Transport and Allied Workers Union of South Africa obo MW Ngedle and 93 Others v Unitrans Fuel and Chemical (Pty) Limited

Unitrans employed drivers under contracts linked to specific supplier contracts. When the Shell contract expired in February 2009, 31 drivers remained employed but 7 (Shell 7) refused to sign new contracts at reduced wage rates. Unitrans unilaterally reduced their wages. TAWUSA made four demands including restoration of Shell 7 wages (wage cut demand) and elimination of wage discrepancies between drivers (wage parity demand). After conciliation failed, TAWUSA gave strike notice. The Labour Appeal Court (Waglay DJP) ruled workers could strike only for the wage cut and wage discrepancy demands. Workers struck from 28 October 2010. On 1 November 2010, Unitrans issued an ultimatum at 14h05 promising to restore Shell 7 wages as a gesture of goodwill, requiring workers to return by 06h00 on 2 November 2010 or face dismissal. Workers did not return and 94 were dismissed on 2 November 2010.

• Whether the strike was protected throughout its duration
• Whether inclusion of impermissible demands with permissible demands converts a protected strike into an unprotected strike
• Whether Unitrans' promise to meet the wage cut demand ended the protected strike
• Whether workers were entitled to continue striking in support of the wage discrepancy demand
• Whether the dismissals were automatically unfair
• Whether the dismissals were substantively and procedurally fair
• What remedy should be granted

Leave to appeal granted. Appeal upheld. Orders of Labour Appeal Court and Labour Court set aside. The dismissal of the 94 individual applicants on 2 November 2010 was automatically unfair. Unitrans ordered to reinstate each applicant on terms and conditions not less favourable than those applicable when dismissed, with retrospective effect to 2 November 2010. Unitrans to pay applicants' costs in Constitutional Court and Labour Appeal Court.

A protected strike does not become unprotected merely because workers add impermissible demands to permissible demands, provided the permissible demand remains unmet and was clearly set out in the strike notice. An employer's promise to meet a demand "as a gesture of goodwill" without accepting legal liability does not constitute full compliance with the demand and does not end a protected strike. Full compliance requires both restoration of rights and actual payment of amounts owed, not merely a promise to pay in future. Where workers strike in support of multiple demands, the employer must meet all permissible demands to render the strike unprotected. Under the Afrox principle, workers not directly affected by a dispute may strike in solidarity with those directly affected if statutory procedures have been complied with. The right to strike under section 23(2)(c) of the Constitution is conferred without limitation and legislation limiting it must be interpreted in a manner least intrusive of the right. Dismissal for participation in a protected strike is automatically unfair under section 187(1)(a) of the LRA.

Zondo J observed that section 68(5) of the LRA, which permits dismissal for participation in an unprotected strike, makes the right to strike "the only right the exercise of which may lead to punishment despite the fact that it is guaranteed with no limitations by the Bill of Rights." Whether such punishment constitutes a justifiable limitation under section 36 of the Constitution was left open for determination in a future case where the issue is fully addressed. The majority noted that where workers are employed as shift workers, an employer seeking to dismiss for participation in an unprotected strike bears the onus of proving the workers were obliged to work during the alleged unprotected period - failure to prove this means workers cannot be said to have been striking during those hours. Zondo J stated that negotiations during a strike are not regulated by statute and parties may raise whatever issues they wish, but expansion of demands at negotiations does not alter the demands set out in the original strike notice. Jafta J emphasized that dismissal for exercising a constitutional right raises difficult questions about whether such punishment may be authorized by legislation limiting that right.

This case is significant for clarifying when a protected strike may become unprotected. The majority established that: (1) adding impermissible demands to permissible demands does not render the strike unprotected as long as at least one permissible demand remains unmet; (2) the Afrox worker solidarity principle allows all workers to strike in support of a demand affecting only some workers; (3) an employer's promise to meet a demand does not end a protected strike unless the employer fully, unconditionally and unequivocally complies with the demand; (4) a promise made "as a gesture of goodwill" rather than in recognition of legal obligation does not constitute compliance; (5) where a strike involves multiple demands, the employer must meet all permissible demands to end the protected strike; (6) the right to strike under section 23(2)(c) of the Constitution must be interpreted broadly and limitations in the LRA construed narrowly; (7) even if part of a strike becomes unprotected, if the majority of the strike period was protected, dismissal may still be predominantly automatically unfair. The judgment reinforces constitutional protection of the right to strike and limits employers' ability to use technical arguments to characterize strikes as unprotected.