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

Ten employees of the National Lotteries Board were dismissed on 25 August 2008 for misconduct in the form of insubordination. The dismissal arose after employees signed a petition dated 3 June 2008 expressing a "vote of no confidence" in the CEO, Professor Vevek Ram, urging the board to ensure that 30 June 2008 would be his last day of employment, and stating they were "no longer prepared to spend a day with Professor Ram in the same building with him at the helm." Prior to the petition, on 20 March 2008, shop stewards had complained about the CEO's leadership style and demanded sight of his employment contract. A disciplinary enquiry was chaired by Professor André Van Niekerk who found the employees guilty of insubordination and bringing the Board and CEO into disrepute. Of 38 employees found guilty, 28 signed an undertaking acknowledging their wrongdoing and received final written warnings. The ten employees who refused to sign the undertaking (though they later offered a qualified apology) were dismissed. The union argued the dismissal was automatically unfair under section 187(1)(d) of the Labour Relations Act as the employees were exercising their right to petition.

• Whether the dismissal of the employees was automatically unfair in terms of section 187(1)(d) of the Labour Relations Act 66 of 1995, which protects employees from dismissal for exercising rights conferred by the Act or participating in proceedings under the Act
• Whether the employees' conduct in petitioning their employer constituted protected trade union activity or unlawful insubordination
• Whether the dismissals were substantively unfair given the seriousness of the misconduct
• Whether the dismissals were procedurally unfair
• Whether the employer acted inconsistently in dismissing the ten employees while only issuing warnings to the other 28 employees who had committed similar conduct

The appeal was dismissed with costs. The order of the Labour Court finding the dismissals to be both substantively and procedurally fair was upheld.

Employees are not protected from dismissal under section 187(1)(d) of the LRA when they are dismissed for insubordination rather than for the act of petitioning itself. Constitutional rights to petition and freedom of expression do not provide blanket protection for unlawful conduct such as credible threats of insubordination communicated through a petition. An employer is entitled to take disciplinary action when employees make credible threats to defy lawful authority, without having to wait to see if the threats are acted upon. There is no inconsistency or unfairness when an employer dismisses employees who refuse to acknowledge wrongdoing while issuing warnings to those who do acknowledge their misconduct and undertake not to repeat it - these represent different factual circumstances justifying different treatment. Unrepentant intransigence by employees who persist in believing they have done nothing wrong can render the employment relationship intolerable and justify dismissal.

The court made illustrative observations emphasizing that trade union meetings cannot be used to plot murder or arson, and that trade union activities cannot be organized contrary to the law of defamation. The court noted that "the decorum of a bourgeois tea party is not expected of angry employees," acknowledging that robust exchanges between unions and management are expected and protected, but distinguished this from unlawful insubordination. The court also observed that while the employer's internal grievance procedures may have been subject to criticism, the LRA provided adequate avenues for employees to pursue their grievances, which they failed to utilize at their peril. The court noted as irrelevant to the determination of the appeal that the union subsequently lost its recognition and that Professor Ram later resigned, as the appeal had to be decided on facts germane at the time of dismissal.

This case clarifies important boundaries between protected trade union activity and unprotected insubordination in South African labour law. It establishes that while employees and trade unions enjoy constitutionally entrenched rights to petition, freedom of expression, and collective organization, these rights do not provide immunity from dismissal for acts of insubordination or other unlawful conduct. The case illustrates that the content and manner of trade union activities - not merely the form they take - determines whether they are protected. It also affirms the principle of graduated discipline and confirms that employers may treat employees differently based on their individual responses to disciplinary processes, particularly where some acknowledge wrongdoing and others remain unrepentant. The judgment reinforces the importance of utilizing available grievance procedures under the LRA rather than resorting to insubordinate conduct.