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

The National Lotteries Board employed ten employees who were members of NUPSAW. The union, dissatisfied with the CEO's performance, sought information about his employment contract. When the employer refused, the union referred a dispute to the CCMA for conciliation under section 16 of the Labour Relations Act. During conciliation, the union submitted a letter (23 May 2008) detailing complaints against the CEO. Subsequently, employees signed a petition (3 June 2008) expressing no confidence in the CEO, urging the Board to offer him a separation package or relieve him of his duties, and stating they could not bear to be in the same building with him. The union leaked the May letter to the press. The employer charged the employees with insubordination, disrespectful behaviour, and bringing the employer and CEO into disrepute. Those who did not apologise unreservedly were dismissed. The Labour Court and Supreme Court of Appeal upheld the dismissals.

• Whether the dismissal of the employees was automatically unfair under section 187 of the Labour Relations Act
• Whether the employees' conduct constituted participation in lawful activities of the union under section 4(2)(a) of the LRA
• Whether the dismissal was substantively unfair under section 188 of the LRA if not automatically unfair
• Whether the employees' demand for the CEO's dismissal and threat to stop work constituted insubordination
• Whether publication of complaints about the CEO brought the employer into disrepute
• The extent of protection afforded to employees exercising rights to petition and freedom of expression in a labour dispute context

Leave to appeal granted. Appeal upheld. Orders of the Supreme Court of Appeal and Labour Court set aside. The dismissals declared automatically unfair. The employees ordered to be reinstated retrospectively from the date of dismissal on no less favourable terms. The respondent ordered to pay costs in all courts.

The binding legal principles established are: (1) Employees' participation in statutory conciliation proceedings and in articulating union positions during such proceedings constitutes participation in 'lawful activities' of a union under section 4(2)(a) of the LRA. (2) Dismissal of employees for such participation is automatically unfair under section 187(1)(d)(i) and (ii) of the LRA. (3) The phrase 'lawful activities' in sections 4(2)(a) and 5(2)(c)(iii) must be interpreted restrictively to give full measure to constitutional protections, and includes core union functions such as collective bargaining, representing members in grievances, and communicating with employers about workplace issues. (4) Conduct occurring during and in furtherance of statutory conciliation is protected even when expressed through correspondence rather than formal meetings. (5) Urging an employer to offer a separation package to a CEO, in the context of conciliation, does not constitute an unlawful demand for dismissal without a fair hearing. (6) Trade unions have the right to determine their own strategies and tactics in collective bargaining, including adopting a 'confrontational stance', provided they do not act unlawfully. (7) Publication of legitimate workplace concerns about a public institution may be protected expression, particularly where internal processes have been exhausted or proved inadequate.

Zondo J observed that the internal grievance procedure was inapplicable to complaints against the CEO as it made the CEO the final decision-maker, creating an obvious conflict. He noted that employers, particularly public institutions bound by section 195 of the Constitution, have heightened obligations to respect workers' rights. Zondo J also commented that unions and employees are not obliged to pursue every dispute-resolution mechanism to finality and that choosing not to do so does not forfeit protections against automatically unfair dismissal. Froneman J cautioned that extending protection to union activities outside the Act's processes risks undermining the integrity of collective bargaining under the Act—a matter of 'gravest concern'. He observed that parallel exercise of constitutional rights (petition, expression) alongside the Act's processes is permissible only to the extent it does not undermine those processes. Dambuza AJ observed that the right to publish is subject to limitations (such as defamation) and that the Legislature intentionally omitted general publication from protection under section 187. She noted that a demand for termination of any employee's services without fair process is equally improper regardless of that employee's position. She emphasized that both employers and employees must treat each other with respect, and that the Board's bad faith throughout the process was a significant mitigating factor.

This case is significant for delineating the scope of protection afforded to employees participating in union activities and statutory dispute-resolution processes. It affirms that employees may not be dismissed for engaging in conduct that forms part of lawful collective bargaining and conciliation, even when that conduct includes strong criticism of management. The case clarifies that 'lawful activities' under section 4(2)(a) of the LRA includes participation in dispute-resolution processes and that dismissals for such participation are automatically unfair under section 187(1)(d). It emphasizes the constitutional rights to freedom of expression and association in the workplace context, particularly concerning public institutions. The judgment underscores employers' duty to negotiate in good faith and not to abuse dispute-resolution processes. It also highlights the different levels of enquiry required: whether conduct objectively constitutes misconduct, whether the Act makes dismissal for such conduct automatically unfair, and whether dismissal is nevertheless substantively unfair.