Right to individual defence: Court reinstates 19 workers after unfair strike dismissal

Image source: Freepik

The case, brought by the Southern African Clothing and Textile Workers’ Union, centred on whether the dismissals were substantively and procedurally fair, particularly in light of the legal doctrine of common purpose and the handling of hearsay evidence.

This ruling offers critical insights into how employers must approach disciplinary action during strikes and how arbitrators must apply legal principles with precision and fairness.

Legal implications

Misapplication of common purpose

The central legal issue was the arbitrator’s reliance on the doctrine of common purpose to justify the dismissal of 50 employees, including 40 who denied any involvement in misconduct.

As reaffirmed by the Labour Court, the doctrine requires the following elements:

• presence at the scene of the misconduct;
  
• awareness of the misconduct being committed;
  
• intention to associate with the perpetrators;
  
• conduct that manifests association (eg. aiding, encouraging); and
  
• mens rea (criminal intent).

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The arbitrator failed to apply these elements rigorously. Instead, he relied on inferential reasoning and assumed guilt based on mere participation in a protected strike and failure to “disassociate” from misconduct.

The court found this approach legally untenable, as it blurred the line between lawful strike participation and criminal complicity.

The court emphasised that presence alone or association by union membership does not satisfy the legal threshold for common purpose. This sets a precedent that employers must prove individual culpability, not collective guilt.

Procedural unfairness

• The Labour Court found that the disciplinary process was procedurally unfair for most employees.
  
• Employees were not allowed to present individual defences.
  
• The employer restricted attendance at hearings, despite the union offering a larger venue.
  
• The arbitrator justified this exclusion by referencing Covid-19 realities, which were not raised by the employer and had no evidentiary basis.
  
• Procedural fairness requires that employees be given a meaningful opportunity to respond to allegations. The court held that denying this right invalidated the dismissals, especially where the charges were based on collective misconduct.

Hearsay evidence

The arbitrator provisionally admitted hearsay evidence from both parties but failed to:

• make a timely ruling on admissibility;
  
• apply the full set of factors required under section 3(1)(c) of the Law of Evidence Amendment Act;
  
• clarify the probative value and prejudice associated with the hearsay.

Hearsay may be admitted if:

• it serves the interests of justice;
  
• the source is credible and unavailable for valid reasons (eg. safety concerns);
  
• the evidence is corroborated and not prejudicial.

The court found that while the hearsay evidence was not entirely inadmissible, the arbitrator’s mismanagement of its admission contributed to an unreasonable outcome.

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Inconsistency in discipline

The employer dismissed 50 employees but spared 15 others who participated in the same strike. This raised serious concerns about inconsistent application of discipline, which the arbitrator failed to address.

The parity principle requires that similarly situated employees be treated equally. Disparate treatment must be justified by clear evidence. The court found that the employer’s failure to explain why some employees were spared undermined the fairness of the dismissals.

Key takeaways

For employers

• Apply legal doctrines correctly: The doctrine of common purpose requires specific factual and legal elements. Employers must ensure these are met before relying on it to justify dismissals.
  
• Ensure procedural fairness: All employees must be given a fair opportunity to respond to allegations. Limiting representation or failing to provide adequate venues can render dismissals procedurally unfair.
  
• Avoid blanket charges: Charging employees collectively without individualised evidence risks legal invalidation.
  
• Be consistent: Disciplinary action must be applied consistently. Failure to do so can be interpreted as unfair discrimination.

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For employees and unions

• Challenge unfair dismissals: Employees should not accept dismissals based on vague or collective allegations. Legal recourse is available.
  
• Document participation and absence: Evidence such as medical certificates or witness testimony can be crucial in disproving allegations.
  
• Understand your rights: Participation in a protected strike does not automatically imply guilt for misconduct committed during that strike.

Final thoughts

This judgment is a powerful reminder that fairness in labour relations is not just about following procedure, it is about applying the law with integrity and precision. The court’s decision to reinstate 19 employees with 36 months’ back pay underscores the importance of individual justice, even within collective disputes.

Employers must tread carefully when dealing with strike-related misconduct, ensuring that each case is assessed on its own merits. Arbitrators, too, must be vigilant in applying legal principles correctly and transparently.

In the end, justice prevailed, not through assumption but through evidence.