National Union of Food Beverage Spirits Wine and Allied Workers (NUFBWSAW) and Others v Commissioner Patrick Mbatsana N.O. and Others

The Labour Court reviewed an arbitration award concerning the dismissal of employees (second and further applicants) by Universal Product Network (Pty) Ltd (third respondent). The employees were dismissed following misconduct during a strike involving acts of violence. The disciplinary chairpersons dismissed the employees without properly identifying individual involvement in the violent acts and many were dismissed in absentia. The third respondent (UPN) had video footage available but chose not to use it at the disciplinary hearings. The Labour Court granted the review application on 25 September 2024, finding the dismissals substantively unfair. The third respondent then applied for leave to appeal this judgment. The application for leave to appeal was unopposed (the applicants filed a notice to abide).

• Whether leave to appeal should be granted under section 17 of the Superior Courts Act 10 of 2013
• Whether the appeal would have a reasonable prospect of success or whether there is some other compelling reason why the appeal should be heard
• Whether dismissal for collective misconduct without proper identification of individual employees' involvement is substantively fair
• Whether the principles of natural justice (audi alteram partem and nemo judex in causa sua) were violated
• Whether evidence identifying individual wrongdoers must be presented at the disciplinary hearing or can be deferred to arbitration proceedings

The application for leave to appeal was dismissed. There was no order as to costs.

The binding legal principles established are: (1) Leave to appeal under section 17 of the Superior Courts Act requires a measure of certainty that another court would reach a different conclusion, representing a higher threshold than previously; (2) Dismissals for collective misconduct require proof of individual complicity - mere presence at the scene of violence is insufficient to establish guilt; (3) South African law recognizes no concept of collective guilt; (4) The fairness of a dismissal must be assessed based on the employer's decision at the time of dismissal, with that decision as the starting point for review, not a blank canvas; (5) Evidence identifying individual wrongdoing must be presented at the disciplinary hearing stage - it cannot be deferred to arbitration as a 'second bite at the cherry'; (6) The principles of natural justice, particularly audi alteram partem, are fundamental to procedurally and substantively fair dismissals; (7) Employers must ameliorate evidentiary difficulties using available modern technology (such as CCTV footage) and cannot rely on absence of identification to justify collective dismissals.

The Court made observations about the purpose of section 17 of the Superior Courts Act as a 'bold step by the Legislature to limit unnecessarily protracted litigation' and noted that it is no longer 'business as usual' when prosecuting appeals. The Court expressed that UPN's argument for deferring identification to arbitration was 'bizarre' and 'belies the entire purpose of a disciplinary hearing.' The Court noted sympathetically the difficulties employers face in proving individual complicity in group violence, but emphasized this cannot result in innocent employees being sacrificed. The Court observed that workplace dynamics are complex and innocent employees may choose silence for fear of ostracism or animosity, which must be factored into assessments of fairness. The judgment noted that while arbitration is de novo (afresh), this does not mean the slate is wiped clean or that commissioners start with a blank canvas.

This judgment reinforces critical principles in South African labour law concerning dismissals for collective misconduct during strikes. It confirms that the higher threshold for leave to appeal under section 17 of the Superior Courts Act will prevent appeals on settled principles. The case emphasizes that employers cannot dismiss employees for collective violence without establishing individual complicity, even where this creates evidentiary difficulties. It rejects any attempt to defer the evidential burden from disciplinary hearings to arbitration proceedings. The judgment underscores that Constitutional Court precedent on collective misconduct, common purpose, natural justice and procedural fairness represents binding authority that lower courts must follow, and that these principles are sufficiently settled to warrant refusal of leave to appeal.