NTM obo Shadrack Molema & 224 Others v Botselo Holdings (Pty) Ltd

Botselo Holdings (Pty) Ltd (the company) was a maize milling business based in Delareyville, North West Province, employing approximately 370 people. In June/July 2015, the National Transport Movement (the union) began seeking organizational rights. On 18 December 2015, the union submitted a wage proposal requesting a meeting on 9 January 2016. However, on 6 January 2016, the union referred a refusal to bargain dispute to the CCMA. A recognition agreement was signed on 25 January 2016. On 8 March 2016, the union notified the company of its intention to strike on 14 March 2016 over wages. The company informed the union the strike would be unprotected and sought a Labour Court interdict. The strike commenced on 14 March 2016. The company issued six ultimatums between 14 and 24 March 2016 requiring employees to return to work. On 18 March 2016, La Grange J issued a final order declaring the strike unprotected and interdicting further participation. On 24 March 2016, Steenkamp J granted leave to execute the earlier order and interdicted the union members from continuing the strike. Despite the ultimatums and court orders, 225 union members failed to return to work. On 26 March 2016, after the deadline in the final ultimatum expired, the company dismissed the employees without holding disciplinary hearings, though it offered them a right to appeal. Five employees who submitted individual appeals were reinstated. The company incurred losses of approximately R2.9 million during the strike period.

• Whether the employees were dismissed on 25 or 26 March 2016
• Whether the dismissals were procedurally fair given that no disciplinary hearing was held
• Whether the dismissals were substantively fair
• Whether the employees should be awarded compensation for procedurally unfair dismissal
• Whether the offer of an appeal hearing cured the failure to hold a pre-dismissal disciplinary hearing

1. The dismissal of the individual applicants was substantively fair but procedurally unfair. 2. The individual applicants are not entitled to any compensation in respect of their procedurally unfair dismissals. 3. No order is made as to costs.

The binding legal principles established are: (1) An employer cannot dismiss employees for participating in an unprotected strike without holding a disciplinary hearing or at least attempting to do so, unless exceptional circumstances make this genuinely impractical. The mere fact that employees refuse to accept documents or walk away does not constitute such exceptional circumstances. (2) A post-dismissal appeal process does not cure the failure to provide a pre-dismissal hearing where the appeal chairperson is not consensually appointed and must decide an appeal rather than hear the case afresh, and where there was no sound justification for not providing even an attenuated form of audi before dismissal. (3) The audi alteram partem principle requires that employees or their union be given a reasonable opportunity to make representations before dismissal for strike participation - this could be through a collective hearing or written submissions. (4) Even where dismissals are procedurally unfair, compensation may be denied where the requirements of fairness are better met by such denial, considering factors including the seriousness of employees' misconduct, their disregard of court orders, and the overall circumstances. (5) The substantive fairness of strike dismissals must be determined in two stages: first under Item 6 of the Code considering the seriousness of contravention, attempts to comply, and whether the strike responded to unjustified employer conduct; and second under Item 7 considering whether a valid rule was contravened and dismissal was appropriate.

The Court made several non-binding observations: (1) The Court expressed dissatisfaction with the union's opportunistic approach in building its case primarily on a bona fide mistake about the dismissal date. (2) The Court commented negatively on the credibility of the union's witness, Mr Thabane, noting his evasiveness and his untenable position that employees believed the strike was legal despite being informed otherwise and despite two court orders. (3) The Court noted that the union's representative had to distance himself during argument from Thabane's assertion that employees did not believe they were in contempt of court orders. (4) The Court observed that adverse inferences may be drawn when a party fails to call available witnesses who could corroborate their version, particularly where 225 applicants were involved but only one testified. (5) The Court suggested that the company's policy providing that services "shall be terminated" after an ultimatum deadline expires may have influenced the company's decision to proceed with dismissal without a hearing. (6) The Court noted that its decision not to award compensation adequately expressed its dissatisfaction with the union's conduct, making a costs order unnecessary, even though the employer sought one.

This case is significant in South African labour law because it establishes that even where employees engage in serious misconduct by participating in an unprotected strike and ignoring multiple ultimatums and court orders, an employer must still comply with the audi alteram partem principle before dismissal. The case reinforces that procedural fairness requirements cannot be dispensed with simply because employees are uncooperative or refuse to accept documents. However, the case also demonstrates that where dismissals are only procedurally (not substantively) unfair, and the employees' conduct was egregious (including contempt of court orders), a court may exercise its discretion to deny compensation entirely. The judgment balances procedural rights with the seriousness of employees' misconduct, providing guidance on when compensation may appropriately be denied despite procedural unfairness. It clarifies that an appeal process, particularly one with a non-consensual chairperson dealing with an already-made decision, cannot cure the failure to provide a pre-dismissal hearing where no exceptional circumstances justified that failure.