How to tell the difference between genuine union activity and insubordination
In the recent case of National Union of Public Service and Allied Workers obo Mani and others v National Lotteries Board (576/12) (2013) ZACSA 63, the Supreme Court of Appeal had to decide if dismissing 10 employees for insubordination was fair when these employees alleged that they were dismissed because they took part in lawful union activities.
In this case:
- In March 2008, three of the union's shop stewards complained about the newly appointed CEO’s leadership style. They wrote to the employer, saying that they were "no longer prepared to bear his style of leadership".
- The letter also stated: "We shall therefore not recognise the person appointed and further not give him or her any kind of cooperation and assistance in whatever way. We will isolate such person and ensure that he or she does not feel welcome until due processes are followed with the union involved." In other words, they refused to follow the CEO until the situation changed. Forty-one of the employees submitted a vote of no confidence in the CEO.
- Following this vote, the employer summoned these employees to a disciplinary enquiry on the following charges:
- Insubordination, and
- Disrespectful behaviour.
Both of these made a continued employment relationship intolerable.
- The chairperson of the disciplinary enquiry found that the employees’ conduct amounted to insubordination and they should be dismissed. The union claimed that the dismissal was automatically unfair as they were dismissed because they participated in legal union activities.
The employees referred the matter to the Labour Court:
- The Labour Court found in the employer’s favour, after which the union referred the matter to the Supreme Court of Appeal (SCA).
- The SCA supported the decision of the chairperson of the disciplinary enquiry and the Labour Court.
