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‘Opportunistic and far-fetched’: Dismissal of 48 striking Numsa members upheld

The Labour Court has upheld the dismissal of 48 employees who embarked on an unprotected strike and failed to heed disciplinary outcomes and their union instructing them to return to work or face losing their jobs.

The dismissed workers were employed at DB Thermal in Nigel, Ekurhuleni, where their fight to be reinstated dated back to 2013. They were employed as operators and assistant operators producing machinery and parts used at Eskom’s Kusile power station.

The case was heard in the Labour Court ealier this year, brought by their union, the National Union of Metal Workers of SA (Numsa).

Some of the workers who heeded the ultimatum back then returned to work and kept their jobs.

According to Numsa, the workers were aggrieved by production manager Arie Smit’s “unreasonable refusal” to engage. Smit had told them at a meeting that they should return to work while he engaged management on their demands of a wage increase and an incentive bonus, but the go-slow continued.

Smit further told the striking workers that the incentive bonuses and salary increases were regulated by a collective agreement at the Steel and Engineering Industries Federation of South Africa (SEIFSA) at the Metal and Engineering Industries Bargaining Council (MEIBC). He maintained that he had no mandate to discuss those issues.

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Numsa organiser George Ramalatsoala also held a meeting with the aggrieved workers to persuade them to abandon the unprotected go-slow as they faced losing their jobs, but the strike continued.

Feedback from Smit on wages indicated that the employees were paid more than the MEIBC-agreed rates. A bonus incentive was to be implemented in July. The strike started in May.

In the judgment last week, Judge J Prinsloo said the employees were afforded numerous opportunities to return to work.

“The employees were well aware of the fact that they would face dismissal, should they fail to comply with the ultimatum. They persisted with their go-slow, in the face of a threat of dismissal, and when dismissal followed, as they knew it would, they claimed unfairness and inconsistency because others were not disciplined. In my view, this is opportunistic and far-fetched.”

‘Numsa distanced itself from strike’

According to Prinsloo, the employees “stubbornly persisted” with a conduct that they knew would
cost them their jobs.

“It is common cause that the employees participated in a go-slow during which they slowed the production down significantly, whilst they continued to receive their full remuneration. Mr Maseko’s evidence was clear that the employees had no intention to stop the go-slow until their demands were met.

“This was obviously beneficial for the employees, as they would continue to receive their full remuneration, at half the production and a significant loss for the respondent [employer].”

Prinsloo added that while Numsa representatives even tried to stop the go-slow, provisions of the Labour Relations Act were never adhered to by the strikers.

“On 28 May 2012, the go-slow continued unabated with approximately 15 tubes being produced per machine per shift. There was complete recalcitrance on the part of the employees to abandon their unprotected go-slow.

“Numsa officials distanced themselves from the strike action, they pleaded with the employees to stop what they were doing and that they warned the employees that they were putting their jobs at risk. None of this had any effect and the employees were stubbornly persisting with a conduct they knew would
cost them their jobs. Their own union warned them of this grave consequence.”

The judge said the court was satisfied that the firing of the disgruntled workers was the appropriate sanction, and ruled that the employer’s decision was substantively fair.

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