Sasol Mine Limited v Paulos Nhlapo and 941 Others

From 21-23 January 2009, approximately 950 employees of Sasol Mine Limited engaged in an unprotected strike action across 10 underground coal mining shafts near Secunda, Mpumalanga. The strike involved a coordinated sit-in underground over two days. Employees claimed they were owed "bonanza" payments of approximately R9000 each, which the employer denied. The Local Shop Stewards' Council (LSC) was involved in planning the strike. Two unauthorized marches occurred on 19 January 2009, leading to the suspension of LSC members. During the strike, employees refused to communicate with the employer, barred safety patrols, held some workers underground against their will, and caused assaults and damage. The employer issued three ultimata which were ignored. The strike halted production at 10 shafts, compromised mine safety, and caused significant economic harm. The employer obtained a Labour Court interdict on 23 January 2009. Following disciplinary hearings conducted by approximately 20 independent chairpersons, 636 employees were dismissed. The respondents referred an unfair dismissal dispute to the CCMA and then to the Labour Court.

• Whether the employees' conduct constituted a strike as defined in section 213 of the Labour Relations Act
• Whether the employer complied with the procedural requirements in Schedule 8 of the LRA, particularly the obligation to engage with union representatives before dismissal
• Whether the dismissals were substantively fair given the nature of the unprotected strike
• Whether historical inconsistency existed in the application of disciplinary sanctions
• Whether dismissal was an appropriate sanction for participation in the unprotected underground strike

The appeal was upheld. The order of the Labour Court dated 17 September 2019 was set aside and replaced with an order declaring that the dismissal of the respondent employees was procedurally and substantively fair. No costs order was made.

The binding legal principles established are: (1) Strike action as defined in section 213 of the LRA includes not only refusing to work but also remaining on employer premises after shifts in defiance of lawful instructions to leave, where this conduct retards or obstructs work; (2) The employer's obligation under item 6(2) of Schedule 8 to contact union officials before dismissal is satisfied where the employer has made reasonable attempts to engage but union leadership has refused engagement and been complicit in planning the unlawful strike; (3) Historical inconsistency in the application of disciplinary sanctions must be based on evidence of materially similar misconduct being treated differently - distinctions based on the location (underground vs above ground), safety implications, and impact on production are material; (4) Dismissal is an appropriate sanction for participation in an unprotected underground strike in a mine where serious safety risks are created, production is halted, the LRA is seriously contravened, no attempts are made to comply with legal procedures, and the strike is not in response to unjustified employer conduct.

The Court made observations about the procedural impropriety of raising new legal arguments on appeal without filing a cross-appeal, noting that while it permitted the issue to be ventilated in this case given that substantive fairness was already before the Court, the general rule is that a judgment cannot be varied against an appellant in the absence of a cross-appeal. This ensures fairness, prevents litigation by ambush, and allows parties adequate opportunity to respond to issues in dispute. The Court also observed that the LSC had made significant misrepresentations to UPUSA members about bonanza payments and had "steered the entire course of the underground strike as a tactic to bring pressure on the management." The Court noted approvingly that the Labour Court characterized the strikers' conduct as "heedless" and the LSC as "cavalier."

This case is significant for establishing important principles regarding unprotected strikes in South Africa, particularly in the mining sector. It clarifies that strike action can include remaining on employer premises after shifts in defiance of lawful instructions. The judgment emphasizes the serious view courts take of underground strikes in mines given the safety implications. It also provides guidance on the employer's obligation to engage with union representatives before dismissal, holding that this obligation is effectively discharged where union leadership is complicit in planning the unlawful strike and has refused previous engagement attempts. The case reinforces that dismissal can be an appropriate sanction for participation in serious unprotected industrial action, particularly where safety is compromised and there is no justification for the strike. It also clarifies the test for historical inconsistency in disciplinary matters.