NUMSA obo Ramothibe & 55 Others v Commission for Conciliation, Mediation and Arbitration & Others

This case concerned the dismissal of 56 employees represented by NUMSA. The employees attended a disciplinary hearing but were excluded when the employer and chairperson decided to proceed at a different location without inviting the employees or their union, and without considering alternatives to proceeding in their absence. The employer sought to rely on doctrines of team liability, derivative misconduct or common purpose to justify the dismissals. The only criteria used for applying these collective liability doctrines was the employees' admitted participation in a strike, despite the absence of any identified employees who actually committed the alleged misconduct. An earlier judgment on 5 August 2024 presumably found the dismissals to be unfair. The applicant (NUMSA on behalf of the employees) then applied for leave to appeal against the whole of that judgment and order.

• Whether leave to appeal should be granted under section 166(1) of the Labour Relations Act and section 17(1) of the Superior Courts Act
• Whether there is a reasonable prospect that another court would come to a different conclusion on the application of collective liability doctrines (team liability, derivative misconduct, common purpose)
• Whether the procedural fairness aspects of the dismissal would be determined differently on appeal
• Whether the substantive fairness of dismissals based solely on strike participation without identification of actual perpetrators would be assessed differently on appeal

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

For leave to appeal to be granted under section 17(1) of the Superior Courts Act, an applicant must demonstrate that the appeal would (not merely might) have a reasonable prospect of success. This requires showing either that there is a reasonable prospect that the factual matrix could receive different treatment or that there is some legitimate dispute on the law. Mere assertions that a judgment is incorrect or that another court 'will come to a different conclusion' are insufficient. Where the law on a particular issue (such as collective liability doctrines in labour law) is settled and there is no legitimate legal dispute, and where there is no reasonable prospect of different factual treatment, leave to appeal must be refused. The stringent threshold serves the statutory imperative of expeditious resolution of labour disputes and ensures scarce judicial resources are not spent on appeals lacking merit.

The court made observations about the importance of not granting leave to appeal lightly in labour matters, citing the Labour Appeal Court's guidance that both the Labour Court and LAC should be cautious when granting leave to appeal or petitions respectively. The court also noted that the need to obtain leave to appeal is a valuable tool in ensuring scarce judicial resources are not spent on appeals that lack merit (citing the SCA in Dexgroup). While not strictly necessary for the decision, the court indicated its view that the main judgment had properly dealt with the collective liability doctrines and that the applicant's reliance on them was misplaced, and that using strike participation as the sole criterion for dismissal in the absence of identified perpetrators was problematic.

This judgment reinforces the stringent threshold for granting leave to appeal in labour matters under the amended test in section 17(1) of the Superior Courts Act. It demonstrates the Labour Court's commitment to ensuring that appeals are limited to meritorious cases where there is a genuine prospect of success, thereby conserving judicial resources and promoting the expeditious resolution of labour disputes as required by the LRA. The judgment also indirectly affirms the principles governing procedural fairness in disciplinary hearings (particularly the requirement to involve employees and their representatives and consider alternatives before proceeding in their absence) and the proper application of collective liability doctrines in strike-related dismissals. It confirms that collective liability cannot be imposed merely on the basis of participation in a strike without proper identification of actual perpetrators and application of the strict requirements of team liability, derivative misconduct or common purpose.