Nine employees gather outside the gate at lunchtime. They sing. They dance. They carry placards. Six weeks later, all nine are dismissed for an illegal picket. Their defence? They were rehearsing for a colleague’s wedding.
Good day everyone, and welcome to another discussion in our “What if” series, where we bring you insights in the format of a “what if” question on the ever-evolving landscape of employment law. I am
Ross Simon from Maserumule Corporate Employment Law.
In today’s discussion we will be unpacking:
What if rehearsing wedding songs during lunch gets employees dismissed for an illegal picket?
What are the applicable legal considerations, and is that dismissal fair?
How an employer characterises collective conduct in the moment drives everything that follows — the charge, the process, the sanction.
To illustrate, we look at the Labour Court’s decision in
AMCU obo Sebalela Agreement and 9 Others v Fraser Alexander (Pty) Ltd.
The nine employees worked for Fraser Alexander at the Elikhulu Tailings Project in Evander. In the weeks beforehand there was a live dispute about cutting Sunday overtime pay, and on the emails before the Court, management was already planning “strike mitigation”.
Then, on 22 August 2019, during the lunch break, the employees gathered outside the gate. They sang, they danced, they carried placards, for roughly thirty minutes.
The employer’s version was that this was an illegal picket. Management testified that the employees sang “down with Fraser Alexander and up with AMCU”, and that the placards demanded their money back.
The employees’ version was that they were rehearsing songs and dance steps for a colleague’s wedding, held the following month. Their placards, read “my life’s destiny” and “boy to man”.
They were suspended the next day, charged with illegal picketing within the employer’s premises, and dismissed on 3 October 2019.
Before we get to the findings, what does the law require? For conduct to be called a strike, the Labour Relations Act looks for a refusal to work, or a retardation of work, to resolve a grievance or a dispute of mutual interest. And a lunch break is not working time. A picket is different again: it is something a registered union authorises in support of a protected strike, held in a public place, or inside the employer’s premises only by agreement.
So neither label attaches simply because employees are singing. The employer must prove what the gathering really was, and that dismissal was the right answer. That is where the Code of Good Practice: Dismissal comes in: was there a rule, did the employees know it, was it applied consistently, and was dismissal appropriate? And throughout, the onus sits with the employer.
And on the evidence, that onus was not discharged. The CCTV footage was never produced. On the employer’s version, the hard drive was hijacked in transit, and no back-up kept. The driver was never called. No manager thought to record it on a phone. And two eyewitnesses the employer relied on had left the company and were never called.
The consequence? The two facts on which the case turned — what was sung, and what the placards said — were simply never proved.
Now, the Court accepted that placards at a wedding rehearsal may seem unusual. But cases are not decided on the idiosyncrasies of a court, and it cautioned against pouring scorn on the customs and beliefs of individuals in a society as eclectic as ours. Absent contradicting evidence, their version stood.
Production was not disrupted. A pump tripped during the lunch break, and was reset by one of the very employees who had been dancing. The reduction in services came six months later, with no reference to the incident, and the contract only ended in September 2021. No causal link was established.
On procedure, human resources had advised management not to engage the employees. So nobody told them their conduct was regarded as unlawful, and no ultimatum was issued. When their union official telephoned, they stopped, returned to work, and some worked overtime that day.
Applying the Constitutional Court’s guidance in an earlier decided matter, the Court weighed the short duration, the absence of violence or damage, no previous discipline, and the undisputed evidence that these employees had played soccer at the same spot before, without permission or objection. Dismissal is a sanction of last resort.
The result? The dismissals were declared both procedurally and substantively unfair. The employees were reinstated retrospectively, without loss of remuneration or benefits. The counterclaim was dismissed, with no order as to costs.
So, was the dismissal fair? On these facts,
no.
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Suspicion is not proof. Gathering, singing and placards do not automatically amount to industrial action. Purpose and character must be proved objectively.
- Preserve your evidence. Secure footage, photographs, statements and operational records early, and keep a back-up.
- Call your witnesses. An eyewitness who does not testify proves nothing.
- Engage and warn. Advice to steer clear may feel prudent, but here it was fatal to procedural fairness.
- Prove your loss. Operational and contractual prejudice must be evidenced and causally linked, not assumed.
- Reinstatement is the primary remedy. “We no longer operate at that site” will not defeat it where the employer has other operations and willing employees.
That brings us to the end of this week’s discussion. Thank you for joining us. I hope you have found our discussion informative.
If you have any questions or comments, we would love to hear from you. You can find us on social media, or email me at ross@masconsulting.co.za
Until next time, good-bye.
