The Benicon Group v National Union of Metalworkers of South Africa and 185 Others

The appellant, a mining and civil engineering company, dismissed workers who participated in a nationwide political stay-away on 3-4 August 1992 called by the ANC-COSATU-SACP Alliance to protest the collapse of CODESA constitutional negotiations. Earlier, on 16 June 1992 (Soweto Day), Benicon had agreed to a "no work/no pay/no penalty" approach. After workers participated in another stay-away on 23 July 1992, they were initially dismissed but the dismissals were withdrawn after a meeting ("tentberaad") on 28 July 1992. At this meeting, a liaison committee was elected to discuss future stay-away policy. On 31 July 1992, management issued a notice warning of immediate discharge for participation in the upcoming stay-away. When workers participated in the stay-away on 3-4 August 1992, they were again dismissed after disciplinary hearings on 6 August 1992, followed by further failed negotiations on 7 and 10 August 1992. Benicon offered reinstatement only if workers undertook not to participate in future illegal stay-aways, which they refused.

• Whether the dismissal of employees who participated in a political stay-away constituted an unfair labour practice
• Whether reinstatement was an appropriate remedy in the circumstances
• Whether management's conduct in initiating a liaison committee contributed to a breakdown in communication
• Whether it was reasonable for the employer to demand an undertaking from employees not to participate in future illegal stay-aways
• Whether dismissal was justified when employees refused to give such an undertaking
• Whether the Supreme Court of Appeal is bound by factual findings of the Labour Appeal Court

The appeal was dismissed with costs, including costs of two counsel. The applications for condonation (late filing of notice of appeal, late filing of record, and late filing of opposing affidavit) were all granted. The Labour Appeal Court's order reinstating the workers from 20 February 1996 (the date of the Industrial Court determination) was upheld.

The binding principle established by the majority is that when assessing the fairness of dismissals for participation in political stay-aways, courts must consider all relevant circumstances including: (1) the employer's own contribution to any breakdown in communication or confusion about policy; (2) whether the workers perceived their actions as legitimate; (3) whether dismissal was truly for the stay-away itself or for refusing to give undertakings about future conduct; and (4) whether lesser sanctions (such as final written warnings) would have been adequate. Even where workers have breached their employment contracts by participating in illegal industrial action, dismissal may be unfair if the employer has contributed to the situation and has not exhausted lesser disciplinary measures. The inquiry is whether, in fairness to both sides, dismissal was justified in all the circumstances.

The majority judgment assumed without deciding that the Supreme Court of Appeal is entitled to overturn certain factual findings of the Labour Appeal Court, though it found such findings were not decisive in any event. Farlam AJA noted that workers' subjective perception of their entitlement to join the stay-away, while not determinative, constitutes a mitigating factor even if the stay-away was not objectively legitimate. The majority observed that while workers were to a substantial degree responsible for the failure to minimize disruption, they were not solely responsible as the Industrial Court had wrongly found. The minority expressed the view that "the law cannot countenance" an attitude of refusing to undertake not to participate in illegal action, though acknowledged that workers in 1992 found themselves in an "invidious position" given the high degree of solidarity and obedience expected by Alliance membership during that period in South African history. The minority also commented that no court could find unreasonable a demand by an employer that workers undertake not to participate in future illegal stay-aways.

This case is significant in South African labour law for several reasons: (1) It addresses the tension between political protest action and employment obligations during the transitional period leading to democracy; (2) It confirms that dismissal is "the ultimate sanction; a course of last resort" and that lesser disciplinary measures should be considered; (3) It illustrates the application of the fairness test to both employer and employee in unfair labour practice cases; (4) It demonstrates how an employer's own conduct (such as the ill-conceived liaison committee initiative) can affect the fairness assessment of subsequent dismissals; (5) It shows judicial sympathy for workers caught between political loyalty and employment obligations during the 1992 political crisis; and (6) It illustrates the ongoing debate about the extent to which the Supreme Court of Appeal (now SCA) is bound by factual findings of the Labour Appeal Court.