In Association of Mineworkers and Construction Workers Union obo Matebele and Others v Commission for Conciliation, Mediation and Arbitration and Others (JR1895/21) [2025] ZALCJHB 163 ; (2025) 46 ILJ 2143 (LC) (16 May 2025) the Labour Court revisited the thorny issues of consistency in discipline and the jurisdiction of the Commission for Conciliation, Mediation and Arbitration (CCMA) when dismissals occur during unprotected strikes.
The case was brought by the Association of Mineworkers and Construction Workers Union (AMCU) on behalf of four shop stewards dismissed by the employer.
The employer took over excavation services for Wescoal Mining in 2019 after a violent strike.
On 16 October 2020, workers again embarked on unprotected industrial action after the dismissal of a colleague.
A collective agreement in December 2020 allowed employees to return to work, with the dismissed colleague permitted to appeal.
Despite this, in January 2021, the employer dismissed four AMCU representatives. The company alleged serious misconduct, including blocking access to the mine, interfering with security, and forcing a guard to delete video evidence.
At the CCMA, the employees denied wrongdoing and argued they were unfairly singled out because of their union roles.
They further challenged whether the CCMA had jurisdiction, claiming the dismissals stemmed from participation in an unprotected strike – a matter reserved for the Labour Court under section 191(5)(b)(iii) of the Labour Relations Act.
The Commissioner, however, treated the dismissals as based on misconduct, not strike participation, and found the dismissals substantively fair.
He relied in part on “derivative misconduct” – the idea that employees could be guilty for failing to help identify wrongdoers.
On review, the Labour Court held that the CCMA did have jurisdiction.
The employees were dismissed not for striking, but for alleged misconduct during the strike.
However, the LC found that the arbitration award was unreasonable.
Key concerns included:
*The Commissioner’s reliance on derivative misconduct, even though the employer had not relied on that ground;
*Inadequate reasoning in assessing credibility and probabilities; and
*A lack of engagement with the employees’ claim of inconsistency, given that many others involved in the stoppage were not disciplined.
The Court stressed that Commissioners must provide clear reasons that allow parties to follow their thinking, even if they disagree with the outcome.
In this case, the Commissioner’s award lacked the necessary reasoning and fairness.
The Labour Court set aside the CCMA award and referred the matter back for arbitration before a different Commissioner.
No costs order was made, reflecting the Court’s view that both parties had engaged in good faith.
- In this weekly column, labour lawyer Jonathan Goldberg, chair of Global Business Solutions, looks at various aspects of labour law
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