fide justification, can render dismissal a fair sanction. The case reinforces the importance of disciplinary consistency while recognizing that material factual differences in employee conduct can justify different sanctions. It provides guidance on the application of the Code of Good Practice: Dismissal (Schedule 8 to the LRA) in the context of unprotected strikes and ultimatums.