This article provides insight into whether or not an employer can avert employees from joining and participating in the lawful activities of a trade union and unpacks the lessons learnt from AMCU obo Maluleke and Others v Gold Plat Recovery (Pty) Ltd (JS202/21) [2024] ZALCJHB 289 (29 July 2024).

In this case, the Respondent argued that the individual Applicants were dismissed for allegedly intimidating their colleagues into joining the Association of Mineworkers and Construction Union (AMCU). On the other hand, AMCU claimed that the five members were dismissed around 31 August 2016 for simply exercising their rights by joining the union and encouraging others to do the same.

The Labour Relations Act (LRA) grants employees key rights concerning union membership and participation. Section 4(1)(b) of the LRA guarantees all employees the right to join a trade union, subject to that union’s constitution. Additionally, Section 4(3)(a) allows union members to partake in lawful union activities. These provisions make it clear that no employer can lawfully prevent an employee from joining or engaging in union-related activities.

AMCU began recruiting employees at the Respondent’s workplace in 2015. By 2016, the union had garnered enough support to request organisational rights. However, this request was denied by the Commission for Conciliation, Mediation, and Arbitration (CCMA) because AMCU’s membership constituted only 23.3% of the workforce—below the required 30% threshold for such rights. In response, AMCU continued its recruitment efforts to bolster its numbers.

The Respondent’s hostility toward AMCU’s recruitment efforts, particularly by the five individual Applicants, stemmed from concerns over potential disruptions, including fears of a Marikana-style situation. The Respondent also believed that granting the union organisational rights would lead to unmanageable demands.

On 31 August 2016, the individual Applicants were called into the company’s boardroom one by one, accused of intimidating their colleagues, and summarily dismissed without a disciplinary hearing. Notably, the dismissal notices were pre-signed before the meetings even took place, suggesting that the decision to dismiss had been predetermined. This procedure was a clear violation of the LRA’s prescribed dismissal processes.

The Applicant union argued that the dismissals were automatically unfair under Section 187(1)(d) of the LRA. This section stipulates that dismissals are automatically unfair if they are motivated by an employee exercising a right under the LRA, such as joining or campaigning for a union. The union further contended that the Respondent’s actions violated Section 5, which protects employees from discrimination or prejudice based on union membership or participation in union activities.

Upon reviewing the evidence, the court determined that the Respondent’s real motive was to dismiss the employees for their involvement in AMCU’s recruitment efforts. The dismissals were intended to discourage other employees from joining the union, a clear violation of Section 5(1), which prohibits discrimination against employees exercising rights under the LRA. Furthermore, Section 5(2)(c) reinforces that no employee should face prejudice for being a union member.

The court found that the dismissals were directly linked to the individual Applicants’ union activities, rendering them automatically unfair under Sections 5 and 187 of the LRA. Specifically, Section 187(1)(d) states that dismissals motivated by the exercise of LRA rights are automatically unfair.

As a result, the court ordered the Respondent to reinstate the individual Applicants and pay them backpay along with other associated costs.

This case reaffirms that the LRA firmly protects employees’ rights to join and participate in trade union activities. Employers cannot lawfully undermine or penalize employees for exercising these rights. Failure to adhere to these legal provisions can result in severe consequences, as evidenced by the Respondent’s liability for unfair dismissal in this case.

Written by Clydelle Govender, Legal Assistant at Consolidated Employers Organisation (CEO SA)