The issue of unconventional strikes and ultimata were recently considered by the Labour Appeal Court in the case of Jackson Mndebele and Others v Xstrata South Africa (Pty) Ltd (case no JA57/12).

As a result of the downturn in the demand for steel following the 2008 global recession, Xstrata closed down all six of its furnaces and ceased all manufacturing activities at its Rustenburg plant for approximately a month between December 2008 and January 2009. The employees were required to take annual leave during this period.

When the employees returned to work in January 2009, management convened a mass meeting with all employees informing them that it would not commence with manufacturing activities but that all employees were obliged to report for work and attend scheduled training sessions until manufacturing activities resumed at the plant.

Certain employees later raised various concerns pertaining to overtime, shift allowances and remuneration. Most issues were resolved and the employee representatives were required to submit a list in respect of the remaining issues. They failed to submit the list.

Subsequently, the employer initiated a wellness campaign which required the attendance of all employees. No work was to be done on the day and two sessions were arranged in order to accommodate all employees and to ensure full attendance. Despite the instruction, a group of employees refused to attend either of the sessions until their pay queries were resolved.

The employees were informed that their conduct constituted an unprotected strike and were warned that their continued failure to attend the sessions would result in disciplinary action. Despite the repeated instruction, the employees failed to attend either of the sessions. The employer held disciplinary enquiries and dismissed the employees for having participated in an unprotected strike.

The employees referred an unfair dismissal dispute to the Labour Court where it was found that the dismissal of the employees for participating in an unprotected strike was fair. The employees were granted leave to appeal but failed to deliver the appeal record within the period and according to the procedures stipulated in the rules of the Labour Appeal Court.

The employees delivered the record three years later, but had to first be granted condonation by the Labour Appeal Court to reinstate the appeal. The Court reiterated that the test for condonation requires that an applicant show good cause as to why their default should be condoned. In doing so, certain factors must be taken into account, including a consideration as to the prospect of success of the applicant’s case.

The Court stated that it is trite that where there is no prospect of success on the merits, other considerations become irrelevant.

The employees submitted that they did not attend the wellness sessions because they were doing recovery work, and that attending the wellness session was not a part of their contractual obligations. They also argued that was no proper ultimatum was issued to them.

The Court rejected their submissions and reasoned that other employees who worked at the production department had attended the sessions. The Court held that there is no requirement in law that each and every duty of an employee be expressly set out in a contract of employment and that the common law implies certain duties, including the duty to obey lawful and reasonable instructions. The employees’ refusal to obey the instruction to attend the wellness session was a breach of their common law obligation.

As to the argument relating to the ultimatum, although it was not issued in the conventional sense, the employer had warned the employees of the consequences of not attending the wellness session and gave them sufficient opportunity to reflect on their conduct and modify it, thus having regard to the purpose of an ultimatum in the Code of Good practice of the Labour Relations Act, No 66 of 1995. The Court concluded that the employees were issued with a valid ultimatum. The dismissals were therefore held to be procedurally and substantively fair.

This judgment confirms that the concerted refusal to obey a reasonable and lawful instruction for the purpose of remedying a grievance falls within the definition of strike and may not simply constitute an act of insubordination.

Written by Samiksha Singh and Zola Mcaciso, Cliffe Dekker Hofmeyr